MOSSAMMAT KHURSHEDA JAHAN Vs. JAHAN SYADA SHAFINAZ

JUDGEMENT

(1.) This appeal is by special leave by the purchaser pre-emptee in an application under section 24 of the Non-Agricultural Tenancy Act, 1985.

(2.) The facts are that Syed Siddique Hossain was the owner of the suit property. He died leaving behind his wife, five sons and three daughters who possessed the same in ejmali as co-sharer tenants. The wife and sons executed a power of attorney in favour of Syed Amzad Hossain who is also a son of Syed Siddique Hossain. The pre-emptor respondents are the daughters of Syed Siddique Hossain who never executed any power of attorney. On 4.7.1974 the said attorney executed and registered a deed of agreement to sell the disputed land of the kabala in favour of the pre-emptee appellant. Subsequently, when the attorney failed to execute and register a kabala in favour of the pre-emptee appellant she brought O. S. No. 9 of 1975 for specific performance of on tract and obtained an ex parte decree which was executed and a kabala was registered with respect to the disputed land and structures described in "Kha" schedule in Execution Case No. 9 of 1981 in the Court of the Subordinate Judge, Rangpur.

(3.) During the pendency of the suit one of the defendants of the aforesaid suit Syed Raisul Hoque who also a son of Syed Siddique Hossain died in Germany issueless. His shares in the disputed property was inherited by his brothers and sisters. As the brothers were already parties to the suit, the sisters, the pre-emptor respondents, were substituted as heirs of the deceased brother in O.S. No. 9 of 19975 and the Execution Case No. 9 of 1981. The pre-emptor respondents alleged that no notice of the aforesaid case was served upon them. They came to know about the agreement, suit and sale of the disputed land on 29.3.1983 for the first time and the pre-emptee appellant in the meantime got possession of the land and structure from Syed Amzad Hossain, the attorney holder. The pre-emptor respondents claimed that the pre-emptee appellant is a stranger purchaser whereas they are co-sharers by inheritance and they have no other land except the land left by their father. They filed Miscellaneous Case No. 147 of 1983 for pre-emption under section 24 of the Non-Agriculture Tenancy Act.