Abdul Mannan Vs. Md. Sohrab Hossain and others, V ADC (2008) 250

Case No: Civil Petition for leave to Appeal No. 395 of 2006

Judge: M. M. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Md. Nawab Ali,Mr. Md. Osman Goni,,

Citation: V ADC (2008) 250

Case Year: 2008

Appellant: Abdul Mannan

Respondent: Md. Sohrab Hossain and others

Subject: Pre-emption, Land Law, Property Law,

Delivery Date: 2008-1-7

 
Supreme Court
Appellate Division
(Civil)
 
Present:
M.M. Ruhul Amin J
Md. Abdul Matin J
 
Abdul Mannan
......................Petitioner
Vs.
Md. Sohrab Hossain & others
………….......Respondents
 
Judgment
January 7, 2008
 
State Acquisition and Tenancy Act, 1951
Section 96
Under section 96 of the State Acquisition and Tenancy Act as the case land is within Municipal area. The case was barred by limitation waiver and estoppel.
Under section 96 of the State Acquisition and Tenancy Act was not maintainable the land being within Mathbarua Paurashava and further held that the pre-emptee purchased the case land at the medication of pre-emptor and as such the case was barred by the principle of waiver and estoppel.
 
Lawyers Involved:
Md. Nawab Ali, Advocate-on-Record-for the Petitioner.
Md. Osman Ghani, Advocate, instructed by Mrs. Sufia Khatun, Advocate-on-Record-For Respondent No. 1.
Not repre­sented- Respondent Nos. 2-6.
 
Civil Petition for leave to Appeal No. 395 of 2006.
(From the judgment and order dated 08.08.2005 passed by the High Court Division in Civil Revision No. 2920 of 2002).
 
JUDGMENT
 
M.M. Ruhul Amin J.
 
     This petition for leave to appeal is directed against the judgment and order dated 08.08.2008 passed by the High Court Division in Civil Revision No. 2920 of 2002 discharging the Rule.
 
2.  Short facts are that the pre-emptor filed Miscellaneous Case No. 4 of 1998 in the Court of Senior Assistant Judge, Mathbaria, Pirojpur under Section 96 of the State Acquisition and Tenancy Act for pre-emption of the case land as described in the schedule of the Miscellaneous Petition stating, inter alia, that he is a co-sharer of the case land by purchase vide kabala dated 29.05.1973 and the pre-emptee is a stranger purchaser. The seller sold the case land by impugned kabala dated 17.12.1997 to the pre-emptee beyond his knowledge and without serv­ing any notice upon him. He came to know of the impugned kabala on 05.01.1998 and after obtaining the certi­fied copy of the same filed the case under Section 96 of the State Acquisition and Tenancy Act.
 
3.  The pre-emptee contested the case by filing written objections denying the mate­rial allegations made in the miscellaneous application and stated that the case under Section 96 of the State Acquisition and Tenancy Act is not maintainable since the case land is within Municipal Area and the case is barred by limitation and is also bad for defect of parties. The further case of the pre-emptee is that he purchased the case land from the seller within the knowl­edge of the pre-emptor and took posses­sion of the same and got his name mutat­ed by creating a separate holding and also erected dwelling house in the case land as per plan approved by Mathbaria Pourashava, dug a pond and also made other development works at a costs of taka over one lac and has been living in the said dwelling house with other members of his family by paying rents and taxes to the Municipality and also by running a shop therein.
 
4. The trial Court dismissed the case hold­ing that the case was not maintainable under Section 96 of the State Acquisition and Tenancy Act as the case land is within Municipal Area. The case was barred by limitation waiver and estoppel. On appeal being Miscellaneous Appeal No.39 of 2001 the appellate Court also dismissed the appeal. The High Court Division after hearing the parties discharged the Rule.
 
5.  We have heard Mr. Md. Nawab Ali, the learned Advocate-on-Record for the peti­tioner and Mr. Osman Ghani, the learned Advocate for respondent No.1 and perused the judgment of the High Court Division and other connected papers.
 
6. It is undisputed that the case land is within Mathbaria Paurashava and the case was filed under Section 96 of the State Acquisition and Tenancy Act. On this ground also the trial Court dismissed the case but the pre-emptor did not take any step for rectifying the defect.
 
7. The High Court Division held that the case   under Section 96 of the   State Acquisition and Tenancy Act was not maintainable the land   being   within Mathbaria Paurashava and further held that the pre-emptee purchased the case land at the mediation of pre-emptor and as such the case was barred by the principle of waiver and estoppel.
 
8.  In the facts and circumstances of the case, we do not find any substance in this petition.
 
The petition is dismissed with cost of Tk. 5, 000/- (five thousand)  
 
Ed.