SUNIL KRISHNA BANIK Vs. KAILASH CHANDRA SAHA

JUDGEMENT

(1.) This appeal arises from First Miscellaneous Appeal No. 105 of 1980 passed by the High Court Division, Dhaka Bench on 6.1.83.

(2.) Respondent No.1 instituted Miscellaneous Case No. 150 of 1978 under section 24 of the Non-Agricultural Tenancy Act, in the 1st court of Subordinate Judge, Mymensingh for pre-emption of .385 acres of land recorded in C.S. Khatian No. 1397 and S.A. Khatian No. 1650 of Mouza Mymensingh town under Kotwali P.S. alongwith constructions thereon. His case was that 771 acres of land of the aforesaid Khatians with huts thereon belonged to one Shyamlal Saha who sold the same to respondents 1 and 2 on July 9, 1972. Respondent No. 2 sold the case land to appellants by a kabala dated 9.3.77 without notice. Respondent No. 1 is a co-sharer in the disputed holding but the appellants are Strangers. Respondent No. 1 obtained certified copies of the kabala on June 12, 1978 and filed the case for pre-emption on September 12, 1978. Appellants No. 1 and 4 contested the case by filing a written objection contending, inter alia, that the case was barred by limitation and by principle of waiver, estoppels and acquiescence. The case land was purchased by registered kabalas dated 9.3.77 within the knowledge and with the consent of respondent No. 1. The jama of the disputed holding having already been separated in accordance with law, respondent No. 1 ceased to be a co-sharer. He could not pre-empt the case land without depositing Tk. 32,000/- the cost of construction of the huts on the case land which was incurred by the appellants. In support of their case that the holding had already been separated, two Dhakhilas dated 16.5.78 showing payment of rent for the disputed land on the basis of separated Khatians being No. 3067 and 3068 were proved and marked Exts. A and A(1). Two municipal tax receipts were also proved and marked Exts. B and B(1) showing payment of municipal taxes by the appellants for their holdings which had already been separated and numbered as holding Nos. 50 and 51. Another document, Ext. C; was also proved. The miscellaneous case was allowed by the trial court on December 27, 1979. Appellants preferred First Miscellaneous Appeal. No. 105 of 1980 in the High Court Division. During the pendency of the appeal appellants filed an application under Order 41, rule 27 of the Code of Civil Procedure annexing certified copies of application for separation of the old jama which was registered as Mutation Case Nos. 1367(IX-1) 1977-78 and 1368 (IX-1)/1977-78, orders separating the old holding in the same mutation cases and the new Khatians bearing Nos. 3067 and 3068 as annexure A, A (1), B, B (1), and C(1) respectively. By their judgment dated 6.1.83 the learned Judges of the High Court Division rejected the application for additional evidence and also dismissed the appeal.

(3.) Appellants moved this Court against this judgment and obtained leave to consider whether in the face of the documentary evidence as above mentioned the High Court Division erred in law in not holding that the pre-emptor had ceased to be a co-sharer and in rejecting the application for additional evidence without giving any reason.