Md. Abdus Samad Vs. Md. Samsher Ali and others, (Soumendra Sarker, J.)

Case No: Civil Revision No. 2900 of 2014

Judge: Soumendra Sarker, J

Court: High Court Division,

Advocate: Mr. Md. Khalilur Rahman, Advocate ,

Citation: 2019(2) LN

Case Year: 2018

Appellant: Md. Abdus Samad

Respondent: Md. Samsher Ali and others

Subject: State Acquisition and Tenancy Act

Delivery Date: 2019-12-04

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Soumendra Sarker, J

 

 

Judgment on

06.12.2018

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Md. Abdus Samad

. . .Pre-emptor--Appellant-Petitioner

-Versus-

Md. Samsher Ali and others

. . .Pre-emptee-Plaintiff-Respondent-Opposite parties.

State Acquisition and Tenancy Act (XXVIII of 1951)

Section 96

Evidence Act (I of 1872)

Sections 101 and 103

It is a decided matter in our judicature that in case of a colourable transaction, the onus of proof is entirely lies upon the party, who assert that the transfer is a sub-kabala in disguise of a deed of exchange under section 101 and 103 of the Evidence Act [I of 1872]. Apart from this, the contents of the deed will get priority until and unless it is rebutted by sufficient convincing credible evidence, with that of the oral evidence adduced from the sides of the parties. It is the incumbent duty upon the pre-emptor-petitioner to prove by sufficient tangible, credible evidence that the deed-in-question is out and out a sale deed, in disguise of a deed of exchange.        . . .(18)

State Acquisition and Tenancy Act (XXXVIII of 1951)

Section 96

The deed-in-question is purely a deed of exchange, not a sub-kabala and as such it is not pre-emptable under the ambit of section 96 of the State Acquisition and Tenancy Act, 1951.   . . .(19)

Mr. Md. Khalilur Rahman, Advocate

. . . For the petitioner

Mr. M.G. Mahmud (Shahin), Advocate

. . . For the Opposite Parties.

JUDGMENT

Soumendra Sarker, J:  The Rule issued calling upon the opposite party No.1 to show cause as to why the impugned judgment and order dated 11.02.2004 passed by the learned Additional District Judge, 3rd Court, Rangpur in Miscellaneous Appeal No.24 of 2002 disallowing the appeal and thereby affirming the judgment and order dated 10.02.2002 passed by the learned Assistant Judge, Kawnia, Rangpur in Miscellaneous Case No.12 of 2001 disallowing the case, should not be set aside and/or such other order or further order or orders passed as to this court may seem fit and proper.

2.           The facts giving rise to the issuance of the Rule in a nutshell can be stated thus, the present petitioner as pre-emptor instituted the original Pre-emption Miscellaneous Case No.12 of 2001 in the Court of learned Assistant Judge, Kawnia, Rangpur under section 96 of the State Acquisition and Tenancy Act, 1950 against the pre-emptee-opposite party No.1 and others contending inter alia that the case jote appertaining to Mouza-Raghunathpur under Kawnia police station of District-Rangpur corresponding to S.A. khatian No.34 originally belonged to one Chhutku Mahmud. The S.A. recorded tenant Chhutku Mahmud had been owning and possessing 1.65 acres of land including the case land measuring 0.30 acres. Subsequently, he transferred the total 1.65 acres of land in favour of one Afuruddin. Afuruddin died leaving behind one wife Shahijan Nessa and 04(four) sons namely Abdus Samad, Abdur Hamid, Abdus Salam and Abul Hossain and two daughters namely Afiton Nessa and Rashida Khatun. Thereafter, Abdul Hamid transferred .29 acres of land to his brother Md. Abdus Samad by a registered sale deed No.2863 dated 04.05.1987 and on the same date Shahijan Nessa transferred 0.20½ acres of land by a registered ‘heba-bil-awaj’ deed No.2864 to Abdus Samad and Abdul Hamid. The opposite party No. 2 and 4-7 transferred their respective land in favour of Abdus Samad by different deeds and in this way Abdus Samad become a co-sharer in the case Khatian No.34. The further case of the pre-emptor-petitioner Abdus Samad is such that the opposite party No.2 Abdul Hamid transferred the case land measuring 0.30 acres of land by a registered deed No.3021 on 20.06.2000 in favour of the opposite party No.1 Md. Shamser Ali, a stranger to the case jote, and no notice of transfer was served upon the pre-emptor-petitioner Abdus Samad and to deprive the pre-emptor-petitioner’s right to pre-emption, the transfer deed was written in the name and style of an “Exchange Deed,” but in fact, the said deed is a sub-kabala deed in favour of stranger opposite party No.1. The pre-emptor-petitioner knowing about the case transfer finally on 14.08.2001 after getting certified copy of the deed, filed the original pre-emption miscellaneous case for getting the case land pre-empted.

3.           The contrary case of the purchaser opposite party No.1 in short is thus that the transfer deed is out and out a ‘deed of exchange’ and it is not at all a sub-kabala in favour of the pre-emptee-purchaser-opposite party No.1, and that the case land measuring 0.30 acres described in the schedule ‘Ka’ of the pre-emption miscellaneous petition was exchanged by the opposite party No.2 and the opposite party No.1 in exchange of the land of ‘Ka’ schedule, transferred ‘kha’ schedule land measuring .25 acres by a transfer deed dated 27.06.2000 in favour of opposite party No.2, but the pre-emptor-petitioner out of ill-motive to grab the case land on false allegation instituted the original miscellaneous case, which is liable to be disallowed.

4.           The learned trial court during trial of the original case after taking evidences from the sides of the respective parties by its judgment and order dated 10.02.2002 disallowed the pre-emption miscellaneous case.

5.           Being aggrieved, the pre-emptor-petitioner filed a Miscellaneous Appeal being No.24 of 2002 in the Court of learned District Judge, Rangpur which was transmitted to the 3rd Court of learned Additional District Judge, Rangpur for hearing and disposal and the learned Additional District Judge by the impugned judgment and order dated 11.02.2004 disallowed the miscellaneous appeal affirming the judgment and order passed by the trial Court.

6.           Being aggrieved by and dissatisfied with the impugned judgment and order, the pre-emptor-appellant-petitioner has preferred this civil revision under section 115(1) of the Code of Civil Procedure and obtained the Rule.

7.           During hearing of the Rule, Mr. Md. Khalilur Rahman, the learned Advocate appeared on behalf of the petitioner while Mr. M.G. Mahmud (Shahin), the learned Advocate appeared on behalf of the opposite parties.

8.           The learned Advocate appearing on behalf of the petitioner submits that both the courts below in their observation and findings committed error in the decision occasioning failure of justice in holding the view that the transfer deed is a deed of exchange which is not pre-emptable under the law of pre-emption. The learned Advocate further submits that the learned trial court as well as the appellant court during disposal of the original pre-emption miscellaneous case and its subsequent appeal failed to assess the evidence on records in its true perspective and also failed to appreciate that the transfer deed is a colourable transaction, which is out and out a sale deed in disguise of a deed of exchange. The learned Advocate lastly submits that the courts below on the basis of surmise and conjecture passed the judgment and order which is liable to be set aside.

9.           As against the aforesaid submission of the learned Advocate for the petitioner, the learned Advocate appearing on behalf of the opposite parties opposing the Rule controverted the argument advanced from the side of the learned counsel for the petitioner and submits that, neither the trial court nor the Appellate Court during disposal of the original pre-emption miscellaneous case and its subsequent appeal committed any illegality or irregularity. The learned Advocate further submits that the case deed being a deed of exchange, is not pre-emptable under section 96 of the State Acquisition and Tenancy Act, 1950 and the courts below rightly appraising the evidence on records in its true perspective, decided the merit of the original case and its subsequent appeal against the pre-emptor-petitioner and in favour of the pre-emptee-opposite party and there is no illegality or infirmity in the impugned judgment and order. The learned Advocate lastly submits that the case deed dated 27.06.2000 is out and out an exchange deed and it is not a colourable transaction in disguise of a deed of exchange, as alleged from the side of the pre-emptor-petitioner and thereby after proper assessment of evidence on records, the learned appellate court disallowed the appeal affirming the judgment and order passed by the trial court and there is no misreading or non-reading of evidence or non-consideration of material facts resulting in an error in the decision occasioning failure of justice, by which the impugned judgment and order can be interfered with.

10.       In order to appreciate the submission advanced from the sides  of the learned counsels for the parties, having gone through the impugned judgment and order dated 11.02.2004 and the judgment and order passed by the trial court dated 10.02.2002 in Pre-emption Miscellaneous Case No.12 of 2001 and the evidence led from the sides of the respective parties, both oral and documentary, it transpires that, admittedly the pre-emptor-petitioner is a co-sharer in the case jote and it appears from the pleadings of the parties that, the pre-emptee-opposite party No.1 in his written objection clearly asserted that he did not purchase the case land measuring 0.30 acres of land by way of a sale deed and for the case land, there has been a ‘deed of exchange’. The opposite party No.2 by a registered deed of exchange dated 27.06.2000 transferred 0.30 acres of land described in schedule ‘Ka’ in favour of the opposite party No.1 and in exchange of this land, the opposite party No.1 transferred 0.25 acres of land described in schedule ‘Kha’ of the pre-emption miscellaneous petition, in favour of the opposite party No.2. The two deeds have been produced from the side of the pre-emptor-petitioner and have been marked as Exhibit-2 and 3 respectively.

11.       Scrutinizing the above mentioned two deeds, it is evident to note that the case deed as it appears in its face is a ‘deed of exchange’ not sub-kabala and it is the positive contention in the pleadings of the opposite party No.1 and 2 that the case land was not sold in favour of the opposite party No.1 by the opposite party No.2, rather; it was exchanged pursuant to deed No.3021/2000 and 3398/2001.

12.       Both the parties to the case to substantiate their respective pleading’s case have adduced witnesses.

13.       P.W.1 is the pre-emptor-petitioner Md. Abdus Samad. This witness in his testimony testified in his examination-in-chief that, 0.30 acres of land has been transferred by the opposite party No.2 in favour of opposite party No.1 on 13th instant of 2000 A.D. Subsequently, the pre-emptor as P.W.1 testifies that on 13th Ashar, 1407 B.S. the transfer was held. During cross-examination P.W.1 testified at a stage that the case land is 0.30 acres and the consideration amount was shown in the deed as Tk.3000/- (three thousand) only. In a reply to a question from the side of the opposite party, P.W.1 testified that in the concerned area, the price of land is Tk.300/-(three hundred) per decimal. P.W.1 denied that inasmuch as, it was a deed of exchange, the value shown against the deed is not the actual value.

14.       P.W.2 Abul Kalam Azad in his testimony testified that he knows the parties and the case land was transferred by Abdul Hamid in favour of Shamsher Ali. During cross-examination P.W.2 testified at a stage that, he is the paternal brother of the pre-emptor-petitioner and he was not present at the time of registration of the deed and he is also not a witness to the deed.

15.       Vis-à-vis; O.P.W.1 Shamsher Ali in his testimony testified that he has exchanged some land with the opposite party No.2 and the case deed is a deed of exchange not a sub-kabala. O.P.W.1 denied that to frustrate the right of pre-emption, they have created the transfer deed as a deed of exchange. During cross-examination from the side of the pre-emptor, O.P.W.1 testified at a stage that in their locality the actual price of the land is Tk.1,000/-(one thousand) per decimal. O.P.W.2 Abdul Hamid testified before the court that he is the opposite party No.2 and full brother of the pre-emptor-petitioner. O.P.W.2 further testified that he has exchanged the case land with Shamsher Ali and the deed was executed and registered as a deed of exchange.

16.       O.P.W.3 Md. Nafar Uddin testified that he knows the parties and the case land and the case land described in schedule ‘Ka’ has been exchanged with the land described in schedule ‘Kha’ and the exchange was done between Abdul Hamid and Shamsher Ali. O.P.W.3 further testified that on the date of registration of the deed, he went to the Sub-registry office. During cross-examination O.P.W.3 further testified that on the date of registration, Shamsher Ali called him to accompany.

17.       Analyzing the case records and the evidences from the sides of the respective parties, I have the reason to draw such inference that practically in the concerned locality, the actual price of the land as cited by the pre-emptor in his testimony, was Tk.1,000/-(one thousand) per decimal at the relevant time, but it appears from the deed-in-question that 30 decimals of land was transferred in lieu of Tk.3,000/-(three thousand) only. The courts below in their observation and findings concurrently held that inasmuch as, it was not a sale deed, for exchanging the land between O.P.W.1 and O.P.W.2, the value of the land was shown inadequate which is a strong circumstantial evidence in this case. Besides this, having gone through the testimonies of the witnesses it is evident to note that P.W.1 and P.W.2 in their examination-in-chief, despite tried to corroborate the pleadings case of the pre-emptor-petitioner, but both of them have been discredited in their cross-examination and on the other hand, O.P.Ws.1-3 corroborated one-another in respect of the pleading’s case of the opposite party. Except some minor discrepancies no such material contradiction or omission is noticed, by dint of which these witnesses can be disbelieved.

18.       Under the ambit of section 96 of the State Acquisition and Tenancy Act, 1950 [XXVIII of 1951] it is a decided matter in our judicature that in case of a colourable transaction, the onus of proof is entirely lies upon the party, who assert that the transfer is a sub-kabala in disguise of a deed of exchange under section 101 and 103 of the Evidence Act [I of 1872]. Apart from this, the contents of the deed will get priority until and unless it is rebutted by sufficient convincing credible evidence, with that of the oral evidence adduced from the sides of the parties. It is the incumbent duty upon the pre-emptor-petitioner to prove by sufficient tangible, credible evidence that the deed-in-question is out and out a sale deed, in disguise of a deed of exchange.

19.       In the instant case, I have come across from the evidence on records that the pre-emptor-petitioner has failed to discharge his onus of proof and the courts below concurrently in their observation and findings on the basis of evidences on records, rightly held that the deed-in-question is purely a deed of exchange, not a sub-kabala and as such it is not pre-emptable under the ambit of section 96 of the State Acquisition and Tenancy Act, 1950.

20.       Having regard to the facts, circumstances and the discussions referred to above, I am constrained to hold such a view that in the impugned judgment and order there is no illegality or infirmity or misreading or non-reading of evidence or non-consideration of material facts resulting in an error in the decision occasioning failure of justice, by which it can be interfered with.

21.       In the result, the Rule is discharged. The impugned judgment and order dated 11.02.2004 passed by the learned Additional District Judge, 3rd Court, Rangpur in Miscellaneous Appeal No.24 of 2002 disallowing the appeal and thereby affirming the judgment and order dated 10.02.2002 passed by the learned Assistant Judge, Kawnia, Rangpur in Miscellaneous Case No.12 of 2001 is hereby affirmed.

22.       However, there will be no order as to costs.

23.       Communicate the judgment and order at once and send back to the Lower Court’s Records immediately.

Ed.