Abdul Mannan Vs. Md. Sohrab Hossain & others

Appellate Division Cases

(Civil)

PARTIES

Abdul Mannan …………….. Petitioner.

-VS-

Md. Sohrab Hossain & others ………………….Respondents.

JUSTICES

M.M. Ruhul Amin J

Md. Abdul Matin J

Judgment Dated: 7th Januarv 2008

The State Acquisition and Tenancy Act, Section 96

Under Section 96 of the State Acquisition and Tenancy Act as the case land is within Municipal Area. The case was barred by limitation waiver and estoppel…………….(4)

Under Section 96 of the State Acquisition and Tenancy Act was not maintainable the land being within Mathbaria Paurashava and further held that the pre-emptee purchased the case land at the mediation of pre-emptor and as such the case was barred by the principle of waiver and estoppel. ……………….(7)

Civil Petition for leave to Appeal No. 395 of 2006

(From the judgment and order dated 08.08.2005 passed by the High Court

Division in Civil Revision No. 2920 of 2002)

Md. NawabAli, Advocate-on-Record ……………For the Petitioner

Md. Osman Ghani, Advocate, instructed by Mrs. Sitfta Khatun, Advocate-on-Record …………………….For Respondent No. 1

Respondent Nos. 2-6 …………………….Not represeated

JUDGMENT

M. M. Ruhul Amin J : This petition for leave to appeal is directed against the judgment and order dated 08.08:2008 passed by the High Court Division in Civil Revision No. 2920 of 2002 discharging the Rule.

2. Short facts are that the pre-emptor filed Miscellaneous Case No. 4 of 1998 in the

Court of Senior Assistant Judge, Mathbaria, Pirojpur under Section 96 of the State Acquisition and Tenancy Act for pre-emption of the case land as described in the schedule of the Miscellaneous Petition stating, inter alia, that he is a cosharer of the case land by purchase vide kabala dated 29.05.1973 and the preemptee is a stranger purchaser. The seller sold the case land by impugned kabala dated 17.12.1997 to ihc pre-emptee

beyond his knowledge and without serving any notice upon him. He came to know of the impugned kabala on 05.01.1998 and after obtaining the certified copy of the same filed the case under Section 96 of the State Acquisition and Tenancy Act.

3. The pre-emptee contested the case by filing written objections denying the material

allegations made in the miscellaneous application and stated that the case under Section 96 of the State Acquisition and Tenancy Act is not maintainable since the case land is within Municipal Area and the case is barred by limitation and is also bad for defect of parties. The further case of the pre-emptee is that he purchased the case land from the seller within the knowledge of the pre-emptor and took possession of the same and got his name mutated by creating a separate holding and also erected dwelling house in the case land as per plan approved by Mathbaria Pourashava, dug a pond and also made

other development works at a costs of taka over one lac and has been living in the said

dwelling house with other members of his family by paying rents and taxes to the Municipality and also by running a shop therein.

4. The trial Court dismissed the case holding that the case was not maintainable under Section 96 of the State Acquisition and Tenancy Act as the case land is within Municipal Area. The case was barred by limitation waiver and estoppel. On appeal being Miscellaneous Appeal No.39 of 2001 the appellate Court also dismissed the appeal. The High Court Division after hearing the parties discharged the Rule.

5. We have heard Mr. Md. Nawab Ali, the learned Advocate-on-Record for the petitioner

and Mr. Osman Ghani, the learned Advocate for respondent No. 1 and perused the judgment of the High Court Division and other connected papers.

6. It is undisputed that the case land is within Mathbaria Paurashava and the case was filed under Section 96 of the State Acquisition and Tenancy Act. On this ground also the trial Court dismissed the case but the pre-emptor did not take any step for rectifying the defect.

7. The High Court Division held that the case under Section 96 of the State Acquisition and Tenancy Act was not maintainable the land being within Mathbaria Paurashava and further held that the pre-emptee purchased the case land at the mediation of pre-emptor and as such the case was barred by the principle of waiver and estoppel.

8. In the facts and circumstances of the case, we do not find any substance in this petition.

9. The petition is dismissed with cost of Tk.5,000/-(five thousand)

Source : V ADC (2008), 250

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