Present:

Mr. Justice Farid Ahmed

-And-

     Mr. Justice Md. Shawkat Hossain

 First Appeal No. 460 of 2001. Abdus Sattar Khan,

…Plaintiff-Appellant. -Versus-

Md. Aftar Ali and others.

  ….Defendant-Respondents.

Mr. Parimal Chandra Guha, Advocate.

.…For the Appellant.

Mr. Mahbubey Alam with

Mr. J. N. Deb,

Ms. Umme Masumun Nesa and

Mr. Chanchal Kumar Biswas, Advocates.

.....For the Respondents.

Heard on:14.12.2010,15.12.2010. 03.01.2011,05.01.2011

and

Judgment on: 24.01.2011.

Md. Shawkat Hossain,J:

 The instant appeal by the plaintiff is directed against the judgment and decree dated 11.02.2001(decree signed on 15.02.2001) passed by the Subordinate Judge and Judge, Artha Rin Adalat, Sylhet in Title Suit No. 06 of 2000.

Briefly stated plaintiff’s case is that the land in suit appertaining to Plot No. 7547 under Mutation Khatian No. 722 corresponding to D.P Khatian No. 143/530 under Mouza Sylhet Municipality, Mohalla Dhopadighir Dakshinpar as described in the schedule of the plaint originally belonged to

defendant Nos. 7-9. That the plot Nos. 7588 and 7548 adjacent South-West belonged to the plaintiff. That plaintiff acquired the land under Plot No. 7588 by purchase from

Adbul Mudassir Chawdhary by registered Kabala deed dated 15.04.1976 and got a decree in Title Suit No. 241 of 1978 in

the Court of Subordinate Judge, Sylhet. The Plaintiff purchased Eastern portion of Plot No 7548 from Alhaj Abdur

Rahim by registered kabala deed dated 10.08.1985. The suit premises was under lock and key for a long time. On 12.03.1995 at about 9 a.m. when the plaintiff was coming to

his business place ‘Panama Hotel’ adjacent to the land in suit

he came to see the room on the suit premises open and stepping into the premises he came to see Sadiqur Rahman, defendant No. 4 chatting with some persons and the Plaintiff

asked him how he got the suit premises but the defendant

No.4 replied “Avcbvi cÖ‡qvRb wK?” The plaintiff became suspicious

and on that day he requested Md. Rafiquzzaman, a deed

writer to enquire whether the land has been sold. That on 23.03.1995 Md. Rafiquzzaman came to plaintiff’s hotel at

about 6 p.m. and delivered a copy of kabala in respect of transfer of the land in suit by the defendant Nos. 7-9 to defendant Nos. 1-6 at a consideration of Tk. 48,12,000/-. On hearing of the transfer of the land in suit Plaintiff instantly jumped up from his chair and exclaimed “Avwg kwd byi“i iwk †PŠayix I Zvnvi kixKvb †h RvqMv weµq Kwiqv†Qb, AvcZvi Avjx Ms Gi wbKU Avwg Zvnv Lwi

Kwi‡Z PvB| g~j¨ w ‡Z cÖ¯—yZ AvwQÕ|” The Plaintiff thereafter without loss

of time rushed to the land in suit along with Rafiquzzaman

and Zubair Ahmed and exclaimed ‘Avcbviv iwdKz¾vgvb mv‡ne I Ry‡ei

Avng mv‡ne mv¶x _vwK‡eb | Avwg GKUy Av‡M kwd WvwKqvwQ Ges GLb kwd WvwK‡ZwQ †h, AvcZvi Avjx Ms GB RvqMv b iy “i ikx  †PŠayix I Zvnvi kixKvb nB‡Z Lix Kwiqv‡QbÐAvwg GB RvqMv Lix Kwi‡Z PvB | Avwg kwd’ and thereafter the Plaintiff asked

Sadiqur Rahman, defendant No. 4 to transfer the land in suit

to him on receipt of consideration money. Defendant No.4

retorted that he did not purchase the land for sale. Since the

land in suit is situated to the adjacent East of the plaintiff’s

Road on Plot No. 7548 from his hotel to the C & B Road, he

requires the same. The Plaintiff observing all the formalities

in above manner filed the suit under Mohammedan law for

transfer the land in suit in his favour and deliver possession

thereof.

Defendant Nos. 1-6 and 7-9 contested the suit by filing

separate written statements. Although the written statements

are separate but facts of their case are same.

Thus, the case of the Defendants in short, is that they

have been residing in the Village Aoai, Under P. S. Golapganj,

20 miles far off from Sylhet town. Defendant No.1 has been

residing in the village all through and the Defendant No. 4 in

Sylhet town and sometimes in the village and the Defendant

Nos. 2, 3, 5 and 6 have been living in aboard for long. That

the Plaintiff lives in their adjacent Village and they had

familiarity with him for long. That the Plaintiff never met the Defendant No. 4 on 12.03.1995 and story of meeting with him and talk over the land in suit is quite false. That there was also strike for 48 hours from morning of 12.03.1995 at the call of some political parties. That on that day the Defendants all were in their Village house. That no formality of any demand was observed by the Plaintiff and story of getting certified copy of the deed through Rafiquzzaman, demanding of 1st talab and 2nd talab all are false and concocted. That the Defendant No. 4 in the early morning on 23.03.1995 went to his Village residence to attend a marriage ceremony of his relation and returned to Sylhet on 26.03.1995. That the Plaintiff has no land adjacent to the land in suit. Moreover, Plaintiff was aware of the transfer from earlier. That the Plaintiff filed the suit long after three and a half month without observing the required formalities. The notices of the sale of the land in suit was notified in the Signboard and daily News Papers of Sylhet and the Plaintiff himself, since they had familiarity with him, instigated them to purchase the land in suit and in presence of the Plaintiff the consideration money was fixed at Tk. 48,12,000/- and got possession of the same after measurement through Advocate Commissioner, demarcated the area, constructed boundary wall and appointed two guards thereon. That the Defendants initially entered to an agreement with the Defendant Nos. 7-9 on payment of Tk. 20,000,00/- in advance on 12.11.1994 and got the deed registered on 31.01.1995 with the knowledge of the Plaintiff. That the Defendants installed tube-well on 01.02.1995 and took electric connection on 09.03.1995 and renovated the old room and other necessary things in order to start a hotel thereon. The Plaintiff was all were aware of the activities of the Defendants.

Mr. Parimal Chandra Guha, the learned Advocate appearing on behalf of the Plaintiff-appellant submits that the plaintiff is admittedly a contiguous land holder of the land in suit and on 12.03.1995 at morning while he was coming to his hotel Panama adjacent south to the land in suit he found the ghar on the suit premises open and also found Defendant No.4 thereon and asked him how he got the land and at the reply of the Defendant No.4 he became suspicious and on that day he asked the deed writer Rafiquzzaman to search in the Sub-registry Office whether the land in suit has been transferred and at evening on 23.03.1995 Rafiquzzaman met the plaintiff with the certified copy of the transferred deed of the land in suit at his Panama hotel and the Plaintiff being fully aware of the complete sale instantly jumped and placed the 1st demand i.e talab-i-mowasibat and without any further delay rushed to the land in suit along with Rafiquzzaman and Jubayer, an Advocate who was residing in his hotel and was present at his office of the hotel and placed the 2nd demand

i.e. talab-i-ishhad to the Defendant No.4 in presence of the aforesaid witnesses and having failed to get the land in suit filed the above suit under Mohammadan law but the learned Subordinate Judge under misappreciation of facts and evidence erroneously held that formalities to the 2nd demand was not observed properly i.e. at the time of talab-i-ishhad, there was no reference of 1st talab i.e. talab-i-mowasibat and as such dismissed the suit. He further submits that the hotel of the Plaintiff is adjacent to the land in suit and placing the 1st demand he rushed to the land in suit without any loss of time and exercised his 2nd demand in presence of two witnesses and that both the demands were performed one after another at an interval  of one or one and half minutes and that finding of the trial court that at the time 2nd demand he did not mention of the 1st demand is totally misconceived and misreading of evidence. He further adds that the Plaintiff observed the required formalities and he is entitled to get the land re-transferred by way of ‘suffa’ and the impugned judgment can’t sustain in law.

Mr. Mahbubey Alam, learned counsel appearing on behalf of the respondents submits that there are some conditions precedents to the exercise of right of pre-emption under Mohammadan law, firstly- talab-i-mowasibat popularly spoken as 1st demand, secondly- talab-i-ishhad, the 2nd demand and thirdly- the institution of the suit. He further submits that the Plaintiff is a contiguous land-holder to the land in suit and he had been carrying his hotel business thereat and as such he had practical knowledge of the transfer of the land in suit and he himself negotiated the sale, witnessed the activities of the respondents such as possession by measuring its boundary through Advocate Commissioner, construction of boundary wall, installation of tube-well, repairing of the rooms, engaging security guards since purchase by registered deed dated 31.01.1995 and that the Plaintiff with ill motive filed the suit without observing the conditions precedent to pre-emption. He also submits that evidence led by the Plaintiff on alleged talab-i-mowasibat and talab-i-ishhad are contradictory and the lower court considering the evidence of the Plaintiff rightly held that the Plaintiff failed to prove that conditions precedent to pre- emption of the land in suit were observed. He reiterated on the point of formalities in observing the 2nd demand i.e. talab- i-ishhad. He submits that there is no evidence that at the time of 2nd demand i.e. talab-i-ishhad there was the reference of 1st demand i.e. talab-i-mowasibat and it stands fatal consequence to the claim of pre-emption of the land in suit. He also adds that the demands for pre-emption under Mohammadan law should be promptly made on completion of sale under Muslim law being completed on payment of consideration money and delivery of possession of the

property whether or not registration of the sale has been completed. He finally submits that the lower Court on proper assessment of the evidence reached to its correct decision and rightly dismissed the suit and there is no material to warrant interference to the impugned judgment and decree. He refers 21 DLR 211 and 1981 BLD(AD) 332.

Learned Subordinated Judge framed five issues and considering facts of the cases of the parties and the evidence on record dismissed the suit by the impugned judgment and decree and thus being aggrieved Plaintiff preferred the above appeal.

We have considered the submissions of the Learned Advocates for both sides, the pleadings, evidence on record, both oral and documentary and the impugned judgment and the citations referred above including the relevant provisions of Mohammad Law.

It appears that the Plaintiff examined P.W.1 Md A. Sattar Khan, the plaintiff, P.W. 2 Zubaer Ahmed and P.W. 3 Md. Rafiquzzaman and his documents were marked as exhibit 1 to exhibit 5. Defendant Respondents examined 3 D.Ws-D.W-1 Md. After Ali, D.W-2 Mokhtar Khan and D.W. 3 Katu Mia and their documents were marked as exhibit ‘ka’ to exhibit ‘Taa’.

Admittedly, the Plaintiff is the contiguous land-holder and the land in suit was transferred by registered deed dated 31.01.1995 and the suit was filed on 05.07.1995.

Under the Mohammadan Law the following classes of persons and no others, are entitled to claim of pre-emption, namely:-

(i)                 a co-sharer in the property i.e. shafi-i-sharik.

(ii)               a participator in immunities and appendages,   such as a right of way or a right to discharge water i.e. shafi-i-khalit and

(iii)            owners of adjoining immovable property i.e.  shafi-i-jar, but not their tenants, nor persons in possession of such property without any lawful title.

Plaintiff falls on the third category. Some objection was raised as to the title of the plaintiff to the adjacent land of the land in suit but the learned Advocate for the Respondents did not make any submission that may disqualify the Plaintiff to his entitlement of being third category.

Under Article 10 of 1st schedule of Limitation Act, 1908, the limitation of filing the suit for pre-emption is one year. It appears that the Plaintiff preferred the suit within the above statutory period. Thus no objection raises on this point from the side of Respondents. Respondents’ side also makes no objection that any contiguous land-holder was left out from the suit. It appears that Trial Court settled both the issues in negative i.e. sin favour of the Plaintiff. We don’t find any error on these issues to invoke our interference.

Main controversy to the instant suit is- observation of the formalities.

Section 236 of Mohammadan Law provides-

“No person is entitled to the right of pre-emption unless- “(1) 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 made and has made a formal demand-

(i)                either in the presence of the           buyer, or the seller, or on the premises which are the subject of sale and

(ii)              in the presence at least of two witnesses. This formality is called talab-i-ishhad (demand with invocation of witnesses)--------------------------------.’’

In the instant case the Plaintiff claims that he maintains hotel business (Panama Hotel) on his land adjacent to the land in suit and the ‘ghar’ on the suit premises all the time was under lock and key and on 12.3.1985 at morning while he was on his way to hotel came to see the ‘ghar’ open and having entrance into it met with defendant No. 4 and asked him whether he got the property by transfer but getting no satisfactory reply he asked P.W. 3 on that date to inquire into the Sub-register’s office and thereafter on 23.03.1995 at evening on getting the certified copy being aware of the sale of the land in suit instantly jumped demanding talab-i- mowasibat in presence of P.Ws. 2 and 3 and with the least practicable delay rushed to the land in suit along with his above witnesses and made the 2nd demand i.e. talab-i-ishhad

to the Defendant No.4 whom he came across thereat and that being failed to get the land re-transferred filed the instant suit.

Defendants, on the other hand, claim that the Plaintiff was fully aware of the sale since he negotiated the price, witnessed all activities of the vendees on getting delivery of possession of the land in suit and the suit was filed without observing the formalities i.e. the required demands and the allegation  of  placing  demands  on  23.03.1995  is  a  got  up story.

Defendants, in order to show the knowledge of the Plaintiff of the transfer in dispute from earlier, prior to 23.03.1995, produced oral and documentary evidence. But mere knowledge of the transfer if any would not play a legal bar to the claim of Plaintiff to pre-empt the land under Mohammadan law unless the sale is complete by way of payment of consideration money and delivery of possession.

Plaintiff claims that on 12.3.1995 he became merely suspicious of the transfer and on getting the certified copy on 23.03.1995 he attained full knowledge of the sale and instantly observed the ceremonies–talab-i-mowasibat and talab-i-ishhad. The crux of the dispute as it has been submitted before us by the learned counsels is whether the formalities as required to pre-emption were observed.    

Since the Plaintiff asserts that he observed the formalities on 23.03.1995 having been confirmed of the sale on receipt of the certified copy of the transfer deed, the onus lies on him to prove that his knowledge of sale accrued on 23.03.1995 and with least practicable delay placed his demand to ‘Suffa’ i.e. pre-emption of the land in suit by observing talab-i-mowasiabat and talab-i-ishhad. Let us now see how the evidence of the Plaintiff on this aspect is convincing and credible. Plaintiff claims that both P.Ws 2 and 3 were present at the relevant time of attaining his full knowledge and observing formalities on 23.03.1995. Plaint case is that he became suspicious on 12.03.1995 and asked P.W.3 on that day to enquire to the Sub-Register’s Office whether any sale has occurred in respect of the land in suit. Obviously, under the above circumstances a document is required to make proof of such inspection but the record does not speak of any such document. P.W. 3 deposed to support the Plaintiff on this point. Plaintiff filed the certified copy of the disputed transfer deed, exhibit 5 from which it transpires that stamp of the certified copy was procured on 08.02.1995.

P.W.3 deposed-

Òev x Avgv‡K wjj Zj−vkx w ‡Z e‡j 1995 mv‡ji gvP© gv‡mi cÖ_g w ‡K| ZvwiL

¯§ib bvB| mgq g‡b Av‡Q ycyi 2 NwUKv| ev x Avgvi Kg©¯’‡j wM‡q H Aby‡iva KwiqvwQj| Avgvi Kg©¯’j wm‡jU m i mve-†iwRwóª Awdm| Avwg †mBw b we‡K‡jB  wjj Zj −vkx † B| Avwg c~e©eZ©x 2/3 gv‡mi wjj Zj−vkx † B| wjj Zj−vkxi iwm

Avwg †bB bvB| Avwg †h Zvwi‡L Zj−vkx † B †mB ZvwiL nB‡Z 20/25 w b ci

 wj‡ji mÜvb bvB| AZtci 3/4 w b ci Avwg bK‡ji Rb¨ iLv¯Í Kwi| Zvi 3/4 w b ci Gwó‡g‡Ui LiP Rgv † B|’’ (under lines are ours).

Thus Plaintiff’s claim of direction to P.W 3 on 12

03.1995 for searching of the Sub-Register’s office falls short. Exhibit.5 speaks of delivery of certified copy on 23.03.1995.

Plaint case is that on 23.03.1995, at evening while the Plaintiff was in his office of Panama hotel along with P.W.2 he received the certified copy of the transfer deed from P.W 3 and he instantly jumped and placed 1st demand i.e. talab-i- mowasibat and with least practicable delay appeared on the land in suit along with the aforesaid witnesses i.e. P.Ws 2 and 3 and placed 2nd demand i.e talab-i-ishhad.

P.W.1, the Plaintiff deposed in his deposition-in-chief as under-

Ò23.03.1995 Bs Zvwi‡L Avgvi gyûix wcÖ‡qgkb wj‡ji Rv‡e v bKj Avgvi Kv‡Q

† q| Avwg ZLb Avgvi †nv‡U‡ji bxPZjvq †P¤^v‡i wQjvg| ZLb Avwg 31.01. 1995 Bs Zvwi‡L n¯ÍvšÍi m¤ú‡K© Rvb‡Z cvwi|”

He further deposed in his cross-examination-

ÒwcÖ‡qgkb wj‡ji bKj 23.03.1995 Bs Zvwi‡L gyûix iwdKz¾vgvb Avgv‡K w ‡q‡Q| ZLb weKvj 6 Uv ev‡R| Avwg †mB mgq bxPZjv Awdm K‡¶ Ae¯’vb Kwi‡ZwQjvg| ZLb Avgvi K‡¶ Ry‡ei Avn‡g wQj| .............| Ry‡ei Avn‡g  Avgv‡K wj‡ji bKj † Iqvi ci cÖ_g 3 cvZv cvV Kwi Ges vovBqv ewj ÔRy‡ei mv‡ne , iwdKz¾vgvb mvw¶ _v‡Kb| Avwg kwd Kwie| Avwg kwd Kwie| Avwg kwd Kwie, b¨vh¨ g~‡j¨|’’ (Under lines are ours).

P.W. 2 deposed-

“…….. R‰bK e¨w³ nv‡Z GKwU wj‡ji bKj wb‡q †P¤^v‡i cÖ‡ek Kwiqv QvËvi mv‡ne †K (Plaintiff) m‡¤^vab Kwiqv e‡jb Avwg wj‡ji Rvj msMÖn KwiqvwQ Ges R‰bK byiƒi iwk †PŠayix AveZvi Avjx Ms eive‡i Rwg weµq Kwiqv‡Qb| GB K_v †kvbvg‡Z QvËvi mv‡ne vovBqv e‡jb Avwg kwd, Avwg kwd| GB Rwg Lwi Kwie|Ó (Under lines are ours).

P.W.3, Rafiquzzaman in his deposition in-chief deposed-

ÒZvici , Avwg H wj‡ji bKj Zzwj 23.01995 Bs Zvwi‡L| mv‡_ mv‡_ Avwg H

 wj‡ji bKj cvbvgv †nv‡U‡j ev xi †P¤^v‡i wb‡q hvB Ges ev x‡K ewj wjj cvIqv wMqv‡Q| AZtci ev xi wb‡ ©k †gvZv‡eK Zvnv‡K Avwg wjjwU cwoqv ïbvB| wj‡ji

 vZv MÖnxZv I Zdwm‡j g~j¨ BZ¨vw  cwoqv ïbvB| wjj ïbv‡bvi ci ev x Avðvh©vwš^Z nBqv Zr¶bvZ emv Ae¯’vq nB‡Z vovBqv e‡jb Avwg Aek¨B kwd Kwie|”( Under lines are ours)

The above evidence of P.Ws 1, 2 and 3, regarding attainment of knowledge on 23.03.1995 on receiving certified copy is found contradictory and it reasonably casts doubt to its credibility.

Plaintiff claims in his plaint that on placing talabi- mowasibat along with the P.Ws 2 and 3 with least practicable delay he rushed to the land in suit and referring the talab-i- mowasibat placed talab-i-ishhad and plaintiff as P.W.1 accordingly deposed. He specifically admits in his cross- examination that at that time none from the opposite party was there.

P.W 2 deposed-(deposition in-chief)

Ò Zvici QvËvi mv‡ne wj‡ji bKj c‡ob Ges Avgv‡KI  wj‡ji bKj msMÖn

e¨w³‡K wb‡q bvt Rwg‡Z Av‡mb Ges bvt Rwg‡Z w¯’Z GKwU † vKvb N‡ii mvg‡b Ûvqgvb e¨w³‡K † LvBq Avgv‡ i e‡j e¨w³i bvg Qvw Kzi ingvb (Defendant

No. 4 in the suit)| QvËvi mv‡ne (plaintiff) Qvw Kzi ingvb‡K D‡Ïk¨

Kwiqv e‡jb †h, Avwg Avcbvi GB RwgUzKz µqK…Z g~‡j¨ †diZ wb‡Z PvB| Qvw Kzi

ingvb QvËvi mv‡n‡ei cÖ‡kœ m¤§Z bv nIqvq, QvËvi mv‡ne Avgv‡ i D‡Ïk¨ Kwiqv

e‡jb wZwb GB RvqMv kwd Kwi‡eb|”

The presence of Sadiqur Rahman at the time of talab-i- ishad is not legal requirement for ‘suffa’ but it is mentioned to pick up the picture of demanding talab-i-ishad for assessment of credibility of the evidence of the Plaintiff on whom the entire burden lies.

P.W.3 deposed-

“Zvici ev x Avgv‡K mn 4/5 Rb †jvK wbqv bvjxkv Rwg‡Z hvb| bvt Rwgi Dci

 vovBqv ev x Avevi e‡jb Avwg GB Rwg kwd Kwie| Zvici Avwg Pwjqv Avwm| ’’ But in his cross-examination he admitted-

“Avwg ev xi mv‡_ bvjxkv Rwg‡Z XywK bvB| msjMœ iv¯Ívq vov‡bv wQjvg | †mLv‡b

2/3 wgwbU vovBqv Avwg Pwjqv Avwm| GB mg‡qi wfZ‡i ev x bvjxkv RvqMvq wK Kwiqv‡Q Avwg ewj‡Z cvwie bv| GB mgq ev x kwd Kwie D”PviY Avwg ïwbqvwQ|...................|’’

Learned Advocate for the Plaintiff-appellant also admits

the above discrepancies of the depositions of the witnesses of the Plaintiff. He argues that the suit was filed in 1995 and deposition was made in the year 2000 and naturally it caused minor discrepancies. But we should bear in mind that immediate talabs and observation of formalities in strict form are the conditions precedent of Mohammadan pre-emption. We think that the above discrepancies on the material points is sufficient enough to cause loss to the credibility of the evidence in discharging the onus of the Plaintiff to place the demands immediately on attaining the knowledge of the transfer of sale which makes it complete on payment of consideration money and delivery of possession under the circumstances when the defendant claim that delivery of possession of the land in suit occurred long earlier immediately after registration of the sale deed dated 31.01.1995 and Plaintiff himself negotiate the sale and was present at the time of delivery of possession on demarcation by Advocate Commissioner and day to day necessary improvements thereon.

It is claimed by the Plaintiff in his plaint that he referred the reference of 1st talab i.e. talab-i-mowasibat at the time of 2nd talab i.e. talab-i-ishad. But his evidence on this point is quite absent. We have quoted the relevant deposition of P.W.1 earlier but it does not speak of any reference that he referred of 1st talab i.e. talab-mowasibat at the time of talab-i-ishhad. To make it clear, we want to quote the relevant portion of his deposition-

“mv‡_ mv‡_ Avwg bvjxkx Rwg‡Z hvB| ZLb Avgvi mv‡_ Avgvi gyûix iwdKz¾vgvb I G¨vW‡fv‡KU Ryev‡qi wQ‡jb| ZLb Aci †KD Dcw¯’Z wQj bv| Avwg †mLv‡b Dcw¯’Z mv¶x‡ i ‡gvKv‡ejvq bvt Rwg µq Kivi B”Qv e¨³ Kwi| Ges 3 evi Avwg kwd I

mv¶x‡ i bvg ewj|”

He reiterated the same fact in his cross-examination-

“Zvici Avwg Avgvi K¶ Z¨vM Kwiqv bvjxkv RvqMvq hvB| Avgvi mv‡_ D³ Ryev‡qi

I iwdKz¾vgvb wQj| Avwg bvt RvqMvq vwo‡ ewjÔ R ey v‡qi mv‡ne I iwdKz¾vgvb mv¶x _vwK‡eb GB RvqMv Dchy³ g~‡j¨ Lwi Kwi‡Z PvB, Avwg kwd, Avwg kwd, Avwg kwdÕ|’’

Learned Subordinate Judge also found the above defect

in placing the 2nd demand Learned Advocate for the Plaintiff- appellant submits that on placing the 1st demand with least practicable delay he rushed to the land in suit closely

adjacent from the place of 1st demand and placed the 2nd demand. He thus argues that under the above circumstances it is not proper appreciation of evidence that there was no reference of 1st talab at the time of 2nd talab and the learned Subordinate Judge on erroneous findings illegally dismissed the suit.

Under Section 236 (2) of Mohammedan law it necessarily requires the reference of 1st talab i.e. talab-i- mowasibat expressly at the time of formal demand i.e. talab-i- ishhad in presence either of buyer a seller or on the premises and in presence at least two witnesses.

In this regard Mr. Alam, the learned Counsel, appearing on behalf of the respondents rightly refers the decision held in the case. Md. Lokman Mondal VS. Amir Ali Mondal and others reported in 21 DLR (1969) 211.

The relevant para (para 10) runs thus-

“In the present case the plaintiffs have neither claimed nor

adduced evidence to the effect that at the time of making the

second demand a reference was made to the first demand.

That being so, I am of opinion that the plaintiffs are not

entitled to claim pre-emption and the learned Courts below

erred in law in not directing their attention to this question.’’ Here, in the instant case, although the Plaintiff claimed

to make reference of the first demand at the time of second demand but no evidence adduced to that effect. Moreover, we have already observed that the claim of acquiring full knowledge of sale on 23.03.1995 and tendering of required formalities lacks credible evidence.

It has been admitted by the Plaintiff that he had no tendered money at that time either in his hotel or in his bank account. But under section 238 of Mohammedan law tender of price is not essential. It is sufficient to declare his readiness and willingness to pay the price stated in the deed of sale.

Having regards to the facts, circumstances, evidence on record and our foregoing discussions, we are in conformity with the view of the court below that the Plaintiff failed to observe the required formalities to pre-empt the land in suit and the Learned Subordinate Judge did not commit any illegality in dismissing the suit.

We don’t find any merit to the present appeal.

In the result, the appeal is dismissed.

We make no order as to costs.

Send down the lower Court’s Record along with the copy of the judgment at once.

Farid Ahmed, J:

I agree.