Appellate Division
(Civil)
Nazmun Ara Sultana J
Syed Mahmud
Hossain J
Judgment
April 28th, 2014
Abu Hanif Hawlader
……….Petitioner
vs
Mohammad Amanat Ullah Hawlader and others .. Respondents
State Acquisition & Tenancy Act (28 of 1951)
Section 96
The pre-emptors admitted that they had knowledge about the deed of exchange but they had no knowledge that it was actually a sale and that knowing about the fact that the transfer in question was actually a sale but the deed was created as an exchange deed in order to avoid pre-emption they filed the pre-emption case within the statutory period from the date of their knowledge about the sale and, as such, the pre-emption case was within time. …… (9)
Mahbubey Alam, Senior Advocate instructed by Md Nawab Ali, Advocate-on-Record-For the Petitioner.
Khair Ezaz Maswood, Advocate instructed by Nurul Islam Bhuiyan, Advocate-on-Record-For Respondent Nos. 1 and 2.
Not Represented-Respondent Nos. 3-25.
Judgment
Nazmun Ara Sultana J : This Civil Petition for Leave to Appeal is directed against the judgment and order dated 24-6-2009 passed by the High Court Division in Civil Revision No. 3884 of 2007 making the rule absolute and thereby selling the aside concurrent findings and decision of both the trial court and the appellate court below.
2. The facts relevant for the purpose of disposal of this civil petition for leave to appeal, in short, are that the respondent Nos. 1 and 2 herein, as pre-emptors, instituted Miscellaneous Case No. 102 of 2000 in the Court of Assistant Judge, Lakshmipur for pre-emption under section 96 of the State Acquisition and Tenancy Act. Their case, in short, was that the vendor-opposite party No.2 sold the case land to the pre-emptee-opposite party No.1 Abu Hanif Howlader by a deed executed on 16-4-1998 and presented for registration on 24-4-1998 which was ultimately registered under Section 60 of the Registration Act on 10 -3 -1999. But to avoid pre-emption the said deed was executed and registered as a deed of exchange instead of deed of sale. The pre-emptors knew the said deed as deed of exchange. But in the middle of September, 2000 the vendor Manzuma Khatun disclosed for the first time that she had sold the case land to the preemptee and she had already returned the land which was shown to have been exchanged with the case land to the preemptee by a registered deed.
The pre-emptors then procured the certified copies of that deed of exchange and also the subsequent transfer deed executed by the vendor in favour of the pre-emptee and were confirmed that the transaction in question was, in fact, out and out sale, but the pre-emptee and the vendor, in collusion with each other, made the deed as an exchange deed only to avoid preemption. Thereafter, the pre-emptors instituted the pre-emption case on 30-11-2000. That the preemptors are co-sharers to the case holding while the pre-emptee-opposite party was a stranger to that. The pre-emptors were otherwise entitled to get pre-emption and they also deposited the requisite amount at the time of filing of pre-emption case.
3. The pre-emptee-opposite party No. 1 contested the case of pre-emption by filing a written objection. He has denied all the material allegations made in the plaint and contended that the transfer in question was not sale, but it was an exchange and, as such, the case of preemption was not maintainable at all.
This preemptee-opposite party has also denied the allegation that subsequently the vendor returned the land to him which was shown in that deed of exchange-by a registered deed. This preemptee-opposite party also alleged that the preemptors knew about the case transfer from the very beginning and, as such, the pre-emption case is barred by limitation.
4. The trial court dismissed the case for pre-emption by the judgment and order dated 31-1-2006 holding that the transfer in question was an exchange. The appellate court below affirmed this judgment and order of the trial court in Miscellaneous Appeal No. 14 of 2006 by the judgment and order dated 17-4-2007 . In the above mentioned civil revision the High Court Division found that the transfer in question, in fact, was out and out sale and that in order to avoid pre-emption the vendor and vendee, in collusion with each other, created the transfer deed as a deed of exchange and consequently allowed the pre-emption case.
5. Mr Mahbubey Alam, the learned Senior Advocate for the pre-emptee-petitioner though has made some submissions trying to assail the impugned judgment and order of the High Court Division but could not show us any wrong in the findings and decision made in that judgment.
6. The learned Advocate for the respondent Nos. l and 2 has supported the impugned judgment.
7. We have considered the submissions of the learned Advocates of both the sides and gone through the impugned judgment and order of the High Court Division, those of the courts below and also the materials on record.
8. It appears that the High Court Division-on meticulous examination and consideration of the evidence on record and also the facts and circumstances-arrived at the finding that the transfer in question, in fact, was out and out sale.
The pre-emptors filed the certified copies of the deed in question and also the subsequent transfer deed executed, by the vendor opposite party in favour of the pre-emptee opposite party which have been marked as exhibits-4 and 4 (ka) respectively.
The High Court Division examined both these transfer deeds and detected that only four days after execution of the deed in question the vendor executed and registered a kabala deed in favour of the pre-emptee in respect of the same land which was shown to have been exchanged with the case land.
The High Court Division in consideration of these two deeds-the exhibits-4 and 4 (Ka) and also considering the other evidence came to the clear finding that in order to avoid pre-emption the exhibit-4 was created as a deed of exchange though the transfer in question was out and out sale. The High Court Division held thus:
“In view of the aforesaid facts and circum stances of the case and the decisions as referred above, I am of the view that the pre-emptee and vendor. collusively created exhibit-4 in the form of deed of exchange. Exhibits-4 (Ka) and 5 clearly proved that the impugned transfer was out and out a sale and in order to avoid pre-emption it was made in the form of deed of exchange.”
9. The High Court Division considered also the plea raised by the pre-emptee-opposite party that the pre-emptors knew about the case transfer from the very beginning and, as such, the pre-emption case was barred by limitation.
The High Court Division rightly pointed out that the pre-emptors admitted that they had knowledge about the deed of exchange but they had no knowledge that it was actually a sale and that knowing about the fact that the transfer in question was actually a sale but the deed was created as an exchange deed in order to avoid pre-emption they filed the pre-emption case within the statutory period from the date of their knowledge about the sale and, as such, the preemption case was within time.
10. We find the above findings and decisions of the High Court Division correct. Considering the evidence on record and the facts and circumstances we find that the High Court Division rightly found that the transfer in question was out and out sale but in order to avoid pre-emption the vendor and vendee, in collusion with each other, created the transfer deed as a deed of exchange and that the pre-emptors filed the pre-emption case within the statutory period from the date of their knowledge about that sale.
We, therefore, find no merit in this Civil Petition for Leave to Appeal and hence it is dismissed.
