P L D 1969 Dacca 390 (PLP)

These four revisional cases are taken up together for hearing as they arose from the same judgment and order of the appellate Court below, the parties are the same and the same point at issue is involved in all these cases. They are being disposed of under this one judgment. In all these cases rules were issued upon the opposite- parties to show cause why the order dated 21‑9‑65 made by the Subordinate Judge, Additional Court, Chittagong, in Mis cellaneous Appeals Nos. 173, 174, 175 and 176 of 1965 reversing the order of Mr. H. Ahmad, Munsif, 4th Court, Sadar Chittagong, should not be set aside as prayed for, or such other or further order or orders passed as to this Court n ay seem fit and proper. Facts relating to these applications under section 115 of the Code of Civil Procedure may be briefly stated as follows: The opposite‑parties pre‑emptors filed the Miscellaneous Cases Nos. 2, 3, 4 and 5 of 1.965 in the trial Court under section 96 of the East Bengal State Acquisition and Tenancy Act, 1950 alleging that they are co‑sharers to the holdings involved in the said Miscellaneous Case alongwith Parijan Bibi impleaded as opposite‑party No. 2 in the said Miscellaneous Cases and that the present petitioner Farok Ahmad impleaded as opposite ‑ party No. 1 in those cases was a perfect stranger. Parijan Bibi had transferred her interest in the holdings in pursuance of four kabalas, dated the 25‑7‑64 but no notice regarding the transfers was served upon the petitioners in the Miscellaneous Cases or other co‑sharers of the holdings and accordingly they had no knowledge of the transfers till the 12‑9‑64 when Farok Ahmad was going to file his papers in Miscellaneous Case No. 23 of 1964 of the trial Court which was instituted against No a Meah and Moniruzzama by some of the pre‑emption‑petitioners. Thereafter enquiries were made regarding the transfers and the Miscellaneous Cases were instituted on 12‑1‑65, that is, within four months from the alleged date of know ledge 12‑9‑

64. The present petitioner Farok Ahmad contested the Miscellaneous Cases pleading inter alia that the Miscellaneous Cases were hopelessly barred by limitation and that he was a co‑sharer to the said holdings in pursuance of a gift in his favour in 1935. He denied that he was going to file any papers in Miscellaneous Case No. 23 of 1964 on 12.9‑64 though he alleged that in the written objection filed in the said case on 6‑8‑64, the present transfers were disclosed by No Meah and others and accordingly the pre‑emptors‑petitioners had knowledge of the transfers on 6‑8‑64 and in such view of the matter the applications were hopelessly time‑barred. On a careful consideration of the facts of the case and the evidence on record the learned trial Court bad dismissed the Miscellaneous Cases with costs and thereafter the petitioners preferred Miscellaneous Appeals Nos. 173, 174, 175 and 176 of 1965 which were heard by Mr. D. C. Chakraborty, Sub ordinate Judge, Chittagong who has reversed the finding of the trial Court and has allowed the Miscellaneous Cases. Hence were the revisional applications. There is no dispute to the fact that the present opposite -parties pre‑emptors‑petitioners are co‑sharers to the holding involved in the four transfers and that Parijan Bibi was a co‑sharer with them in the said holdings. It is not also disputed that Parijan Bibi has transferred her interest in the holdings in pursuance of four kabalas, dated 25‑7‑

64. It may be mentioned here that the previous Miscellaneous Case No. 23 of 1964 was filed with regard to a holding recorded in R. S. Khatian No. 4133 and that Miscellaneous Cases Nos. 2 and 3 of the trial Court were instituted regarding, the said holding, but the holdings that were involved in Miscellaneous Cases Nos. 4 and 5 of the trial Court were not involved in the previous Miscellaneous Case No. 23 of 1964. Exh. D is the certified copy of the application filed in Miscellaneous Case No. 23 of 1964 and Exh. C is the certified copy of the written objections filed in the said Miscellaneous Case on 6‑8‑

64. The petitioners pre‑emptors alleged that they had knowledge of the present four transfers on 12‑9‑64 when Farok Ahmad was going to file his all papers in Miscellaneous Case No. 23 of 1964 whereas Farok Ahmad averred that in the written objection filed in the said Miscellaneous Case No. 23 of 1964, it was alleged that Parijan Bibi had sold away to Farok Ahmad whatever interest she had in the holding in dispute in the said Miscellaneous Case and consequently knowledge emanated to the pre‑emptors petitioners on 6‑8‑64 and not on 12‑9‑64 as was alleged by them. Thus we find that the primary question that was raised in all these Miscellaneous Cases was when the petitioners had knowledge of the sales. In paragraph 2 of all the applica tions filed in the said Miscellaneous Cases the petitioners stated as follows: "That the O. P. 2 has transferred the land secretly to O. P. 1 and no notice of the transfer was served on the petitioners who first came to know of the sale on 12‑9‑64 in this Court, when O. P. 1 was going to file his all papers." In his evidence the petitioner No. 1 Abdul Jalil examined as P. W. 1 stated, "we knew of the disputed sales to O. P. 1 on 27th Bhadra last (1371 B. S;)". In his cross‑examination, however he stated, " We knew of the disputed sale on 27th Bhadra last from Mir Hussain (O. P. 7)." Mir Hussain figures as petitioner No. 7 though he was wrongly stated by the trial Court as opposite‑pasty No. 7 Mir Hussain was present in Court when petitioner No. 1 was examined, and Mir Hussain did not dare assert on oath how he came to know of the sale and when he informed the petitioner No. 1 of it. Again it is a complete departure from what is stated in paragraph 2 of the applications regarding the source of knowledge. In this connection the learned Subordinate Judge has observed: ‑ " It is true that petitioner No. 7 was present in the Court at the time of examination of P. W. 1 and that O. P. No. 7 was not examined to corroborate P. W.

1. But this sugges tion about the actual filing of `all the papers' a id the present absence of any evidence about the filing of the said `all the papers' definitely point to the conclusion that there had been a talk for filing of the said `all the papers' and that the petitioners came to know about the transfer from the said conversation." I am sorry I am unable to appreciate the logic of this argument. It is nobody's case that the petitioners came to know about the transfers from any conversation regarding filing of "all papers" by Farok Ahmad, inasmuch as it was the clear assertion in the applications that the petitioners came to know of the transfers when Farok Ahmad was filing papers in Miscellaneous Case No. 23 of 1964, and again in his deposition before the Court petitioner No. 1 stated that he came to know of the transfers from petitioner No.

7. As it was nobody's case that the petitioners came to know of the transfers from the conversation of filing papers, I am afraid the learned Court below was not entitled to make out a third case in favour of the petitioners with a view to save the period of limitation. Farok Ahmad categorically asserted that he did not attend Court on 12‑9‑64 and that be filed no papers in Miscellaneous Case No. 23 of 1964. There is no evidence that Farok Ahmad had filed any paper in tote said Miscellaneous Case. Again if he was required to file any paper in the said Miscellaneous Case, he would have filed papers regarding the holding recorded in Khatian No. 4133 which was involved in the said Miscellaneous Case and not papers of the holdings that are involved in Miscellaneous Cases Nos. 4 and 5 in this connection. On a careful con sideration of all such facts and the evidence on record I am constrained to hold that the petitioners in the four Miscellaneous Cases most miserably failed to substantiate when their knowledge of the present transfers emanated. Section 96 of the East Bengal State Acquisition and Tenancy Act creates a special period of limitation provided in the section, and heavy onus lies on the shoulder of the petitioner to sub stantiate by uncontroverted evidence that he has come within the period of limitation. If he fails to discharge the onus the right must be denied to him. Mr. Mofakher, the learned Advocate for the petitioner Farok Ahmad further submitted that the learned Subordinate Judge misconceived the findings of the Munsif regarding the gift that it has seriously prejudiced his finding regarding the question of limitation. It appears that the learned Munsif recorded his finding regarding the gift to this effect: I do not agree with the learned lawyers for the petitioners that the gift Exh. B was not acted upon for non‑delivery of possession to the father of the donees who were according to the statement of O. P. W. 1 were minor in 1935. "The learned Subordinate Judge, however, has observed first regarding the gift that". The learned Munsif rejected the O. P's. plea of acquisition of any interest by the alleged gift." Again he has observed at end of this judgment to this effect "The learned lawyer for the respondent pressed the point about O. P. S allegation of his being a co‑sharer by gift. I have gone through the evidence on record and I fully agree with the learned Munsif's findings that O. P. No. 1 or his brother never possessed any land of any of the holdings of these four Miscellaneous Cases and that consequently the gift, had there been any with respect to the present holdings in question, was void and invalid." It is obvious that the reading of the trial Court's findings by the learned Subordinate Judge was mistaken and for the matter of that there is much truth in the submission of L Mr. Mofakher that such misconceived reading of the findings of the trial Court regarding the gift has also seriously pre judiced the findings of the learned appellate Court below. In the result I find that all the four Miscellaneous Cases must be dismissed as the petitioners pre‑emptors failed to substantiate that they came within the period of limitation. All the Rules are made absolute, the judgment and order of the appellate Court below are set aside and that of the learned Munsif restored. There shall be no order as to costs of these Rules. A. E./S. A. H. Rules made absolute.