Case No: Civil Revision No. 3029 of 1993
Judge: AK Badrul Huq,
Court: High Court Division,,
Advocate: Syed Dastagir Hossain,Taimur Alam Khandker ,,
Citation: 53 DLR (2001) 232
Case Year: 2001
Appellant: Golam Mostafa
Respondent: Begum Rokeya Khandaker and others
Subject: Pre-emption,Land Law,Notice,
Delivery Date: 2001-1-8
High Court Division
(Civil Revisional Jurisdiction)
AK Badrul Huq J
Begum Rokeya Khandaker & others
January 8, 2001.
State Acquisition and Tenancy Act (XXVIII of 1951)
Section 117 (1) (c)
Notice having not been served upon co sharers, mutation and sub-division effected behind their back cannot be said to be valid sub-division or splitting up of jama and in such case co-sharer in the joint tenancy cannot be said to have lost their right or pre-emption.
Syed Md. Dastagir Hussain, Advocate—For the Petitioner
Taimur Alam Khandker Advocate—For the Opposite Party No. 1.
Civil Revision No. 3029 of 1993.
AK Badrul Huq J.
The propriety and legality of concurrent decisions recorded by Courts below have been called in question by pre-emptee petitioner in invoking this Court’s Civil Revisional Jurisdiction on laying a petition under section 115 of the Code of Civil Procedure.
2. Opposite party No.1 of this Civil Revision petition in the capacity of a co-sharer by inheritance as pre-emptor impleading petitioner as pre-emptee laid a Case being Miscellaneous Case No. 6 of 1986 in the Fourth Court of Munsif (now Assistant Judge Narayanganj under section 96 of the State Acquisition and Tenancy Act for an order of pre. emption with respect to land described in schedule to Miscellaneous Case. The said Miscellaneous Case was renumbered as Miscellaneous Case No.18 of 1990 on transfer to second Court of Senior Assistant Judge, Narayanganj. Pre-emptee-petitioner was a stranger to the case holding.
3. Petitioner of Civil Revision petition as pre-emptee resisted Miscellaneous Case on presentation in full agreement with the decision rendered by learned trial Judge of a written objection taking stand that pre-emption proceeding holding had been sub-divided and new Jama had been created in the name of seller opposite party No. 2 and also in the name of pre-emptee-petitioner and pre-emptor opposite party ceased to be a co-sharer in pre-emption proceeding
4. The legal battle between pre-emptor opposite party and pre-emptee-petitioner centred round the question of co-sharership of pre-emptor opposite party on pre-emption proceeding holding.
5. Evidence both oral and documentary had been led in support of the respective contentions of the parties.
6. Two witnesses had been examined in support of the Case of pre-emptor-opposite party. Pre-emptor-petitioner examined himself as OPW 1 in support of his Case.
7. Learned Senior Assistant Judge, Second Court, Narayanganj by judgment and order dated 24-6-1992 allowed pre-emption Miscellaneous Case. In allowing the Case learned Senior Assistant Judge as trial Judge considered evidence both oral and documentary and other materials brought on record and recorded decision that mutation and sub-division proceeding with respect to pre-emption proceeding holding had not been done properly and legally. Learned trial Judge further held that pre-emptee-petitioner failed to substantiate his Case that mutation and sub-division proceeding had been done within the knowledge of pre emptor-opposite party.
8. Pre-emptee-petitioner fe1t aggrieved of the above adjudication and sought setting aside the same through a medium of appeal being Miscellaneous Appeal No. 43 of 1992 before the Court of District Judge, Narayanganj. Learned Subordinate Judge, Narayanganj heard the appeal and by judgment and order dated 17-8-1993 dismissed the appeal. In recording dismissal, learned Subordinate Judge as appellate Judge as well as the final judge of fact also considered evidences and other materials on record and came in full agreement with the decision rendered by learned trial Judge.