IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISI0N

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Moinul Islam Chowdhury

CIVIL REVISION NO. 2971 OF 2011

Md. Wahidul Islam

---- Pre-emptee-Respondent-Petitioner =Versus=

Md. Alkaj Ali Biswas and another

---- Pre-emptor-Appellant-Opposite Parties

Mr. Abul Kalam Chowdhury with

Mr. Ahmed Nowshed Jamil, Advocates

----- For the Petitioner Mr. Abul Kalam Mainuddin with

Mr. Munshi Abdul Hamid, Advocates

----- For the Opposite Party No. 1

Heard on: 18.02.2018 Judgment on: 19.03.2018.

At the instance of the present pre-emptee-respondent petitioner, Md. Wahidul Islam, this Rule has been issued calling upon the opposite parties No. 1-2 to show cause as to why the judgment and order complained of in the petition moved in court should not be set aside.

The Rule is directed against the judgment and Order dated 26.05.2011 passed by the learned Additional District Judge, 1st Court, Khulna in Miscellaneous Appeal No. 158 of 2009 reversing the judgment and Order dated 28.07.2009 passed by the learned Assistant Judge in charge, Court No. 2, Khulna in Miscellaneous Case No. 37 of 2007 rejecting pre-emption application.

The relevant facts for disposal of the this Rule, inter-alia, are that the present opposite party No. 1 as the pre-emptor-applicant filed the Miscellaneous Case No. 37 of 2007 in the court of the learned Assistant Judge, Daulatpur, Khulna claiming right of pre-emption. The case application contains that Abdul Motleb Karikor was the original S.A. recorded owner of the case land in S.A. Khatian No. 2821 who along with other co-sharers sold 15 decimal of land to one Ansar Uddin on 10.05.1983. Ansar Uddin sold 0.1250 acres to the pre-emptor. The said Motleb mortgaged 15 decimal of land along with other land with the opposite party No. 2, Sonali Bank, Fultala Branch, Khulna on 01.04.1984. Being a defaulter in payment of the borrowed money the bank sold the land on auction pursuant to be title Execution Case No. 04.1997 at Tk. 65,000/-(Tk. sixty five thousand) behind the knowledge of the pre-emptor and without giving any notice to the pre- emptor, as such, the present petitioner accrued a right of pre-emption as being a co-sharers by purchase of the same holding or same jote. The present opposite party No. 1 was a stranger and the case land is a non-agricultural land adjacent to the house of the pre-emptor.

The present pre-emptee-opposite party Nos. 1 and 2 contested the case by filing separate written objections denying the statements made in the application of the Miscellaneous Case and contended that the case was barred by limitation and no right of pre-emption accrued by the present petitioner. The written objection also contains that Motaleb obtain loan from the present opposite party No. 2, Sonali Bank, after mortgaging the case land and in due course of time he failed to repay the loan amount, thus, the money was realized by the Execution Case No. 04 of 1997. Motleb sold 15decimal of land from Dag No. 1670 in favour of Md. Ansar Uddin through the sale deed dated 10.05.1983. Sufia Khatun, mother of Motleb and Saburunnesa, the sister of Motleb jointly sold 1 decimal to Ansar Uddin. Whereas Ansar Uddin and others again sold the land to Motleb, thereby Motleb owned total land measuring 58 decimal which he mortgaged to the Bank and eventually the land was sold on auction dated 09.10.2000 which was confirmed on 27.11.2000, as such, no right of pre-emption was created in favour of the present pre-emptor petitioner. The present pre-emptee opposite party No. 2, the Bank by filing a written objection contended that Motleb mortgaged the case land with the Sonali Bank, Fultala Branch, Khulna for obtaining loan but subsequently he failed to repay the borrowed money, as such, the opposite party No. 2 realized the money through execution case by selling the property on auction.

After the hearing the parties the learned trial court rejected the pre-emption case by his