Md. Harun-or-Rashid Vs. Abdur Rashid Howlader, (Soumendra Sarker, J.)

Case No: Civil Revision No. 2644 of 2014

Judge: Soumendra Sarker, J

Court: High Court Division,

Advocate: Mr. Md. Mostafa, Advocate,

Citation: 2018(2) LNJ

Case Year: 2018

Appellant: Md. Harun-or-Rashid

Respondent: Abdur Rashid Howlader and another

Subject: Evidence Act

Delivery Date: 2019-12-02

HIGH COURT DIVISION

(CIVIL REIVSIONAL JURISDICTION)

Soumendra Sarker, J

 

Judgment on

21.03.2018

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Md. Harun-or-Rashid

. . . Pre-emptee-Appellant-Petitioner

-Versus-

Abdur Rashid Howlader and another

. . . Pre-emptor-Respondent-Opposite parties

Evidence Act (I of 1872)

Section 115

State Acquisition and Tenancy Act (XXVIII of 1951)

Section 96

There is no case and evidence from the side of the pre-emptee, save and except that the pre-emptor was tendered to purchase the case land and at his refusal to purchase the same by proper consideration amount, the case land was transferred in favour of the pre-emptee purchaser. But in the principle of estoppel as provided in Section 115 of the Evidence Act, 1872 it has been clearly mentioned that mere statement or intention does not create any estoppels. There is nothing on record and no evidence from the side of the petitioner to hold such a view that the pre-emptor took a leading part in the transaction or assisted the vendor in transferring the land or encouraged the buyer to purchase it.  Thirdly, with regard to the alleged development cost of the pre-emptee-petitioner, I have every reason to inclined such a view that, there is no tangible, credible evidence from the side of the present petitioner that he has incurred any loss and expenditure in developing the case land or in constructing his dwelling hut in the case land as alleged. There is no account paper or corroborative convincing evidence from the side of the present petitioner in support of the said contention as alleged by him, rather; it appears  that there are some contradictory statements within the testimonies of  O. P.W. 1 & O. P.W. 2 with that of the written objection filed by the  purchaser-opposite party No. 01 to the original case. The learned Appellate Court during disposal of the appeal committed no such 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.                . . . (17, 20 and 21)

14 BLD (AD) 20; 54 DLR 500; 21 BLD 360; 18 DLR (SC) 364; 14 BLD (AD) 20; 38 DLR 361; 22 DLR 449 and Md. Dewan Ali Vs. Jasim Uddin and others 13 MLR (AD) 198 ref.

Mr. Md. Mostafa, Advocate

. . . For the petitioner.

Mrs. Suria Begum, 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 12.07.2010 passed by the learned District Judge and Bicharok, Jana Nirapotta Bighnokari Aporadh Daman Tribunal, Barisal in Miscellaneous Appeal No. 11 of 2008 dismissing the appeal and thereby affirming the judgment and order dated 01.08.2008 passed by the learned Assistant Judge, Banaripara, Barisal in Miscellaneous Case No. 01 of 2001 allowing the Pre-emption Case  should not be set-aside and/or pass such other or further order or orders as to this Court may seem fit and proper.

2.             The facts leading to the issuance of the Rule in a nutshell can be stated thus, the present opposite party No. 01 as pre-emptor-petitioner instituted the Original Pre-emption Miscellaneous Case No. 01 of 2001 in the court of the learned Assistant Judge, Banaripara, Barisal under Section 96 of the State Acquisition and Tenancy Act, 1950 contending inter alia that, 51 decimals of land appertaining to S.A.  khatian No. 663 originally belonged to one Modan Mohon, Kunja Lal, Magan Lal, Krishna Kanto and others. The aforesaid owners of the land sold their land in favour of one Abdul Hakim Shorif, Abdul Latif Shorif and  Abdur Rob Shoirf. The said purchasers of the land subsequently sold the same in favour of the petitioner and the opposite parties No. 2 & 3. The opposite party No. 02 is the brother of the petitioner, who sold out 17 decimals of land in favour of opposite party No. 01 by a registered sub-kabala deed dated 24.10.2000 at a consideration of taka 60,000/=. The further case of the petitioner is such that the petitioner is a co-sharer by purchase in the case jote and no notice of transfer under Section 89 of the State Acquisition and Tenancy Act, 1950 was served upon the co-sharers of the case jote prior to sale of the case land. The further case of the pre-emptor-petitioner is such that the purchaser-opposite party No. 01 did not possess the case land and the petitioner for the 1st time came to know about the case kababla on 25.10.2000 from one Abdul Malek Bepari in presence of one Abdur Rob Hawlader. Therafter, the petitioner obtaining the certified copy of the case kabala came to know finally about the transfer deed and filed the original case for pre-emption.

3.             The contrary case of the Purchaser-Pre-emptee-Opposite party No. 01 is such that the pre-emptor-petitioner was fully aware about the transfer since he was the full brother of the vendor-opposite party No. 02. The pre-emptor-petitioner himself arranged the sale and after the sale, the purchaser went into possession of the case land with full knowledge of the pre-emptor and as such the claim of the pre-emptor is barred under the principle of estopple. It was further contended by the pre-emptee-purchaser that the petitioner, on false allegation filed the case.

4.             The learned trial court during trial of the original case after taking evidence from the sides of the respective parties, allowed the pre-emption Miscellaneous Case by his judgment and order dated 01.08.2008.

5.             Being aggrieved the pre-emptee-opposite party No. 01 has preferred a Miscellaneous Appeal being No. 11 of 2008 in the court of learned District Judge, Barisal which was transmitted to the court of  learned Special District Judge and Bicharok, Jana Nirapotta Bighnokari Aporadh Daman Tribunal, Barisal and the learned Appellate  Court hearing the appeal by the impugned judgment and order dated 12.07.2010 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-emptee-appellant-petitioner has preferred this revisional application under Section 115(1) of the Code of Civil Procedure and obtained the rule with an interim order of stay.

7.             During hearing of the Rule Mr. Md. Mostafa, the learned Advocate appeared on behalf of the petitioner, while Mrs. Suria Begum, the learned Advocate appeared on behalf of the opposite party No. 01.

8.             The learned Advocate appearing on behalf of the petitioner, submits that, the learned courts below during disposal of the original case and its subsequent appeal committed gross illegality resulting in an error in the decision occasioning failure of justice.  The learned Advocate further submits that, it was the positive case of the pre-emptee-petitioner that the case is barred by the principle of estopple, waiver and acquiescence. But neither the trial court nor the Appellate Court considered the legal aspect of the case and erroneously decided the merit of the case in favour of the pre-emptor illegally. The learned Advocate also submits that after purchase the purchaser made a development of the case land at a cost of Taka 80,000-90,000/=, but the appellate court did not give any finding as to the development cost of the pre-emptee and thereby committed an error of law resulting in an error in the decision occasioning failure of justice. The learned Advocate in support of his contention referred 14 BLD (AD) 20, 54 DLR 500 and 21 BLD 360.

9.             As against the aforesaid submission of the learned Advocate for the petitioner the learned Advocate appearing on behalf of the opposite party opposing the rule controverted the argument advanced from the side of the petitioner and submits that, neither the trial court nor the Appellate Court during disposal of the original case and its subsequent appeal committed any illegality or irregularity. The learned Advocate further submits that both the courts below concurrently decided that the petitioner has failed to prove by competent credible witness that the petitioner was ever requested to purchase the case land by the opposite party No. 02 and there is no evidence that the pre-emptor-petitioner did any prominent or active role at the time of case kabala in favour of the pre-emptee-opposite party No. 01 and as such the learned courts below committed no wrong or illegality. The learned Advocate also submits that there is no cogent evidence from the side of the pre-emptee that he has made any development work at a cost of taka 80,000-90,000/= and the learned courts below rightly in their observation and findings held that the pre-emptee-purchaser-opposite party No. 01 failed to prove his case and also failed to prove that notice for transfer under Section 89 of the State Acquisition  and Tenancy Act, 1950 was served and it is also not proved that the pre-emptor was ever tendered to purchase the case land prior to transfer. The learned Advocate lastly submits that, there is no illegality or infirmity in the findings and decision of the learned Appellate Court by which it can be held that there has been any wrong 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 of the learned Advocates for the parties to the  case, I have perused the judgment and order passed by the trial court in Pre-emption Miscellaneous Case No. 01 of 2001 and the impugned judgment and order passed in Miscellaneous Appeal No. 11 of 2008 along with the evidence on record with all other relevant papers.

11.         Having gone through the case records it transpires that the pre-emptor to the original case filed the Miscellaneous Case No. 01 of 2001 on 04.01.2001 under Section 96 of the State Acquisition and Tenancy Act, 1950 alleging that the opposite party No. 02 who is a co-sharer of the pre-emptor, transferred the case land in favour of the  stranger opposite party No. 01 behind the back of the pre-emptor on 24.10.2000 and prior to transfer no notice under Section 89 of the State Acquisition and Tenancy Act, 1950 was served upon the co-sharers of the case holding. The pre-emptor on 25.10.2000 came to learn about the transfer from one Abdul Malek Bepari in presence of Abdur Rob Hawlader. Thereafter, on 17.11.2000 getting the certified copy of the case kabala the pre-emptor finally came to know about the transfer and instituted the original case within time. 

12.         Vis-à-vis; the purchaser-opposite party No. 1 after filing a written objection contended that the case of the pre-emptor is false and collusive and the vendor-opposite party No. 02 for his urgent need of money at first  requested his brother, the pre-emptor to purchase the case land measuring 17 decimals, but neither the pre-emptor nor other co-sharers of the case jote agreed to purchase the case land and the pre-emptor informed the vendor-opposite party No. 02 that he is egger to purchase the land only at a consideration of taka 30,000/= which is highly low price of the land.  Thereafter, the vendor-opposite party  at a consideration of taka 60,000/= within the knowledge of pre-emptor and others sold out the case land in favour of the purchaser-opposite party No. 01 and thereby the claim of the pre-emptor is barred by the principle of estopple.

13.         To substantiate the respective case of the pre-emptor he examined one witness and the opposite party No. 1 have examined two witnesses in the original Pre-emption Miscellaneous Case.

14.         P.W.1 is the pre-emptor himself namely Abdur Rashid Hawlader. This witness in his testimony testified that the case land appertaining to mouja  Gava under Banaripara Police Station in S.A. khatian No. 663 and Plot No. 10 originally belonged to one Mohon and others and  subsequently, the original owners of the land transferred their lands in favour of  Abdul Hakim and Others. The purchasers of the land mutated their names and thereafter in the year 1965 they transferred the land in favour of the pre-emptor and others. P.W. 1 further testified that his brothers amicably possess the land with him, but one of his brother, Abdul Mazid behind the back of other brothers, transferred the case land in favour of the stranger opposite party No. 01. In support of the pleading’s case, P. W. 1 made his deposition and categorically testified in his testimony that, no notice of transfer was given to him and he was never tendered to purchase the case land prior to the case kabala and for the 1st time on 25.10.2000 he came to know about the transfer. P.W. 1 identified the kabala deed dated 06.02.1963 marked as Exhibit-01 and other kabala deed dated 22.07.1963. He submitted the certified copy of the kabala deed dated 18.10.1966, 24.10.2000 and all these documents have been marked as Exhibits by the learned trial court. During cross-examination P.W. 01 denied that initially he was tendered by the vendor of the case kabala to purchase the case land and at his refusal the vendor-opposite party No. 02 transferred the land in favour of opposite party No. 01. P.W. 1 further denied that the purchaser-opposite party No. 1 made a development cost in respect of the case land. P.W. 1 also submits the certified copy of the S.A. khatian No. 666 of the concerned mouja Gava which has been marked as Exhibit-04.

15.         On the other hand, the purchaser-opposite party No. 01 Harun-or-Rashid as O.P.W. 1 deposed before the learned trial court and in his deposition testified at a stage that he has purchased the case land at a consideration of taka 60,000/= with the knowledge of the pre-emptor and his vendor-opposite party No. 02 prior to transfer in his favour, requested the co-sharers of the property i.e. the pre-emptor and others to purchase the case land, at which the pre-emptor told that he can purchase the land at a cost of taka 30,000/= only, and thereafter the opposite party No. 02 sold the case land in favour of this O.P.W. 1, by the case kabala. O.P.W.1 further testified in his examination-in-chief that on 24.10.2000 he has purchased the case land and subsequent to that, erected his homestead and also planted some trees after digging earth. During cross-examination O.P.W. 1 in a reply to a question from the side of the       pre-emptor testified that he has incurred a cost of taka 25,000-30,000/= for earth filling and for erecting his house and doors  he has incurred a cost of taka 80,000/90,000/=. O.P.W.2 is one Abdur Rashid Hawlader, S/O Late Mohabbat Ali. This witness in his testimony testified that, prior to transfer by Abdul Majid in favour of Harun-or-Rashid , Abdul Majid told to the pre-emptor and other co-sharers to purchase the land, at which the pre-emptor expressed his refusal to purchase. During cross-examination P.W.2 Abdur Rashid testified at a stage that he can not say, in what date Abdul Majid requested the pre-emptor to purchase the land. P.W.2 also testified that at that time except the sister of Majid, none was present.

16.         On meticulous assessment of the evidences on record I find that, it is the concurrent observation and decisions of both the courts below that the pre-emptor-opposite party is a co-sharer by inheritance in the case jote and from the face of the record the Pre-emption Miscellaneous Case was instituted within time. The only question which was raised from the side of the present-petitioner is such that the case is barred by the principle of estopple, waiver and acquiescence, inasmuch as; the pre-emptor was asked to purchase the case land prior to transfer and at his refusal; the case land was transferred in favour of the purchaser-opposite party No. 01by the vendor-opposite party No. 02. The other point which is raised at this stage is such that neither the trial court nor the appellate court in their observation and findings decided the matter of estopple, which is an apparent illegality on the face of the record since the purchaser-opposite party in his written objection clearly stated that. In his context, on perusal of the judgment and findings of both the courts below I find that the trial court in his observation and findings at the time of disposal of the points for determination number 1 & 5 which are, as to whether the petitioner is a co-sharer in the disputed holding and as to the whether the petitioner is entitled to get an order of pre-emption, opined at a stage that the pre-emptee-opposite party No. 01, who was only the contesting opposite party to the case, failed to prove that notice  under section 89 of the State Acquisition and Tenancy Act, 1950 was issued upon the petitioner and Secondly, failed to prove that the petitioner was told to buy the case land prior to the case kabla. Hence, it is evident from the face of the records that the claim of the present petitioner is baseless.

17.         With regard to the only matter of adjudication i.e. the cardinal  point of this case, it appears from  the case records that in support of the contention of the present petitioner, he has examined only 02 witnesses during trial of the original case. O.P. W. 1 is the purchaser himself and O.P.W. 2 is  Abdur Rashid Hawlader, whose evidence is very much shaky on this very point, as I have spelt out earlier, and as such there is no other independent, disinterested competent  witness from the side of the present-petitioner  to establish that, prior to case kabala the pre-emptor was tendered to purchase the case land by the vendor-opposite party No. 02 and that the pre-emptor did any vital role in the case kabala, such as; he went to the Sub Registry Office or that he made any negotiation or assistance to the scribe of the deed to write the case kabala or purchase the stamps. In this instant case, there is no case and evidence from the side of the pre-emptee, save and except that the pre-emptor was tendered to purchase the case land and at his refusal to purchase the same by proper consideration amount, the case land was transferred in favour of the pre-emptee-purchaser. But in the principle of estopple as provided  in Section 115 of the Evidence Act, 1872 it has been clearly mentioned that mere statement or intention does not create any estoppel.

18.         Only because the pre-emptor was tendered to purchase the land and the pre-emptor refused to purchase by proper value, is not enough to hold that the case of the pre-emptor is barred by the principle of estopple, waiver and acquiescence. If it is found by the conduct and activities of the pre-emptor that he did any pioneer or vital role or act in making the instrument, in that case only; there is a hardle in law from the side of the pre-emptor to institute the case to have an order of pre-emption. When the pre-emptor takes a leading part or vital or pioneer role in bringing about the transaction by assisting the vendor in transferring the land and encouraged the buyers in purchasing it and himself negotiated the price. From the conduct of the pre-emptor if it is found that his conduct is sufficient to give rise that he has done a pioneer role in the transaction, in that case only, the principle of estoppel, waiver and acquiescence as provided under section 115 of the Evidence Act, 1872 will operate against him [Ref. 18 DLR (SC) 364, 14 BLD (AD) 20, 38 DLR 361, 22 DLR 449].

19.         Besides this, our Apex Court has given same decision in the case of Md. Dewan Ali Vs. Jasim Uddin and others,  13 MLR (AD) 198. Hence, in order to held that the case is barred by the principle of estoppel under Section 115 of the Evidence Act, there must be the presence of cogent evidence that there was any prominent or active role of the       pre-emptor in the execution and registration of the deed or in other words the pre-emptor had direct involvement in the negotiation of the transfer.

20.         In this case, there is nothing on record and no evidence from the side of the petitioner to hold such a view that the pre-emptor took a leading part in the transaction or assisted the vendor in transferring the land or encouraged the buyer to purchase it.  Thirdly, with regard to the alleged development cost of the pre-emptee-petitioner, I have every reason to inclined such a view that, there is no tangible, credible evidence from the side of the present petitioner that he has incurred any loss and expenditure in developing the case land or in constructing his dwelling hut in the case land as alleged. There is no account paper or corroborative convincing evidence from the side of the present petitioner in support of the said contention as alleged by him, rather; it appears  that there are some contradictory statements within the testimonies of   O. P.W. 1 & O. P.W. 2 with that of the written objection filed by the  purchaser-opposite party No. 01 to the original case.

21.         Having regard to the facts, circumstances and discussions referred to above, I am constrained to hold such a view that the learned Appellate Court during disposal of the appeal committed no such 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.

22.         In the result; the Rule is discharged without any order as to costs. The impugned  judgment and order dated 12.07.2010 passed by the learned District Judge and Bicharok, Jana Nirapotta Bighnokari Aporadh Daman Tribunal, Barisal in Miscellaneous Appeal No. 11 of 2008 dismissing the appeal and thereby affirming the judgment and order dated 01.08.2008 passed by the learned Assistant Judge, Banaripara, Barisal in Miscellaneous Case No. 01 of 2001 is hereby affirmed.

23.         The order of stay granted earlier at the time of issuance of the Rule stands vacated.

24.         Communicate the judgment and order at once.

25.         Send down the Lower Court’s Records immediately.

Ed.