Appellate Division Cases
(Civil)
PARTIES
Md. Abdul Malek and another………………. Petitioners
-Vs-
Md. Sanowar Hossain and others……………. Respondents
JUSTICES
Mohammad Fazlul Karim J
Md. Joynul Abedin J
Md. Hassan Ameen J
Judgment Dated: 6th April 2008
The Stale Acquisition and Tenancy Act, 1950
The pre-emptee petitioners filed Civil Revision No.3170 of 2003 before the High Court Division and the learned Judge of the High Court Division after hearing the parties discharged the Rule issued therein upholding the judgment and order of the lower appellate Court. The High court Division observed that although the pre-emptees are in exclusive possession of the property but the same has not been partitioned by mets and bounds pursuant to a decree of partition suit and the joma has not been separated. Hence, this leave-petition. ……………………..(5)
Garib Ncwaz, Advocate, instructed by A.K.M. Shahidul Huq. Advocate on Record …………………………For the Petitioners.
M.A. Samad, Senior Advocate (with A. Q.M. Safiullah, Advocate) instructed by
Mr. Nurul Islam Bhuiyan, Advocate-on-Record………………. For Respondent No.l ‘
Respondent Nos. 2-3 ………………..Not represented
Civil Petition For Leave To Appeal No. 187 of 2007
(From the judgment and order dated 21-012007 passed by the High Court Division in
Civil Revision No.3107 of 2003)
JUDGMENT
Md. Hassan Ameen J: The prc-empteepctitioners seek leave to appeal against the judgment and order dated 21-01-2007 passed by the High Court Division in Civil Revision No.3107 of 2003 discharging the Rule affirming the judgment and order
dated 29-05-2003 passed in Miscellaneous Appeal No.56 of 2002 by the First Court
of the learned Joint District Judge, Tangail, allowing the appeal setting aside the judgment and order dated 29-05- 2002 passed in Preemption Case No.93 of 1999 of the Court of Senior Assistant Judge, Tangail. dismissing the same.
2. The respondent No.l as preemptor filed Preemption Case No.93 of 1999 in the Court of Senior Assistant Judge, Tangail, against the petitioner Nos.l and 2 as preemptor opposite-party Nos.l and 2 and respondent Nos.2 and 3 as Vcndor-oppositc-party Nos.3 and 4 respectively under Section 96 of the State Acquisition and Tenancy Act, 1950 (subsequently converted under section 24 of the Non Agricultural Tenancy Act, 1949).
3. The case of the preemptor-rcspondent No.l, in brief, is that old Plot No.352 and present Plot No.562 measuring 0.35 decimals under old S. A. Khatian No.233 and new Khatian No. 113, Mou/a-Shontosh, Police Station and District-Tangail belonged to Kangal Chandra Denagir. After the death of said Kangal Chandra Denagir. his only son, Roma Choron Dey became owner of the property by inheritance. On 28-05-1956 by deed No.4660 Roma Choron Dcy transferred the same that is 0.35 decimals of land to Girish
Chandra Sarkcr. On 04-04-1985 by deed No.4166 Girish Chandra sold 0.20 acres from the eastern side of the case plot to his son Gopal Chandra Dey and on 30-121990, the said Girish Chandra Sarkcr transferred the remaining 10.15 acres of the case plot to one Md. Joshon Ali and Monowara Begum, on 30-06-1991 Gopal Chandra Dcy sold the said 0.20 acres of to one Md. Abdul Hye and Noor Jahan Begum. Thereafter, on 09-06-1993, Abdul Hye and Noor Jahan Begum transferred the 0.20 acres to the preemptor Sanowar Hossain and as such the prceinplor is a cosharer in the case plot by way of purchase.
The preemptor has been owning and possessing the 0.20 acres of land by erection house thereon. Be that as it may. on 20-121998. the opposite-party Nos.2 and 3 transferred the aforementioned 0.15 acres to the prc-cmptcc petitioners behind the back and without the knowledge of the preemptor. The prc-emptec-petitioncrs arc strangers to the case plot. They are not cosharers in the land and no notice of sale was served upon the preemptor. The sale deed with reference to the land under preemption was entered in the volume of the deed on 12-07-1999 as per provision of section 60 of the Registration Act. The
preemptor obtained the certified copy of the deed on 18-10-1999 and came to know about the sale and the preemption case was filed on 18-10-1999 within the statutory period of limitation.
4. The petitioner Nos.l and 2 as prcemptecs contested the preemption case by filling written objection denying the averment of the preemptor. contending, intcralia, that the pre-emptecs are owning and possessing the suit land by way of bainapatra dated 06-12-1995 within the knowledge of the preemptor, the prc-cmptccs erected houses in the suit land and got the sale deed executed and registered on 2011-1998 and owning and possessing the same opening separate holding for the same. The preemptecs have spent
Tk.2,50,000/- for development of the suit land.
5. The trial Court upon hearing the parties dismissed the aforesaid preemption case on 29-05-2002. Against which, the preemptor filed Miscellaneous Appeal No.56 of 2002 before the learned District Judge, Tangail. The appeal on transfer was heard by the learned Joint District Judge, First Court, Tangail, who by his judgment and order dated 29-05-2003 ‘ allowed the appeal by setting aside the judgment and order of the trial Court. Being aggrieved and dissatisfied thereby, the pre-emptee petitioners filed Civil Revision No.3170 of 2003 before the High Court Division and the learned Judge of the High Court-A. Division after hearing the parties discharged the Rule issued therein upholding the judgment and order of the lower appellate Court. The High court Division
observed that although the pre-emptees arc in exclusive possession of the property but the same has not been partitioned by mcts and bounds pursuant to a decree of partition suit and the joma has not been separated. Hence, this leave-petition.
6. Mr. Garib Ncwaz, the learned Advocate appearing for the petitioners, submits that the High Court Division failed to consider that the pre-emption case was not maintainable
as there is no joint possession and enjoyment of the property and the prcemptor and prccmpiees are in exclusive possession of their respective portion separately from the time of their two successive predecessor and for all practical purposes there is nothing common between them and the land is completely divided and separated from the time of their predecessors.. He submits that from the time of the predecessors the land is divided into separate entity or unit and not in joint possession and enjoyment and they arc in
exclusive possession of their respective part having their separate Municipal holding and as such the pre-emption will make the land unfit for the purpose for which the land is being used and therefore the judgment of the High Court Division is liable to be set aside.
7. We have heard the learned Advocate for the petitioner and perused the materials available in record and reasons to believe that the submissions of the learned Advocate for the petitioner have got no merit and accordingly, the same is dismissed.
Source : V ADC (2008),603