INU MIA Vs. MOKHLESUR RAHMAN

JUDGEMENT

(1.) In this appeal by special leave the question for our consideration is whether the right of pre-emption as conferred under section 96 of the State Acquisition and Tenancy Act, 1950 is a heritable right.

(2.) Facts relevant for disposal of the appeal, in short, are that the respondents 1-9 filed a pre-emption case under section 96 of the State Acquisition and Tenancy Act, 1950 for pre-emption of the land transferred under the kabala dated March 14, 1972 for a consideration of Rs. 5,000.00 which was registered on April 9, 1972. Respondents 1-6 claimed to be co-sharers by inheritance and respondents 7-9 claimed to be co-sharers: by purchase. The land originally belonged to one Sadat Ali Kari, predecessor-in-interest of respondents 1-6 and as such they claimed as co-sharers by inheritance. Respondents 7-9 claimed to be co-sharers by purchase in the same jote. Respondent 10 sold the case land to Chand Mia, the predecessor in-interest of appellants 1-8 and respondent No. 52 by a kabala dated March, 14, 1972 and the said Chand Mia was also a co-sharer of the same jote by purchase. The pre-emptors' case is that on hearing about the sale after making necessary search in the Sub-Registrar's office and on taking a certified copy of the Kabala on March 8, 1973 they came to know for the first time about the transfer of the case land. Their further case is that no notice of sale was served upon them and that in order to avoid pre-emption the kabala was registered in a different Sub-Registry.

(3.) The trial Court allowed the Miscellaneous case being Miscellaneous Case No. 133 of 1973 against the deceased Chand Mia and ex parte against the rest. On appeal the Appellate Court modified the order to the effect that the pre-emptor respondents are to get 76 decimals of land and deceased Chand Mia, the pre-emptee, to get 8 decimals of land by pre-emption. Chand Miah moved the High Court under section 115 of the Code of Civil Procedure. The High Court set aside the order of Appellate Court and restored that of the Munsif with modification to the effect allowing pre-emption in favour of the pre-emptor-respondents 1-6 and refusing pre-emption in respect of the pre-emptor-respondents 7-9. The heirs and legal representatives of deceased Chand Mia obtained leave from this Division contending that the respondents 1-6 have no locus standi to apply for pre-emption inasmuch as their predecessor in-interest Sadat Ali Kari himself did not choose to file an application for pre-emption although he was alive till then.