An application under Section 115(1) of the Code of Civil Procedure

DISTRICT – __________

IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

CIVIL REVISION NO. OF________

IN THE MATTER OF :

An application under Section 115(1) of the Code of Civil Procedure.

AND

IN THE MATTER OF :

X, son of Late Y, of __________________________.

…Preemptor/Petitioner.

-Versus-

1. Md. A, son of Late B,

2. C, son of Late D, both of ____________________.

3. E, Wife of F, of

_____________.

4. G, wife of H, of ________________________.

5. I, wife of J, of ________________________.

6. K, son of L.

7. M, son of K,

8. N, son of K.

of ________________________.

9. O, son of Late P, of ____________________.

…Respondent-Opposite Party.

AND

IN THE MATTER OF :

Judgment and Order dated 12th March 2005 passed by the 1st Court of Joint District Judge, Sylhet in Miscellaneous Appeal No. 25 of 2004 dismissing the Appeal and affirming the Judgment and Order dated 25.02.2004 passed by the Assistant Judge, Fenchugonj, Sylhet in Preemption Miscellaneous Case No. 13 of 2001 dismissing the case.

Application is valued at Tk. 12,000/-

Suit is valued at Tk. 12,000/-

To

Mr. Justice Syed J.R. Mudassir Husain, the Hon’ble Chief Justice of Bangladesh and his companion justices of the Supreme Court of Bangladesh.

The humble Petition of the Petitioner abovenamed most respectfully –

SHEWETH :

1. That on 15th March 2000 the Petitioner herein as pre-emptor instituted Miscellaneous Case (Pre-emption) No. 13 of 2000 in the Court of Assistant Judge, Fenchugonj, Sylhet under Section 96 of the State Acquisition and Tenancy Act 1949 to pre-empt the case land stating, interalia, that .26 acres of land on plot No. 64 in Khatian Nos. 475 and 483 belonged to Konu Miah who died leaving, behind one son, Opposite Party No. 2 and 3 daughters Opposite Party Nos. 3 to 5. The Opposite Party Nos. 2 to 5 got partitioned .11 acres of land on the western part of Plot No. 64 and all other lands left by Konu Miah vide a registered Partition Deed dated 07.06.77. The said .11 acres of land was allocated to Opposite Party Nos. 3 to 5. That the rest .15 acres of land on the Eastern side of Plot No. 64 was left out from the said partition deed. But by a subsequent arrangement of oral partition the said .15 acres of land was allocated to the Opposite Party No. 5 who transferred the same to Khurshid Ali by Kabala No. 15158/77 dated 07.06.1997 and delivered possession. Thereafter, by a Kabala dated 21.04.1983 Khurshid Ali transferred .15 acre of land to the Petitioner and since than the Petitioner has been possessing the land. On 4th March 2000 Opposite Party No. 1 hindered the Petitioner’s sharecropper plougning the land and tried to take over possession of the same claiming him purchaser of the land. The Petitioner and other resisted the Opposite Party No. 1 from taking over possession of the land. Thereafter the Petitioner made a search through clerk in the office of Sub Registrar and on 08.03.2000 and 09.03.2000 obtained certified copies of two kabals registered on 06.09.99 and 01.09.99 respectively. After going through the kabalas the Petitioner learnt that on 01.09.1999 Opposite Party No. 2 and 3 and on 06.09.1999 Opposite Party No. 4 sold out respectively .09 and .0666 acre of land from the western side of plot No. 64 to Opposite Party No. 1. The Petitioner being a co-sharer of the land is entitled to preempt the same. The Petitioner did not receive any statutory notice. On 08.03.2000 and 09.03.2000 after obtaining certified copy of the kabals he learnt about the sale. Since he needs the land, by depositing value of the Kabals i.e. Tk. 12,000 plus compensation @ 10% i.e. Tk. 1200.00 the Petitioner has filed this application under Section 96 of the SAT Act.

2. On 20th September 2000 the Opposite Party No. 1 filed written objection stating, interalia, that on 02.01.2000 he has executed on agreement to sell the case land in favour of K and his sons and received Tk. 50,000.00 as consideration. Thereafter, by Kabala dated 28.08.2000 he has transferred the case land to them.

3. By an order dated 01.10.2000 the K and others have been added as Opposite Party No. 6 to 8. On 29th April 2001 Opposite Party No. 6 filed a written objection contending, interalia, that Opposite Party Nos. 2 to 5 got .26 acre of land on Plot No. 64 by way of inheritence. On 26.07.1978 the Opposite Party Nos. 3 and 5 transferred .11 acre of land to one Masaddar Ali who transferred the same to Azizur Rahman in the same year of 1978, Azizur Rahman, transferred the said land to one A in 1981. Thereafter on 13.04.1997 A transferred the land to Md. Abdus Salim and others who transferred the land to Md. Abul Kashem. By a kabala dated 14.07.1999 Md. Abul Kashem transferred the said land to M.A. Rouf Chowdhury. Opposite Party Nos. 2 to 4 before sale of the case land asked the co-sharers including the Petitioner as to whether they would purchase the same but the co-sharers refused to do so. Tehrefore Opposite Party Nos. 2 to 4 transferred the case land to Opposite Party No. 1 by two kabalas. Thereafter on 02.01.2000 Opposite Party No. 1 executed a baina in favour of Opposite Party Nos. 6 to 8 upon receipt of Tk. 50,000.00, and delivered possession of the case land to them and on 28.08.2000 having received Tk. 1,00,000.00 Opposite Party No. 1 executed and registered a Kabala in their favour. They have got the land mutated in their names and spent Tk. 50,000.00 in developing the land. It is inconceivable how the Petitioner’s share cropper ploughed the case land and how does he preempts the land belonged to him. In fact the Petitioner has never been in possession of any land in plot No. 64 and his kabala is merely a piece of paper and no title passed to him.

4. The Petitioner adduced 4 witnesses and the Opposite Party No. 6 examined himself as OP witness No. 1. The Opposite Party No. 1 did not examine any witness and did not ultimately contest the case.

5. By his Judgment and Order dated 24th February 2004 the learned Assistant Judge dismissed the case on contest against the Opposite Party No. 6 and exparte against the rest Opposite Parties.

6. That being aggrieved by the Judgment and Order of the learned Assistant Judge, Fenchugonj the Petitioner herein preferred Miscellaneous Appeal No. 25 of 2004, which was heard by the learned Joint District Judge, 1st Court of Sylhet. By a Judgment and Order dated 12th March 2005 the learned Joint District Judge dismissed the Appeal.

7. That thus being aggrieved by and dissatisfied with the judgment and Order dated 12th March 2005 passed by learned Joint District Judge in Miscellaneous Appeal No. 25 of 2004, your Petitioner begs to move this application on the following amongst other –

G R O U N D S

I. For that the impugned Judgment and Order of both the courts below are based on conjecture, surmise and hypothesis and thus the courts below committed error of law resulting in an error in the impugned judgment and order occasioning failure of justice.

II. For that the learned Court’s below have failed to appreciate the facts that the Petitioner’s Kabala dated 21.04.1983 was proved by the attesting witness who is the son of the Petitioner’s vendor, the Petitioner’s possession over .15 acre of land on the eastern side of plot No. 64 has been established by corroborating witnesses, and the contesting Opposite Party has admitted co-sharership of the Petitioner over the case land and therefore the Petitioner has got right to preempt as much as land has been transferred by the kabalas in question.

III. For that the learned Courts below have failed to conceive that from the kabalas in question it appears that the eastern portion of plot No. 64 has not been transferred to the pre-emptee because the eastern portion of the plot belongs to the Petitioner thus the learned Courts below has committed error of law resulting in an error in disallowing the Petitioner’s case occasioning failure of justice.

IV. For that although the Petitioner has succeeded to prove that on 04.03.2000 Opposite Party No. 1 tried to disposses the Petitioner from that portion of land which he purchased by Kabalas dated 01.09.1999 and 06.09.1999 and on 08.03.2000 and 09.03.2000 the Petitioner obtained certified copies of the Kabalas and came to know about the sale the learned Appellate Court has wrongly found that the case was barred by limitation and thus it has committed error of law in resulting in an error in the impugned judgment and order occasioning failure of justice.

V. The Courts below have also failed to appreciate that the Opposite Party No. 5 did not execute the Kabalas as she has already sold out 15 acre of land to the Petitioner.

VI. For that the learned Trial Court has wrongly found that the Petitioner raised question about propriety of the Kabalas in question and he has allied to purchase his own land and thus the learned Court has committed error of law resulting in an error in the impugned judgment and order occasioning failure of justice.

Wherefore, it is most humbly prayed that your Lordships would graciously be pleased to issue a rule upon Opposite Party Nos. 1 and 6 to show cause as to why the judgment and order dated 12.03.2005 passed by the 1st Court of Joint District Judge, Sylhet in Miscellaneous Appeal No. 25 of 2004, dismissing the appeal and affirming the Judgment and order dated 24.02.2004 passed by the learned Assistant Judge, Fenchugonj, Sylhet in Preemption Miscellaneous Case No. 13 of 2004 should not be set aside, call for the record and upon hearing the parties make the rule absolute, and/or pass such other or further order or orders, as your Lordship may deem fit and proper.

And for this act of kindness the Petitioner, as in duty bound, shall ever pray.

AFFIDAVIT

I, ___________________________, son of _____________________, of _______________________________________, by faith __________________, by profession service, by nationality Bangladeshi by birth, do hereby solemnly affirm and say as follows:

1. That I am the tadbirkar of this case and as such acquainted with the facts and circumstances of the case and competent to swear this Affidavit.

2. That the statements made above true to my knowledge and belief.

Prepared in my office.

(_______________________)

Advocate. (______________________)

____________________ Deponent

____________________, The deponent is known to me and

____________________. identified by me.

(_________________________)

Advocate.

Solemnly affirmed before me

by the said deponent this the

9th day of the July 2005 at. …….

COMMISSIONER OF AFFIDAVIT

SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION, DHAKA.

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