MONWARA BEGUM Vs. MD. ANWARUL ISLAM

JUDGEMENT

(1.) This petition for leave to appeal is directed against the judgment and order dated 15.03.2005 passed by a Single Bench of the High Court Division in Civil Revision No. 1364 of 2002 making the Rule absolute.

(2.) Short facts are that the pre-emptor instituted Miscellaneous Case No. 13 of 1995 under section 96 of the State Acquisition and Tenancy Act, 1950, in the Court of Assistant Judge, Sonatola, Bogra for preemption of the case land stating, inter alia, that the case land originally belonged to Khairuddin Mondal, Azizur Rahman and Abdul Karim. Azizur Rahman died leaving wife Jamila Khatun and one son, the pre-emptor. Abdul Karim died leaving sons opposite party Nos. 2, 3, 4-6 and one daughter Hasna. Khairuddin died leaving wife opposite party No.10), four sons, Abdul Jabbar, Abdul Fazal, Tozaul Hoque, Imdadul Hoque and two daughters opposite party Nos.1 and 12. Abdul Fazal died leaving one wife, opposite party No.13, one son, opposite party No.14 and daughters, opposite party Nos.15-20. In this way the pre-emptor is a co-sharer. The opposite party No.14 Abdullah sold .19 decimals of land to opposite party No.1 on 26.02.1995 without notice as required under section 89 of the State Acquisition and Tenancy Act but fraudulently created deed of exchange by suppressing the real transaction of sale. The opposite party No.14 on the same date transferred the said land to Nurjahan Begum, daughter of opposite party No. 1. In fact the exchange deed was a colorable one and the transaction between opposite party No.1 and 14 was a sale. The opposite party No.1 is a stranger purchaser.

(3.) The pre-emptee-opposite party contested the miscellaneous case by filing written objection denying all the, material allegations made in the pre-emption application. The case of the pre-emptee is that transaction between opposite party Nos. 1 and 14 was purely an exchange and not 'sale and after exchange the opposite party No. 1 erected dwelling hut on the case land and has been residing there and also made improvement of the case land by earth filling and excavating tank at a cost of Tk. 50,000/-.