Md. Abdul Karim Vs. Md. Nurul Islam and others

Appellate Division Cases

(Civil)

PARTIES

Md. Abdul Karim……………… Petitioner.

-Vs-

Md. Nurul Islam and others……………. Respondents.

Mohammad Fazlul Karim J

Md. Jovnul Abedin J

Judgment Dated: 16th May2007

Pre-emptor filed pre-emption Case …………………..(2)

Buyer-pre-emptee, Md. Abdul Karim and the seller-pre emptee, Md. Abdul Majid, contested the pre-emption case by filing a joint written objection contending, inter alia, that the case was barred by limitation and principle of waiver and was bad for defect of parties ………………(6)

The trial Court after hearing the parties allowed the pre-emption case by a judgment and order dated 16.8.2001. The buyer-pre-emptee-petitioner then filed a Miscellaneous Appeal No.80 of 2001 before the learned Joint District Judge, 1st Court, Tangail who there-upon reversed the judgment and order of the trial court by judgment and order dated 21.10.2002 …………………………….(7)

Being aggrieved and dissatisfied with the aforesaid judgment and order the pre-emptor-respondent filed Civil Revision No.6589 of 2002 in the High Court Division. The High Court Division thereupon made the rule absolute and allowed the pre-emption case by setting aside the judgment and order 21.10.2002 passed by the appellate Court below. Against this backdrop, the buyer-pre-emptee-petitioner filed this civil petition for leave to Appeal………………………… (8)

The petition is accordingly dismissed. ………………..(11)

Abdul Quayuin, Senior Advocate, instructed by Syed Mahhubar Rahman, Advocateon-

Record……………………….. For the Petitioner

Mvi. Md. Waliiditllali, Advocate-on-Record…………………. For Respondent No.I

For Respondent Nos.2-10……………………..Not Represented.

Civil Petition For Leave To Appeal No. 1098 of 2005

(From the judgment and order dated 26.6.2005 passed by the High Court Division in Civil Revision No.6589 of 2002.)

JUDGMENT

Md. Jovnul Abedin J: This petition for leave to appeal has arisen out of the judgment

and order dated 26.6.2005 passed by a Single Bench of the High Court Division in Civil Revision No.6589 of 2002 making the rule absolute thereby reversing the judgment and order dated 21.10.2002 passed by the Joint District Judge, 1st Court. Tangail in Miscellaneous Appeal No.80 of 2001 allowing the appeal thereby revising the judgement and order dated 16.8.2001 passed by the Assistant Judge, Madhupur, Tangail in Pre-crnption Miscellaneous Case No.37 of 2000 allowing the Pre-emption.

2. The respondent No I as pre-emptor filed pre-emption Case No.37 of 2000 in the Court of the learned Assistant Judge. Madhupur, Tangail on 25.6.2000. The case of the pre-emptor respondent No. I Md. Nurul Islam, m brief, is that the jote in C.S. Khatian No.!68, Plot No.1326 along with other land in the said Khatian measuring 10-48 KTCS of land belonged to Loknath Coach. Loknath Coach died leaving behing tv\o sons, Pagan Sankar Das and Mukta Ram Das, who inherited the lands of the Khatian and they sold the entire land to Rahain Ali and Tomcjuddin. Raham Ah and Pomejuddin sold 9.65 acres of land from the said Khatian to Jabed Ali Sarker (respondent’s father) and Alimuddin. Thus Jabed Ali Sarkar and Alimuddin got 4.82  acres of land each and thereafter Alimuddin transferred 1.55 acres to Jabed Ali and thus Jabed Ali acquired title and possession over 6.08 acres of land. S.A. Khatian No.270 was accordingly prepared in the name of Jabed

Ali Sarker and others.

3. Jabed Ali Sarker transferred by a registered Heba-bil Ewaz deed dated 110.1968 to his two sons, pre-emptor respondent Md. Nurul Islam and Md. Abdul Majid lands measuring 19.60 acres from the suit plot and other plots also. Besides Alimuddin sold .72 decimals of land to this respondent. In this way the pre-emptor respondent became co-sharer of the

land in the case khatian by inheritance and also by purchase.

4. The jama of the case khatian has not yet been separated. The pre-emptor respondent is a cultivator and has got 30 bighas of land.

5. Said Md. Abdul Majid transferred 96 decimals of case land to pre-emptee-petitioncr.

Md. Abdul Kanm, on 25.10.1994 by a registered deed of sale without serving any notice to the pre emptor-respondent in order to deprive him of his right of pre-emption. Pre-emptee-petitioner, Md. Abdul Karim. was a bargader under the pre-emptee-seller. Md. Abdul Majid. Hence the pre-emptor-respondent could not know about the transfer and he came to know about the transfer from one Aman Ali that the case land was transferred on

the last part of the month of May, 2000 A.D. . After getting the certified copy of the case deed on 11.6.2000 the pre-emptor-respondent filed the instant pre-emption case on 25.6.2000 within the statutory period.

6. Buyer-pre-emptee, Md. Abdul Karim and the seller-pre emptcc, Md. Abdul Majid, contested the pre-emption case by filing a joint written objection contending, inter alia, that the case was barred by limitation and principle of waiver and was bad for defect of parties.

7. The trial Court after hearing the parties allowed the pre-emption case by a judgment

and order dated 16.8.2001. The buyer-pre-emptee-pctitioner then filed a Miscellaneous Appeal No.80 of 2001 before the learned Joint District Judge, 1st Court, Tangail who thereupon reversed the judgment and order of the trial court by judgment and order dated 2 1.10.2002.

8. Being aggrieved and dissatisfied with the aforesaid judgment and order the preemptor-

respondent filed Civil Revision No.6589 of 2002 in the High Court Division. The High Court Division thereupon made the rule absolute and allowed the pre-emption case by setting aside the judgment and order 21.10.2002 passed by the appellate Court below. Against this backdrop, the buyer-pre-emptee-petitioner filed this civil petition for leave to appeal.

9. Mr. Abdul Quayum, the learned Counsel for the petitioner submits that the High Court Division erred in allowing the pre-emption case when the same was barred by limitation inasmuch as the sale deed in question was executed on 25.10.1994 and the pre-emption case was filed on 25.6.2000 and as a result there has been a failure of justice. It is further urged that the pre-emptor-respondent having faiJed to prove that the buyer pre-empteepctitioner was a bargader under the seller-pre-emptee the period of limitation ought to have been computed from the date of execution of the sale deed. He lastly submits that the High Court Division committed an error of law in failing to appreciate

that the sale deed under pre-emption was not even made exhibit in the case which was a condition precedent for allowing the pre-emption case.

10. We have perused the impugned judgment and other connected papers. We are not impressed by the submissions of Mr. Abdul Quayum. In the facts and circumstances

of the case, we are of the view that the High Court Division upon correct assessment of the materials on record and appreciation of the law arrived at a correct decision. There is, therefore, no warrant in law to interfere with the same.

11. The petition is accordingly dismissed.

Source : V ADC (2008), 252

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