Mohammad Hossain Mollah and another Vs. Md. Ishaque Mollah and another

Appellate Division Cases

(Civil)

PARTIES

Mohammad Hossain Mollah and another ………. Petitioners

-Vs-

Md. Ishaque Mollah and another………………………… Respondents

JUSTICES

Md. Ruhul Amin J

Md. Tafazzul Islam J

Judgment Dated: 22nd August 2006

Prayer for pre-emption sought under the Muslim law (1)

The High Court Division while making the Rule absolute observed that evidence on record clearly shows that requirement of law seeking pre-emption under the Muslim law was not performed by the pre-emptor before filing the suit seeking preemption, that mandatory provision of law relating to the pre-emption under the Muslim law has not been observed or complied with by the pre-emptor and consequent thereupon made the case filed seeking pre-emption non-maintainable, that the fact of non-observance of the formalities by the pre-emptor prior to the filing of the suit seeking pre-emtion was noticed Jby the appellate Court, that delay in making the ‘talabs’ was not considered by the appellate Court, that there was no delivery of possession of the land sought to be preempted and as such the suit filed seeking pre-emption was not maintainable, that inspite of the knowledge about the transfer the plaintiff made unusual delay in making ‘talabs’ and finally the High Court Division observed “Since the mandatory requirement for filing of a pre-emption suit i.e. performance of talab-i-mawasibat and talab-i-ishhad has not been performed by the plaintiff. I think that mere sending the appeal back on remand to the appellate court there will serve no fruitful purpose ……………(2)

Accordingly the petition is dismissed ……………..(4)

Syed Mahbubar Rahman, Advocate-onrecord……………….. For the Petitioners

Not represented………………………… Respondents

Civil Petition For Leave To Appeal No.709 of 2005

(From the Judgment and Order dated April 26, 2005 passed by the High Court Division in Civil Revision No.971 of 2003)

JUDGM ENT

Md. Ruhul Amin J : This petition for leave to appeal has been filed against the judgment dated April 26, 2005 of a Single Bench of the High Court Division in Civil Revision No.971 of 2003 making absolute the Rule obtained against the judgment and decree dated January 13, 2003 of the 2nd Court of Subordinate Judge (now Joint District Judge), Chandpur in Title Appeal No.58 of 2001 allowing the same upon setting aside the judgment and decree dated May 24, 2001 of the Court of Assistant Judge, Faridganj. Chandpur. The learned Assistant Judge by the aforesaid judgment decreed the suit i.e. allowed the prayer for pre-emption sought under the Muslim law. The appellate Court upon allowing the appeal sent back the suit to the trial Court for enabling the plaintiff to deposit the kabala money and further to enable the parties to lead evidence and thereupon for disposal of the suit. As against the judgment and order of the appellate Court the defendant moved the High Court Division in revisional jurisdiction and obtained the Rule. The High Court Division made the Rule absolute and thereupon dismissed the suit.

2. The High Court Division while making the Rule absolute observed that evidence on record clearly shows that requirement of law seeking pre-emption under the Muslim law was not performed by the pre-emptor before filing the suit seeking preemption, that mandatory provision of law relating to the pre-emption under the Muslim law has not been observed or complied with by the pre-emptor and consequent thereupon made the case filed seeking pre-emption non-maintainable, that the fact of non-observance of the formalities by the pre-emptor prior to the filing of the suit seeking prc-emtion was noticed by the appellate Court, that delay in making the ‘talabs’ was not considered by the appellate Court, that there was no delivery of possession of the land sought to be preempted and as such the suit filed seeking pre-emption was not maintainable, that inspitc of the knowledge about the transfer the plaintiff made unusual delay in making ‘talabs’ and finally the High Court Division observed “Since the mandatory requirement for filing of a preemption suit i.e. performance of talab-imawasibat and talab-i-ishhad has not been performed by the plaintiff. 1 think that mere sending the appeal back on remand

to the appellate court there will serve no fruitful purpose. Moreover the appellate court himself has found that these requirements were not performed by the plaintiff before filing the suit” and thereupon held that the appellate Court was in error in allowing the appeal and thereupon sending the suit back on remand to the trial Court.

3. We have heard the learned Advocateon-record and perused the materials in the petition for leave to appeal. The learned Advocate-on-record could not point out infirmity in the judgment of the High Court Division of the kind calling for interference by this Division.

4. Accordingly the petition is dismissed.

Source : V ADC (2008), 318

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