IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Moinul Islam Chowdhury

CIVIL REVISION NO. 4346 OF 2004

IN THE MATTER OF:

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

-And-

IN THE MATTER OF:

Enamul Haque being dead his legal heirs: 1- 19.

--- Pre-emtor-Petitioner(s). -Versus-

Jamal Uddin and another.

--- Pre-emptee-Opposite Parties.

Mr. Abdul Kalam Chowdhury with

Mr. Iqbal Kalam Chowdhury, Advocates

--- Petitioner(s). Mr. Sarwar-E-Deen with

Mr. Pronoy Kanti Roy, Advocates

---For the Opposite Party No. 1.

Heard on: 02.02.2023, 14.02.2023 and 22.02.2023.

Judgment on: 15.03.2023.

At the instance of the present plaintiff-petitioner, Enamul Haque being dead his legal heirs: 1-19, Nurjahan Begum and others, this Rule was issued upon a revisional application filed under section 115(1) of the Code of Civil Procedure calling upon the opposite party No. 1 to show cause as to why the judgment and order dated 08.08.2004 passed by the learned Joint District

Judge, Court No. 2, Noakhali in the Miscellaneous Appeal No. 71 of 2002 allowing the appeal and thereby reversing the judgment and order dated 03.07.2002 passed by the then learned Assistant Judge, Hatiya, Noakhali in the Miscellaneous Case No. 10 of 2000 should not be set aside.

The relevant facts for disposal of this Rule, inter-alia, are that the petitioner as the preemptor filed the Miscellaneous Case No. 10 of 2000 in the court of the learned Assistant Judge, Hatiya, Noakhali for claiming preemptor’s right under section 96 of The State Acquisition and Tenancy Act, 1950 against the sale deed No. 570 dated 20.02.2000 by Haji Mazharul Hoque in favour of the opposite party No. 1, Jamal Uddin.

The application under section 96 of the Act, 1950 contains that Haji Mazharul Hoque was the owner of 2 decimals land in Diara Plot No. 2001 of Diara Khatian No. 330 D. P. Khatian No. 294 corresponding to M. R. R. Plot No. 4539 M. R. R. Khatian No. 223 situated at Mouza- Burir Char, Police Station- Hatiya, District- Noakhali who sold 1 decimal land out of 2 decimals of land on 07.06.1994 and subsequently registered kabala deed No. 26 dated 04.01.1997 in favour of the present preemptor- petitioner, as such, the petitioner became a co-sharer. The said Haji Mazharul Hoque subsequently sold 1 decimal land to the opposite party No. 1 by the registered sale kabala deed No. 573 dated 20.02.2000 and the petitioner never received any notice as a co-sharer-petitioner. However, the petitioner came to know about the said registered kabala deed on 29.03.2000. The petitioner and Haji Majharul Haque filed Title Suit No. 46 of 1999 in the court of the learned Assistant Judge, Hatiya for evicting the present opposite party No. 1 who was the purchaser- stranger, as such, he accrued a right of preemption.

The present opposite party No. 1 contested the suit by filing a written statement contending, inter alia, that he purchased the case land from Abul Kalam alias Kalu vide registered kabala sale deed dated 09.03.1989 and constructed a shop thereon. The said Haji Majharul Islam claimed the title of the suit land that the petitioner purchased the case land by a registered kabala from him. He also contended that the land is a Viti (¢i¢V) of Chowmuhani Bazar, Hatiya, Noakhali, thus, it was a nonagricultural land and the suit is barred by law and there are different Khatians being M. R. R. Khatian No. 223 and also recorded as Diara Khatian No. 6 at Mouza- 58/35, Surjamukhi. He also denied that the preemptor was a co-sharer of the case land.

After hearing the parties the learned Assistant Judge, Hatiya, Noakhali came to a conclusion to allow the preemption case filed by the present petitioner by passing the judgment and order dated 03.07.2002. Being aggrieved the present opposite party No. 1 preferred the Miscellaneous Appeal No. 71 of 2002 in the court of the learned District Judge, Noakhali which was subsequently transferred