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IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Moinul Islam Chowdhury

Civil Revision No. 2808 of 2009

Md. Ali Akbar

----- The pre-emptor-appellant-petitioner

=Versus=

Al-Haj Mohammad Hasan and others.

---- The pre-emptee-respondent-opposite-

parties

Mr. Md. Golam Noor, Advocate

----- For the petitioner Mr. Abul Kalam Chowdhury, Advocate,

----- For the opposite-parties.

Heard on 06.02.2017, 07.02.2017 and Judgment on 15.03.2017.

At the instance of the present pre-emptor (applicant)-appellant- petitioners, Md. Ali Akbar, this Rule has been issued calling upon the opposite-parties No.1-3 to show cause as to why the judgment and order dated 29.10.2008 passed by the District Judge, Noakhali in Civil Miscellaneous Appeal No.21 of 2005 affirming the judgment and order dated 24.03.2005 disallowing the Pre-emption Case No.48 of 2002 by the Senior Assistant Judge, Noakhlai should not be set aside.

The relevant facts for disposal of the Rule, inter alia, are that the present petitioner as an applicant filed the Miscellaneous Case No.48 of 2002 under section 24 of the Non-Agricultural and Tenancy Act, 1949 in the Court of the learned Senior Assistant Judge, Chatkhil, Noakhali

claiming for a right as a pre-emptor regarding the suit land described in the application.

The facts of the case of the applicant are inter, alia, that the case property is situated in the Noakhali Pourasova measuring 15 decimals appertaining to dag Nos.363 and 364 khatian No.66 in Mouza No.111, Uttor Fakirpur, Noakhali Sadar, Noakhali originally belonged to Rokabanu and her husband Rahim Uddin, who died leaving behind two sons Korban Ali and Basu Miah and a daughter Samrat Banu. The said Basu Miah created a deed of gift to transfer the land to his foster son Badu Miah. The said Samrat transferred her inherited land to Hossen Ali, the father of the applicant, on 25.03.1943. Subsequently, Korban Ali purchased 14 decimals of land and he died leaving behind his two sons Hossen Miah and Fazol Miah a daughter Ambia Khatun and second wife Meherun Nessa and also sons of Meherun Nessa namely Saidul Hoque, Abdul Haque and Anwar Hossain. The said Abdul Haque died leaving behind her mother and brothers and the property devolved upon the father of the present applicant in a single jama as the co-sharers. Accordingly, the record of rights in MRR khatian was published in the name of Hossen Miah and after his death the applicant acquired total 38 11 decimals of land by way of

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purchase as well as inheritance which latter on increase to 53 1 decimals

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of land in D.S. No.66 and MRR khatian No.80.

One Zakir Hossain Kamal acquired 1+ 2 3 decimals of land in plot

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No.363 of khatian Nos.34 and 66. The said Kamal created the transfer deed No.5645 dated 03.05.1988 in favour of the present opposite-party No.4 one Mohsen, son of Anwar Hossain (Ana Miah present opposite party No.5) by way of an exchange deed with the opposite-party Nos.1-3 on 03.03.1992 regarding the land measuring 6 decimals, but it was not an exchange deed rather, it was a sale deed without giving any prior notice to the co-owners. Abdus Jaher, who is the husband of the opposite-party No.3 came into the land for measurement on 24.04.2001, who claimed to have purchased the land. As per his declaration the present applicant came to know about the transaction by way of awaj, which has created a right as a pre-emptor under section 24 of the Act, 1949.

The case has been contested by the present opposite-party Nos.1-3 by filing a written objection and denying the statements made in the above application claiming the right under section 24 of Act, 1949. It is further contented that 9 decimals of land situated in dag Nos.363 and 364 of Mouza No.111 Uttor Fakirpur, P.S. Sadar, District-Noakhali belonged to one Zakir Hossain Kamal, who entered into an exchange deed with the present opposite-party No.5 by registering the awaj deed No.5645 dated 03.05.1988