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Microsoft Word - C.R. No. 2749 of 2009 Haqsafa Final.doc

Present:

Mr. Justice Md. Salim

CIVIL REVISION NO.2749 OF 2009.

Md. Abu Sayed Mia.

-------------Defendant-Petitioner.

-VERSUS-

                                Mahfuza Khatun and others

                     ------------Plaintiff-Opposite Parties.

                                Mr. Sherder Abul Hossain with

Mr. Md. Nur Uddin and

Mr. Md. Ismail Hossain, Advocate

                                                   --------For the petitioner.             

No one appears

......For the opposite parties.

.

Heard on  24.04.2025,  30.04.2025, 22.06.2025 and 24.06.2025.

Judgment on 24.06.2025.

By this Rule, the opposite parties were called upon to show cause as to why the impugned Judgment and decree dated  14.07.2009  passed  by  learned  Additional  District Judge, Lakshmipur in Title Appeal No.76 of 1999 allowing the appeal and reversing the judgment and decree dated


1

22.07.1999 passed by the learned Senior Assistant Judge, Lakshmipur in Title Suit No.171 of 1995 dismissing the suit should not be set aside and/or pass such other or further order or orders as to this court may seem fit and proper.

         The facts in brief for the disposal of the Rule are that the  preemptor-opposite  parties  Nos.  1-7,  as  plaintiffs, instituted Title Suit No. 171 of 1995 before the learned Assistant  Judge,  Sadar,  Lakshmipur,  impleading  the petitioners for pre-emption, i.e., Haqsafa of the case land under Section 236 of the Mohammadan Law, contending, inter alia, that the plaintiff-preemptor is a co-sharer of the instant  suit  Khatian  by  inheritance.  Instead,  the defendants Nos. 2 and 3, as first parties, transferred 0.08 acres of land to the defendant No. 1 vide Ewaz deed dated 19.05.1992; however, the said deed is an out-and-out sale deed. Defendant No.1 is the stranger purchaser of the case, Khatian. To deprive the plaintiffs of their pre-emption right, the  defendants  Nos.  1-3,  in  collusion  with  each  other, created the said Ewaz deed. On 05.07.1995 defendant No.1 express that he purchased the case land and the plaintiff instantly entered into the case land and in presence of the witnesses  and  defendant  No.1  by  making  jump  loudly declaring Hum Safi, Hum Safi and asked the defendant No.1 to withdraw his claim over the suit land after taking purchase  value  from  the  plaintiffs  and  in  this  way  the plaintiff maintain Talab-i-mowasibat and Talab-i-ishhad.

The defendant No. 1 contested the suit by filing a written statement, denying the plaint case, stating inter alia that this defendant-petitioner, vide Ewaz deed dated 19/05/1992, became the owner and possessor of the suit land and has been possessing the same. The plaintiff has complete knowledge of the said Ewaz and the handover of possession of the suit land. After obtaining permission from the local Municipality, the plaintiff constructed a side wall on the north and west sides of the case land. The defendant No.1 purchased the suit land with her own money, as per the sale deed dated 19.05.1992. The plaintiff is not a co- sharer by inheritance in the suit’s Khatian and failed to perform the ceremony of the Mohammadan Law. Moreover, they filed the case based on a false plea; as such, the suit is liable to be dismissed.

        The  learned  Senior  Assistant  Judge,  Lakshmipur, framed  the  necessary  issues  to  determine  the  dispute between the parties.

Subsequently,  the  learned  Senior  Assistant  Judge, Lakshmipur,  by  the  Judgment  and  decree  dated 22.07.1999 dismissed the suit.

Being  aggrieved,  the  plaintiff-opposite  parties,  as appellants preferred Title Appeal No.76 of 1999 before the learned  District  Judge,  Lakshmipur.  Eventually,  the learned  Additional  District  Judge,  Lakshmipur,  by  the Judgment and decree dated 14.07.2009 allowed the appeal and decreed the suit.

Being  aggrieved,  the  defendant-petitioner  preferred this Civil Revision under Section 115(1) of the Code of Civil Procedure before this court and obtained the instant Rule.

Mr.  Sherder  Abul  Hossain,  the  learned  Counsel appearing on behalf of the petitioner, submits that there is neither  evidence  nor  any  finding  to  the  effect  by  the appellate court below that while making Talab-e-ishhad, reference was made to Talab-e-mowasibat, and absence of that evidence is fatal to the plaintiff’s case for Haq-Safa. 

Despite the matter appearing on the cause list for hearing on a consecutive date, no one feels inclined to appear on behalf of  the  opposite  party  to  contest  the  Rule.  However,  in  the presence  of  the  learned  advocate  for  the  petitioner,  I  am tempted to dispose of the Rule on merit.

I  have  anxiously  considered  the  submissions advanced by the Bar, perused the Judgment of the courts below, and reviewed the oral and documentary evidence on the record.

It appears that the opposite party herein, as plaintiff- preemptor, preferred the instant suit for pre-emption under the  Mohamadan  Law.  According  to  the  plaint  on 05.07.1995, the preemptor came to know that the disputed transfer  was  completed  by  the  registration  of  the  deed (Exhibit-Kha). Therefore, the plaintiff-preemptor performed the ceremonies in accordance with the requirements of the Mohammedan Law. After obtaining a certified copy of the deed dated 19.05.1992, the instant suit was filed by the preemptor.

In order to prove the case, the plaintiff examined as many  as  three  witnesses  and  presented  the  relevant documents. On the other hand, the defendant examined as many  as  three  witnesses  and  exhibited  the  relevant documents.

I  have  scrutinized  each  deposition  and  cross- examination  of  the  witnesses.  The  learned  trial  court considered the above evidence on record and dismissed the suit, stating that the plaintiff-preemptor had performed the ceremony under the Mohammadan Law after a long delay. Moreover,  the  instant  suit  for  pre-emption  under Mohammadan law is not maintainable because the suit land was transferred by way of an Ewaz Deed. On the other hand, the appellate court allowed the appeal and decreed the suit based on the findings that the plaintiff performed the ceremony of Mohammadan Law in accordance with the law and that the transfer of the suit land by an Ewaz deed was a coloable transfer and was an out-and-out sale deed.

         To substantiate the submissions advanced by the Bar, the relevant law may be quoted as follows:--

Section  236  of  the  Mohammedan  Law  (Mullah’s) provided  that  “Demands  for  pre-emption,  No  person  is entitled to the right of pre-emption unless-

(I) 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 and has made a formal demand-

  1.    either in the presence of the buyer, or the seller, or on the premises which are the subject of sale, and
  2.   In the presence of at least two witnesses. This formality  is  called  Talab-i-ishhad  (demand  with invocation of witnesses).”

It manifests that in order to establish the right of pre- emption under the Mohammedan law, the preemptor, after having made Talab-i-mowasibat, has to affirm his intention with the least practicable delay, referring expressly to the fact  that  Talab-i-mowasibat  had  been  performed.  It, therefore,  the  preemptor  is  required  to  refer  Talab-i- mowasibat  when  making  Talab-i-ishhad  expressly.  The

evocation of witnesses is an essential part of the ceremony of Talab-i-ishhad. The above formalities are to be strictly performed by the preemptor.

I have already noticed that in the instant case, the preemptor to prove his case examined as many as three witnesses,  instead,  has  neither  claimed  nor  adduced evidence that at the time of making the second demand, i.e.,  Talab-i-ishhad,  a  reference  was  made  to  the  first demand, i.e., Talab-i-mowasibat. This omission at the time of making the Talab-i-ishhad is indeed fatal to the claim of the preemptor.

This view gets support from the case of Nasir Ahmed and Ors Vs. Mohammad Sheir Ali, and another report in PLR 5 Dac, page 757, it was held that—

Inasmuch  as  at  the  time  of  making  the  second demand,  that  is  Talab-i-ishhad  before  witnesses,  no reference was made that the preemptor had already made the first demand of Talab-i-mowasibat, the second demand was not made in accordance with law, and the preemptors ommission to make such reference was fatal to his claim.

A similar view has been taken in the case of Mubarak Husain Vs. Kanis Banu and Ors report in I L R 27 All. 160, it was held that -----

Express reference to Talab-i-mowasibat is necessary when the second demand, namely Talab-i-ishhad, is made.  

The case of Sadiq Ali Vs. Abdul Baqi Khan @ Abdul Karim reported in  I L R 45 Alla. 290 it was held that--      

If the preemtor in making the second demand failed to call  the  attention  of  witnesses  to  the  fact  that  he  had already made the first demand, it was not valid.

The case of Shamsuddin Ahmed @ Tofa, Mia & Ors Vs. Abdul Latif Bhuiyan, reported in 33 D L R (AD) 359 it was held that-----

The  Rules  of  Mohammadan  law  provide  that  the formalities are to be strictly performed by the preemptor.

In  the  instant  case,  the  plaintiff-preemtor  neither asserted nor adduced any evidence to the effect that at the time of making the second demand, i.e., Talab-i-ishhad, a reference  was  made  to  the  first  demand,  i.e.,  Talab-i- mowasibat.

In view of the above, it appears in the present case that the ceremonies, as per the provision so enumerated in section 236 of the Mohammedan Law (Mulla), were not admittedly  performed  by  the  preemptor.  Moreover,  it  is evident that the suit land was transferred on 19.05.1992, and  the  plaintiff-preemptor  made  the  first  demand  on 05.07.1995. It is also apparent from the record that the defendant purchaser obtained permission from the local Municipality to construct the boundary wall of the suit land on  22.03.1993,  and  accordingly,  he  built  the  walls. Therefore. It is presumed that the plaintiff was aware of the above transfer of the suit land. Moreover, he failed to prove his  knowledge  of  the  transfer  of  the  suit  land  on 05.07.1995;  instead,  he  was  unable  to  perform  the ceremonial aspects of the Mohammadan Law within the time specified by the law.

Farther, in the instant case, I have come across form the evidence on records that the preemptor-opposite party has  failed  to  discharge  his  onus  of  proof  and  the  trial Court below in the 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 236 of the Mohammadan Law.

Therefore, it appears that the trial court judiciously considered the evidence on record and dismissed the suit with a sound reason. On the other hand, the appellate court below,  considering  the  evidence  on  record,  found  certain weaknesses in the defence version of the case. However, the fact remains that if the plaintiff wants a decree, he must stand on his  own  feet.  It  appears  that  the  appellate  court  below, disposing of the matter, did not thoroughly consider the oral and documentary evidence and reached an incorrect finding that the trial court had committed an error in dismissing the suit.

Considering the above facts, circumstances of the case, and discussions made herein above, I am of the firm view that the  appellate  court  below  did  not  correctly  appreciate  and construe the documents and materials on record in accordance with the law in allowing the appeal, setting aside the Judgment of the trial Court below. Moreover, the appellate court did not advert to the reasoning of the trial court below, and this hit the root  of  the  merit  of  the  suit.  Therefore,  it  is  not  a  proper judgment of reversal and has occasioned a failure of justice. Consequently, I find merit in the Rule.

 Resultantly, the Rule is made absolute. The impugned Judgment  and  decree  dated  14.07.2009  passed  by  the learned  Additional  District  Judge,  Lakshmipur  in  Title Appeal No.76 of 1999 is hereby set aside. The Judgment and decree dated 22.07.1999 passed by the learned Senior Assistant Judge, Lakshmipur in Title Suit No.171 of 1995 is hereby affirmed.

Communicate  the  Judgment  with  the  lower  courts’ records at once. 

…………………….  (Md. Salim, J).

Kabir/BO