Present:

Mr. Justice Md. Kamrul Hossain Mollah

Civil Revision No. 3975 of 2018

IN THE MATTER OF:

An application under Section 115(1) of the Code of Civil Procedure

- AND -

IN THE MATTER OF:

Most. Shefaly Khatun

..... Defendant-Petitioner -Versus -

Md. Abdul Jalil and others

..... Plaintiff-Opposite Parties No one appears

..... For the petitioner

Mr. Md. Meshbahul Islam, Advocate

..... For the Opposite Parties

1`

Heard on 16.11.2023, 19.11.23 and Judgment on 22.11.2023

Md. Kamrul Hossain Mollah, J:

On an application by the petitioner, under Section 115(1) of the Code

of Civil Procedure, this Rule was issued calling upon the opposite party No. 1 to show cause as to why the judgment and order dated 29.08.2018 passed by the learned Joint District Judge, Shahzadpur, Sirajganj in Miscellaneous Appeal No.22 of 2015 disallowing the appeal by affirming the judgment and order dated 21.04.2015 passed by the learned Senior Assistant Judge, Shahzadpur, Sirajganj in pre-emption Case No.49 of 2008 in allowing the pre-emption should not be set-aside and/or pass such other or further order or orders passed as to this Court may seem fit and proper.

At the time of issuance of the Rule this Court stayed the impugned judgment and order dated 29.08.2018 passed by the learned Joint District Judge, Shahzadpur, Sirajganj in Miscellaneous Appeal No. 22 of 2015 for a period of 06 (six) months from date.

Facts necessary for disposal of the Rule, in short, are that the opposite party No. 1 Pre-emptor filed an application under section 96 of the State Acquisition and Tenancy Act, 1950 for getting the suit land measuring of 30 decimals comprising plot Nos. 443 and 444 appertaining to R.S. Khatian No. 252 of Mouja-Nandalalpur, Police Station- Shahzadpur, District- Sirajgonj (hereinafter referred to as suit property) by virtue of pre-emption. According to the opposite party No.1 pre-emptor an area measuring 10 decimals of land comprising plot No.443 and an area measuring 79 decimals of land consisting plot No.79 of R.S. khatian No.252 as well some other lands totaling 1.34 acres stood in the name of the opposite party No.1 Pre-emptor Abdul Jalil and his two brothers, Jalal Uddin and Aynal Haq of whom Aynal kept his share of 30 decimals of land i.e. the suit land caught with one Shahid Ali, a resident of village-Bera Kuchachia. On 07.11.2008 Shahid Ali disclosed that he owned the suit land by way of purchase. On coming to know this opposite party No.1 obtained certified copy of the Kobala dated 13.11.2008 and became sure that Shahid Ali purchased the suit land in the name of his wife Shefaly Khatun

(petitioner) by executing a registered Kabala being No. 4917 dated 03.10.2007. The Opposite party No. 1 Pre-emptor was not informed anything about the sale of the suit land. The opposite party No. 1 pre- emptor being co-sharer in the case joma has preferred the pre-emption case.

The purchaser petitioner pre-emptee contested the case by filing written objection and pleaded, inter alia, that R.S. recorded tenants of the suit joma purchased the suit by executing a registered Kabala being No.3696 dated 23.04.1969 and as such they are in fact co-sharer in the disputed joma by purchase. A co-sharer by purchase retains no right of preemption under the newly amended law of preemption. Apart from this initially Aynal Haq offered to sale out the case land to the petitioner, but he signified his inability to purchase and verbally assured that he would take no objection if the land is sold to others.

Thereafter the petitioner purchased the case land from a total consideration of Tk. 1,20,000/- and by virtue of the registered Kobala dated 03.10.2007. The petitioner falsely claimed that suit land was transferred by way of caught and in order to avoid limitation he invented the story. Therefore, instant pre-emption proceeding is liable to be rejected.

During the course of trial, the plaintiff as opposite party No. 1 adduced oral evidence of 3 witnesses including himself