Appellate Division
(Civil)
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Md Imman Ali J
Md Anwarul Haque J
Abdul Hakim (Md) …
………….Petitioner
vs
Md NazruI Islam and others …….
………….Respondents·
Judgment
January 20th, 2014.
State Acquisition & Tenancy Act (XXVIII of 1951)
Section 96
It is well settled that the pre-emptor must have interest in the case holding until the case is finally disposed of. .. …. (14)
Co-sharer
A co-sharer means a person whose interest subsists throughout the course of the application to pre-empt and not a person who held such an interest in the beginning, but lost it before its disposal. …. ..(15)
Chandra Kumar Maladas vs Abdul Motaleb, 19 DLR (SC) 36 and Md Mofizuddin vs Abdul Hakim, 33 DLR (AD) 305 ref.
Chowdhury Md Zahangir, Advocate-on-Record-For the Petitioner.
Md Golam Mostafa, Advocate. instructed by Md Nawab Ali, Advocate-on-Record-For Respondent Nos.1-2.
Non Represented-Respondent Nos. 3-23.
Judgment
Syed Mahmud Hossain J: This civil petition for leave to appeal is directed against the judgment and order dated 14-6-2011 passed by the High Court Division in Civil Revision No.3451 of 2003 making the Rule absolute and setting aside by the judgment and order 20-7-2003 passed by the learned Joint District Judge, Third Court, Mymensingh in Miscellaneous Appeal No.66 of 2002 reversing the judgment and order dated 225-2002 passed by the learned Senior Assistant Judge, Nandail, Mymensingh in Pre-emption Case No-5 of 2000.
2. The facts, leading to the filing of this civil petition for leave to appeal, in a nutshell, are:
The leave petitioner as the pre-emptor filed Pre-emption Case No.5 of 2000 in the Court of Senior Assistant Judge, Nandail, Mymensingh claiming pre-emption right over 24 decimals of land described in the schedule to the application for pre-emption under section 96 of the State -Acquisition and Tenancy Act. His case, is short, in that the case land under RoR belonged to the tenants, namely, Abbas Ali, Ismail, Tamijuddin and Abdul Gaffar and the pre-emptor is the son of Ismail. The seller-respondents are the co-sharers in the case holding as well as cousins of the pre-emptor. Though the pre-emptor is a co-sharer tenant in the holding by inheritance, the seller-respondents sold the case land to strangers beyond his knowledge by a deed of sale dated 2-11-1999. The pre-emptor definitely came to know about the deed of sale on 20-2-2000 soon after obtaining certified copy thereof. The purchasers are strangers and the pre-emptor’s claim over the case land is genuine and, as such, he has filed the instant pre-emption case.
3. Pre-emptee-respondent Nos.1-3 contested the case by filing written objection denying the material statements made in the pre-emption application. Their case, in short, is that one Saleh Sheikh was the sole owner of the case land under CS Khatlian No.207 and the pre-emptor failed to give details of the heirs of the CS recorded owner and failed to implead all the heirs of CS and RoR khatians. The pre-emptee-respondents asked the pre-emptor to purchase the case land and the preemptor himself was present in the process of negotiation as well as the registration of the deed of sale. The pre-emptor suppressing the above fact filed the case on the basis of a forged copy of RoR khatian. The pre-emptee-respondents developed the land by spending Taka.1800 and the pre-emptor now became greedy to grab the case land with ill motive and, as such, the pre-emptee-respondents prayed for dismissal of the case.
4. After hearing the parties, the trial Court by its judgment and order dated 22-5-2002 dismissed the preemption case.
5. Against the judgment and order of dismissal of the trial Court the pre-emptor-petitioner filed Miscellaneous Appeal No.66 of 2002 before the learned District Judge, Mymensingh. On transfer, the appeal was heard and disposed of by the learned Joint District Judge, Third Court, Mymensingh, who by his judgment and order dated 20-7-2003 allowed the appeal.
6. Being aggrieved by and dissatisfied with the judgment and order dated 20-7-2003 passed by the appellate Court, the pre-emptee-respondents filed a revisional application before the High Court Division and obtained Rule in Civil Revision No.3451 of 2003. The High Court Division by the judgment and order dated 14-6-2011 made the Rule absolute.
7. Feeling aggrieved by and dissatisfied with the judgment and order passed by the High Court Division, the pre-emptor leave petitioner has preferred this civil petition for leave to appeal before this Division.
8. Mr Chowdhury Md Zahangir, learned Advocate-on-Record, appearing on behalf of the leave petitioner, submits that the High Court Division erroneously came to a finding that the pre-emptor lost his right, title and interest in the case holding by selling out his entire interest by a registered deed dated 29-6-2005 although the preemptor has subsisting interest in the case holding and, as such, the impugned judgment should be set-aside.
9. Mr Md Golam Mostafa, learned Advocate, appearing on behalf of pre-emptee-respondent Nos. 1 and 2 on the other hand, submits that the High Court Division correctly found that the pre-emptor has lost his right, title and interest in the case holding by selling out his interest therein by a registered deed of sale dated 29-6-2005 and, as such, no interference is called for.
10. We have considered the submissions of the learned Advocates, perused the impugned judgment and the materials on record.
11. The High Court Division came to a finding that in the present backdrop. it was not necessary to go in detail because the pre-emptor lost his right of pre-emption in the case holding through transfer of all his subsisting interest in the case holding on the basis of which, the pre-emptor claimed pre-emption.
12. The High Court Division found that the learned Advocate for the pre-emptees filed an affidavit annexing the deed of sale bearing No.6058 dated 29-6-2005 showing that the pre-emptor exhausted his entire interest in the case holding.
13. Having considered the RoR Khatian No.247, we find that Abbas Ali, Ismail, Tamijuddin and Abdul Gaffar were the owners of the land of that khatian in equal share. In the entire land of the RoR khatian measuring 1.39 acres, Ismail, father of the pre-emptor, is entitled to 0.3475 acre of land in his 4 annas share. Admittedly, the pre-emptor has another brother and, as such, he is entitled to 0.1737 acre of land in the case holding. By a registered deed bearing No.6058 dated 29-6-2005 the pre-emptor sold 0.18 acre of land to one Md. Saidur Rahman and thereby sold more than his share in the case holding.
14. In the counter affidavit filed by the preemptor, it has been asserted that the land of the case holding was not partitioned by the metes and bounds and, as such, the pre-emptor is still a cosharer tenant in the case holding by inheritance. The pre-emptor, however, did not deny that by a registered deed of sale dated 29-6-2005 he did not transfer 0.18 acre of land. The contention that the land of the case holding has not been partitioned by metes and bounds does not hold good as on the face the RoR Khatian No. 247, it appears that the pre-emptor has exhausted his entire interest in the case holding. It is well settled that the pre-emptor must have interest in the case holding until the case is finally disposed of. Therefore, the preemptor is no longer a co-sharer in the case holding.
15. In this connection, reliance may be placed on the case of Chandra Kumar Maladas vs Abdul Motaleb, 19 DLR (SC) 36, wherein it is held that a pre-emptor must not only have a subsisting interest in the holding when he files an application for pre-emption but must continue to hold the self-same interest to the date when the case is finally disposed of. It is further held that a co-sharer means a person whose interest subsists throughout the course of the application to preempt and not a person who held such an interest in the beginning, but lost it before its disposal.
16. The above decision was noticed with approval in the case of Md Mofizuddin vs Abdul Hakim, 33 DLR (AD) 305.
The findings arrived at and the decision made by the High Court Division having been made on proper appreciation of law and fact do not call for interference. Accordingly, this civil petition for have to appeal is dismissed.
