IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

             Present:

Mr. Justice S M Kuddus Zaman

CIVIL REVISION NO.217 OF 2020

In the matter of:

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

And

Mosa. Rokeya Aktar Doly

... Petitioner

-Versus-

Mou: Md. Moinuddin and others

... Opposite parties

None appears

.... For the petitioner.

Mr. Shishir Kanti Mazumder, Advocate

…. For the opposite party No.1. Heard and Judgment on 24.10.2024.

This Rule was issued calling upon the opposite party No.1 to show cause as to why the judgment and order dated 13.10.2019 passed by  the  learned  Joint  District  Judge,  1st  Court,  Netrakona  in Miscellaneous Appeal No.33 of 2010 dismissing the appeal and thereby affirming  the  judgment  and  order  dated  25.04.2010  passed  by  the learned  Assistant  Judge,  Mohongonj,  Netrakona  in  Pre-emption Miscellaneous Case No.23 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.

Facts in short are that the opposite party as petitioner instituted above case under Section 24 of the Non Agricultural Tenancy Act, 1949 for pre-emption against the registered kabala deed  dated 13.06.2001

executed by opposite party No.3 in favour of opposite party Nos.1 and 2 transferring disputed 4 decimal land appertaining to plot No.93 and Khatian No.591.

It was alleged that the petitioner was a co-sharer by purchase in the above joma. But opposite party Nos.1 and 2 were strangers and the petitioner had no knowledge about above transfer. On 29.08.2001 the petitioner came to know about above transfer and filed above case.

Opposite party Nos.1 and 2 contested above case by filling a joint written objection alleging that they purchased disputed 4 decimal land by registered kabala deed dated 13.06.2001 from opposite party No.3 and  possessing  the  same  by  constructing  a  dwelling  house.  The petitioner is neither a co-sharer in the disputed joma nor he has any land contiguous to the disputed land.

At trial petitioner examined 2 witnesses and documents produced and proved by the petitioner were marked as Exhibit Nos.1-3. On the other hand opposite party Nos.1 and 2 examined 1 witness but did not produce and prove any document.

On consideration of the facts and circumstances of the case and evidence on record the learned Senior Assistant Judge allowed the case and granted pre-emption.

Being aggrieved by above judgment and order of the trial Court opposite  party  Nos.1  and  2  as  appellants  preferred  Miscellaneous Appeal No.33 of 2010 to the District Judge, Netrakona which was heard by the learned Joint District Judge, 1st Court, Netrakona who dismissed above appeal and affirmed the judgment and order of the trial Court.

Being aggrieved by and dissatisfied with the above judgment and order of the Court of appeal below the appellants as petitioners moved to this Court and obtained this Rule. 

No one appears on behalf of the petitioner when the Rule was taken up for hearing  

Mr. Shishir Kanti Mazumder, learned Advocate for the opposite party No.1 submits that in this case for pre-emption of 4 decimal land petitioner  has  succeeded  to  prove  by  production  of  relevant documentary  evidences  which  were  marked  as  Exhibit  No.1-3  and consistent  and  mutually  corroborative  oral  evidence  of  competent witnesses  that  the  petitioner  was  a  co-sharer  by  purchase  in  the disputed khatian and petitioners-opposite party Nos.1-2 were strangers to the same and above case was filed within the statutory period of limitation. On the other hand opposite parties could not prove by legal evidence that the petitioner was not a co-sharer of the disputed khatian. On consideration of above materials on record the learned Judges of the Courts below concurrently held that the petitioner was a co-sharer in the  disputed  khatian  and  the  case  was  filed  within  the  period  of limitation and allowed the case and dismissed the appeal respectively. Above findings of fact arrived at by the learned Judges of the Courts below  being  based  on  evidence  on  record  this  Court  cannot  in  its revisional jurisdiction interfered with the same.

I have considered the submissions of the learned Advocate for the opposite party No.1 and carefully examined all materials on record.

It turns out from the schedule attached to the petition of this case for pre-emption under Section 24 of the Non Agricultural Tenancy Act, 1949 that disputed 4 decimal land appertains to khatian No.591. There is no mention of the name of above khatian but the learned Advocate for  the  petitioner  repeatedly  stated  that  khatian  No.591  was  C.S. khatian  and  the  opposite  party  Nos.1-2  purchased  land  from  S.A. Khatian  No.147  by  the  impugned  registered  kabala  deed  dated 13.06.2001 (Exhibit No.2).

It turns out from Exhibit No.2 the impugned kabala deed that the petitioner  purchased  1.18  decimal  land  from  Khatian  No.147  on 22.07.1996 from opposite party No.3. There is no mention in the above deed that Khatian No.147 was S.A. Khatian. Nor there is any mention that above S.A. Khatian No.147 came out of C.S. Khatian No.591.

The petitioner himself gave evidence as PW1 but in his evidence he did not mention that he was a co-sharer of S.A. Khatian No.147 or C.S.  Khatian  No.591 or  the  disputed  land  belonged  to  C.S.  Khatian No.591 which was subsequently recorded in S.A. Khatian No.147. PW1 has repeatedly stated in his evidence that he purchased 6 decimal land out of the disputed plot but he did not mention the plot number.

Learned  Advocate  for  the  opposite  party  submits  that  Plot Number 93 is the disputed plot of this case and in the relevant khatian there was only one plot. But above submissions of the learned Advocate for the opposite party is beyond the pleadings.

The petitioner has miserably failed to make out a proper case for pre-emption  in  respect  of  disputed  4  decimal  land  which  was purchased by the opposite party Nos.1 and 2 by the impugned kabala deed.  The  petitioner  could  not  prove  by  legal  evidence  that  the disputed land appertains to S.A. Khatian No.147 or the petitioner is a co-sharer in the above joma by way of purchase by legal evidence.

On the other hand opposite party No.2 Rokeya Akter Dholi while giving evidence as DW1 has clearly stated that the petitioner is not a co- sharer by purchase in the disputed khatian and opposite party Nos.1-2 have constructed their dwelling house in the disputed land.

On consideration of above facts and circumstances of the case and evidence on record I hold the learned Judges of the Courts below totally failed in appreciating the true meaning of the evidence on record and erroneously held that the petitioner was a co-sharer in the disputed khatian and accordingly allowed the case and dismissed the appeal respectively which is not tenable in law.

Accordingly,  I  find  merit  in  this  revisional  application  under Section 115(1) of the Code of Civil Procedure and the Rule issued in this connection deserves to be made absolute.

In the result, this Rule is hereby made absolute. The impugned judgment  and  order  dated  13.10.2019  passed  by  the  learned  Joint District Judge, 1st Court, Netrakona in Miscellaneous Appeal No.33 of 2010 dismissing the appeal and confirming the judgment and order of the trial Court is set aside. Pre-emption Miscellaneous Case No.23 of 2001 is dismissed on contest.   

 However, there is no order as to costs.

Send down the lower Court’s record immediately.

MD. MASUDUR RAHMAN     BENCH OFFICER