CAPTAIN (MD) LUTFAR RAHMAN Vs. MD. ABU TAHER

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 25-4-1995 passed by the 2nd Court of Subordinate Judge, Chittagong disallowing pre-emption under section 24 of the Non-Agricultural Tenancy Act, 1949.

(2.) The Case of the pre-emptee petitioner, in short, is that the Case land belonged to Arifur Rahman, A. Barik and A. Khaleque and their names were duly recorded in the finally published RS Khatian. One Abdus Sobahan purchased the Case land and other lands from the rightful owners by registered kabala dated 10-2-1939 and owned possessed the same. Thereafter Abdus Sobhan died leaving son Abdus Samad, daughter Arora Khatun and wife Nasua Khatun to succeed him. Subsequently, Nasua Khatun died leaving opposite parties Abu Taher Abdus Samad, Arora Khatun and Sufia Khatun as her heir and heiresses. The aforesaid owners being in rightful possession of the Case Land sold 22 decimals of land to pre-emptee petitioner Abdul Latif Bhuiyan land the predecessor-in-interest or opposite parties Nos. 7-11, Abdul Latif Bhuiyan subsequently purchased the aforesaid 22 decimals of land by kabalas dated 27-7-1964 in the name of his wife Tarina Akhter Khatun. In this way the pre-emptor and opposite parties Nos.7-15 are co-sharers in the Case land and their names have been duly recorded in the relevant RS Khatian. It has been contended by the pre-emptor that by the disputed 4 kabalas dated 20-7-1991 opposite parties Nos. 4-11 sold the Case land to opposite party Nos.1-6, who are stranger purchasers, beyond the knowledge of the pre-emptor. On coming to know about the disputed sales the pre-emptor obtained the certified copy of the kabalas in question and filed the pre-emption case on making the statutory deposit, impleading all necessary parties.

(3.) Opposite party Nos.1-6 contested the case by filing the written objection denying all the material allegations of the pre-emption application and contended, inter alia, that the case is barred by limitation and it is bad for defect of parties. It has also been contended that the pre-emptor is not a co-sharer in the case land and as such the pre-emption case is not maintainable in law. It has been further contended that the disputed sales were not sales proper but these were conditional sales with agreement for re-conveyance of the same to the vendors on receipt of the sale money within the stipulated time. It has been also contended by the opposite parties that the case land has already been re-conveyed to opposite party Nos. 7-11 by registered Kabala dated 24-9-1992 in pursuance of the agreement dated 21-7-1991 for re-conveyance of the case land on stipulated terms and conditions and, as such, the pre-emption case is not maintainable in law. It has also been contended that before sale of the case land to opposite party Nos.1-6, it was duly offered to the pre-emptor but he refused to purchase the same as he had no fund for the purpose and consequently; he is estopped from claiming pre-emption.