Md. Mafijuddin Mizi Vs. Md. Abdul Khaleque Mizi and others 2017 (1) LNJ 375

Case No: Civil Revision No. 53 of 2004

Judge: Soumendra Sarker. J.

Court: High Court Division,

Advocate: Mr. Md. Zakir Hossain,

Citation: 2017 (1) LNJ 375

Case Year: 2016

Appellant: Md. Mafijuddin Mizi

Respondent: Md. Abdul Khaleque Mizi and others

Subject: Mohammedan Law

Delivery Date: 2017-06-22

HIGH COURT DIVISION

(CIVIL REVISIONAL  JURISDICTION)

 

Soumendra Sarker, J

 

Judgment on

08.03.2017

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Md. Mafijuddin Mizi

. . . Defendant-Appellant-Petitioner

-Versus-

Md. Abdul Khaleque Mizi and others

...Plaintiff-Pre-emptor-respondent-Opposite parties

Pre-emption under Mohammedan Law—Mandatory formalities namely, Talab-E-Muashabad” and “Talab-E-Ishad”—Not proved by the Pws. rather, contradicted one another-both the Courts below ignored that the plaintiff waived the right of pre-emption as he was offered to purchase the land under pre-emption—there is apparent misreading and non-reading of evidence and non-consideration of material facts.

The witnesses adduced from the side of the plaintiff in support of his contention over the mandatory formalities “Talab-E-Ishad” and “Talab-E-Muashabad” there exists series of contradictions and omissions which cannot be ignored specially in the instant nature of suit for “Hoq Shufa” guided under Muhammaden Law. Scrutinizing   the material evidence or records it is obvious to note that in this case on material facts of “Talab-E-Muashabad” and “Talab-E-Ishad” the P.W.s have contradicted one another and the time of compliance of the formalities especially with regard to the manner of the necessary formalities P.Ws.1, 2 and 3 are not corroborative-in-nature; rather they have contradicted each other. Apart from this; it is noticed clearly that the positive assertion which was asserted from the side of the defendant-appellant-petitioner from the very beginning including in their pleadings that, before the transfer in favour of the defendant No.1 the sister of the plaintiff defendant No.2 went before the plaintiff and requested him to purchase the case land but the plaintiff expressed his refusal and disclosed before her that he will not purchase the land and the plaintiff told the defendant No.1 to purchase the case land from the defendant No.2. This very vital aspect has also been ignored totally by both the courts below during deciding the merit of the suit. It is a fact; that the vendor of the deed (D.W.2) is  not challenged or there is no denial from the side of the plaintiff with regard to this that the defendant No.2 requested her brother the plaintiff after going to his residence to purchase the case land prior to dispose of the same in favour of the defendant No.1. Similarly, there is no denial even from the side of the plaintiff in respect of D.W.3 Ayub Ali that it is not a fact that on 11.04.1995 the wife of the defendant No.1 claimed possession from the plaintiff or that the plaintiff observed the formality “Talab-E-Muashabad” at that time, which tantamounts to admission of the plaintiff and thereby the contention of the defendant-petitioner has been proved by competent and cogent sufficient evidence then that of the plaintiff-opposite party.                         . . .(22)

During disposal of the original suit as well as the subsequent appeal both the courts below committed gross illegality and there has been apparent misreading and non-reading of evidence and non-consideration of material facts resulting in an error in the decision occasioning failure of justice. Besides this; the proposition of law as incorporated under Muhammaden Law has been ignored in its total approach and true perspective.            . . .(23)

Mr. Md. Zakir Hossain, Advocate

---- For the petitioner.

No one appears

… For the opposite parties

JUDGMENT

Soumendra Sarker, J. The Rule  was issued calling upon the opposite party No. 1 to show cause as to why the impugned judgment and decree dated 28.05.2003 passed by the learned Joint District Judge, 2nd court, Chandpur in Title Appeal No. 125 of 2001 dismissing the appeal affirming the judgment and decree dated 08.07.1999 passed by the learned Assistant Judge, Faridganj, Chandpur in Title Suit No.41 of 1995 decreeing the suit should not be set-aside and/or such other or further order or orders passed 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 plaintiff-respondent-opposite party No.1 as plaintiff instituted a Title Suit being No.41 of 1995 to have an order of pre-emption under Muhammaden Law in the Court of learned Assistant Judge, Faridganj, Chandpur contending inter alia that the Land of C.S. Khatian No.8 had been owned and possessed by the father of the plaintiff and the defendant No.2 Abdul Kader. At the demise of Abdul Kader his three sons including the father of the plaintiff inherited the property left behind him. By amicable partition the disputed land developed upon the father of the plaintiff. The plaintiff Abdul Khalek and Abdur Rashid were the two brothers and their sisters was one Nurer Nessa. The wife of Abdur Rashid inherited the land of her husband and thereafter transferred in favour of the plaintiff and her mother-in-law Kulsuma Bibi. Nurer Nessa Bibi transferred her share in favour of the defendant No.2. The mother of the plaintiff Kulsuma Bibi transferred her entire land in favour of the defendant No.2 by way of Heba and thus plaintiff is a co-sharer by inheritance in the case holding and also co-sharer ,by purchase and that the defendant No.1 is a stranger to the jote. The defendant No.1 collusively purchased the case land from the defendant No.2 behind the back of the plaintiff by the case kabala being No.2211 dated 08.03.1995. On 11.04.1995 the defendant No.1 for the first time claimed the case land disclosing that he has purchased the land from the defendant No.2 at which the plaintiff became surprised and expressed his “Talab-E-Muashabad” to purchase the case land. The plaintiff asked the wife of the defendant No.1 to produce the deed but the wife of the defendant No.1 told him that she will produce the same at the relevant time. Thereafter, the plaintiff after searching obtained the certificate copy of the disputed deed on 13.04.1995 from Faridganj Sub-registry office and on the same day in presence of local people namely Ashrof Ali, Abdur Rob Mizi and Shafiullah observed the formalities of “Talab-E-Muashabad.” Subsequently, on 30th Chaitra, 1401 B.S. corresponding to 13.04.1995 the plaintiff requested the defendant to accept the kabala consideration money and observing “Talab-E-Ishad” claimed to purchase the case land but the defendants denied which constrained the plaintiff to institute the original suit under the Muhammaden Law.

3.            The contrary case of the defendants in short is thus that the defendant No.2 after transferring the case land handed over possession in favour of the purchaser-defendant No.1 within knowledge and without objection of the plaintiff  and others and after getting possession in the land-in-dispute the purchaser-defendant No.1 use to possess the land. The further case of the defendant-petitioner is such that the vendor defendant No.2 prior to sale in favour of the defendant No.1 declared to dispose of the land and  requested the plaintiff to purchase the same. But the plaintiff disclosing his inability due to his economic crises advised the defendant No.1 to purchase the case land. Furthermore; the plaintiff negotiated the entire transfer transaction including the valuation of the property. Subsequently, the plaintiff out of ill-motive to grab the property only to harass the purchaser-defendant No.1 on the basis of false allegation filed the original suit for getting the case land pre-empted without observing in fact the mandatory formalities “Talab-E-Muashabad” and its subsequent  “Talab –E-Ishad” in presence of witnesses and as such the suit of the plaintiff is liable to be dismissed.

4.            The learned trial court during trial of the original suit after examining three witnesses from the side of the plaintiff and three witnesses from the side of the defendants decreed the suit on contest by his judgment and decree dated 08.07.1999.

5.            Being aggrieved the defendant No.1 preferred an appeal being Title Appeal No.125 of 2001 in the Court of learned District Judge, Chandpur which was transmitted to the 2nd Court of learned Joint District Judge, Chandpur for hearing and disposal and the learned appellate court hearing the appeal disallowed the same affirming the judgment and decree passed by the trial court by the impugned judgment and decree dated 28.05.2003.

6.            Being aggrieved by and dissatisfied with the impugned judgment and decree the defendant-appellant-petitioner have preferred this revisional application under section 115(1) of the Code of Civil Procedure and obtained the Rule with an interim order of status quo.

7.            During hearing of this civil revision Mr. Md. Zakir Hossain, the learned Advocate appeared on behalf of the defendant-appellant-petitioner while none appeared on behalf of the plaintiff-opposite parties despite the matter has been posted for hearing in the daily cause list of this Bench since 20.02.2017 and even the plaintiff-opposite party No-1 after service of notice vide order dated 07.04.2011 did not make his appearance to oppose the Rule.

8.            The learned Advocate appearing on behalf of the petitioner submits that both the courts below during disposal of the original suit and it’s subsequent appeal committed gross illegality and infirmity resulting in an error in the decision occasioning failure of justice. The learned Advocate further submits that the courts below failed to examine the records properly and evidences therein and without evaluation of the evidence on records came to an erroneous findings that the plaintiff have succeeded to prove “Talab-E-Ishad” and “Talab-E-Muashabad.” The learned Advocate during his submissions further submits that under the Muhammaden Law;  pre-emption (sufa) is  guided by 02 (two) mandatory formalities and those are “Talab-E-Ishad” and “Talab-E-Muashabad”  in presence of at least two witnesses but in the instant case the witnesses adduced from the side of the plaintiff to prove the aforesaid formalities have contradicted one- another in respect of the alleged formalities but the learned courts below having failed to consider the evidence on records and the case records as a whole arrived at an erroneous decision on non-consideration of the material facts and non-reading and misreading of evidence and thereby arrived at an  illegal findings resulting in an error in the decision occasioning failure of justice. The learned Advocate lastly submits that with regard to the pre-emption; the facts of waiver, acquiescence and estoppel are lies  the pleadings of the contesting defendant-appellant-petitioner but both the courts below failed to appreciate the proposition of law as well as the evidence on records. In fact; prior to the case transfer by the defendant No.2 in favour of the defendant No.1, the defendant No.2 who is the full sister of the plaintiff requested her brother to purchase the case land but the plaintiff expressed that he will not purchase the suit land and asked the defendant No.1 to purchase the land from the defendant No.2, which has been totally ignored by the learned courts below in their observation and findings. The learned Advocate Mr. Zakir argued that, there is no denial even from the side of the plaintiff   the defendant No.2 the seller of the suit land that she in fact prior to transfer the defendant No.1, did not propose the plaintiff to purchase the land and at the refusal of the plaintiff, she sold the property in favour of the defendant No.1, which amounts to admission from the side of the plaintiff according to law. In support of the submissions the learned Advocate have referred two decisions of this court reported in 21 DLR 211 and 40 DLR 369.

9.            I have considered the submissions of the learned Advocate and have gone through the case records including the plaint, written statement, evidence adduced from the sides of the respective parties along with the impugned judgment and decree and the judgment and decree passed by the learned trial court.

10.        On perusal of the case records it transpires that the plaintiff and the vendor of the transfer deed defendant No.2 are brother and sister and the property inherited by them from their father is the disputed land. It further appears that the land in dispute has been transferred in favour of the defendant No.1 who is the petitioner of this civil revision.

11.        On perusal of the case records I find that the plaintiff to the suit who is the opposite party No.1 to this case instituted the original suit for getting the case land pre-empted under Muhammaden Law and it is the case of the plaintiff in his pleadings that he is a co-sharer by inheritance along with the defendant No.2 in the suit jote. But the defendant No.2 who happens to be his sister transferred the suit land behind his back without serving any notice of transfer in favour of the plaintiff. The further case of the plaintiff is such that for the first time on 11.04.1995 he came to learn about the transfer by the defendant No.2 in favour of the defendant No.1 when the wife of the defendant No.1 coming to the suit land demanded the same by demarcation from the plaintiff. The plaintiff alleged in his plaint that at that time in presence of local witnesses namely Arshad Ali, Abdur Rob Mizi and Shafiulla he observed the formalities “Talab-E-Muashabad”  and  subsiquent to that getting the certified copy of the case kabla  “Taleb –E-Ishad” for getting the case land pre-empted.

12.        As against the respective case of the plaintiff-opposite party it was the specific contention of the defendant-petitioner in his pleadings that prior to filing of the instant suit under Muhammaden Law for getting pre-emption of the case land the plaintiff not at all complied with the mandatory formalities under Law and suppressing the facts she instituted the original suit on false allegations. It was further contention of the defendant-appellant-petitioner that the plaintiff to the suit was well aware about the transfer prior to the transfer in favour of the defendant No.1 inasmuch as prior to the transfer; the defendant No.2 requested the plaintiff to purchase the land, but the plaintiff expressed his inability disclosing that he has no money to purchase the same and thereafter the  plaintiff  requested the defendant No.1 to purchase the land and negotiated the matter including the valuation of the case property.

13.        Having gone through the evidences adduced from the sides of the respective parties I find that P.W.1 Abdul Khaleq Mizi is the plaintiff-opposite party who has admitted in his testimony that the vendor of the deed the defendant No.2 was the owner of the suit land by way of inheritance and purchase and she transferred the land in dispute in favour of the defendant No.1 behind his (P.W.1) back. For the first time on 11.04.1995 when the wife of the defendant No.1 coming to the case land demanded demarcation; the plaintiff enquired into the matter at which the wife of the defendant No.1 disclosed about their purchase from the defendant No.2 and at that time the plaintiff  became surprised and in his necessity for getting the case land pre-empted he observed the formalities “Talab-E-Ishad” and “Talab-E-Muashabad”  in the presence of 04 (Four) persons namely Shafiullah, Mostafa, Adur Rob and Arshad Ali. Subsequently, on 13.04.1995 after receiving the certified copy of the case kabala in presence of above mentioned witnesses he observed the 2nd formality “Talab-E-Ishad”. During cross-examination the plaintiff at a stage of his deposition testified that the time of “Talab-E-Muashabad” was 10.00 a.m.

14.        P.W.2 of the plaintiff-opposite party is Shafiullah Patwary who is the witness of the formalities “Talab-E-Ishad” and “Talab-E-Muashabad.” During his examination-in-chief he tried to  corroborate the case of plaintiff in respect of the two mandatory formalities but during his cross-examination from the side of the defendant-appellant-petitioner he testified at a stage that at the time of “Talab-E-Muashabad” there were 20/25 persons of the locality and while he went there he found 10/12 persons there.

15.        P.W.3 Mostafa who is another witness of the plaintiff-opposite party No.1 during his testimony before the trial court states that he along with the plaintiff and defendant used to reside in the same homestead and knows the suit land. At the time of “Talab-E-Ishad” and “Talab-E-Muashabad” he (this witness) along with his father Abdur Rob Mizi, Shafiulla Patwary and Arshad Ali were present. During his cross-examination this witness more specifically testifies that at the time of “Talab-E-Muashabad” there was only 4/5 persons and at the time of “Talab-E-Ishad” there were five persons therein.

16.        On the other hand, the witnesses who deposed in favour of the defendant-petitioner’s case are three in number and D.W.1 Syedunnessa Bibi is the wife of the defendant No.1 the purchaser of the suit land from the defendant No.2. This witness in her deposition stated about the pleadings of the defendant.

17.        D.W.2 who is the full sister of the plaintiff and seller of the deed specifically testified in her examination-in-chief that the plaintiff all along was aware of the transfer and prior to transfer in favour of the defendant No.1 she requested the plaintiff to purchase the case land but the plaintiff did not agree to purchase the land. D.W.2 further testifies categorically that at the time of her sell; she possessed the land-in-dispute and immediately after transfer she handed over possession in favour of the purchaser the defendant No.1. During cross-examiantion the seller of the deed again testified at a stage thath¡c£l h¡¢s­a ¢Nu¡ S¢j M¢lc Ll¡l SeÉ h¡c£­L h¢mu¡¢Rzthis is a positive assertion from the side of the defendant No.2 in her testimony which is not denied or challenged in the form of denial from the side of the plaintiff-opposite party.

18.        The last witness of the defendant D.W.3 Ayub Ali in his deposition corroborated the D.W.2 by statingAœ j¡jm¡l h¡c£ J Bj¡l h¡s£ HLC h¡¢sz 2ew ¢hh¡c£ Bj¡l ®SW¡a ­h¡ez 1ew ¢hh¡c£ e¡¢mn£ S¢j M¢l­cl ¢ho­u h¡c£ S¡¢eaz 11-4-1995 a¡w 1ew weev`xi Ù»£l cMm Q¡Ju¡, h¡c£l amh£ j¤¢Rh¡a fËL¡n Ll¡ paÉ euz 2¢ce fl amh£ Cn¡a fËL¡n paÉ euz 1ew ¢hh¡c£ e¡¢mn£ S¢j cMm L­lz

19.        Like D.w.2 the vendor of the sale deed Amirer Nessa; this witness D.W.3 was also not challenged from the side of the plaintiff in the form of denial that the plaintiff was not in the know from the very beginning about the case transfer prior to the transfer in favour of the defendant No.1 by the defendant No.2 and there is also no denial to the effect from the side of the plaintiff that the plaintiff did not observe the legal formalities under Muhammaden Law.

20.        On meticulous consideration of the evidence on records I have the reason to inclined such a view that the mandatory formalities in respect of “Hoq Shuffa” under Muhammaden Law the required two mandatory formalities which are to be  observed strictly for getting the case land pre-empted  not proved by any  tangible evidence in this instant case.

21.        The relevant law with respect to the demand for pre-emption under Muhammaden Law runs as follows:

“ Demands for pre-emption:- No person is entitled to the right of pre-emption unless-

(1)   he has declared his intention to assert the right immediately on receiving information of the sale. This formality is called talab-i-mowasibat (literally, demand of jumping, that is, immediate demand): and unless

(2)   he has with the least practicable delay affirmed the intention, referring expressly to the fact that the talab-i-mowasibat had already been made (a), and has made a formal demand-

(b) in the presence at least of two witnesses (c). This formality is called talab-i-ishad (demand with invocation of witnesses)”.

Explanation I.-The talab-i-mowasibat should be made after the sale is completed. It is of no effect if it is made before the completion of the sale.

22.        Here in this case; in consultation with evidence of records I have the reason to inclined such a view that the witnesses adduced from the side of the plaintiff in support of his contention over the mandatory formalities “Talab-E-Ishad” and “Talab-E-Muashabad” there exists series of contradictions and omissions which cannot be ignored specially in the instant nature of suit for “Hoq Shufa” guided under Muhammaden Law. Scrutinizing   the material evidence or records it is obvious to note that in this case on material facts of “Talab-E-Muashabad” and “Talab-E-Ishad” the P.W.s have contradicted one another and the time of compliance of the formalities especially with regard to the manner of the necessary formalities P.Ws.1, 2 and 3 are not corroborative-in-nature; rather they have contradicted each other. Apart from this; it is noticed clearly that the positive assertion which was asserted from the side of the defendant-appellant-petitioner from the very beginning including in their pleadings that, before the transfer in favour of the defendant No.1 the sister of the plaintiff defendant No.2 went before the plaintiff and requested him to purchase the case land but the plaintiff expressed his refusal and disclosed before her that he will not purchase the land and the plaintiff told the defendant No.1 to purchase the case land from the defendant No.2. This very vital aspect has also been ignored totally by both the courts below during deciding the merit of the suit. It is a fact; that the vendor of the deed (D.W.2) is  not challenged or there is no denial from the side of the plaintiff with regard to this that the defendant No.2 requested her brother the plaintiff after going to his residence to purchase the case land prior to dispose of the same in favour of the defendant No.1. Similarly, there is no denial even from the side of the plaintiff in respect of D.W.3 Ayub Ali that it is not a fact that on 11.04.1995 the wife of the defendant No.1 claimed possession from the plaintiff or that the plaintiff observed the formality “Talab-E-Muashabad” at that time, which tantamounts to admission of the plaintiff and thereby the contention of the defendant-petitioner has been proved by competent and cogent sufficient evidence then that of the plaintiff-opposite party.

23.        Be that as it may; I am constrained to hold such a view that during disposal of the original suit as well as the subsequent appeal both the courts below committed gross illegality and there has been apparent misreading and non-reading of evidence and non-consideration of material facts resulting in an error in the decision occasioning failure of justice. Besides this; the proposition of law as incorporated under Muhammaden Law has been ignored in its total approach and true perspective.

24.        Having regard to the facts, circumstances and discussions referred to above the Rule have got much merit to succeed.

25.        In the result, the Rule is made absolute. The impugned judgment and decree dated 28.05.2003 passed by the learned Joint District Judge, 2nd Court, Chandpur in Title Appeal No. 125 of 2001 dismissing the appeal affirming the judgment and decree dated 08.07.1999 passed by the learned Assistant Judge, Faridganj, Chandpur in Title Suit No.41 of 1995 decreeing the suit is hereby set aside. The original suit be also dismissed for want of proof.

26.        The order of status quo granted earlier by this Court at the time of issuance of the Rule stands vacated.

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

         Let a copy of this judgment and order along with the Lower Court’s Records be sent down at once for information and necessary action.

Ed.



Civil Revision No. 53 of 2004.