IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

                              Mr. Justice Md. Bashir Ullah

Civil Revision No. 3103 of 2004

                              IN THE MATTER OF:

An application under Section 115(1) of the Code                                of the Civil Procedure, 1908

And

IN THE MATTER OF:

Md. Abdus Satter

               ... Pre-emptor-Respondent-Petitioner.

-Versus-

Md. Abdus Salam and others

... Pre-emptee-Appellant-Opposite parties.

Mr. Samarendra Nath Goswami with

Ms. Afsana Begum, Advocate

        ... For Pre-emptor-Respondent-Petitioner.

Not represented

           ... For pre-emptee-Appellant-opposite parties.

Heard & Judgment on: 01.08.2024

At the instance of the pre-emptor in Miscellaneous Case No. 01 of 2001, this Rule was issued calling upon the opposite party No. 1 to show cause as to why the judgment and order dated 23.06.2004 passed by the Joint District Judge, Third Court, Naogaon in Miscellaneous Appeal No. 85 of 2002 reversing the judgment and order dated 06.07.2002 passed by the Assistant Judge, 9th Court, Naogaon in Miscellaneous Case No. 01 of 2001 should not be set aside or such other or further order or orders passed as to this Court may seem fit and proper.

At  the time  of  the issuance of  the Rule,  the  operation of the judgment and order dated 23.06.2004 passed by the Joint District Judge, Third Court, Naogaon in Miscellaneous Appeal No. 85 of 2002 was stayed.

Facts relevant for the purpose of disposal of the Rule, in short, are that, the suit land originally belonged to one Samiruddin, father of the pre-emptor and opposite party nos. 7-8. Samir Uddin transferred the case land by way of registered kabala deed to the petitioner and opposite party no. 7. Subsequently, the pre-emptor and opposite party nos. 7-8 partitioned their land and the pre-emptor got .045 acre of land in plot No. 447 and opposite party no. 7 got .115 acres of land. Thus the opposite party no. 7, brother of the pre-emptor became owner and thereafter sold the case land by two separate sale deeds to the opposite party nos. 1 to 6 without giving any notice of sale to the pre-emptor. The opposite party nos. 1-6 are stranger in the disputed case holding. The pre-emptor came to know about the disputed sale on 31.12.2000, when the opposite party nos. 1 to 6 came to measure the case land. The case holding in question is contiguous to the house of the pre-emptor and he is a co-sharer in the disputed case holding. Hence, after obtaining the certified copies of the disputed deeds on 01.01.2001, the petitioner as pre-emptor instituted Miscellaneous Case No. 01 of 2001, before the Assistant Judge, 9th Court, Naogaon.

The pre-emptee-opposite party nos. 1-5 and 7 contested the case by filing a joint written objection denying all material allegations made in the petition. Defence case in short is that opposite party no.7 offered to sell the case land to the pre-emptor for want of money but he refused to purchase. Then he offered to pre-emptee nos. 1 to 6 to purchase the case land and they accepted the proposal. Accordingly, the opposite party no. 7 executed two deeds being nos. 3553 and 3554 on 20.08.2000. On the same day, the opposite party nos. 1-5 executed registered an ekrarnama  assuring  that  if  the  opposite  party  no.7  would  repay  the consideration money within 15.01.2001 they would return the case land and execute reconveyance deed in favour of the opposite party no. 7. Accordingly, the opposite party no. 7 repaid consideration money to the opposite  party  nos.  1-5  on  11.01.2001  and  opposite  party  nos.  1-5 executed a transfer deed being no. 91 in favour of the opposite party no. 7. Opposite party no. 7 is in possession in the case land.

In order to dispose of the case, the trial Court framed as many as 4(four)  different  issues.  During  trial,  the  pre-emptor  examined  one witness  and  opposite  party  examined  two  witnesses  to  prove  their respective cases.

Upon  hearing  the  parties,  the  learned  Assistant  Judge,  after considering the evidence on record allowed the pre-emption case by judgment and order dated 06.07.2002.

Challenging the above-mentioned judgment and order, opposite party no.1 as appellant preferred Miscellaneous Appeal No. 85 of 2002 before the learned District Judge, Naogaon. The District Judge, Naogaon transferred the appeal to the learned Joint District Judge, Third Court, Naogaon. Upon hearing the parties, the learned Joint District Judge, Third Court, Naogaon allowed the appeal on 23.06.2004 and sent the case back on remand with a direction to the learned Assistant Judge to hear the case afresh after giving opportunity to both the parties in respect of ekrarnama. 

Being aggrieved by and dissatisfied with the judgment and order dated  23.06.2004  passed  by  the  Joint  District  Judge,  Third  Court, Naogaon  in  Miscellaneous  Appeal  No.  85  of  2002,  the  petitioner preferred the instant Civil Revision under Section 115(1) of the Code of Civil Procedure before this Court and obtained Rule and stay.

Ms. Afsana Begum learned Advocate appearing on behalf of the petitioner submits that the pre-emptor is a co-sharer by inherent in the case land, on the other hand the pre-emptee nos. 1 to 6 are strangers. The pre-emptees failed to prove the ekrarnama and hence the trial Court rightly allowed the pre-emption Case. But the appellate Court below failed to consider the facts and circumstances that the trial Court made elaborate discussion about the ekrarnama and the pre-emptees could not prove the same. Notwithstanding, the appellate Court below send the case back on remand which is totally illegal and liable to be set aside. With such submission, the learned Advocate finally prays to make the Rule absolute by setting aside the impugned judgment and order.

No one appears on behalf of the opposite parties.

I have heard the learned Advocate for the petitioner and perused the revisional application, the judgment and order and other materials on record.

Record shows that PW1, Md. Abdus Sattar in his deposition stated

that:

“paÉ e−q ®k, e¡¢mn£ c¡−N 7ew fТaf−rl h¡¢s B−R h¡ pÇf¢š ¢hœ²−ul Lb¡ Bj¡−L S¡e¡u h¡ B¢j œ²u L¢l−a Aü£L¡l L¢l h¡ ¢hœ²−ul a¡¢l−MC HL¢V HLl¡le¡j¡ ®l¢S¢øÌ quz I HLl¡le¡j¡ flha£Ñ−a pª¢Saz ®L¡e A−l¢S¢øÌL«a HLl¡le¡j¡ Ll−mJ a¡q¡ flha£Ñ−a pª¢Saz paÉ e−q ®k, HLl¡le¡j¡ h−m 91ew ®l¢S¢øÌ c¢m−m 1-5ew fТafr 7ew fТar−L ®gla ®cuz I c¢mm p¢WL e−qz Bj¡l ANËœ²u j¡jm¡−L fТaqa Ll¡l SeÉ ®hBCe£i¡−h pª¢Sa q−u−Rz”

In cross examination he replied that:

“paÉ e−q ®k... I a¡¢l−MC HLl¡le¡j¡ ®mM¡ qu h¡ I HLl¡le¡j¡l naÑ ®j¡a¡−hL 15-1-2001 a¡¢l−Ml j−dÉ c¢mm j§mÉ ®gla ¢c−m 1- 6ew fТafr 7ew fТafr hl¡hl ®gla ¢c−h h¡ B¢j HLl¡le¡j¡l ¢hou S¡ea¡jz”

OPW1 Md. Abdus Salam in his cross examination replied that:

“B¢j HLl¡le¡j¡ ®l¢S¢øÌ L¢l e¡Cz B¢j HLl¡le¡j¡l stamp vendor ®L p¡r£ j¡¢e e¡Cz ®L¡e vendor Hl L¡R ®b−L œ²u L¢l ®Mu¡m e¡Cz ®iä¡l Hl Stamp Register amh ®cC e¡Cz ...”

OPW2, Saidur Rahman, in cross examination replied that:

“B¢j HLl¡le¡j¡u p¡r£ e¡Cz ... paÉ e−q ®k, fСb£Ñl A¢dL¡l ®WL¡−e¡l SeÉ S¡m HLl¡le¡j¡ pª¢ø L−l¢Rz paÉ e−q ®k, HLl¡le¡j¡ ¢ho−u Bj¡l ®L¡e ‘¡e e¡C h¡ ¢jbÉ¡ p¡r£ ¢cm¡jz ”

The  above  mentioned  evidence  indicates  that  the  pre-emptee failed to prove the ekrarnama. The so called ekrarnama is not registered, and the same was not exhibited in the pre-emption case. The trial Court discussed  in  details  regarding  the  ekrarnama.  Unfortunately,  the appellate Court below failed to appreciate such vital aspect that the trial Court below discussed in its judgment in details.

Law is settled that order of remand can not be granted as a matter of course to fill up the lacuna in the case. The  ekrarnama was not tendered and proved in evidence by the pre-emptee although that was their definite case. The appellate Court failed to appreciate this aspect of the case and wrongly refused pre-emption by sending the case down on remand. The ekrarnama appears to be a colourable transaction in order to defeat pre-emption. The trial Court did not commit any wrong in granting pre-emption. The judgment and order passed by the appellate Court below being perverse and misconceived is liable to be set aside and the pre-emption is allowed.

In the result the Rule is made absolute, however without any order as to cost.

The judgment and order dated 23.06.2004 passed by the Joint District Judge, Third Court, Naogaon is set aside.

The order of stay granted at the time of issuance of the Rule stands recalled and vacated.

Send down the Lower Court Records with a copy of this judgment to the court concerned forthwith.

(Justice Md. Bashir Ullah)

Md. Sabuj Akan/ Assistant Bench Officer

The appellate Court below did not ponder for a while that stated in

his cross-examination that “..Avwg GKivibvgv †iwRwóª Kwi bvB| ... Avwg GKivi bvgvi stamp vender .. ‡K mvwÿ ... gvwb bvB| †Kvb vender .. Gi KvQ †_‡K stamp..

µq Kwi .... †ehvj bvB vender .. µq stamp register ... Zje †`q bvB| “ and the

trial Court bellow hold that” opposite party did not formally prove the

ekrarnama and as such appellate Court below committed an error of law

resulting in an error in the decision occasioning a failure of justice.

It is submitted that the appellate Court below without applying

judicial mind misreading of the evidence on record by holding that “...

gvgjvwU cybt wePv‡ii Rb¨ †cÖwiZ nB‡j cÖwZcÿ Zvn ‡`i Kw_Z GKivibvgv cÖgv‡bi Rb¨ AwZwi³ mvÿ¨ cÖgv‡bi my‡hvM .. nB‡e|Óp rinciple laid down in 6 BLT (HCD) is

that “re-examination shall not be allowed to destroy the effect of cross-

examination” and as such committed an error of law resulting in an error

in the decision occasioning a failure of justice.

The principle laid down in the case of S. Mohammad Shahjahan

Vs. Md. Akmal Hossain & others reported in 5 BLT (HCD) 19 is that

“order of remand by the appellate Court on preliminary point not proper

when the said preliminary point was raised in the trial Court and the Judgment was passed on discussion of the entire evidence on record adduced  by  both  the  parties”  and  as  such  appellate  Court  below committed  an  error  of  law  resulting  in  an  error  in  the  decision occasioning a failure of justice.

The  appellate  Court  below  failed  to  consider  the  facts  and circumstances that contesting opposite party failed to discharge the onus to prove that the ekrarnama was correct and as such order of remand in respect  of  ekrarnama  was  therefore  absolutely  uncalled  for  and  the impugned Judgment and order liable to be set aside. Wherefore, it is humbly prayed that your lordships would graciously be pleased to call for the record and to issue rule on the opposite party No.1 to show cause as to why the Judgment and order dated 23.06.2004 passed by the Joint District Judge, 3rd Court, Naogaon in Miscellaneous Appeal No. 85 of 2002 reversing those Judgment and order dated 06.07.2002 passed by the Assistant Judge 9th Court, Naogaon in Miscellaneous Case No.1 of 2002 and order of remand should not be set aside, after hearing the parties, perusing the records and cause shown if any to make the Rule absolute  and  pass  such  other  or  further  order  or  orders  as  to  your lordships may deem fit and proper