IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Moinul Islam Chowdhury

CIVIL REVISION NO. 443 OF 2010

IN THE MATTER OF:

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

(Against Order)

-And-

IN THE MATTER OF:

Md. Ansar Ali and another

--- Preemptee-Appellant-Petitioners. -Versus-

Md. Jahir Hossain and another

---Preemptor-Respondent-Opposite Parties.

Mr.  Syed  Mohammad  Jabed  Parvez, Advocate

--- For the Preemptee-Petitioners. Mr. A. S. M. Khalequzzaman, Advocate

---For the Preemptor-Opposite Parties.

Heard on: 30.04.2023 and 03.05.2023. Judgment on: 16.05.2023.

At  the  instance  of  the  present  preemptee-appellant- petitioners, Md. Ansar Ali and another, this Rule was issued upon a revisional application filed under section 115(1) of the Code of Civil Procedure calling upon the opposite parties to show cause as to why the judgment and order complained of in the petition moved in Court today should not be set aside.

The relevant facts for disposal of this Rule, inter-alia, are that  the  present  preemptor-  respondent-  opposite  parties, Md. Jahir Hossain and another as the applicants-preemptors filed the Miscellaneous Case No. 29 of 2006 in the Court of the learned Assistant  Judge,  Court  No.  2  (Peergacha),  District-  Rangpur claiming right of preemption under the provision of law. The application for preemption contains that the suit land originally belonged to  Gour Chandra Das  who  died  leaving  behind  his daughter Porosh Moni thereafter transferred the land measuring 33 decimals of land to Aezuddin and also land measuring 33 decimals transferred to Nobin and Nimai. The said Aezuddin’s land transferred to his 4 sons, namely, Nurul Islam, Nazrul Islam, Abdul Matin and Shamsul Haque by registering Heba-Bill-Ewaz on  24.06.1978.  Nazrul  Islam  and  Shamsul  Haque  sold  11 decimals  of  land  to  Ashma  Khatun  and  Nurul  Islam  by registering sale deed No. 6722 dated 16.02.1987. Ashma Khatun and Nurul Islam sold 10.75 decimals of land to the preemptors. In  the  meantime,  Nurul  Islam  son  of  Aezuddin  sold  10.50 decimals  of  land  to  one  another  Nurul  Islam  son  of  Golam Uddin.  The  said  Nurul  Islam  and  his  wife  Ashma  Khatun preemptee  Nos.  3  and  4  sold  10.75  decimals  of  land  to  the preemptee- petitioner Nos. 1 and 2 by registering deed No. 9871 dated 30.11.2008 without serving any notice to the preemptors. However,  the  preemptors  came  to  know  about  itself  on 29.08.2006 and after obtaining a certified copy of the said sale deed filed this case.

The preemptee- petitioner Nos. 1 and 2 as the opposite parties contested the suit by filing a written objection stating that the preemtors are entitled to purchase the land at the cost by fixing Tk. 23,500/- (twenty-three thousand and five hundred) but they  could  not  arrange  the  required  money.  The  preemptees subsequently registered a sale deed thereafter without giving any notice to the preemptors.

The  learned  Assistant  Judge,  Court  No.  2  (Peergacha), Rangpur heard the case and came to a decision to allow the preemption case in favour of the preemptors. Being aggrieved the  present  preemptee-petitioners  preferred  the  Miscellaneous Appeal No. 44 of 2009 in the court of the learned District Judge, Rangpur who after hearing the parties dismissed the appeal on 27.08.2009  on  the  ground  of  of  limitation.  This  revisional application has been filed under section 115(1) of the Code of

Civil  Procedure  challenging  the  legality  of  the  impugned judgment and order and the Rule was issued thereupon.

Mr. Syed Mohammed Jabed Parvez, the learned Advocate appearing for the preemptee- appellant- petitioners submits that the learned appellate court below has committed a serious error of  law  in  not  considering  that  the  delay  of  244  days  was explained properly and occasioned a failure of justice.

He  further  submits  that  the  learned  trial  court  has committed a serious error of law occasioning failure of justice in not  considering  that  the  deed  in  question  was  registered  on 30.11.2004 and the preemption case was filed on 05.09.2006 and this  long  delay  in  filing  the  preemption  case  was  not  been explained by the preemptors by adducing evidence both orally as well as documentary.

The  Rule  has  been  opposed  by  the  present  preemptor- respondent-opposite party Nos. 1 and 2.

Mr.  A.  S.  M.  Khalequzzaman,  the  learned  Advocate, appearing on behalf of the preemptor-opposite party Nos. 1 and 2 submits  that  this  preemption  case  was  filed  by  the  opposite parties as the applicants to get a preemption right under section 96 of The State Acquisition and Tenancy Act, 1950 and the learned trial court in details described the cases of both sides and after hearing the parties allowed the application vide providing preemption right to the opposite parties as there was no formal notice upon the preemptors before the sale in question by the vendor- preemptees, as such, allowed the miscellaneous case in favour of the preemptors but the present petitioners obtained the Rule  by  misleading  the  court,  thus,  this  Rule  should  be discharged.

The learned Advocate further submits that the appeal was heard by the learned District Judge, Rangpur as there was no credible evidence or as to a delay of 244 days in filing the said appeal, thus, dismissed the appeal as being barred by limitation period and affirming the judgment of the learned trial court, as such, both the courts below concurrently found that preemption right has been accrued by preemptor-opposite parties, thus, the Rule should be discharged.

Considering the above submissions made by the learned Advocates appearing on behalf of the respective parties and also considering  the  revisional  application  filed  by  the  present preemptee-appellant-petitioners under section 115(1) of the Code of Civil Procedure along with the annexures therein, particularly,

the concurrent judgment passed by the learned appellate court below and also perusing the relevant and required documents available in the lower courts records, it appears to me that the present  preemptors-  applicants  filed  a  miscellaneous  case claiming  right  of  preemption  under  section  96  of  The  State Acquisition and Tenancy Act, 1950. The case of the preemptors is  that  the  suit  land  was  sold  on  30.11.2004  by  the  vendor- preemptees without serving any notice under section 89 of the Act, 1950 and the case was filed within the stipulated period of the law by the preemptors as the co-sharers of the case land. The learned Advocate for the opposite parties contradicted the case of the opposite parties by stating that there was a discussion by the preemptors and the preemptee-purchasers about the sale of the land but upon inability  to purchase the case land which is a notice or knowledge but the case was filed beyond limitation period described in the provision of law, as such, the preemption case is not maintainable.

In view of the above conflicting cases, this court has to take a decision as to whether the learned courts below made a lawful decision under the provision of law.

I have carefully examined the evidence and the judgments of the learned courts below. The learned trial court discussed the merit of the cases of the parties and decided that preemptors could successfully prove their case by giving evidence as to the sale of the land under section 96 of The Act, 1950 because, before the sale in question, the preemptees could not prove that there was knowledge about the preemptors as to the said sale of the  land,  therefore,  the  learned  trial  court  came  to  a  lawful decision  to  allow  the  miscellaneous  case  on  the basis  of the following findings:

…“fË¡b£Ñ LaѪL Be£a ANËœ²­ul clM¡­Ù¹ J­ui¡l, H ØV¡ fm

J HL¥C­p¾p ®c¡­o h¡¢la e¡ qJu¡u Aœ ®j¡LŸj¡ haÑj¡e BL¡ l J fËL¡ l Q¢m a f¡ l Hhw fË¡b£Ñ fË¢aL¡l f¡Ju¡l qLc¡l j jÑ Bc¡m al ¢eLV fËa£uj¡e qu L¡lZ Eš² ®j¡LŸj¡l e¢b c¡¢Mm£ fËcnÑe£ ¢Q¢q²a L¡NS¡¢c Hhw p¡rÉ fËj¡Z¡¢c fkÑ¡ m¡Qe¡ Cq¡ Bc¡m al ¢eLV fËa£uj¡Z qu ®k, fË¡b£Ñ f­rl A‘¡­a 3 J 4 ew fË¢afr 1 J 2 ew fË¢afr hl¡hl Eš² pÇf¢š qÙ¹¡¿¹l L­lez fË¡b£Ñfr e¡¢mn£ af¢pm h¢ZÑa pÇf¢š œ²up§­œ nl£L fËS¡ qJu¡u a¡­L ‘¡a Ll¡­e¡ 3 J 4 ew fË¢af rl E¢Qv ¢Rmz”…

The learned appellate court below without entering into the factual aspects of the merit of the case declared the suit is barred by a limitation period for a delay of 244 days and the learned  appellate  court  below  considered  that  there  was  no proper explanation as to the reason for the delay for such a long period of time of 244 days. The learned appellate court below dismissed the appeal on the basis of the following findings:

…“clM¡Ù¹L¡l£  Cw  24.10.2008  Hhw  16.07.2009

h¢qx¢hÑi¡­N X¡š²¡l ®cM¡Cu¡­Re j jÑ fËa£uj¡Z quz ¢L¿º 244 ¢ce

a¡j¡c£ j¡jm¡l B­hc­el ®r­œ fË¢a¢c­el ¢hm ðl hÉ¡MÉ¡ b¡L¡ BhnÉLz Bf£mL¡l£l h¡j q¡­al jdÉj¡ B‰¤m c¤OÑVe¡S¢ea L¡l Z

L¡¢Vu¡ ¢h¢µRæ qJu¡l L¡l Z ®L¡e q¡pf¡a¡ m i¢aÑ qCu¡ ¢Q¢Lvp¡d£e ¢Rm Hje ®L¡e c¡¢m¢mL fËj¡Z EfÙÛ¡fe L­le e¡Cz öd¤j¡œ 24.10.2008 Cw Hhw 16.07.2009 Cw a¡¢lM S¡a£u A bÑ¡fÉ¡¢XL q¡pf¡a¡m J f¤ehÑ¡pe fË¢aÖW¡e ®nl-C-h¡wm¡eNl, Y¡L¡u h¢qx¢hÑi¡ N ¢Q¢Lvp¡S¢ea L¡l Z 244 ¢c el a¡j¡c£ jJL¥g NËqZ k¡NÉ e¡ qJu¡u

B­hce e¡j”¤l­k¡NÉz”…

In view of the above discussions and concurrent findings in favour of the preemptors for acquiring a  preemption right under  provision  96  of  the  Act,  1950  as  there  was  no  notice served by the vendors before the sale of the land by the vendor- preemptees from the date of knowledge.

In this regard, it is to be mentioned that section 96 was amended  on  20  September,  2006  but  this  case  was  filed  on 18.08.2006. I have carefully examined the concurrent impugned judgment passed by the learned appellate court below and only considered that the suit was barred by limitation as there was no required documents were submitted by the preemptees as to the physical injuries and the treatment in any appropriate hospital for the purpose of satisfaction of the court, as such, I do not find any illegality or error of law committed by the learned appellate court below. In such an event, I consider that this is not an appropriate case  for  interference  from  this  court  and  this  Rule  does  not require any further consideration.

Accordingly, I do not find merit in the Rule.

In the result, the Rule is hereby discharged.

The  impugned  judgment  and  order  dated  27.08.2009 passed  by  the  learned  District  Judge,  Rangpur  in  the Miscellaneous Appeal No. 44 of 2009 dismissing the appeal and on the ground of limitation and thereby affirming the judgment and  order  dated  25.09.2008  passed  by  the  learned  Assistant Judge, Court No. 2, Rangpur in the Miscellaneous Case No. 29 of 2006 allowing the preemption case is hereby upheld.

The interim order was passed by this court at the time of issuance of the Rule staying the operation of the judgment and order passed by the learned trial court in the Miscellaneous Case No. 29 of 2006 and subsequently the same was extended from time to time and list the same was extended till disposal of the rule are hereby recalled and vacated.

The concerned section of this court is hereby directed to communicate  this  judgment  and  order  to  the  learned  courts below immediately.