IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(Civil Appellate Jurisdiction)

First Miscellaneous Appeal No. 113 of 2014

with

(Civil Rule No. 19 (FM) of 2014)

In the matter of:

Mrs. Jahanara Begum

… Appellant-petitioner

-Versus-

Uzzal Kumar Roy

…Respondents-opposite parties Mr. Monir Hossain, Advocate

…For the appellant-petitioner

Mr. Sasti Sarker with

Mr. Laxman Biswas

... For the respondent-opposite party No. 1

Heard on 10.06.2024 and 11.06.2024 Judgment on 12.06.2024

Present:

Mr. Justice Md. Mozibur Rahman Miah

And

Mr. Justice Md. Bashir Ullah

Md. Bashir Ullah, J.

Since the point of law and facts so figured in the appeal and the rule are intertwined, those have heard together and are being disposed of by this common judgment.

At the instance of the opposite party in Miscellaneous Case No. 11 of 2009, this appeal is directed against the judgment and order dated 28.07.2013 passed by the learned Joint District Judge, 2nd Court, Khulna allowing the case on contest.

At the time of issuance of the rule, the operation of the judgment and order dated 28.07.2013, passed by the learned Joint District Judge,

2nd Court, Khulna in Miscellaneous Case No. 11 of 2009, was stayed for a period of 04(four) months, which was lastly extended on 04.11.2015 till disposal of the Rule.

The short facts leading to preferring this appeal are:

The respondent as, pre-emptor filed an application under section 96 of the state Acquisition and Tenancy Act, 1950 for pre-emption of the case land as shown in the schedule to the application. It is stated in the application that, the case land is situated at Mouza, Miksimil under Police Station-Dumuria in S.A Khatian Nos. 882, 1663, 1950, 1341, 1889, 738, 15 and 1760 which was duly recorded in the name of one, Shonnasi Paramanik who died leaving behind his two sons namely, Maniklal and Nimay Raton, as heirs. Maniklal died leaving behind three sons: Uzzal Kumar Roy, the pre-emptor, Narayan Chandra Roy and Subash Chandra Roy, the Opposite Party Nos. 3-4 as heirs.

The respondent-pre-emptor is a co-sharer by inheritance and the pre-emptee-appellant is a stranger-purchaser in the case holding. Subsequently, Nimai Ratan Roy, respondent No. 2 transferred the case land to the appellant through registered sale deed being number 5220 on 12.11.2008 without serving any notice to the pre-emptor. On 28.10.2009, the pre-emptor came to know about the alleged transaction for the first time and procured the certified copy of the sale deed on 03.11.2009. If the pre-emptor had previous knowledge of the transfer, he would have purchased the same at any cost but the transfer was held beyond the knowledge of the pre-emptor. Feeling aggrieved, the pre-emptor then instituted Miscellaneous Case No. 11 of 2009 before the learned Joint District Judge, Second Court, Khulna.

The pre-emptee-appellant contested the case by filing a written objection denying all the material averments made in the application. Her case is that, the pre-emption application is not maintainable in its present form and is barred by limitation and the principles of estoppels, waiver and acquiescence. On 01.11.2008, Nimai Ratan Roy, respondent No.2 requested the pre-emptor and respondent nos. 3-4 to purchase his land but they refused the said offer for want of money, rather the pre- emptor requested the appellant-pre-emptee to purchase his uncle’s land except the homestead land. The appellant-pre-emptee purchased 2.12 acres of land by paying Taka 7,00,000/- (seven lac) through deed number 5220 dated 12.11.2008 from respondent No.2 with full knowledge and consent of the pre-emptor who was present before the Sub registry office during registration of the same. After purchasing the same the appellant- pre-emptee got possession of the suit land. It has further been stated that the application was filed after one year, so it is barred by limitation and taking advantage of low value as shown in the impugned sale deed the pre-emptor out of greed and ill moti