MD. AZIZUR RAHMAN VS. ALATUN BEWA ALIAS JAHANARA BEWA AND OTHERS

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Case No: Civil Petition for Leave to Appeal No. 631 of 2007

Judge: Md. Joynul Abedin ,

Court: Appellate Division ,,

Advocate: Mr. Bivash Chandra Biswas,Mr. Md. Abu Siddique,,

Citation: VI ADC (2009) 597

Case Year: 2009

Appellant: Md. Azizur Rahman

Respondent: Alatun Bewa alias Jahanara Bewa and others

Subject: Property Law,

Delivery Date: 2008-07-30

Md. Azizur Rahman Vs. Alatun Bewa alias Jahanara Bewa and others
VI ADC (2009) 597

Supreme Court
Appellate Division
(Civil)

Present:
MM Ruhul Amin CJ
Mohammad Fazlul Karim J
Md. Tafazzul Islam J
Md. Joynul Abedin J
Md. Abdul Matin J

Md. Azizur Rahman…………………………………Petitioner
Vs.
Alatun Bewa alias Jahanara Bewa and others………….Respondents

Judgment
July 30, 2008.

State Acquisition and Tenancy Act, 1950
Section 96
Pre-emptor one daughter and defendant Nos. 2 and 3 and the two sons as his legal heirs. They remained in possession into the suit land in ejmali along with their other co-sharer Noor Mohammad on constructing their dwelling house thereon. Other S.A. recorded tenant Noor Mohammad died leaving behind widow Deljan and after the Death of Deljan defendant Nos. 4-8 became the owner of the suit land and the present khatian was correctly recorded in the name of the aforesaid heirs. Since there was misunderstanding between the two families defendant No. 1 sold the case land on 06.06.1985. The pre-emptee is a stranger purchaser into the suit land and thus the pre-emptor filed this pre-emption case for pre-emption along with statutory compensation thereof. …. (2)

Lawyers involved:
Bivash Chandra Biswas, Advocate-on-Record-For the Petitioner.
Md. Abu Siddique, Advocate-on-Record-For Respondent No. 1
Not Represented- Respondent Nos. 2-9.

Civil Petition for Leave to Appeal No. 631 of 2007.
(From the judgment and order dated 04.04.2005 passed by the high Court Division in Civil Revision No.425 of 2001).

Judgment

Md. Joynul Abedin J.- This petition for leave to appeal at the instance of the pre-emptee petitioner is directed against the judgment and order dated 04.04.2005 passed by a Single Bench of the High Court Division in Civil Revision No. 425 of 2001 discharging the rule and affirming the judgment and order dated 03.04.2002 passed by the Sub-ordinate Judge, Second Court, Rajshahi in Miscellaneous Appeal No. 96 of 1997 reversing the judgment and order dated 23.10.1997 passed by the Assistant Judge, Godagari Court, Rajshahi in Miscellaneous Case (pre-emption) No.58 of 1985 dismissing the miscellaneous case for pre-emption.

2. The short fact leading to the filing of the leave petition is that the respondent No. 1 as pre-emptor filed Miscellaneous Case No.58 of 1985 in the Court of the Senior Assistant Judge, Godagari, Rajshahi for pre-emption under section 96 of the State Acquisition and Tenancy Act on the allegations, inter alia, that the suit land belonged to S.A. recorded tenant Noor Mohammad and Faizuddin Mondal. Faizuddin Mondal died leaving behind widow Sakhimon and pre-emp­tor one daughter and defendant Nos. 2 and 3 and the two sons as his legal heirs. They remained in possession into the suit land in ejmali along with their other co-sharer Noor Mohammad on con­structing their dwelling house thereon. Other S.A. recorded tenant Noor Mohammad died leaving behind widow Deljan and after the death of Deljan defendant Nos.4-8 became the owner of the suit land and the present khatian was correctly recorded in the name of the aforesaid heirs. Since there was misun­derstanding between the two families defendant No.1 sold the case land on 06.06.1985. The pre-emptor was not aware of the sale deed before obtaining the certified copies of the said sale deeds on 02.07.1985. The pre-emptee is a stranger purchaser into the suit land and thus the pre-emptor filed this pre-emp­tion case for pre-emption along with statutory compensation thereof.

3. The petitioner as pre-emptee contest­ed the case by filing written objection denying the material allegations in the plaint stating, inter alia, that the case is barred by limitation, defect of parties and since pre-emptor did not pay the improvement cost in court it would be dismissed.

4. The learned Senior Assistant judge dismissed the Miscellaneous Case on contest against pre-emptor respondent No.1 and ex parte against the rest by his judgment and order dated 23.10.1997 and thereby disallowed pre­emption.

5. Being aggrieved the pre-emptor pre­ferred Miscellaneous Appeal No. 96 of 1997 in the Court of learned District Judge, Rajshahi and the same was trans­ferred to the learned Subordinate Judge Second Court, Rajshahi who by his order dated 03.04.2000 allowed the appeal reversing the judgment and order of the trial Court allowing the pre-emp­tion.

6. Being dissatisfied with the aforesaid order the pre-emptee petitioner moved the High Court Division in Civil Revision No. 425 of 2001 and the High Court Division after hearing discharged the rule.

7. In this backdrop, the pre-emptee peti­tioner filed this civil petition for leave to appeal.

8. Mr. Bivash Chandra Biswas, the learned Advocate-on-Record for the petitioner submits that the High Court Division erred in not considering that the pre-emption case is bad for defect of parties. He further submits that from the evidence on record the learned trial court found that the claim of the pre-emptor is barred by waiver and acquies­cence but the High court Division com­mitted an error in not considering that the pre-emption case is not barred by waiver and acquiesce. He lastly submits that the high Court Division erred in failing to disallow the pre-emption case for failure on the part of the pre-emptor respondent to deposit development cost.

9. We have heard the learned advocate-on-Record and perused the connected papers including the impugned judg­ment. We do not find any substance in the point raised. The High Court Division upon correct assessment of the materials on record arrived at a correct decision. We therefore find no reason to interfere with the same.
The petition is accordingly dismissed.
Ed.

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