(From previous issue)
15. It is found that the trial court by its order dated 9-6-2006 kept the prayer for acceptance of BP. on record inasmuch as the opposite party Nos. 1-2 did not deposit Taka 1,000 as cost.
16. The learned Assistant Judge on the facts of the case and on consideration of the legal position by his judgment and order dated 13-11-2008 disallowed the preemption on the finding which reads as follows :
ÒAÎ †gvKÏgvi gyj ÎæwU nB‡Z‡Q Bnv cÿ‡`v‡l evwiZ| †h‡nZz AvBbvbyhvqx cÖ‡qvRbxq cÿMY‡K wcÖ‡qgkb †gvKÏgvq cÿ Kiv mandatory Ges †Kvb †Kvb e¨w³‡K AÎ †gvKÏgvq cÿ Kiv DwPZ Zvnv cÖv_©Kc‡ÿi Áv‡bi g‡a¨ _vKv AvBbvbyhvqx AÎ †gvKÏgv iÿYxq bq Ges cÖvw_©Kcÿ AMÖµq Av‡`k cvB‡Z nK`vi b‡n|Ó
17. This being purely a finding of fact based on assessment of the evidence on record that the case was bad for non-joinder of necessary parties.
18. The Court of appeal below in its turn set-aside the judgment of the trial Court on the finding that the trial Court committed illegality in holding that the pre-emption case was bad for defect of parties.
19. As I have already noticed that in the present pre-emption proceeding all the co-sharers were not impleaded as parties. The proposition of law is by now well settled that omission to implead a co-sharer in the application renders the pre-emption application liable to be dismissed for defect of party.
Therefore, I find no difficulty whatever in holding that the Court of appeal below was plainly wrong in setting-aside the judgment of the trial court on the ground that the pre-emption case was not bad for defect of party. The finding of the Court of appeal below on the point of defect of party, is, in fact, perverse being contrary to law and facts.
20. It is the requirement of law that all the Co-sharers must be impleaded to a preemption proceeding and when this mandate was not complied with the right of pre-emption conferred under Section 96 of the State Acquisition and Tenancy Act, 1950 is not available.
21. Another aspect of the case must not be overlooked. It is found from the record that petitioners themselves claimed co-sharers by purchase in the case jote as they have purchased 2 decimals of land in plot No. 400, pre-emptor as PW 1 himself admitted that the present petitioners are owners of plot No. 400 though, both the Courts below having failed to consider such admitted fact in accordance with law.
22. Further, at the end of the day the contention raised by Mr M Ashraf Ali, that the preemptors became co-sharers by purchase deed dated 18-1-1993 and thereafter, the case land was transferred to the vendor of the petitioners on 25-8-98 but the preemptors did not pray for pre-emption against that deed and thus, the pre-emptees have acquired the same rights of their vendor, the present pre-emption application is clearly barred by the principles of acquiescence and estoppels in the facts and circumstance of the case does not appear to be without any substance.
23. Here it may further be mentioned that the decision relied upon by the preemptor opposite parties has also no manner of application in the facts and circumstance of the case as the facts of the instant case are quite distinguishable from the facts of the cited case.
24. For the reasons stated above, I am inclined to hold that the learned Joint District Judge, 1st Court, Bogra seriously erred in law in passing the impugned judgment and order without properly applying his judicial mind into the facts and circumstances of the case and law bearing on the subject and the same has resulted in an error in the impugned decision occasioning failure of justice.
25. The Rule is, therefore, made absolute. The impugned judgment and order dated 8-2-2011 passed by the judgment and order dated 13-11-2008 passed by the learned Assistant Judge, Sherpur, Bogra in Pre-emption Case No. 17 of 2004 is restored.
(Concluded)
15. It is found that the trial court by its order dated 9-6-2006 kept the prayer for acceptance of BP. on record inasmuch as the opposite party Nos. 1-2 did not deposit Taka 1,000 as cost.
16. The learned Assistant Judge on the facts of the case and on consideration of the legal position by his judgment and order dated 13-11-2008 disallowed the preemption on the finding which reads as follows :
ÒAÎ †gvKÏgvi gyj ÎæwU nB‡Z‡Q Bnv cÿ‡`v‡l evwiZ| †h‡nZz AvBbvbyhvqx cÖ‡qvRbxq cÿMY‡K wcÖ‡qgkb †gvKÏgvq cÿ Kiv mandatory Ges †Kvb †Kvb e¨w³‡K AÎ †gvKÏgvq cÿ Kiv DwPZ Zvnv cÖv_©Kc‡ÿi Áv‡bi g‡a¨ _vKv AvBbvbyhvqx AÎ †gvKÏgv iÿYxq bq Ges cÖvw_©Kcÿ AMÖµq Av‡`k cvB‡Z nK`vi b‡n|Ó
17. This being purely a finding of fact based on assessment of the evidence on record that the case was bad for non-joinder of necessary parties.
18. The Court of appeal below in its turn set-aside the judgment of the trial Court on the finding that the trial Court committed illegality in holding that the pre-emption case was bad for defect of parties.
19. As I have already noticed that in the present pre-emption proceeding all the co-sharers were not impleaded as parties. The proposition of law is by now well settled that omission to implead a co-sharer in the application renders the pre-emption application liable to be dismissed for defect of party.
Therefore, I find no difficulty whatever in holding that the Court of appeal below was plainly wrong in setting-aside the judgment of the trial court on the ground that the pre-emption case was not bad for defect of party. The finding of the Court of appeal below on the point of defect of party, is, in fact, perverse being contrary to law and facts.
20. It is the requirement of law that all the Co-sharers must be impleaded to a preemption proceeding and when this mandate was not complied with the right of pre-emption conferred under Section 96 of the State Acquisition and Tenancy Act, 1950 is not available.
21. Another aspect of the case must not be overlooked. It is found from the record that petitioners themselves claimed co-sharers by purchase in the case jote as they have purchased 2 decimals of land in plot No. 400, pre-emptor as PW 1 himself admitted that the present petitioners are owners of plot No. 400 though, both the Courts below having failed to consider such admitted fact in accordance with law.
22. Further, at the end of the day the contention raised by Mr M Ashraf Ali, that the preemptors became co-sharers by purchase deed dated 18-1-1993 and thereafter, the case land was transferred to the vendor of the petitioners on 25-8-98 but the preemptors did not pray for pre-emption against that deed and thus, the pre-emptees have acquired the same rights of their vendor, the present pre-emption application is clearly barred by the principles of acquiescence and estoppels in the facts and circumstance of the case does not appear to be without any substance.
23. Here it may further be mentioned that the decision relied upon by the preemptor opposite parties has also no manner of application in the facts and circumstance of the case as the facts of the instant case are quite distinguishable from the facts of the cited case.
24. For the reasons stated above, I am inclined to hold that the learned Joint District Judge, 1st Court, Bogra seriously erred in law in passing the impugned judgment and order without properly applying his judicial mind into the facts and circumstances of the case and law bearing on the subject and the same has resulted in an error in the impugned decision occasioning failure of justice.
25. The Rule is, therefore, made absolute. The impugned judgment and order dated 8-2-2011 passed by the judgment and order dated 13-11-2008 passed by the learned Assistant Judge, Sherpur, Bogra in Pre-emption Case No. 17 of 2004 is restored.
(Concluded)
