KERATULLA SK Vs. FAZLUR RAHAMAN SARDAR

JUDGEMENT

(1.) In this revisional application the petitioner has challenged the order of the learned District Judge, Malda made on June 13, 1981 dismissing the petitioner's appeal being Misc. Appeal No. 21 of 1980 and thereby affirming the order passed by the learned Munsif, Second Court, Malda in Miscellaneous Case No. 133 of 1976 allowing an application made by the opposite parties under Section 8 of the Land Reforms Act. Opposite parties Nos. 1 and 2 filed an application under Section 8 of the Land Reforms Act in the Court of the learned Munsif, 2nd Court, Malda. It was alleged that the opposite parties Nos. 1 and 2 along with opposite party No. 3 were co-sharers of a raiyati holding which previously belonged to Enayat Ali Sk. After the death of Enayat Ali Sk. in 1370 B. S. his heirs obtained the property and they were in possession. Opposite parties Nos. 1 and 2 (who are petitioners in the said Miscellaneous case) purchased the property from Hafizul Sk. son of Enayat Ali by a Kobala dated 6th Aswin, 1381 B. S. and they became co-sharers. Emajuddin, another son of Enayat Ali, sold the disputed property to the petitioner of the present Rule (he was opposite party No. 1 in the Miscellaneous case) by a Kobala dated 8th Chaitra, 1381 B. S. corresponding to March 22, 1975 for Rs. 2,500/-. Opposite parties Nos. 1 and 2 coming to know of the sale obtained certified copy and thereafter filed the application for pre-emption under Section 8 of the Land Reforms Act (hereinafter referred to as the Act) after deposit of the requisite amount. They also prayed for pre-emption on the ground that they are owners of the adjoining lands. In his written objection the petitioner, who was opposite party No. 1 in the Misc. case No. 133 of 1976, contended that the application was barred by limitation. The opposite parties had no right to claim for pre-emption as they were not the co-sharers.

(2.) The learned Munsif allowed the application under Section 8 of the Land Reforms Act upon the finding that the petitioners of the said case had purchased the disputed holding on 6th Aswin 1381 B. S. and the opposite party of the said Misc. case was a stranger and had purchased in the month of Chaitra, 1381 B. S.

(3.) The petitioner preferred an appeal before the learned District Judge. The said appeal has been dismissed. Before the learned District Judge, it was contended that the disputed property was recorded as a 'Garden' in the R. S. Record of rights and also in the kobala by which the applicants had purchased and as such the application under Section 8 of the Land Reforms Act would not lie. Learned Judge repelled the contention on the ground that no such point was taken in the written objection and in the absence of specific pleading the contention that the disputed property was a 'garden' and not 'agricultural land' could not be permitted to be made out in the appeal.