1. NURUL ISLAM J.-This rule has been obtained by the peti--tioners who are subsequent purchasers of some lands by a register--ed document dated 3-12-1966 sought to be pre-empted by the Opposite-Party No. 1 who filed in an application under section 96 of the East Bengal State Acquisition and Tenancy Act in the Miscellaneous Case No. 86 of 1967 of the Court of the Subordi-- nate Judge, Khulna.
2. The facts which have led to the present rule are briefly stated as follows: The pre-emptor Opposite- Party No. 1 filed the afore-mentioned Miscellaneous case under section 96 of the East Bengal State Acquisition and Tenancy Act and subsequently by a petition prayed for treating the said application as one under section 24 of the Fast Bengal Non-Agricultural Tenancy Act. It appears that the learned Subordinate Judge as well as the appellate Court below treated the said application under section 96 of the East Bengal State Acquisition and Tenancy Act to be one under section 24 of the East Bengal Non-Agricultural Tenancy Act. It is the case of the pre-emptor opposite-party No. 1 that he is a co-sharer by purchase in respect of the holding recorded in G. S. Khatian No. 39 corresponding to S. A. Khatian No. 34 of Mouza Debnagar and that on 3-12-1966 when Messrs Khan Brothers Limited (opposite-party No. 3 before us) sold away the disputed land measuring about '901 acres appertaining to the said holding to a stranger, namely, Khalilur Rahman, Opposite-Party No. 2 in this rule for a sum of Rs. 6,000 only by a registered kabala of the said date he filed the present apple--cation for pre-emption. It is the further case of the pre- emptor that a notice of transfer was also served on him on 8-12-1966 and as such he was entitled to pre-empt the said land. He has further alleged that Khalilur Rahman, in the meantime, created certain collusive and fraudulent documents in favour of the petitioners before us.
3. The petitioners in the present rule contested the application for pre-emption by filing two separate written objections wherein they denied all the material allegations of the pre-emptor. Their case, in short, is that the disputed holding recorded in C. S. Khatian No. 39 originally belonged to Ujiruddin Sheikh, Nayan Sheikh and Abdus Samad Sheikh in equal shares at a jama of Rs. 3.00 and the intere.,t of Nayan Sheikh was inherited by his three sons and that of Ujiruddin Sheikh was inherited by his only son Golam Kader; that the heirs of the Nayan Sheikh and Ujiruddin Sheikh who had 2/3rd shares in the holding got their jama split up and thereafter transferred the same to Messrs Khan Brothers Limited, Opposite-Party No. 3 by registered kabala dated 12-3-60 and since the said purchase the said Khan Brothers Limited had been possessing the same by making constructions thereon and also carrying business therein. It is the further case of the petitioners that the said Khan Brothers Limited sold away the land in question to Khalilur Rahman Opposite-Party No. 2 by a registered-deed of sale dated 3-12-1966 and since then Khalilur Rahman had been possessing the said lands without any disturbance. In the first part of 1967 the petitioner No. 1 purchased '45 acres out of the said lands of Khalilur Rahman for a sum of Rs. 35,000 and all the three petitioners before us purchased the remaining lands for a sum of Rs. 23.000 and after acquiring the interest in the said land by the said purchase the petitioners erected pucca structure in the disputed lands and have been peacefully possessing the same. It is also the case of the petitioners that Abdus Samad Sheikh was a benamdar in respect of the remaining 1/3rd share and the real owner was Sakhina Khatun, wife of Delmar Ahmed and after the death of Sakhina her heirs inherited the same and have been in possession of the same and that Rokeya had never any saleable interest and possession in the said land and therefore the pre-emptor acquired no interest in the original holding by purchase from Rokeya.
4. The learned Subordinate Judge after considering the material evidence, oral and documentary, came to positive finding that the pre-emptor was not a co-sharer and Rokeya Khatun was not Sakhina Khatun as alleged by the pre-emptor and there was no question of estoppel as made out by the pre-emptor petitioner before him. On appeal the learned Additional District Judge who heard the same being Miscellaneous Appeal No. 88 of 1968, by his judgment dated 13-1-1969 reversed the decision of the learned Subordinate Judge and allowed the application for pre- emption holding that the pre-emptor was a co-sharer in respect of the disputed land and the petitioner being aggrieved by the said decision moved this Court and obtained the present rule before we proceed to discuss and consider the points canvassed before us in details we would like to mention here that the appellate Court below based his decision mainly on the registered kabala dated 16-2-62 marked as Exh 3, but even while construing the said document he was in error and moreover, he did not consider certain other material evidence which would have led to a correct interpretation of the said document.
5. Mr. Randhir Sen, the learned Advocate appearing on behalf of the petitioners contends that the appellate Court below acted illegally and with material irregularity in the exercise of his jurisdiction in arriving at the decision without considering at all the most important document, the Kabinnama Exh. E which would show that Rokeya was married to Delwar Ahmed on the 30th August 1939. The fact that Sakhina Khatun was at least married prior to that date is to be found from the deed of relinquishment Exh. 4, and the oral evidence of the petitioners witnesses namely father of Rokeya and her husband. So, Mr. Sen contends that the appellate Court below has totally confused the case of the petitioners as made out with reference to the material evidence on record, particularly, the deed of relinquishment dated 1-5-1936, kabala Exh. 3(b) dated 21-4-51 and the Kabinnama Exh.
6. E dated 30-8-39. The learned Subordinate Judge, according to Mr. Sen, has considered all these documents along with the oral evidence adduced in the case and came to a positive finding to the following effect:- "Be that as it may Rokeya Khatun may not be the same person in whose favour the Muktipatra Exh.
7. 4, was executed by Abdus Samad because it was executed in favour of one Sakhina Khatun who was also the wife of Delwar Ahmed. At the time of trial it was alleged by the petitioner that Rokeya of kabala Exh. 3 was alias Sakhina. For the first time in reply to the interrogatories submitted by the contesting O. Ps. Petitioner disclosed on 9-3-68 that Rokeya was alias Sakhina but this reply, though required by law, is not supported by an affidavit."
8. It would appear from the judgment of the learned Subordinate Judge as well as from the records that opposite-party witness No. 1 Md. Sardar A.I Mia who is the father of Rokeya deposed that she was married previously and her second husband is Delwar Ahmed. The husband of Rokeya Khatun who deposed as opposite-party witness No. 4 also testified to the effect that Rokeya Khatun was his second wife and his first wife was Sakhina Khatun and that Sakhina and Rokeya are not the same person. According to his evidence Delwar Ahmed married Sakhina Khatun in 1927-28 and he married Rokeya Khatun in the year 1939. We have also mentioned above that the Kabin--nama Exh. E clearly shows that Rokeya Khatun was married to Delwar Ahmed on 30-8-39. In this context the deed of relin--quishment Exh. 4 dated 1-5-36 becomes very much important to be considered while deciding the question as to acquisition of the land in dispute by the pre-emptor opposite- party. This deed of relinquishment Exh. 4 clearly shows that Abdus Samad Sheikh the benamdar of Sakhina Khatun executed the said document in her favour as real owner as far back on 1-5-36. If that be the position then by no stretch of imagination it can be said that Rokeya Khatun who was married in the year 1939 was really Sakhina Khatun as alleged by the pre-emptor Opposite-Party No. 1. Curiously enough the learned Additional District Judge while considering the kabala Exh. 3 by which the preemptor alleges to have purchased the disputed land from Rokeya has arrived at the following finding: "From this recital Exh. 3 we find a clear reference to the Muktipatra Exh. 4 which however, appears to have been executed by a person in the name Sakhina Khatun. Now while Rokeya Khatun of Exh. 3 executed the kabala Exh. 3 in favour of the petitioner she made clear unambiguous statement that this Muktipatra Exh. 4 was executed in her favour by Abdus Samad. It, therefore, leaves no doubt in our mind in spite of what has been stated by O/P. W. 1 and 4, that this Sakhina Khatun of Exh. 4 is the same person as Rokeya Khatun of Exh. 3."
9. We really fail to understand how the learned Additional District Judge could arrive at that finding on the interpretation of the document Exh 3, which we have also very closely examined and scrutinised. The aforesaid recital in the document Exh. 3 executed by Rokeya cannot in any way bind Sakhina Khatun nor it can even suggest that Rokeya and Sakhina are one and the same person.
10. Mr. Md. Jani Alam, learned Advocate appearing on behalf of the pre-emptor Opposite-Party No. 1 submits that the State Acquisition Khatian having recorded the disputed land in the name of the pre-emptor it should be presumed that the pre-emptor is a co-sharer in respect of the said disputed land. After what we have stated above with regard to the documentary as well as oral evidence we are unable to attach any importance to the said record-of-right. It is true that record- of-right indicates certain right of certain parties but that right is certainly dependent on some material evidence, oral and document so as to establish title in favour of persons who claim under the said record-of-right. ,q The presumption of correctness as to C. S. Record-of-right is nor.
11. Certainly available with regard to the State Acquisition Khatians. There is no presumption of correctness in respect of the State Acquisition Khatians as it is to be found in case of C. S. Khatians in pursuance of the provision under section 103-B of the Bengal Tenancy Act.
12. Mr. Sen further contends that the land of kabala Exh. 3 dated 16-2-62 are not identical with that of kabala Exh. 3 (b) dated 21-4-51 and we find substance in the said contention after scrutinising the said two documents. The kabala Exh. 3 (b) relates to C. S. Khatian No. 1359 and also C. S. Khatian No. 62 whereas the land of kabala Exh. 3 relates to C. S. Khatian No. 39. That being so, the land under the document sought to be pre---empted cannot be said to be identical with that of the document Exh. 3 (b) even from the mere fact that the same relate to different Khatians. We may also mention here that jamas are also different and the plot numbers are also not identical. It is also true that the pre-emptor Opposite-Party No. 1 in his apple--cation for pre-emption did not make out the case which was sought to be made out at the trial excepting that he declared himself to be co-sharer by purchase under kabala Exh.
3. So the plea of the pre-emptor in this case, as it appears to me, is very cryptic. Be that as it may, the evidences, both oral and docu-- mentary, did not support the case of the pre-emptor Opposite-- Party No. 1. The learned Additional District Judge while reversing the decision of the trial Court did not even consider the materials which were duly scrutinised by the learned Subordinate Judge and also the reasonings and findings arrived at by him.
13. We find substance in all the aforesaid contentions of Mr. Sen and accordingly as make the rule absolute and set aside the judgment and order passed by the learned Additional District Judge, Khulna, passed in Miscellaneous Appeal No. 88 of 1968 and restore that of the learned Subordinate Judge, Khulna dismissing the application for pre-emption.
14. The parties are left to bear their own costs.
15. A. S. CHOWDHURY, J.-I agree.