MOHAMMAD MUJIBUL HOQUE Vs. SHAMSUL ALAM

JUDGEMENT

(1.) Pre-emptee-purchaser moved this petition for leave to appeal from the judgment and order dated 25th January, 2009 of a Single Bench of the High Court Division in Civil Revision No. 2480 of 2006 affirming that dated 27th April, 2006 of the learned Joint District Judge, Patiya, Chittagong in Miscellaneous Appeal No. 114 of 2005 allowing the preemption case by reversing that dated 2nd May, 2005 of the learned Assistant Judge-in charge of Boalkhali Upazila Court, Chittagong in Miscellaneous Case No.1 of 2004(Preemption).

(2.) Respondent Nos.1 and another instituted the case for preemption under section 96 of the State Acquisition and Tenancy Act, 1950 for pre-emption of the case land claiming as co-sharers as well as holding land contiguous to the land transferred. Short facts of the pre-emptors are that the case land belonged to Nabin Chandra and Mritunjoy. Mritunjoy died leaving his brother Nabin Chandra and subsequently Nabin Chandra also died leaving him behind four sons namely, Monindra Chandra, Rashik Chandra, Tejendra Lai and Fanindra Lai. Tejendra Lai transferred .081/2 acres of land to one Habibur Rahman by a registered deed dated 22nd April, 1964. Fanindra Lai transferred his .081/2 acres of land to Jayanta Kumar by a registered deed dated 23rd April, 1969. The respondent No.2 Zebal Ahmed Chowdhury purchased the share of Monindra Chandra and Rashik Lai. Jayanta died leaving him behind four sons namely Tushar, Shishir, Samir and Probir who sold their share to the pre-emptors by deed dated 19th August, 1999. Habibur Rahman died leaving one son Mozammel who in turn sold his share to the pre-emptors by a deed dated 31st May, 2000. Pre-emptors came to know that the respondent No.2 Zebal Ahmed Chowdhury transferred the case land to the respondent No. 1 by a deed dated 6th December, 2003 without serving any notice to them and thereafter, they instituted the case after obtaining the copy of the deed from the local Sub-Registrar Office.

(3.) The petitioner as well as the respondent No.2, the seller, contested the case by filing two separate written objections. The case of the pre-emptee-petitioner is that the case land belonged to the respondent No.2 Zebal Ahmed Chowdhury who borrowed Taka 1,00,000/- from the pre-emptee-petitioner and in pursuance thereof, he entered into an agreement for purchasing the case land and accordingly, the respondent no.2 executed a sale deed in respect of the case land on 6th December, 2003 on condition that the respondent No.1 would reconvey the deed of sale in favour of the respondent No.2. The impugned deed is not an out and out sale but it is a deed of mortgage and therefore, the pre-emption case is not maintainable which is liable to be dismissed. The respondent no.2 also contested the case by filing a written objection supporting the case of respondent No.1.