RAUSHAN AKHTER @ MOHARAJI BIBI Vs. KHANDAKAR MOSHARRAF HOSSIAN

JUDGEMENT

(1.) This appeal by leave at the instance of the pre-emptee is directed against the judgment and order of the High Court Division passed on 11.6.1998 in Civil Revision No. 2588 of 1993 making the rule absolute setting aside those dated 20.6.1993 of the Court of appeal below passed in Miscellaneous Appeal No.12 of 1989 affirming those dated 28.2.1989 passed by the Court of Subordinate Judge, Narsingdi in Preemption Miscellaneous Case No.28 of 1985.

(2.) The facts leading to the present appeal briefly are that the respondent No.1 as pre-emptor filed the above pre-emption case No. 28 of 1985 for preempting the land described in the schedule to the plaint on the allegations, inter alia, that one Abdul Gafur was the owner of the land of the case jute who sold some land to one Akram Uddin on 26.2.1949 who in turn sold 21 decimals of land to the appellants and his two brothers on 4.5.1949 and thus the appellants became a co sharer by purchase in the case jute. The said Akramuddin sold some other land of the case jote to one Habib Bhuiyan predecessor of Mizanur Rahman, Sukri Bibi an Akmulennessa and the heirs of the Akramuddin sold 21 decimals of land to Khandakar and the heirs of the Akramuddin sold 21 decimals of land to Khandakar Anwar Hossain, predecessor of the appellants by a deed of sale dated 12.3.1975. Further case of the respondent No.1 is that after completion of the registration of the said deed under section 60 of the Registration Act a notice under section 89 of the Date Acquisition and Tenancy Act was served on him on 28.1.1981 and that Khandakar Anwar Hossain being a stranger-purchaser to the case jute. Respondent No.1 as a co sharer by purchase, is entitled to pre-empt the said land.

(3.) The appellants contested the case by filing a joint written objection denying the material allegations. Their case is that the pre-emptor is not a co-sharer of the case jute and the case is bad for defect of parties and that the case is barred by limitation. Their further case is that the suit land is adjacent to the house of pre-emptor-respondent No.1 and from the very date of purchase the pre-emptee purchaser entered into possession of the case land and since then they are possessing the same by cultivating the case land openly and to the knowledge of others including the pre-emptor. Their further case is that pre-emptor knows about the transfer from the very beginning and he did not exercise his right of pre-emption within the prescribed period of limitation and as such preemption case is liable to be dismissed. The learned Subordinate Court dismissed the case on ground of limitation. The Court of appeal below affirmed the same. The High Court Division made the rule absolute allowing the Miscellaneous Case.