Md. Azizar Ali Mondol Vs. Chameli Khatun and others, (Soumendra Sarker, J.)

Case No: Civil Revision No. 769 of 2016

Judge: Soumendra Sarker, J

Court: High Court Division,

Advocate: Mr. Md. Ali Reza, Advocate ,

Citation: 2019(2) LNJ

Case Year: 2019

Appellant: Md. Azizar Ali Mondol

Respondent: Chameli Khatun and others

Subject: Code of Civil Procedure

Delivery Date: 2019-12-04

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Soumendra Sarker, J

 

 

Judgment on

13.03.2019

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Md. Azizar Ali Mondol

. . .Purxhaser-Respondent -Petitioner

-Versus-

Chameli Khatun and others

. . . Pre-emptor-Appellant- Opposite parties.

Code of Civil Procedure (V of 1908)

Order VI, Rule 17

Under the ambit of Order VI, rule 17 of the Code of Civil Procedure, when the proposed amendment is against the fundamental character and feature of the earlier written objection, such amendment cannot be allowed. Furthermore, the application for amendment of written objection must be bonafide and it must not contrary to earlier case of the applicant. It is evident in the instant case that there was no question of controversy between the parties on the corresponding khatian during trial of the original case as well as pendency of the appeal. Therefore, obviously; the proposed amendment definitely is not for determining the real question in controversy between the parties. The party concerned only in appropriate case without prejudicing the opponent is allowed to bring amendment of the pleading. There is no scope to entertain the application for amendment of written objection at this stage, which is not under the ambit of the relevant provision of law as incorporated in Order VI, rule 17 of the Code of Civil Procedure.         . . .(19 and 21)

Abul Kalam Azad and another Vs. Sunhar Ali and others 46 DLR (AD) 130; 29 DLR (SC) 311; 9 DLR 217; 26 DLR 205; 41 DLR 190 and  AIR 1953 (Cal) 15 ref.

Mr. Md. Ali Reza, Advocate

. . . For the petitioner

Mr. Syed Md. Reza Uz-Zaman, Advocate

. . . For the Opposite Party No.1.

JUDGMENT

Soumendra Sarker, J.  This Rule issued calling upon the opposite party No.1 to show cause as to why the judgment and order dated 24.02.2016 passed by the learned Additional District Judge, 2nd Court, Jhenidah in Miscellaneous Appeal No.39 of 2013 allowing the appeal and thereby reversing the judgment and order dated 19.09.2013 passed by the learned Senior Assistant Judge, Sadar, Jhenidah in Miscellaneous Case No.21 of 2010 disallowing the pre-emption miscellaneous case should not be set aside and/or pass such other order or further order or orders 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 opposite party No.1 as pre-emptor instituted the original Pre-emption Miscellaneous Case No.21 of 2010 in the Court of learned Senior Assistant Judge, Sadar, Jhenidah under section 96 of the State Acquisition and Tenancy Act, 1950, contending inter alia that the case jote comprising an area of 34 decimals of land originally belonged to one Erad Ali Mondol, who by a sub-kabala deed dated 28.05.1952 transferred the land in favour of one Khorshed Mondol and S.A. record of right has been correctly prepared in the name of Khorshed Mondol. At the demise of Khorshed Mondol his only son Akbor Ali became the owner of the land and after the death of Akbor Ali, the pre-emptor Chameli Khatun and her other brother, sister and mother, the vendor-opposite party No.2 inherited the property. Subsequently, the mother of the pre-emptor Chameli Khatun i.e. the vendor-opposite party No.2 transferred the case land measuring 03(three) decimals of land from the case plot No.250 in favour of the stranger purchaser-opposite party No.1 by the case kabala dated 02.03.2010. No notice of transfer was given to the pre-emptor and the transfer was held behind the back of the pre-emptor. The pre-emptor for the 1st time came to know about the case kabala on 07.03.2010 and thereafter, obtaining the certified copy of the kabala instituted the original pre-emption miscellaneous case.

3.           The contrary case of the purchaser opposite party No.1 Azizar Ali Mondol in short is thus, that the vendor-opposite party No.2 is the second wife of Akbor Ali. Akbor Ali in lieu of dower money of his marriage by a Heba-bil-awaj transferred 04 decimals of land from the case plot and other lands comprising a total area of 24 decimals in favour of Motiron Nessa on 15.04.1984. The further case of the purchaser opposite party No.1 is such that after the death of Akbor Ali, Motiron Nessa inherited 03 decimals of land from the case plot and thereafter, she transferred 04 decimals of land in favour of one Abdur Rashid on 31.07.2001 and Abdur Rashid by another sub-kabala dated 01.11.2001 transferred the land in favour of a Secondary School. By the case kabala dated 02.03.2010 Motiron Nessa transferred the case land within the knowledge of the pre-emptor and there was a baina-nama to that effect on 11.02.2008, wherein the husband and brother of the pre-emptor along with the uncle of the pre-emptor put their signatures, by dint of which Motiron Nessa handed over possession in favour of the purchaser-opposite party No.1. After purchasing the land the purchaser-opposite party after plantation of different trees erected some structures in the case land at a cost, which is more than one lac, but the pre-emptor suppressing the facts on false allegations instituted the original case.

4.           The learned trial court during trial of the original case after examining witnesses from the sides of the respective parties and taking documentary evidences by its judgment and order dated 19.09.2013 disallowed the pre-emption miscellaneous case on contest.

5.           Being aggrieved, the pre-emptor has preferred a Miscellaneous Appeal being No.39 of 2013 in the Court of learned District Judge, Jhenidah, which was transmitted to the 2nd Court of learned Additional District Judge, Jhenidah for hearing and disposal and the learned Additional District Judge on hearing the appeal by the impugned judgment and order dated 24.02.2016 allowed the miscellaneous appeal and set aside the judgment and order passed by the trial Court and allowed the pre-emption miscellaneous case.

6.           Being aggrieved by and dissatisfied with the impugned judgment and order dated 24.02.2016, the pre-emptee-purchaser-opposite party has preferred this civil revision under section 115(1) of the Code of Civil Procedure and obtained the Rule with an interim order of stay and status quo.

7.           During hearing of the Rule Mr. Md. Ali Reza the learned Advocate appeared on behalf of the petitioner while Mr. Syed Md. Reza Uz-Zaman the learned Advocate appeared on behalf of the opposite party No.1.

8.           The learned Advocate appearing on behalf of the petitioner submits that the learned appellate court during disposal of the appeal committed illegality and irregularity. The learned Advocate further submits that the learned appellate court violating the provisions laid down in Order XLI, rule 31 of the Code of Civil Procedure passed by the impugned judgment and order and thereby committed an error of law resulting in an error in the decision occasioning failure of justice. The learned Advocate also submits that the learned appellate court below failed to appreciate that the Heba-bil-awaj dated 15.05.1984 extinguished the co-sharership of the pre-emptor which is Exhibit-‘Gha’. The learned Advocate after filing an application for amendment of written objection submits that, due to the fault of the engaged lawyer in the trial court the written objection, which was earlier filed in not correct as the S.A. khatian No.209 corresponding to R.S. khatian No.462 appertaining to S.A. plot No.250 and R.S. plot No. 228 respectively contains only .04 acres of land. As such, the S.A. khatian No.250, which has been marked as Exhibit-‘2’, is a forged document. Furthermore, the pre-emptor is not a co-sharer in the case holding as well as in the S.A. khatian No.250 since the S.A. khatian No.250 does not contain .34 acres of land and inadvertently the S.A. khatian No.250 was not challenged earlier in the written objection, rather; it has been exhibited after its formal proof as Exhibit-2. The learned Advocate submits that the pre-emptor suppressing the facts filed the case and there has been a fraud from the side of the pre-emptor, which was not agitated earlier and as such under Order VI rule 17 along with section 151 of the Code of Civil Procedure the present petitioner is entitled to amend his written objection.

9.           As against the aforesaid submission of the learned Advocate for the pre-emptee-petitioner, the learned Advocate appearing on behalf of the pre-emptor-opposite party opposing the Rule controverted the argument advanced from the side of the learned counsel for the petitioner and submits that, the learned appellate court at the time of disposal of the appeal committed no illegality or irregularity. The learned Advocate further submits that the learned Additional District Judge, 2nd Court, Jhenidah at the time of disposal of the Miscellaneous Appeal No.39 of 2013 on proper assessment of evidence in its true perspective and evaluation of the documents produced from the sides of the respective parties complied with the provisions laid down in Order XLI rule 31 of the Code of Civil Procedure and thereafter, reversing the findings of the trial court adverting evidence therein, reversed the judgment and order passed by the learned Assistant Judge, Jhenidah Sadar in Pre-emption Miscellaneous Case No.21 of 2010 and allowed the pre-emption miscellaneous case on contest. The learned Advocate also submits that the application for amendment of the written objection, as filed from the side of the petitioner, is not tenable in the eye of law, inasmuch as; it is contradictory as well as total deviation from the original pleading of the purchaser-opposite party No.1, who is the present petitioner in this civil revision. The learned Advocate submits that the case kabala which has been marked as Exhibit-1 stands registered in favour of the opposite party No.1 and the recital of this kabala deed, as well as; the bainanama deed, which has been produced from the side of the present petitioner and marked as Exhibit-‘Ga’ are totally inconsistent with the proposed amendment as sought for from the side of the present petitioner and as such with a malafide intention in a very belated stage the amendment application is filed. The learned Advocate lastly submits that the proposed amendment will introduce a alternative and completely different kind of defence and it will affect the entire merit of the case introducing a new controversy between the parties, which in fact, did not exist earlier before the court, and on this sort of pretext, their lordships in the case of Abul Kalam Azad and another –vs.- Sunhar Ali and others 46 DLR (AD)130 clearly held, such type of amendment cannot be allowed since it does not provide the scope of amendment of written statement under Order VI rule 17 of the Code of Civil Procedure.

10.       In order to appreciate the submission advanced from the sides of the learned counsels for the parties, I have gone through the judgment and order passed by the trial court, the impugned judgment and order passed by the appellate court in Miscellaneous Appeal No.39 of 2013, the evidences led from the sides of the respective parties, the pleadings of the parties and the case records.

11.       Scrutinizing the case records it transpires that the pre-emptor to have the case land preempted instituted the original miscellaneous case under section 96 of the State Acquisition and Tenancy Act, 1950 within the statutory period of limitation and both the courts below concurrently decided this point in favour of the pre-emptor. Besides this; it is decided by the appellate court in the affirmative that the pre-emptor is a co-sharer by inheritance in the case jote and Exhibite-‘2’ which is the corresponding S.A. khatian No.209 go to show that against the case plot No.250, .34 acres of land has been recorded as cited in the pleading of the pre-emptor. Apart from this; on perusal of the case kabala as well as the miscellaneous application under section 96 of the State Acquisition and Tenancy Act, 1950, I find that the case land arise out of S.A. khatian No.209, D.P. khatian No.462 in plot No.250 and corresponding R.S. plot No. 228 which has been supported from the documentary evidences of the contesting opposite party No.1. The basic document of the pre-emptee-purchaser-opposite party, which is the unregistered bainanama is totally consistent with the pleading of the pre-emptor-opposite party and this document after its formal proof has been marked as Exhibit-‘Kha’. From the side of the present petitioner the corresponding S.A. khatian 209 was produced which has been marked as Exhibit-‘Ka’.

12.       In this contest; going through the testimonies of the parties it appears that P.W.1 Chameli Khatun, who is the pre-emptor herself, categorically deposed in corroboration of her pleading’s case. In the cross-examination this witness has specifically denied that in the bainanama her brother, husband and aunt gave their signatures and the P.W.1 also categorically denied the existence of her aunt.

13.       P.W.2 Kamruzzaman is the husband of the pre-emptor, who in his testimony specifically testified that he does not know anything about the bainanama as alleged from the side of the pre-emptee. This witness also testified that the case land was transferred behind their back and he does not know anything about any ‘shalish’ in respect of the case land.

14.       On the contrary, O.P.W.1 Azizar Ali Mondol is the pre-emptee-opposite party. This witness in his testimony categorically testified that against S.A. plot No.250 under S.A. khatian No.209, 04 decimals of land was recorded in the name of Khorshed Ali and at the demise of Khorshed, Akbor Ali became the heir. O.P.W.1 further testified that 03 (three) decimals of land of the case plot has been recorded in D.P. khatian No.462 in the name of Motiron Nessa. O.P.W.1 also testified that the vendor-opposite party No.2 Motiron for want of money transferred the case land in his favour. During cross-examination in a reply to a question, O.P.W.1 testified that he does not know the S.A. khatian number, but he knows that, Khorshed was the owner in the S.A. khatian and after the death of Khorshed, Akbor acquired the land and the pre-emptor Chameli Khatun happens to be the daughter of Akbor.

15.       O.P.W.2 Hossain Ali in his testimony during his examination-in-chief tried to corroborate the pleading’s case of the pre-emptee and this witness testified at a stage that the mother of the pre-emptor at first went before the pre-emptor with a proposal to sale the case land. During cross-examination O.P.W.2 testified at a stage that at the time of registration of the case kabala he was present in the sub-registry office.

16.       O.P.W.3 Bablu Mondol is the opposite party No.3 and he is the brother of the pre-emptor. This witness in his testimony testifies that Motiron is his mother and the case land belonged to his grandfather, from whom his mother Motiron obtained the case land and the corresponding R.S. and D.P. khatian was recorded in his mother’s name.

17.       O.P.W.4 is an Advocate Commissioner namely Suvash Biswas Milon. This witness testified in support of his report dated 04.07.2010 and in cross-examination he has denied that, without proper inspection he submitted his report. The report of the Advocate Commissioner has been marked as Exhibit-I.

18.       On meticulous consideration of the above mentioned local inspection report it transpires that the Advocate Commissioner in his report with regard to alleged new hut, mentioned that in the case land measuring 03(three) decimals, there lies a frame only of a hut and in that frame there is no shed.

19.       Consulting the relevant documentary evidences as well as the oral evidences adduced from the sides of the respective parties, I have come across that, it is the specific contention of the pre-emptor that she is a co-sharer by inheritance and the total property comprising an area of 34 decimals arise out of S.A. khatian No.209 and in the case plot No.250 the area of land is 34 decimals. Vis-à-vis, the contrary case of the pre-emptee-petitioner is such that this portion of land was transferred by way of a Heba-bil-awaj in favour of the vendor-opposite party No.2 Motiron Nessa and in the said plot inasmuch as; there is no remaining area of land, the pre-emptor is ceased from co-sharership. In this context; having gone through the relevant S.A. khatian No.209 it is noticed that the quantum of land of the case plot No.250 is 34 decimals and the same was correctly observed by the appellate court in the impugned judgment and order. Hence; there cannot be any earthly reason to hold such a view that the pre-emptor is ceased from co-sharership in the case khatian. In the application for amendment of written objection the recital of S.A. khatian No. 209 has been challenged, which is self-contradictory and beyond the pleading of the pre-emptee and the documents produced by him. It further appears that the proposed amendment as alleged form the side of the present petitioner in the application for amendment of written objection, is no doubt a shifting of the earlier case of the pre-emptee-petitioner, upon which the evidences were led. Under the ambit of Order VI, rule 17 of the Code of Civil Procedure when the proposed amendment is against the fundamental character and feature of the earlier written objection, such amendment cannot be allowed. Furthermore, the application for amendment of written objection must be bonafide and it must not contrary to earlier case of the applicant. It is evident in the instant case that there was no question of controversy between the parties on the corresponding khatian during trial of the original case as well as pendency of the appeal. Therefore, obviously; the proposed amendment definitely is not for determining the real question in controversy between the parties. The party concerned only in appropriate case without prejudicing the opponent is allowed to bring amendment of the pleading. In this context; the case law referred to from the side of the opposite party i.e. 46 DLR(AD)130 has got every nexus in the instant case.

20.       Amendment of written statement:

        Order VI, rule 17 of the Code of Civil Procedure (Act No.V of 1908) provide amendment of pleadings, but it is to be remembered that, amendment of a plaint and amendment of a written statement are not governed by exactly the same principle. The defendant would not be allowed to introduce an alternative and completely different kind of defence which will have the effect of introducing a new controversy between the parties. [Ref. 46 DLR (AD) 130; 29 DLR (SC)311; 9 DLR 217; 26 DLR 205; 41 DLR 190 and AIR 1953 (Cal)15].

21.       Relying upon the said decisions, I am constrained to hold such a view that there is no scope to entertain the application for amendment of written objection at this stage, which is not under the ambit of the relevant provisions of law as incorporated in Order VI, rule 17 of the Code of Civil Procedure.

22.       Having gone through the impugned judgment and order, in consultation with the relevant evidences on records, I find no illegality or infirmity and I also do not find any 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.

23.       In the forgoing narrative, this Rule has got no merit to succeed.

24.       In the result, the Rule is discharged. The impugned judgment and order dated 24.02.2016 passed by the learned Additional District Judge, 2nd Court, Jhenidah in Miscellaneous Appeal No.39 of 2013 allowing the appeal and thereby reversing the judgment and order dated 19.09.2013 passed by the learned Senior Assistant Judge, Sadar, Jhenaidah in Miscellaneous Case No.21 of 2010 is hereby affirmed.

25.       Let the order of stay and status quo granted earlier at the time of issuance of the Rule stands vacated

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

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

         Ed.



Civil Revision No. 769 of 2016