MD. MOSHARRAF HOSSAIN Vs. DAULAT AHMED

JUDGEMENT

(1.) This appeal, by leave, by the pre-emptee against the judgment and order of August 26, 1997 passed by a single Bench of the High Court Division in Civil Revision No. 2801 of 1994 making the Rule absolute. The Rule was obtained against the judgment and order of July 17, 1994 of the court of the District Judge, Lakshmipur in Miscellaneous Appeal No. 2 of 1993 allowing the same and thereupon setting aside the judgment and order of November 29, 1992 of the Court of Assistant Judge, Ramganj, Lakshmipur in Miscellaneous Case No. 1 of 1992 allowing the same. The Miscellaneous case was filed under section 96 of the State Acquisition and Tenancy Act, 1950.

(2.) Pre-emptor respondents No.1-3 filed Miscellaneous case No. 1 of 1992 seeking preemption of 2 decimals of land transferred to the pre-emptee appellant by the respondent No.4 by the kabala executed on 21.11.1991 and registered on 24.02.1992 claiming co-sharership in the disputed holding by purchase. It was the case of the pre-emptors that to defeat the claim of pre-emption pre-emptee appellant and the respondent No. 4 collusively described the deed of transfer as one of exchange instead of sale deed, though in fact same was nothing but a colorable transaction upon showing exchange of 'ka' schedule land in favour of pre-emptee for 'kha' schedule land in favour of the respondent No. 4. It was the positive case of the pre-emptor the transaction was in effect not an exchange as camouflaged, rather it was an out and out sale.

(3.) The prayer for pre-emption was opposed by the pre-emptee appellant and respondent No. 4 (Opposite Party Nos. 1 and 2 in the Miscellaneous case respectively) asserting in the written objection amongst others that the transaction was an exchange and not a sale.