(1.) This appeal by leave is directed against the judgment and order dated 12.11.1998 passed by a Single Bench of the High Court Division in Civil Revision No.2948 of 1992 making the Rule absolute.
(2.) Short facts are that plaintiff instituted Title Suit No. 2 of 1987 in the Court of Assistant Judge, Kaliganj Upazilla, Gazipur for a declaration that the deed of exchange dated 08.11.1986 between defendant Nos. 1-3 on the one hand and defendant Nos. 4 and 5 on the other hand is not an exchange deed but an out and out sale deed stating, inter alia, that defendant no. 4-5 were the owners of 'ka' schedule property and defendant Nos. 1-3 were the owners of "Kha" schedule property. Defendant Nos. 1-3 transferred the 'Kha' schedule property to defendant Nos. 4-5 by way of out and out sale deed but to avoid the claim of pre-emption of the plaintiffs they created a deed of exchange instead of a deed of sale.
(3.) The defendant contested the suit by filing written statement denying all the material allegations made in the plaint and contended, inter alia, that defendant Nos. 4-5 exchanged their land with the land of the plaintiffs for convenience of mutual possession by a deed of exchange and the same was not a transaction of out and out sale.