IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Moinul Islam Chowdhury

CIVIL REVISION NO. 4416 OF 1995

IN THE MATTER OF:

An  application  under  section  115(1) of  the Code of Civil Procedure.

-And-

IN THE MATTER OF:

Md. Abdus Samad

--- Preemptor-Petitioner. -Versus-

Md. Abdul Hye and others

--- Preemptee-Opposite Parties.

Mr. Subrata Saha, Advocate

--- For the Petitioner. Mr. Mohammad Kamal Hossain, Advocate

---For the opposite parties.

Heard on: 24.07.2023, 27.07.2023, 30.07.2023 and 08.08.2023.

Judgment on: 30.08.2023.

At the instance of the present preemptor-petitioner, Md. Abdus Samad, this Rule was issued upon a revisional application filed under section 115(1) of the Code of Civil Procedure calling upon the opposite party No. 1 only to show cause as to why the impugned judgment and order dated 28.06.1995 passed by the then learned Subordinate Judge,  Court No.  1, Sherpur in the Miscellaneous Appeal No. 07 of 1994 reversing the judgment and  order  dated  07.02.1994  passed  by  the  learned  Assistant

Judge, Additional Court, Sherpur in the Preemption Case No. 425 of 1973 should not be set aside.

The relevant facts for disposal of this Rule, inter-alia, are that the present petitioner as the preemptor filed the Preemption Case No. 425 of 1973 in the court of the then Munsif, Sherpur claiming a right of preemption under section 96 of the State Acquisition  &  Tenancy  Act,  1950  claiming  that  total  land measuring 1.40 acres was recorded in S. A. Khatian No. 1052 which belonged to opposite party Nos. 2 and 3. It is further claimed  that  the  preemptor  executed  a  purchase  deed  dated 28.04.1973 and it was registered on 30.04.1973 for purchasing land measuring 50 decimals and thereby he became a co-owner by the purchase land measuring 35 decimals from the same jote (­S¡a). It is further claimed that the preemptee- opposite party No.  1,  namely,  Md.  Abdul  Hye,  now  deceased  and  also

substituted by his legal heirs, purchased 28 1 decimals of land

2

from the opposite party No. 2, namely, Sree Shatta Ranjan Hori by a registered sale deed No. 7266 dated 30.04.1973 without serving any notice under section 96 of the State Acquisition & Tenancy Act, 1950.

The present preemptee- opposite party No. 1 contested the suit by filing a written objection contending, inter alia, that the preemptor is not a co-sharer in the case land. The preemptor manipulated  the  sale  deed  No.  7266  which  was  executed  on 28.04.1973  and  registered  on  30.04.1973  by  managing  the Registry Office in order to show the sale deed subsequently. It is further contended that after the purchase of the said land the preemptee- opposite party No. 1 made improvement for making the land  for  cultivation  and  other  things  at  the  cost of  huge money.

The  case  was  heard  by  the  learned  Assistant  Judge, Sherpur after obtaining and examining the depositions of PWs and DWs and after the conclusion of the hearing the learned Assistant Judge, Sherpur allowed the preemption case by the judgment  and  order  dated  07.02.1994.  Being  aggrieved  the present preemptee-opposite party No. 1 filed the Miscellaneous Appeal No. 07 of 1994 in the court of the learned District Judge, Sherpur  which  was  subsequently  heard  by  the  then  learned Subordinate Judge, Court No. 1,  Sherpur who after hearing the parties and considering the evidence reversed the judgment of the learned trial court by dismissing the preemption case. Being aggrieved  the  present  petitioner  as  the  preemptor  filed  this revisional application challenging the legality of the impugned judgment of the learned appellate court below and this Rule was issued thereupon.

Mr. Subrata Saha, the learned Senior Counsel, appearing on behalf of the preemptor-petitioner submits that in the face of the clear findings by the trial court, the preemptor’s deed of purchase  bearing  No.  7266  executed  on  28.04.1973  and registered on 30.04.1973 is earlier both in respect of execution and registration than the disputed sale deed No. 7280, as such, the  preemptor  is  a  co-sharer  to  the  case  land  is  entitled  to preemption and the learned court of appeal below evidently erred in law in holding that the date of execution is totally irrelevant in deciding the question of co-shares in the jote (­S¡a) and the same has  resulted  in  error  in the impugned decision  occasioning a failure of justice.

The learned Advocate also submits that the preemptor- petitioner accrued the right of preemption under section 96(4) of the  Act,  1950,  as  such,  the  learned  trial  court  allowed  the preemption  case,  whereas,  the  learned  appellate  court  below committed an error of law by disallowing the appeal thereby reversing the judgment of the learned trial court, as such, the Rule should be made absolute.

The  present  Rule  has  been  opposed  by  the  present preemptee-opposite parties.

Mr. Mohammad  Kamal  Hossain, the learned  Advocate, appearing  for  the  present  opposite  parties  submits  that  the learned trial court committed an error of law without considering the proper sale deed of the suit land by the preemptee-opposite party No. 2 to the preemptee opposite party No. 1 when the present preemptor was not a co-sharer but the learned appellate court  below  properly  considered  the  case  of  the  preemptee opposite party and thereby came to a conclusion to disallow the preemption  case  by  reversing  the  judgment  and  order  of  the learned trial court, as such, the Rule is liable to be discharged.

The learned Advocate further submits that the preemptor has manipulated the registered deed No. 7280 dated 30.04.1973 in order to become a co-sharer in the same jote (­S¡a) thereby the learned appellate court below committed no error of law under the provision of section 96 of the Act, 1950 by raising a question of registration on the same date by the preemptor for the land

measuring  28 1  decimals,  as  such,  the  Rule  is  liable  to  be

2

discharged.

Considering the above submissions made by the learned Advocates  appearing  for  the  respective  parties  and  also considering the revisional application filed under section 115(1) of the Code of Civil Procedure along with the annexures therein, in particular, the impugned judgment and order passed by the learned appellate court below and also perusing the very old documents adduced and produced by the respective parties by way of depositions as PWs and DWs in the learned courts below which have been included in the lower courts records, it appears to  me  that  the  present  preemptor  as  a  petitioner  filed  a preemption case seeking a preemption right under section 96 of the State Acquisition & Tenancy Act, 1950 upon a claim that by purchasing the land within the same jote (­S¡a) and he became a co-sharer by registering a deed on 30.04.1973. The case land was sold without serving any notice by the preemptee- opposite party No. 2 in favour of the preemptee- opposite party No. 1 and the same was registered on 28.04.1973. However, the preemptee- opposite  party  claimed  that  the  sale  deed  was  executed  on 28.04.1973 but it was shown to have been on the same date i.e. 30.04.1973 in order to claim a co-sharer.

In view of the above, this court has to take a decision on whether the preemptor-petitioner could prove its own case by adducing and producing sufficient evidence. In order to answer the above question, I have carefully examined the documents adduced  and  produced  by  the parties  in  order  to  prove  their respective cases. Under the provision of section 96 of the Act, 1950 a registration of a sale deed is considered to be registered as soon as the deed of sale is entered into the volume of the registry office. I have noticed that none of the parties have shown their evidence in order to record of the volume of the registry office. However, the preemptor shown to have purchased the suit land on the same date as the date of the impugned sale deed by the preemptee- opposite party No. 2 to the preemptee- opposite party No. 1. Accordingly, the law requires a date of registration for acquiring  a  right  of  preemption  on  the  basis  of  the  date  of registration, as such, the preemptee- purchaser cannot be sold as a  stranger,  therefore,  I  consider  that  the  learned  trial  court committed  an  error  of  law  by  allowing  the  preemption  case. However, the learned appellate court below rightly decided that the preemptee- purchaser had validated his purchase when the preemptor was not a co-sharer in the same jote as required by law. Now, I am examining the conflicting judgment and order passed by the learned courts below.

The  learned  trial  court  committed  an  error  of  law  by finding its decision on the basis of the following manner:

…“A¢dL¿º fË¡b£Ñ a¡q¡­L j¡jm¡u qul¡e£ J r¢aNËÙ¹ Ll¡l

Lb¡ ®Sl¡u ü£L¡l L¢lu¡­Rez fË¡b£Ñl c¡¢Mm£ c¢mm fËcnÑe£ 1 fËa£uj¡e qu ®k, f¡Ëb£Ñ 28.04.1973 Cw a¡¢l­M pÇf¡¢ca J 30.04.1973 Cw

a¡¢l­M ®l¢S¢ØVLÊ«a p¡g Lhm¡ c¢mm j­§m e¡¢mn£ ®S¡­al nl£L fSË¡

qCu¡­Rez fË¡b£Ñ ®Sl¡u E­õM L­le ®k, a¡q¡l M¢lc¡ c¢mm¢V 28.04.1973 Cw a¡¢l­M pL¡m 9 V¡u ®mM¡ quz Hhw c¡a¡l h¡s£­a

¢Nu¡ pÇf¡ce Ll¡ quz HC ®r­œ B­l¡ E­õMÉ ®k, fË¢a­k¡N£ fË¢afr

Eiu c¢mm HLC a¡¢l­M pÇf¡c­el Hhw fË¡b£Ñl c¢m­ml f­l 1 ew f¢Ëaf­r l c¢mm ®mM¡ J pÇf¡ce qJu¡l fË¡b£lÑ c¡h£ pl¡p¢l Aü£L¡l

L­le e¡Cz fË¢af­rl j­a, fË¡b£Ñl c¢mm¢V 30.04.1973 Cw a¡¢l­M ®mM¡ J pÇf¡ce L¢lu¡ fËa¡lZ¡ J ®k¡Np¡S­p 28.04.1973 Cw

f§hÑae a¡¢lM k¤š² L¢lu¡­Rez fË¢a­k¡N£ fË¢afr a¡q¡l HC c¡h£ fjË¡­Z

pÇfZ§Ñ hÉbÑ qCu¡­Rez a¡q¡l ü£L«a j­aC faË¡lZ¡ J Qœ²¡¿¹ L¢lu¡

f¡Ëb£lÑ c¢mm Ll¡l ¢ho­u Hhw L¡q¡l L¡q¡l à¡l¡ faË¡lZ¡ Ll¡ qCu¡­R

®p pÇf­LÑ 1 ew fË¢afr ¢Lwh¡ a¡q¡l ®j±¢ML p¡r£­cl fËaÉr S¡e¡

e¡Cz”…

On  the  other  hand,  the  learned  appellate  court  below lawfully  disallowed  the  appeal  preferred  by  the  preemptor- petitioner on the basis of the following findings:

…“Hja¡hÙÛ¡u HLC ¢c­e HL¢V c¢mm pÇf¡¢ca J ®l¢SxL«a qJu¡l SeÉ EfÙÛ¡¢fa qJu¡l fl ¢LR¤V¡ B­N f­l ®l¢Sx qJu¡l SeÉ Hje¢L ®k L¡­Sl Efl f¡Ëb£lÑ ®L¡e q¡a ¢Rm e¡ ®pC L¡l­Z fË¡b£Ñ e¡x

®S¡­a n¢lL J 1 ew fË¢afr BN¿ºL p¡hÉÙ¹ qC­he h¢mu¡ B¢j Ef­l B­m¡¢Qa p¡¢hLÑ ¢cL ¢h­hQe¡u J fkÑ¡­m¡Qe¡u j­e L¢l e¡z

Ef­ll B­m¡Qe¡l B­m¡­L fËj¡¢Za qCm ®k, fË¡b£Ñ avM¢lc¡ c¢mm fËc¢nÑa- 1 j§­m J 1 ew fË¢afr e¡x c¢mm fcË¢nÑa- 2 j­§m

HLC ¢c­e e¡x ®S¡­a n¢lL fËS¡ p¡hÉÙ¹ qCu¡­Rez e¡x ®S¡­a 1 ew f¢Ëafr J n¢lL fËS¡ p¡hÉÙ¹ qJu¡u a¡q¡l ¢hl¦­Ü Aœ ¢fË­ujne

®j¡LŸj¡ AQmz”…

In view of the above conflicting decision I find that the learned appellate court below committed no error of law and there is no misreading of the Act, 1950 as well as evidence produced by the respective parties by reversing the judgment of the learned trial court who without applying his judicial mind came to a wrongful decision which is liable to be discharged.

Accordingly, I do not find merit in the Rule.

In the result, the Rule is hereby discharged.

The  impugned  judgment  and  order  dated  28.06.1995 passed  by  the  then  learned  Subordinate  Judge,  Court  No.  1, Sherpur in the Miscellaneous Appeal No. 07 of 1994 is hereby upheld.

The judgment and order dated 07.02.1994 passed by the learned  Assistant  Judge,  Additional  Court,  Sherpur  in  the Preemption Case No. 425 of 1974 is hereby set aside.

The concerned section of this court is hereby directed to send down the lower court records along with a copy of this judgment and order to the learned courts below immediately.