Home Today's Paper Most Popular Video Gallery Photo Gallery
Subscription Blog Signin Register
Logo
Tuesday, June 19, 2018 10:50:38 AM
Follow Us On: Facebook Twitter Twitter Twitter Twitter

Counting time for pre-emption starts from date of knowledge

By
25th-Mar-2017       
Comments
Share your thought
Post a comment »
Read all () »

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.

Tariff
Add Rate

News Archive

Inside The New Nation

Editorial »

Save the flood victims and take adequate measures for post-flood rehabilitation


INCESSANT rainfall in the last few days has triggered floods in the country's East and South East districts. Thousands of people of Moulvibazar, Habiganj, Feni and Chattogram districts have been marooned as floodwater crawled to inundate their homestead and damage crops and livestock. The New Nation recently reported that Khowai, ...

Football »

A Mexico soccer fan celebrates her team victory against Germany after their group F match at the 2018 soccer World Cup in the Luzhniki Stadium in Moscow, Russia on Sunday.


Sports »

Federer wins 98th ATP title in Stuttgart


AFP, Germany :Roger Federer claimed his 98th ATP title on Sunday with a 6-4, 7-6 (7/3) defeat of Milos Raonic in the grass-court Stuttgart Cup final.The Swiss great, who will be chasing a ninth Wimbledon triumph next month, beat his Canadian opponent for the 11th time in 14 meetings while ...

International »

US policy on migrant kids `unconscionable`: UN rights chief


AP, Geneva :The U.N. human rights chief is urging the Trump administration to end new policies separating migrant children from their parents after entering the United States from Mexico, saying they've affected nearly 2,000 kids in the last six weeks.Zeid Ra'ad al-Hussein says it's "unconscionable" that any country would seek ...

International »

Family separation policy starts dividing Republicans


AP, Washington :The emotional policy of separating children from their parents is also starting to divide Republicans and their allies as Democrats turn up the pressure.Former first lady Laura Bush called the policy "cruel" and "immoral" while GOP Sen. Susan Collins expressed concern about it and a former adviser to ...

City »

Prime Minister Sheikh Hasina exchanging pleasantries with diplomats at Ganabhaban in the city on Saturday on the occasion of holy Eid-ul-Fitr.


Editorial »

Eid Mubarak


EID UL FITR is an important religious event celebrated by Muslims worldwide that marks the end of Ramadan, the Islamic holy month of fasting (sawm). The Eid (Muslim religious festival) is the first and only day in the month of Shawal during which Muslims are not permitted to fast. The ...

Cricket »

History-making Afghanistan get baptism of fire in Test cricket


AFP, Bangalore :Afghanistan were handed a bruising introduction to Test cricket by India on Thursday as they capped their astonishing rise from war and refugee camps to joining the sport's elite.Afghan skipper Asghar Stanikzai called it a "very proud moment" as he strode onto the field at Bangalore's M. Chinnaswamy ...

Football »

Orlando City midfielder Josue Colman kicks the ball away from Montreal Impact defender Rod Fanni during the second half of an MLS soccer match on Wednesday in Montreal.


Football »

German Chancellor Angela Merkel (center) and the former German national soccer team player and integration commissioner of the German soccer association, Cacau (right) attend a women soccer training session at a soccer club in Berlin, Germany on Wednesday.


International »

World can `sleep well` after North Korea summit: Trump


A jubilant-sounding President Donald Trump declared Wednesday that his "deal" with Kim Jong Un has ended the North Korean nuclear threat, as his top diplomat said he hoped to see "major disarmament" of the country by 2020.Despite the lack of detail, or binding terms in the joint statement agreed with ...

International »

UN rights office calls for int’l probe in Kashmir


AP, Geneva :The U.N. human rights chief called Thursday for an independent, international investigation into reports of rights violations in the disputed region of Kashmir, laying blame for civilian deaths and injuries on the actions of both India and Pakistan.In its first report on the region, the office of Zeid ...

City »

Air Chief adorned with Air Marshal rank badge


A ceremony marking the adorning of rank badge of new Chief of Air Staff Air Marshal Masihuzzaman Serniabat was held at the Prime Minister's Office (PMO) on Thursday.In the presence of Prime Minister Sheikh Hasina, Chief of Army Staff General Abu Belal Mohammad Shafiul Huq and Chief of Naval Staff ...

Entertainment »

Sylvester Stallone under probe for sexual assault


Los Angeles prosecutors said on Wednesday that their sex crimes team was reviewing a case against Rocky actor Sylvester Stallone. Los Angeles District Attorney's office spokesman Greg Risling did not give details but said the case was presented by police in the California beach city of Santa Monica.Representatives for Stallone, ...

Editorial »

Pay the workers immediately, let them celebrate the Eid


NEWS media reported that nearly 40 percent of the garment factories, most of which are small and not members of any trade bodies like the BGMEA or the BKMEA, are yet to pay the workers' salaries or festival bonus although Eid-ul-Fitr is knocking at the door. Most of the 4.4 ...

 
Items that you save may be read at any time on your computer, iPad, iPhone or Android devices.
 
Are you new to our website? Do you have already an account at our website?
Create An Account Log in here
Email this news to a friend or like someone
Email:
Write a comment to this news