Present:-

Mr. Justice Mahmudul Hoque

Civil Revision No. 5212 of 2005 Md. Anower Hossain

... Petitioner -Versus-

Hamida Khatun and others

...Opposite-parties

No one appeared.

...For the petitioner Mr. A. Z. M. Mohiuddin, Advocate

...For the opposite-party No. 1.

Heard on 08.05.24, 09.05.24 and Judgment on 12th May, 2024.

On an application under Section 115(1) of the Code of Civil Procedure this Rule was issued at the instance of the petitioner calling upon the opposite party No. 1 to show cause as to why the impugned judgment and order dated 30.05.2005 passed by the learned Joint District Judge, 2nd Court, Habigonj in Miscellaneous Appeal No. 19 of 2002 dismissing the same and affirming the judgment and order dated 13.02.2002 passed by the learned Assistant Judge, Bahubal, Baniachong, Habigonj in Pre-emption Case No. 01 of 1992 allowing the pre-emption case in part should not be set aside and/or pass such other or further order or orders as to this Court may seem fit and proper.

Facts relevant for disposal of this Rule, in short, are that the opposite-party, as pre-emptor, filed Pre-emption Case No. 01 of 1992 in the Court of Assistant Judge, Bahubal, Baniachong, Habigonj seeking pre-emption stating inter alia, that she is a co- sharer by purchase and contiguous owner of the land mentioned in the schedule to the application for pre-emption. The pre-emptee opposite party behind the back of the pre-emptor purchased the case land from the opposite party Nos. 2-6 by three registered Deed Nos. 2755 of 1991, 2806 of 1991 and 2824 of 1991 dated 30.11.1991, 19.12.1991 and 21.12.1991 respectively. The pre-emptor by depositing consideration money amounting to Tk. (7,000+3,000+4,000)=14,000/- alongwith 10% compensation therewith filed the case praying pre-emption of the case land.

The pre-emptee purchaser, as opposite party No. 1 contested the case denying the material allegations made in the pre-emption application contending inter alia, that the case is not maintainable in its present form and the same is bad for defect of parties as co- sharers and contiguous owners were not made party to the case. Defence case, in short, is that the case land pertaining to Khatian No. 40, Plot Nos. 71, 73 and 74 belonged to Abdur Rahman who died leaving behind Marfat Ullah as only son, Hazera as wife and 5 daughters namely, Surjan, Putuljan, Kamala Banu and Ruhitorjan in whose names the land was recorded in the khatian. By amicable partition among the heirs Surjan, Putul Bibi got ·26 sataks in Plot No. 74, Kamala Banu ·7 sataks in the said plot. Being owners and possessors of the said land, they transferred the same to the pre- emptee opposite party No. 1 with the knowledge of pre-emptor. The pre-emptor did not raise any objection. The pre-emptor has no right to file pre-emption application for case khatian belonged to Zafar Ullah. The pre-emptee opposite-party No. 1 purchased the land from Elash Miah and Hiron Miah by registered Deed No. 2824 of 1991, but they were not made party to the case and did not implead the contiguous owners of the case land. The pre-emptee has only homestead on case Plot No. 73. He is son-in-law of Marfat Ullah, the recorded owner of the case land. The pre-emptee opposite party No. 1 is in possession of the case land. Therefore, the case is liable to be dismissed.

The trial court framed 6(six) issues for determination of the dispute between the parties. Both the parties adduced evidences both oral and documentary in support of their respective case. The trial court after hearing by judgment and order dated 13.02.2002 allowed the pre-emption case in part. The pre-emptee opposite-party No. 1 being aggrieved and dissatisfied with the judgment and order of the trial court preferred Miscellaneous (Pre-emption) Appeal No. 19 of 2002 and the pre-emptor preferred Cross Appeal No. 24 of 2002 in the Court of District Judge, Habigonj which was subsequently, transferred to the Court of Joint District Judge, 2nd Court, Habigonj