IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(Civil Appellate Jurisdiction)

First Miscellaneous Appeal No. 49 of 2018

with

(Civil Rule No. 366 (FM) of 2022)

In the matter of:

Sree Dilip Kumar Biswas, son of late Satish Chandra Biswas of village- Tarora, Post Office- Goalbathan, Police Station and District- Magura, present address: 19/1, Larmini Street Wari, Police Station- Sutrapur, District- Dhaka-1203.

… Appellant

-Versus-

Md. Amirul Islam (Shelly), son of late Abdul Mazid (1) Advocate of village- Haspatal Para, Magura, Police Station and District- Magura and others.

…Respondents

Mr. Shasti Sarker with

Mr. Laxman Biswas, Advocates

…For the appellant-petitioner

Mr. Mustafa Niaz Muhammad, Senior Advocate with

Mr. Md. Ekramul Islam, Advocate

…For the respondent-opposite-party no. 1

Heard on 13.02.2024 and 28.02.2024. Judgment on 28.02.2024.

Present:

Mr. Justice Md. Mozibur Rahman Miah

And

Mr. Justice Mohi Uddin Shamim

Md. Mozibur Rahman Miah, J.

Since the facts and point of law involved in the appeal and that of the rule are intertwined, they have heard together and are being disposed of by this common judgment.

At the instance of the pre-emptee in Pre-emption Miscellaneous Case No. 03 of 2006, this appeal is directed against the judgment and order dated 11.11.2015 passed by the learned Joint District Judge, 1st Court, Magura in the said Miscellaneous Case allowing the same.

The case of the respondent-pre-emptor in short is that:

An area of 77 decimals of land originally belonged to one, Surendranath Biswas and accordingly, his name was recorded in C.S. Khatian No. 577. After the demise of that Surendarnath Biswas, his only son Jitendranath Biswas became the owner of the property left by his father. Subsequently, Jitendranath Biswas by way of registered deed of patta dated 26.01.1955 transferred 2(two) decimals of land in favour of the predecessor of the pre-emptor, Abdul Mazid and two others. Subsequently, Abdul Mazid died leaving behind 6(six) sons and 1(one) wife who have been made as pre-emptor and opposite-party nos. 3-8 and accordingly, the pre-emptors became the co-sharer in C. S. Khatian No. 577. Thereafter, Surendranath Biswas gifted 12 decimals of land from C. S. Plot No. 4407 in favour of his daughter, Charu Shila and son-in-law Mohendra Nath Mitra. Since they have no issue for which they adopted a son named, Sudhir Kumar Bhattacharjee and transferred 12 decimals of land by oral gift and S. A. record was prepared in his name. It has further been stated that, the S.A. recorded tenant Sudir Kumar, subsequently

transferred 12 decimals of land in favour of Niva Rani Sarker, the opposite-party no. 2 vide a will dated 21.12.1980. Subsequently, that very Niva Rani Sarker by registered sale deed dated 15.09.2005 transferred the case land that is, 12 decimals to the pre-emptee-purchaser. The pre- emptor had no knowledge about the transfer but on 05.10.2005 after obtaining certified copy of the said sale deed, he became aware of the disputed transfer and filed the pre-emption case under section 24 of the Non-Agricultural Tenancy Act.

On the contrary, the present appellant who is the pre-emptee- purchaser contested the said case by filing a written objection contending inter alia that, the land of C.S. Plot No. 4407 appertaining to C. S. Khatian No. 577 was subsequently recorded in S.A. Khatian Nos. 553, 554 and 555 and 2 decimals of land was recorded in S. A. Khatian No. 554 in the name of the predecessors of the present pre-emptors and the case land measuring 12 decimals of land was prepared in the name of the predecessor of the present pre-emptee in S.A. Khatian No. 555 out of a single S. A. plot that is, S. A. Plot No. 4407. In the aforesaid way, the pre- emptor is not any co-sharer in S. A. Khatian No. 555. It has further been stated that, though in the disputed sale deed, there has been clear mention about the preparation of disputed S.A. Khatian No. 555 but the pre-emptor has not described the above fact