1. Heard Mr. K.A. Mazumdar, learned counsel for the appellants. Also heard Mr. T.U. Laskar, learned counsel appearing for the respondent.

2. This appeal is preferred by the defendants against the judgment and decree dated 01.06.2005 passed by the learned Civil Judge (Senior Division), Hailakandi in Title Appeal No. 30/2004, reversing the judgment and decree dated 29.06.2005 passed by the learned Civil Judge (Junior Division) No. II, Hailakandi in Title Suit No. 93/2003.

3. The second appeal was admitted to be heard by an order dated 28.07.2006 on the following substantial question of law:

"Whether the finding of the first appellate court is legally sustainable in view of the stringent conditions for pre-emption under Section 236 of the Mulla's Principles of Mahammadan Law?"

4. The plaintiff filed the suit for pre-emption and for declaring the sale deed dated 04.03.2003 as illegal and inoperative and for accepting the due price of the suit land and to register the same in his name by giving him khas possession. Alternatively, the plaintiff also prayed for getting the sale deed registered through court. Prayer was also made to set aside any ekramama, if made, after sale by defendant No. 4 to defendant Nos. 1 to 3. The case set out in the plaint is that plaintiff is a shafi-e-sharik (a co-sharer in the property) with defendant No. 4 and the property was enjoyed in ejmali after the death of their father. He being informed of the sale of the suit land, attended the Office of the Sub-Registrar at Hailakandi on the very day of registration, i.e. 04.03.2003 and pronounced the word "shafi" 3 times in presence of 3 witnesses and the buyer and the seller. The defendants gave a deaf ear to the intent of the plaintiff arid defendants are also in collaboration to make an ekramama. The plaintiff arranged a "Village Bichar" in which the defendant Nos. 1 to 3 were directed to return the land to the plaintiff at the same price in which the transaction had taken place. However, the defendants did not pay any heed to it. It is averred that the plaintiff had been put to great inconvenience and he would not be able to do safe cultivation in his adjoining land.

5. Defendant Nos. 1 to 3, who are the purchasers, though appeared in the suit, did not file written statement. The defendant No. 4 did not enter appearance despite service of summons.

6. No issues were framed by the learned Trial Court. During trial, plaintiff examined 5 witnesses and the defendant Nos. 1 to 3 also examined 1 witness, besides cross-examining PWs- 1, 2 and 4.

7. The learned Trial Court held that the defendant Nos. 1 to 3 are not strangers but co-sharers of the suit patta along with the plaintiff and the defendant No. 4 and the plaintiff had failed to show the kind of inconvenience he would be put to if the defendant Nos. 1 to 3 were allowed to purchase the suit land. It was noted that the plaintiff had not raised the right of pre-emption while his brother had sold 26 jasti land to Nooruddin and Jabed from the suit patta. On the basis thereof, the learned Trial Court held that plaintiff did not succeed to establish his case and resultantly, the suit was dismissed.

8. The learned lower Appellate Court formulated 2(two) points for determination:

"(1) Whether the plaintiff has preferential right of purchase of the suit land there and (2) Whether the plaintiff satisfied the procedure for entitlement of the right of pre-emption as required under the law?"

9. While deciding point No. 1, the learned lower Appellate Court observed that there is no material on record to hold that the landed property left behind by the father of the plaintiff and defendant No. 4 was partitioned between co-heirs and therefore, the plaintiff has preferential right of pre-emption. Relying on the evidence of the witnesses of the plaintiff, the learned lower Appellate Court held that the plaintiff fulfilled the conditions and procedures to entitle him the right of pre-emption under Section 236 of the Principles