Abdul Quddus Vs. Roqib Ali being dead his legal heirs Aziruddin and others

Appellate Division Cases

(Civil)

PARTIES

Abdul Quddus……………….…………………………………………… Petitioner

Vs.

Roqib Ali being dead his legal heirs Aziruddin and others …………..Respondents

JUDGES

Syed J. R. Mudassir Husain CJ

Mohammad Fazlul Karim J

Amirul Kabir Chowdhury J

Date of Order

30th July 2005

Section 115(1) of The Code of Civil Procedure

Claiming pre-emption under Section 96 of the State Acquisition and Tenancy Act and Section 24 of the Non-agricultural Tenancy Act claiming to be contiguous owner of the

case land (2)

Non-agricultural land was not liable for pre-emption under Section 24 of the Non-Agricultural Tenancy Act and that Admittedly both the plot Nos.1972 and 1963 being homestead plot the application for pre-emption of the respondent claiming to be contiguous owner was not maintainable, such claim being clearly barred under the law (4)

ADVOCATES

Md. Ozair Farooq, Senior Advocate, instructed by Chowdhury Md. Zahangir, Advocateon-Record For the Petitioner.

ORDER

1. Amirul Kabir Chowdhury J : Pre-emptee petitioner Abdul Quddus seeks leave to appeal against the judgment and order dated 28.11.2004 passed by the High Court Division in civil Revision No.3664 of 2003.

2. The facts revealed in the leave petition, in short, are that one Raquib Ali predecessor of

the respondent No.l (Ka) to 1 (Tha) instituted Miscellaneous Case No. 15 of 1999 before the Assistant Judge, Beanibazar claiming preemption under Section 96 of the State Acquisition and Tenancy Act and Section 24 of the Non-agricultural Tenancy Act claiming to be contiguous owner of the case land and that the petitioner purchased land of plot No. 1963 a homestead plot No. 1964 chara land and 1965 which is pond and that the respondent filed Miscellaneous Case alleging that he had homestead to the north and has land on all other sides of the case land except the east and being in need of the land, he prayed for the pre-emption.

3. The petition was contested by the preemptee petitioners denying the material statements of the pre-emptor and adding that the pre-emption application was not maintainable. The trial court rejected the application for pre-emption while the appellate court reversed the same. Against which the preemptee moved the High Court Division under Section 115(1) of the code of Civil Procedure. The High Court Division discharged the rule and hence is this petition.

4. In support of the petition Mr. Md. Ozair Farooq, learned counsel submits, inter alia, that none of the courts below considered that the land of the respondent and that of the petitioner which is subject matter to be pre-empted on the ground of contiguity being non-agricultural land was not liable for pre-emption under Section 24 of the Non-Agricultural Tenancy Act and that Admittedly both the plot Nos.1972 and 1963 being homestead plot the application for pre-emption of the respondent claiming to be contiguous owner was not maintainable, such claim being clearly barred under the law.

5. Leave is granted to consider above submissions made by the learned Counsel of the petitioner.

6. Security of Tk.1000/- is to be deposited within one month.

7. Preparation of paper book is dispensed with as prayed for.

8. Stay granted earlier be extended for further 6 (six) months from the date.

Source: III ADC (2006) 888

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