BEGUM KHODEZA AKHTER Vs. HAJERA KHATUN

JUDGEMENT

(1.) These two appeals, which arose from a common judgment of the High Court Division dated 21 January 1982, have been heard analogously and are going to be disposed of by this judgment. The question involved in these appeals is whether the pre-emption has been allowed under section 24 of the Non-Agricultural Tenancy Act, 1949, to the respondents on correct appreciation of fact and proper application of law.

(2.) Respondents, Pre-emptors filed two proceedings, Miscellaneous Cases Nos. 250 of 1974 and 12 of 1975 in the Court of Munsif, Brahmanbaria, claiming pre-emption of two lands which were sold by two kabalas, one dated 18 December 1973 (Ext. A4) and the other dated 19 December 1973 (Ext. A3). These two pieces of land were part of a bigger area of land comprising Plots Nos. 329 and 332 which originally belonged to one Sarala Bala Pal, a fact about which there is no dispute. Respondents by two sale-deeds Exts. 4 and 5, dated 16 May 1969, purchased 26 decimals of land from plot No. 332 and 4 decimals of land from plot No. 329 and thereby became co-sharers of Sarala Bala Pal. Area of land in Plot No. 332 was 7 decimals, but about one decimal of land was covered up by a public road. While going to take possession they found 9 decimals of land out of 6 decimals of Plot No.332 had already been sold to Hiralal Basak and Narendra Chandra Basak by two sale-deeds in 1963, as such, the respondents got possession of only 18 decimals of land in Plot No. 332, This area in Plot No.332 together with 4 decimals in plot No. 339 brought the total area of land purchased by them to 22 decimals. Thereafter Hiralal and Narendra transferred their entire share of 9 decimals to Nurul Alam by two kabalas Exts. A4 and A3 dated 18-12-73 and 19-12-73 respectively as already stated above, and these two kabalas are sought to be pre-empted. During the pendency of these proceedings Nurul Alam sold away half of the land to Peano Begum, and the other half to Abdur Razzak. These transferees then transferred their shares, that are .09 decimals, to the appellant Khadija Akhter, the pre-emptee, and it is she who ultimately resisted the preemption. The grounds taken by her are that the applications for pre-emption are barred by limitation, that the proposed pre-emption is hit by the rule as to bar of partial pre-emption and that the Pre-emptors are no longer co-sharers in the land as they got their share and jama separated by filing a Separation Case, No. 605/69-70. The learned Munsif rejected all these contentions and allowed pre-emption. On appeal the learned Subordinate Judge reversed the findings of the trial Court and disallowed pre-emption. The decision of the learned Subordinate Judge was challenged before the High Court Division by two separate revisional applicationsC.R. Nos. 394 and 399 of 1978with the result that this decision was reversed and that of the trial Court restored by the impugned judgment dated 21 January 1982.

(3.) Mr. Khondkar Mahbubuddin Ahmed learned Advocate for the appellant, first urged two grounds before us, one as to partial pre-emption and the other as to separation of the jama. Before taking up these two points it should be mentioned here that the lower Appellate Court allowed the appeals and refused pre-emption mainly on the ground of limitation. But in coming to this finding the lower Appellate Court ignored the legal provisions that limitation starts from the data of registration of the sale-deeds, exts. A4 and A3. The learned Single Judge of the High Court Division reversed this finding, and computing the period of limitation from the date of registration of the two kabalas, found that the pre-emption cases were filed well within the period of limitation. This finding has not been challenged in these two appeals before us, and as such, the finding as to limitation is concluded in favour of the Pre-emptors.