Present:

Mr. Justice Sheikh Abdul Awal

and

Mr. Justice Md. Mansur Alam

First Miscellaneous Appeal No. 212 of 2019

In the  Matter of:

Memorandum of appeal from the original order.

-and-

In the Matter of:

Mrs. Salma Begum and another.

                         .......Pre-emptor-appellants.

        -Versus-

Md.  Monowar  Hossain  Choukidar  and others.

     ......Pre-emptee-respondents. Mr. Sk. Shaifuzzaman (Zaman) with

Mr. Shamsur Rahman, Advocates

  ……. For the appellants. None appears.

......For the respondents.

Heard on 04.11.2024, 26.11.2024 and Judgment on 01.12.2024.

Sheikh Abdul Awal, J:

This  First  Miscellaneous  Appeal  at  the  instance  of  the

defendant-appellants is directed against the judgment and order dated 08.04.2019 passed by the learned Joint District Judge, 2nd

Court,  Shariatpur  in  Miscellaneous  Case  No.  01  of  2015 disallowing the pre-emption case.

The short fact relevant for disposal of this appeal is that the appellants  as  pre-emptors  filed  Miscellaneous  Case No. 01 of 2015 against the pre-emptee purchaser and others in the Court of the  learned  Joint  District  Judge,  2nd  Court,  Shariatpur  under section 24 of the State Acquisition and Tenancy Act, 1950 for pre-empting the case on the allegation that the case land was originally  recorded  in  the name of Jahan  Ali  Gain,  who died leaving  behind  wife,  son  and  daughters.  Pre-emptee  opposite party No.2 transferred the case land to pre-emptee opposite party No.1  Md.  Monowar  Hossain  by  a  registered  kabala  dated 13.10.2008  without  serving  any  notice  upon  the  co-sharers including the pre-emptors. Pre-emptee opposite party No.1 is a stranger  to  the  case  jote.  Pre-emptors  for  the  first  time  on 25.11.2014 came to know about the transfer of the case land and thereafter they filed the case within 4 months from the date of knowledge  on  13.01.2015  after  exhausting  all  the  legal formalities.

Pre-emptee-purchaser as opposite party No.1 contested the case  by  filling  written  objection  denying  all  the  material allegations made in the pre-emption application contending, inter- alia, that the case is not maintainable in its present form and manner, the case is hopelessly barred by limitation and the pre- emptors having knowledge of transfer from the very beginning although they filed the case on false statements under section 24 of the State Acquisition and Tenancy Act, 1950 after long lapse of 7 years and as such, the case is case is liable to be dismissed.

At the trial the pre-emptor No.1 herself was examined as PW-1 and another one was examined as PW-2 and pre-emptee also  examined  2  witnesses  as  OPWs  and  both  the  parties exhibited some documents to prove their respective cases.

The learned Joint District Judge, 2nd Court, Shariatpur upon hearing the parties and on considering the materials on record by his  judgment  and  order  dated  08.04.2019  disallowed  the miscellaneous case (pre-emption) on the ground of limitation.

Being aggrieved by the aforesaid impugned judgment and order dated 08.04.2019, the pre-emptor-appellants preferred this First Miscellaneous Appeal before this Court.

Mr. Sk. Shaifuzzaman, the learned Advocate appearing for the pre-emptor-appellants submits that the learned Joint District Judge, 2nd Court, Shariatpur under misconception of law and facts most illegally dismissed the case on the wrong finding that the case is hopelessly barred by limitation, in-fact the pre-emptors filed the case within 4 months from their date of knowledge. The learned Advocate further submits the trial Court held that the pre- emptors having failed to disclose the date of knowledge as well as source  of  knowledge  and  place  although  PW-2  stated  in  his evidence that he came to know as to transfer of the case land from one Kashem Chowkidar in the house of Joynal Dewan and thus finding of the trial Court that the pre-emptors having failed to disclose the date of knowledge as well as source of knowledge and place is perverse being contrary to the evidence on record. The learned Advocate further submits that OPW-1 stated in his evidence that he did not know whether the notice was served upon the pre-emptors and others although the trial Court without considering this vital aspect of the case most illegally dismissed the pre-emption case on wrong findings that the case is barred by limitation. The learned Advocate to strengthen his submission has relied on the decision reported in 29 DLR 178.

No one appears to oppose the appeal on repeated calls.

Having heard  the  learned  counsel  for  the  petitioners  and having gone through the materials on record, the only question that calls for our consideration in this appeal is whether the trial Court committed any error in finding that the case is barred by limitation.

Admittedly,  in  this  case  pre-emptee  opposite  party  No.2 transferred  the  case  land  to  opposite  party  no.1  (pre-emptee purchaser) on 13.10.2008 and it is on record that both the parties are  well  known  with  each  other  and  pre-emptee  seller is full brother of pre-emptor No.2 and both are resident of the same house and pre-emptors filed the case long lapse of 7 years on 13.01.2015.  It  further  appears  that  pre-emptee  purchaser  after purchasing the case land mutated his name and paid rent to the Government in accordance with law. It also appears that the seller opposite party No.2 clearly mentioned in the deed that possession of the case land has been handed over to pre-emptee purchaser.

The trial Court as first court of fact on due consideration of the entire evidence and materials on record came to its findings that that- “

”

This  being  purely  a  finding  of  fact  based  on  proper assessment of the evidence on record. Furthermore, in this case we find nothing on record to suggest that the pre-emptors by adducing reliable evidence having succeeded to prove the exact date when they came to know about the transfer of the case land. The pre-emptee by way of written objection and by adducing evidence challenged the date of knowledge and asserted the pre- emptors had earlier knowledge of the kabala in question. In the present case admittedly the application for pre-emption was filed long 7 years after the transfer in question and a heavy burden lies on the pre-emptors to discharge the onus of proof that he filed the case within four months from the date of knowledge. The pre- emptors having failed to discharge the initial onus by adducing cogent and reliable evidence. In the facts and circumstances of the case the trial Court committed no wrong in holding that the pre-emptors failed to prove their alleged date of knowledge by adducing  reliable  legal  evidence.  Therefore,  we  are  unable  to accept the plea as taken by the pre-emptors.

The decision cited is distinguishable on facts. 

The  learned  Judge  of  the  trial  court  appears  to  have considered  all  the  material  aspects  of  the  case  and  justly dismissed the pre-emption case on the ground of limitation. No interference is, therefore, called for.

In the result, the appeal is dismissed without any order as to costs.

Send down the LC Records at once.

Md. Mansur Alam, J:

I agree.