In the Supreme Court of Bangladesh

High Court Division

(Civil Appellate Jurisdiction)

Present:

Mr. Justice Md. Mozibur Rahman Miah

and

Mr. Justice Mohi Uddin Shamim

First Miscellaneous Appeal No. 144 of 2020

In the matter of:

Syed Yousuf Ali

... Appellant-petitioner

Versus

David Suronjon Biswas

...Vendee-Opposite party Syed Hemayet Ali and another

... Vendors-Opposite parties Syed Azmad Hossain and others

.......Co-sharer-opposite parties

Mr. A. K. M. Badrudduza, Senior Advocate

with Mr. Delwar Hossain, Advocate

...For the appellant-petitioner

No one appears

...For the respondent-opposite parties

Heard on: 15th November, 19th November, 26th November and Judgment on 27th November, 2023

Mohi Uddin Shamim, J.

This First Miscellaneous Appeal is directed against the

judgment and order dated 02.02.2020 passed by the learned Joint District Judge, 2nd Court (In charge), Gopalgonj in Pre-emption

Miscellaneous Case No.04 of 2013 rejecting the pre-emption application filed under section 96 of the State Acquisition and Tenancy Act, 1950.

Facts necessary for disposal of the appeal, in short, are that, the pre-emptor-appellant as applicant filed Miscellaneous Case being No.04 of 2013 under section 96 of the State Acquisition and Tenancy Act, 1950 before the Court of learned Joint District Judge, 2nd Court (In charge), Gopalgonj stating inter-alia that the opposite party Nos.2 and 3, who are the full brother of the applicant sold 47 decimals of land vide sale deed No.3455 dated 02.10.2013 to the pre-emptee-opposite party No.1 out of 4 schedule mentioned in the said sale deed. The applicant is the co-sharer of the schedule Nos.2 to 4 of the sale deed by dint of inheritance, which has been mentioned in the schedule of the application. But the petitioner is not the co-sharer in the schedule No.1 of the sale deed. Therefore, he has no claim over 9 decimals of land mentioned in the said schedule No.1 of the deed. It is also stated that, the opposite party Nos.2 and 3 sold out 1.5 decimals of land in S. A. Plot No.575, S. A. Khatian No.552, D. P. Khatian No.270, Hal dag No.1063 but in order to frustrate the right of the preemptor-petitioner, the opposite party Nos.1-3 fraudulently mentioned Khatian No.275 instead of Khatian No.552 in the deed in question. But the opposite party Nos. 2 and 3 handed over the possession of 1.5 decimals of land in S. A. plot No.575 of Khatian No.552. Moreover, the opposite party Nos.2 and 3 is not the owner of the S. A. Khatian No.275 as alleged and there is no plot No.575. The opposite party No.1 is a stranger in the schedule property of applicant (schedule Nos.2, 3 and 4 of the sale deed in question). Therefore, the preemptor-applicant is entitled to get pre-emption over 38 decimals of land (out of 47 decimals of land mentioned in the deed) as co- sharer.

On the other hand, the opposite party No.1 the pre-emptee contested the suit by filing written objection stating that, the suit land was sold within the knowledge of the applicant and initially the opposite party Nos.2 and 3 offered the petitioner for purchasing the property but he denied to purchase due to his financial constraint. Accordingly, in presence of the applicant, the said sale deed being No.3455 dated 02.10.2013 was registered. After

purchasing the land, opposite party No.1 spent huge amount of money by digging pond and construction of two houses and he also planted different types of trees and cultivated fishery. Therefore, the applicant is not entitled to get the said property by way of pre- emption. At the time of trial, the learned Joint District Judge, 2nd Court (in charge), Gopalgonj examined 02 witnesses as P.Ws 1 and 2 and the opposite party examined only one as of D.W. 1.

After conclusion of trial, the learned Judge of the trial Court dismissed the said Miscellaneous Case No.04 of 2013 vide judgment and order dated 02.02.2020.

Being aggrieved by and dissatisfied with the said impugned judgment and order dated 02.02.2020, the pre-emptor