MD. HELAL UDDIN Vs. M. A. JAKIR

JUDGEMENT

(1.) This petition for leave to appeal at the instance of the pre-emptee-petitioner is directed against the judgment and order dated 4th June, 2009, of a Single Bench of the High Court Division in Civil Revision No.5031 of 2006 affirming that dated 22nd August, 2006, of the learned Additional District Judge, 2nd Court, Gazipur in Miscellaneous Appeal No.6 of 2001 who affirmed that dated 22nd February, 2001 of the learned Senior Assistant Judge, First Court, Gazipur in Miscellaneous Case No.9 of 1998.

(2.) The respondents instituted Miscellaneous Case No.9 of 1998 in the 1st Court of the learned Senior Assistant Judge, Gazipur for pre-emption of the case land claiming as co-sharers. The case of the pre-emptors, in short, is that the land in question appertained to C.S. Khatian No. 362 of S.A. Khatian No.651, Plot No.1432 measuring an area of 9.34 acres of which .67 acres of land appertained to 'Kha' schedule out of which .05 acres of land is the disputed land. The pre-emptors are co-sharers by purchase in the said land. The said land originally owned and possessed by pre-emptee Nos. 3-4 by purchase and a deed of Hiba-bil-Ewaz. Pre-emptee No.4 was possessing and enjoying .17 acres of land on the strength of hiba and he sold .08 acres of land out of .17 acres of land by sale deed No.7989 dated 7th August, 1995, in favour of pre-emptee No.1 on condition that he would transfer the rest portion of that property, delivered the total .17 acres. Thereafter the pre-emptee No.5 being owner of .44 acres of land by deed Nos.6131, 13163 and 4466 dated 9th August, 1982, 20th December, 1992 and 6th May of 1995 respectively sold the total land in favour of pre-emptee Nos.1 and 2. The pre-emptee No.3 purchased the land in question measuring an area of .05 acres of land by registered sale deed No.1094 dated 30th January, 1995, but the property was looked after by the pre-emptors on condition that the pre-emptee No.3 would transfer the property subsequently. The pre-emptee No.3 thereupon transferred the same to the pre-emptee Nos.1 and 2 on 31st January, 1998, behind the knowledge of the pre-emptors which they came to know on 13th January, 1998. They proposed to transfer the land in question to them which was refused on 20th February, 1998 and the hence the case.

(3.) The pre-emptee Nos.1 and 2 contested the case by filing a written objection denying all the material averments made in the petition alleging, inter alia, that the case is not maintainable and it is bad for defect parties. The vendor sold the land to them by registered kabala dated 31st January, 1998, and delivered possession to them on the same date. The pre-emptors are not co-sharers in the disputed holding because of separation of Jama. The case has been filed on the basis of some false allegations. After purchase they developed the case land by filling earth spending huge amount of money etc.