Case No: Civil Petition for Leave to Appeal No. 371 of 1992
Judge: Mustafa Kamal ,
Court: Appellate Division ,,
Advocate: Mr. Md. Aftab Hossain,Mr. Maksumul Hakim,,
Citation: 45 DLR (AD) (1993) 26
Case Year: 1993
Appellant: Abdul Baten
Respondent: Abdul Latif Sheikh and others
Subject: Pre-emption, Property Law,
Delivery Date: 1992-12-1
Shahabuddin Ahmed CJ
ATM Afzal J
Mustafa Kamal J
Latifur Rahman J.
Abdul Latif Sheikh and others
December 1st, 1992
State Acquisition & Tenancy Act (XXVIII of 1951)
The right of pre-emption accrued to the pre-emptor is not affected by the subsequent acquisition of co-sharership by the pre-emptee.
Code of Civil Procedure (V of 1908)
Interrogatory procedure applies in pre-emption proceeding in view of the provision in section 141 of CPC.
Cases Referred to-
ILR 44 Cal 47 & 19 DLR (SC) 36
Maksum-ul-Hakim, Senior Advocate (Abdul Hamid, Advocate with him) instructed by Md. Aftab Hossain, Advocate-on- Record -For the Petitioner.
Respondents -Not Represented.
Civil Petition for Leave to Appeal No. 371 of 1992.
(From the Judgment and Order dated 27.4.92 passed by the High Court Division in Civil Revision No. 986 of 1990).
Mustafa Kamal J.
This petition for leave to appeal by the pre-emptee-petitioner is from the judgment and order of a learned Single Judge of the High Court Division dated 27.4.92 in Civil Revision No. 986 of 1990 disposing of the Rule by setting aside the order of remand passed by the appellate Court below and allowing the pre-emption case, thereby reversing the judgment and order of the trial Court disallowing the pre-emption case.
2. The pre‑emptee-petitioner received the case; land from his aunt respondent No. 3, Moyna Sundari by way of gift by a registered document dated 2.10.80. The pre-emptor-respondent Nos. 1 and 2 filed Miscellaneous Case No. 17 of 1981 in the court of the Assistant Judge, Manikgonj for pre-emption of the case land. The case was transferred w the court of Assistant Judge, Daulatpur Upazila and re-numbered as Miscellaneous Case No 21 1984. Their case was that the pre-emptee-petitioner was not a co‑sharer in the case holding and the deed of gift was a pre-emptible one. Among other defences the pre-emptee-petitioner contended that the miscellaneous case was bad for non-joinder of parties and that the deed of gift is not a pre‑emptible document.
3. Mr. Moksum‑ul-Hakim, learned Advocate for the pre-emptee-petitioner, submits that the pre- emptee-petitioner's father Afazuddin died during the pendency of the pre-emption proceeding and thereby the pre-emptee-petitioner became a co-sharer in the case holding. It is his grievance that in derogation to the principles enunciated in ILR 44 CaL 47 ad; 19 DLR (SC) 36 the High Court Division failed to take note of this subsequent event and also failed to hold that under the altered circumstances the miscellaneous case does not lie.
4. The cited decisions relate to pre‑emptors who failed to maintain their co‑sharership till the end of the proceeding and have no application to the facts and circumstances of the present case. If a pre-emptee is not a co-sharer at the time of transfer or at the time of the institution of pre‑emption proceeding, as in the present case, and if he becomes a co-sharer in the case holding during the pendency of the pre-emption proceeding, as also in the present case, he does not become a transferee to a co-sharer either at the time of transfer or at the time of institution of the pre‑emption proceeding. The right of pre-emption accrued to the pre-emptor is not affected by the subsequent acquisition of co-sharership by the pre‑emptee.
5. Mr. Moksum‑ul-Hakim next contended that the High Court Division illegally decided that since the petitioner failed to answer the interrogatory asking for the particulars of parties not impleaded in the pre‑ emption application and that since by an order of the trial Court the petitioner was debarred from raising the issue of defect of parties in future' the appellate Court below wrongly allowed a remand to determine the very question which the petitioner was debarred from raising. He submits that interrogatory procedure will not apply in preemption proceeding.
6. This submission has no legs to stand. Section 141 CPC provides that the procedure provided in the CPC in regard to suits shall be followed, as far as it can be made applicable, in all proceeding in any court of civil jurisdiction.
7. Mr. Moksum‑ul-Hakim next submits that the High Court Division erred in law in allowing pre‑emption in civil revision and thereby exercising the power of Court in second appeal in a case where the petitioner had obtained the Rule against the order of remand passed by the lower appellate Court.
8. Normally a civil revisional court will not go to the extent to which the learned Single Judge of the High Court Division has travelled in disposing of a civil revisional matter. The petitioner has not been able to produce any facts to show that the question of defect of parties was still open. The order of remand made by the lower appellate Court allowing the parties to adduce evidence on defect of party was passed overlooking the earlier order of the trial Court shutting this exercise. In that view of the matter the ultimate order of the High Court Division cannot be taken exception to.
9. We find no ground for interference.
The petition is dismissed.