Appellate Division Cases
(Civil)
PARTIES
All and anothers……………… Petitioners.
-Vs-
Dud Banu and others…………….. Respondents.
JUSTICES
Mohammad Fazlul Amjad Karim J
Md. Tafazzul Islam J
Md. Jovnul Abedin J
Judgment Dated: 18th November 2007
The State Acquisition and Tenancy Act Section 96
Mofi/uddin Bhuiya vs. Sree Narayan Chandra Roy and other, 4 MLR(AD) 127
A co-sharer of the case land by inheritance and her sister Nur Banu, the respondent No.2/co-sharer, sold the case land to the preemptee petitioners by two kabalas dated 4.3.1993 without giving any notice to her and that she used to live in Brahmanbaria along with her husband and was not aware of the said transferes and in the first part of chaitra 1400 B.S., she after coming to her paternal house for the first time found a dwelling hut on the case land and then on query came to know that the preemptee petitioners purchased the case land from Nur Banu by two kabalas………………. (2)
High Court Division discharged the Rule holding that the pre-emptor respondent No.l is a co-sharer of the case land by inheritance and Nur Banu, a co-sharer by inheritance, by two kabalas dated 4.3.1993 sold .08 decimals of land, to each of the pre-emptee petitioners, who are husband and wife, and thus sold in total 16 decimals of land, and there is no legal bar against filing single application for pre-emption against two sales and further the preemptee petitioners were not co-sharers and no notice of transfer of the case
land was served ……………………(6)
Md. Nawab AH, Advocatc-on-Record …………………….For the Petitioners.
For the Respondent…………………….. Not represealed.
Civil Petition For Leave To Appeal No. 1219 of 2006
(From the judgment and order dated 24.7.2006 passed by the High Court Division in Civil Revision No. 4744 of 2000).
JUDGMENT
Md. Tafazzul Islam J : This petition for leave to appeal at the instance of the preemptee petitioners is directed against the judgment and order dated 24.7.2006 of the High Court Division passed in Civil Revision No. 4744 of 2000 discharging the rule obtained against the judgment and order dated 17.7.2000 of the learned Subordinate Judge (now Joint District Judge), 2nd Court, Kishoregonj passed in Miscellaneous Appeal No. 61 of 1995 affirming those of dated 25.5.1995 passed by the learned Assistant Judge, Kuliarchar in Pre-emption Miscellaneous Case No.l 1 of 1994 allowing preemption.
2. Brief facts are that the Dud Banu. the preemptor respondent No.l, filed the above Miscellaneous Case No. 11 of 1994 under section 96 the State Acquisition and Tenancy Act stating inter alia that she is a co-sharer of the case land by inheritance and her sister Nur Banu, the respondent No.2/co-sharer, sold the case land to the preemptee petitioners by two kabalas dated 4.3.1993 without giving any notice to her and that she used to live in Brahmanbaria along with her husband and was not aware of the said trans feres and in the first part of chaitra 1400 B.S., she after coming to her paternal house for the first time found a dwelling hut on the case land and then on query came to know that the preemptee petitioners purchased the case land from Nur Banu by two kabalas.
3. The preemptee petitioners contested the case by filing joint written statements contending that the preemption case is not maintainable as against two sales two application for pre-emption should have been filed and the pre-emption case is also barred by limitation as the pre-emptor was aware of the said transfers from the very beginning and that the pre-emptcc petitioners with the consent of the pre-emptor filled up the case land and constructed the dwelling hut therein.
4. The learned Assistant Judge, after hearing, allowed the pre-emption case and on appeal the appellate Court also affirmed the same. The pre-emptee petitioners then moved the High Court Division and obtained Rule in Civil Revision No. 4744 of 2000 and after hearing, the High Court Division discharged the Rule.
5. The learned counsel for the petitioners submitted that P.Ws. 2 and 3 and 0.P.W.2 in their deposition stated that the preemptee petitioners after purchasing the case land filled it up, constructed homestead and planted trees and lived therein for more than 12 years from the date of their purchase and meanwhile the valuation of the case land increased manifold and the High Court Division erroneously held that there is no misreading or non consideration of evidence although it was specifically submitted before the High Court Division that deposition of P.Ws. 2 and 3 regarding date of knowledge is contradictory and further the High Court Division also did not consider the principles as laid down in the case of Mofizuddin Bhuiya vs. Sree Narayan Chandra Roy and other, 4 MLR(AD) 127.
6. As it appears that High Court Division discharged the Rule holding that the pre-emptor respondent No. 1 is a co-sharer of the case land by inheritance and Nur Banu, a co-sharer by inheritance, by two kabalas dated 4.3.1993 sold .08 decimals of land, to each of the pre-emptee petitioners, who are husband and wife, and thus sold in total 16 decimals of land, and there is no legal bar against filing single application for pre-emption against two sales and further the prc-emptec petitioners were not co-sharers and no notice of transfer of the case land was served upon the pre-emptor respondent No. 1 who used to live in her husband’s house at Brahmanbaria and after coming to her parents house she, seeing a hut raised in the case land, on query for the first time came to know about the purchase of the case land by the pre-emptee petitioners and there is also no evidence on record to show that the pre-emptor respondent No. 1 had earlier knowledge of the transfer and both the Courts below, on proper consideration of the evidence on record, concurrently found that the preemption application was filed within four months from the date of knowledge of the pre-emptor respondent No. 1.
7. We are of the view that the High Court Division on proper consideration of the materials on record arrived at a correct decision. The learned advocate-on-record also could not point out any illegality or infirmity in the decision of the High Court Division so as to call for any interference.
8. The petition is dismissed.
Source : V ADC (2008),339