Present:

MR. JUSTICE S.M. EMDADUL HOQUE

Civil Revision No. 2074 of 2015.

IN THE MATTER OF:

An application under Section 115(1) of the Code of Civil Procedure.

A N D

IN THE MATTER OF:

Nazrul Islam

..... defendant-appellant-Petitioner. -Versus –

Md. Abdul Momin and others

..... opposite parties.

Mr. Md. Azizul Hoque, Advocate

….. for the petitioner

Mr. Md. Omar Farook, Advocate

..... for the opposite party No.1

Heard On: 16.02.2022,22.02.2022

and Judgment on: 26.01.2022.

On an application of the petitioner Nazrul Islam under Section

115(1) of the Code of Civil Procedure the Rule was issued calling upon

the opposite party Nos.1-3 to show cause as to why impugned judgment

and order dated 29.01.2015 passed by the Additional District Judge,

Deolia Court, Chattogram in Miscellaneous Appeal No.09 of 2004 allowing the appeal and thereby reversing the judgment and order dated 01.12.2003 passed by the Senior Assistant Judge, Rangunia Court, Chittogram in Miscellaneous Case No.32 of 2002 rejecting the pre-emption should not be set-aside and/or pass such other or further order or orders as to this Court may seem fit and proper.

Facts necessary for disposal of the Rule, in short, is that the opposite party No.1 as pre-emptor filed Miscellaneous (pre-emption) Case No.10 of 2002 in the Court of Senior Assistant Judge, Rangunia Court, Chattogram against the opposite party No.1 under Section 96 of

the State Acquisition and Tenancy Act, 1950 calming that he is a co- sharer by purchase in the case land. And the opposite party No.2 of the pre-emption case transferred the land to the opposite party No.1 who being a stranger of the case land. The pre-emptor petitioner came to know the transfer of the case land on 24.06.2002 and finally determining

that the transfer of the land after obtaining the certified of the deed on 30.06.2002 that the opposite party No.1 transferred the property on 17.01.2002 and thus instituted the case within the stipulated period of limitation inserting the name of the petitioner as opposite party No.3 calming that on 24.06.2002 the opposite party No.1 tried to disposes the pre-emptor-petitioner from the case land with the help of opposite party No.3 the present petitioner of the revision. Hence the case.

The opposite parties entered appeared to contest the case. Subsequently the opposite party No.3 the present petitioner filed an application for maintainability of the pre-emption case calming that the opposite party No.1 though purchased the land on 17.01.2002 but the

said opposite party No.1 again transferred the land in favour of opposite party No.3 through registered deed No.1570 dated 25.04.2002 and pre- emptor filed Miscellaneous Case No.71 of 2002 on 24.06.2002 wherein the opposite party No.3 the present petitioner also appeared and stated the said facts that he purchased the land on 25.04.2002 and claiming that the said deed was registered before 66 days of filing the pre- emption case and as such the pre-emptor has extinguished his right of pre-emption against the opposite party No.1 and since the pre-emptor did not file the pre-emption case against the opposite party No.3 the present petitioner, the pre-emption case is not maintainable.

The trial Court after hearing the parties and considering the facts and circumstance of the case rejected the pre-emption application on the grounds of maintainability by its judgment and order dated 01.012.2003.

Against the said judgment and order of the trial Court the pre- emptor opposite party No.1 in this revisional application preferred Miscellaneous Appeal No.9 of 2004 before the District Judge, Chattogram. The said appeal was transmitted to the Court of Additional District Judge, Deolia Adalat, Chattogram. Who after hearing the parties and considering the facts and circumstance of the case and the provision of law allowed the said appeal and restored the pre-emption case