ABDUL BATEN Vs. ABDUL LATIF SHEIKH

JUDGEMENT

(1.) This petition for leave to appeal by the pre-emptee-petitioner is from the judgment and order of a learned Single Judge of the High Court Division dated 27.4.92 in Civil Revision No. 986 of 1990 disposing of the Rule by setting aside the order of remand passed by the appellate Court below and allowing the pre-emption case, thereby reversing the judgment and order of the trial Court disallowing the pre-emption case.

(2.) The pre-emptee-petitioner received the case; land from his aunt respondent No. 3, Moyna Sundari by way of gift by a registered document dated 2.10.80. The pre-emptor-respondent Nos. 1 and 2 filed Miscellaneous Case No. 17 of 1981 in the court of the Assistant Judge, Manikgonj for pre-emption of the case land. The case was transferred w the court of Assistant Judge, Daulatpur Upazila and re-numbered as Miscellaneous Case No 21 1984. Their case was that the pre-emptee-petitioner was not a co-sharer in the case holding and the deed of gift was a pre-emptible one. Among other defences the pre-emptee-petitioner contended that the miscellaneous case was bad for non-joinder of parties and that the deed of gift is not a pre-emptible document.

(3.) Mr. Moksum-ul-Hakim, learned Advocate for the pre-emptee-petitioner, submits that the pre- emptee-petitioner's father Afazuddin died during the pendency of the pre-emption proceeding and thereby the pre-emptee-petitioner became a co-sharer in the case holding. It is his grievance that in derogation to the principles enunciated in ILR 44 CaL 47 ad; 19 DLR (SC) 36 the High Court Division failed to take note of this subsequent event and also failed to hold that under the altered circumstances the miscellaneous case does not lie.