IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL APPELLATE JURISDICTION)

Present:

Mr. Justice Md. Mozibur Rahman Miah and

[ Mr. Justice Md. Bashir Ullah

First Miscellaneous Appeal No. 286 of 2007

In the matter of:

Mst. Lili Alam Khanam

---Pre-emptee-Appellant.

-Versus-

Tasar Uddin being died his legal heirs: 1(Ka) Md. Shahabuddin and others.

--- Pre-emptor-Respondents.

Mr. Rehan Husain, Advocate

---For the Appellant. Mr. Md. Shamsul Hoque Bhuiyan, Advocate

--- For the Respondent No-1.

Heard on 18.08.2024 and 19.08.2024 Judgment on: 25.08.2024

Md. Bashir Ullah, J

At the instance of the pre-emptee in Pre-emption Miscellaneous Case No.15 of 2006, this appeal is directed against the judgment and order dated 31.07.2007 passed by the learned Joint District Judge, Second Court, Gazipur allowing the pre-emption case directing the pre- emptee to handover the possession of the case land to the pre-emptor within 30 days.

This Court also vide order dated 28.08.2007 stayed the operation of the impugned judgment and order till disposal of the appeal.

The relevant facts leading to preferring the appeal are that the respondent as pre-emptor instituted Pre-emption Case No.1 of 2002

before the Joint District Judge, First Court, Gazipur, impleading the pre- emptee-appellant under section 96 of the State Acquisition and Tenancy Act, 1950 for pre-empt the case land.

The case of the pre-emptor in short is that the case land along with other land belonged to one Md. Sahar Ali as settled rayat and C.S. record was prepared in his name along with his four brothers Jamir, Jomir, Gotai and Ketai Miah in equal share. Sahar Ali died, leaving behind three daughters: Gadi Bibi, Tuki Bibi, Subjan Bibi and above named four brothers. They had owned and possessed 3.28 acres of land in ejmali. Ketai Mia died leaving behind three sons: Tasar Uddin (Pre- emptor), Ain Uddin Munshi and Asim Uddin. Thus the pre-emptor is co- sharer by inheritance in the case holding. Another co-sharer Gadi Bibi sold her 5 decimals of land of C.S. Plot No.139 to one Sabulla who sold the same to Samala Bibi. Thereafter, Samala Bibi on 25.10.1968 sold the same to Begum Rezia Khatun through registered deed No. 8775 who in her turn sold it to the pre-emptor on 16.05.1972 through registered deed No.5580. Thus, the pre-emptor became a co-sharer by inheritance and co-sharer by purchase in the case holding. The pre-emptor’s homestead is situated in the south and in the west of the case land. The case land is necessary to enter the main road from his homestead. On 28.01.2002, the pre-emptor and his son Lehaj Uddin came to know that the case land has been transferred, when pre-emptee and some labourers were filling soil in the case land. Thereafter, he obtained the certified copy of deed No. 20220 on 30.01.2002 and finally came to know that the pre-emptee purchased the case land from opposite party No.2 beyond their knowledge. Hence, the pre-emptor filed the case for pre-emption.

The Pre-emptee contested the case by filing written objection contending, inter-alia, that the case is not maintainable in its present form, there is no cause to bring the case and the case is barred by limitation. It is stated that one Shahar Ali, was the owner of 29 decimals of land appertaining to C.S. Khatian No.51, C.S. Plot No. 139 of Mouza Telipara, Joydebpur along with other land. He died leaving behind three daughters: Gadi Bibi, Tuki Bibi and Subjan Bibi as his heirs. Thereafter by metes and bounds among the three daughters, Tuki Bibi got 24 decimals of land and Gadi Bibi got rest 5 decimals of land in their Saham from case plot No.139 and Subjan Bibi got another plot. Accordingly, S.A. Khatian No.104 in respect of 24 decimals land has been prepared in the name of Tuki Bibi and S.A. Khatina No. 103 in respect of 5 decimals land has been prepared in the name of Gadi Bibi. Tuki Bibi transferred 24 decimals of land to her on