IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

             Present:

Mr. Justice S M Kuddus Zaman

CIVIL REVISION NO.5250 OF 2023

In the matter of:

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

And

Rahima Khatun and another

.... Petitioners

-Versus-

Abdus Salam Fakir and others

.... Opposite parties

None appears

.... For the petitioners.

Mr. Md. Aktaruzzaman, Advocate

…. For the opposite party No.1. Heard on 07.11.2024 and Judgment on 10.11.2024.

This Rule was issued calling upon the opposite party No.1 to show  cause  as  to  why  the  impugned  judgment  and  order  dated 26.07.2023 passed by the learned Additional District Judge, Additional Court,  Barishal  in  Miscellaneous  Appeal  No.40  of  2018  allowed  the appeal reversing the judgment and order dated 02.08.2018 passed by the learned Senior Assistant Judge (In-charge), Uzipur, Barishal in Pre- emption Case No.59 of 2000 discharging the case of the plaintiff 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 petitioner as petitioner filed above case for  pre-emption  of  29.5  decimal  land  under  Section  96  of  the  State Acquisition and Tenancy Act sold by opposite party Nos.3-4 to opposite party Nos.1-2 by two registered kabala deed Nos.3187 and 3194 on 11.10.2000.

It has been alleged that the petitioner is a co-sharer by inheritance and  opposite  party  Nos.1  and  2  are  strangers  in  above  holding. Opposite party Nos.3-4 transferred above land secretly without serving any notice upon the petitioner. On 12.11.2000 the petitioner came to know about above transfer of the disputed land and filed this case for pre-emption.

Opposite party Nos.1 and 2 contested the case by filing a joint written objection alleging that opposite party No.3 is a daughter of opposite party Nos.3 and 4 and opposite party No.2 is her husband. Opposite  party  No.2  is a  landless  peasant  and  he  had  no  dwelling house to live. Opposite party Nos.3 and 4 decided to transfer disputed land to their daughter and her husband opposite party Nos.1 and 2 by gift. The petitioner is the full brother of opposite party No.4 and uncle of opposite party No.1 and he was given the responsibility to prepare a deed for gift and arrange its registration. The petitioner fraudulently in collusion  with  the  scribe  of  above  deeds  designated  above  two documents as sale deeds instead of gift deeds. In fact opposite party Nos.1 and 2 did not have any financial capacity to purchase above land nor they paid any consideration money. Petitioner was an attesting witness to kabala deed No.3187 but he used the name Khalil Fakir.

At trial petitioner examined 3 witnesses and his documents were marked as Exhibit Nos.1-3 series and opposite party Nos.1-2 examined 4 witness and their documents were marked as Exhibit No.’Ka’ _ ‘Kha’ series.

On  consideration  of  facts  and  circumstances  of  the  case  and evidence on record the learned Assistant Judge dismissed the suit.

Being aggrieved by above judgment and order of the trial Court above petitioner preferred Miscellaneous Appeal No.40 of 2008 to the District Judge, Barishal which was heard by the learned Joint District Judge,  Additional  Court  who  allowed  the  appeal,  set  aside  the judgment and order of the trial Court and allowed above case.

Being aggrieved by and dissatisfied with above judgment and order of the Court of Appeal below above respondents 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  although  this  matter  appeared  in  the  list  for hearing on several dates.

Mr.  Md.  Aktaruzzaman,  learned  Advocate  for  opposite  party Nos.1 submits that two impugned registered deeds effecting the sale of 29.5 decimal land by the opposite party Nos.3 and 4 to opposite party Nos.1 and 2 have been designated as kabala deeds. The opposite party could not prove by legal evidence that those documents were in fact deed of gifts. Undisputedly petitioner is a co-sharer by inheritance and opposite party Nos.1 and 2 are strangers in above holding. Above case was filed within the statutory period of limitation. The petitioner was an attesting witness of the impugned kabala deed No.3187 but that does not constitute waiver and acquiescence and debar the petitioner from seeking pre-emption.

On consideration of above materials on record the learned Judge of the Court of Appeal below rightly set aside the flawed judgment and order of the trial Court and granted pre-emption which calls for no interference.

I have considered the submissions of the learned Advocate for the opposite party and carefully examined all materials on record. 

It is admitted that Opposite party No.1 is the daughter of opposite party Nos.3 and 4 and opposite party No.2 is the husband of opposite party No.1 and the petitioner is the brother of opposite party No.4.

Opposite party Nos.1 and 2 has alleged in their written objection and in the evidence of PW1 Raima that her husband was a poor and landless peasant and they did not have any dowelling house. As such her parents opposite party Nos.3 and 4 decided to transfer disputed 29.5 decimal land to them by a deed of gift and assigned the petitioner to make necessary document. But instead of making a deed of gift the petitioner fraudulently in collusion with the scribe prepared impugned two sale deeds. But in fact opposite party Nos.1 and 2 had no money to pay as consideration of above kabala deeds nor they paid any.

Above  claims  of  opposite  party  Nos.1-2  were  not  specifically denied by the petitioner either in the plaint or in his evidence as PW1.

It is not disputed that opposite party Nos.1 and 2 were landless peasants and after getting the disputed land they have constructed a dwelling  house  and  living  there  along  with  the  members  of  their family.

In above kabala deed Khalil Fakir was an attesting witness and it is the case of the opposite party that khalil Fakir was in fact the true name of the petitioner. The petitioner has filed this case identifying himself as Abdul Salam Fakir. He denied that Khalil Fakir was his name but in cross examination PW1 Salam Fakir has admitted that in 1997 he participated in the Union Parishad Election as Khalil Fakir. It is proved from above admission that the petitioner was an attesting witness to impugned registered kabala deed No.3187. Since both the kabala deeds were prepared, executed and registered on the same day and in one session and in the same Sub-registry Office it may be presume he was fully aware and gave consent and actively participated in the making of above two kabala deeds.

It  has  been  claimed  that  opposite  party  Nos.3-4  in  fact  gifted above land to their poor daughter without any money and above deeds were fraudulently prepared as kabala deeds by the petitioner. As such the  petitioner  was  required  to  prove  by  legal  evidence  that  the impugned deeds were in fact sale deeds and money was consideration of above two deeds. But in his evidence as PW1 the petitioner did not mention that impugned two deeds dated 11.10.2000 were in fact sale deeds.  He  merely  stated  that  opposite  party  Nos.3  and  4  secretly executed two deeds on 11.10.2000.

On consideration of above facts and circumstances of the case and evidence on record I hold that the learned Assistant Judge on a detailed and correct analysis of evidence on record rightly held that above case was  barred  by  the  principle  of  waiver  of  acquiescence  and  rightly dismissed the case but the learned Judge of the Court of Appeal below failed to appreciate above materials on record correctly and without reversing above evidence based findings of the trial Court most illegally allowed the appeal, set aside the lawful judgment of the trial Court and granted pre-emption which is not tenable in law.

As  such  I  find  substance  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, the Rule is hereby made absolute.

The impugned judgment and order dated 26.07.2023 passed by the  learned  Additional  District  Judge,  Additional  Court,  Barishal  in Miscellaneous Appeal No.40 of 2018 is set aside and the judgment and order dated 02.08.2018 passed by the learned Senior Assistant Judge (In- charge),  Uzirpur,  Barishal  in  Pre-emption  Case  No.59  of  2000  is restored.

However, there is no order as to costs.

Send down the lower Courts records immediately.

MD. MASUDUR RAHMAN     BENCH OFFICER