MOSHARRAF HOSSAIN Vs. MD. SHAHID ALI

JUDGEMENT

(1.) This petition for leave to appeal has been filed against the order dated January 17, 2004 of a Single Bench of the High Court Division rejecting the application seeking review of the judgment dated May 5, 2003 in Civil Revision No. 8766 of 1991 making the Rule absolute upon setting aside the judgment and order dated March 11, 1989 of the Court of Subordinate Judge (now Joint District Judge) Nawabganj in Miscellaneous Appeal No. 11 of 1984 whereby judgment and order dated January 15, 1984 of the Court of Munsif (now Assistant Judge), Nawabganj in Miscellaneous Case No. 84 of 1980 was set aside. The trial Court by the aforesaid judgment allowed the prayer for pre-emption sought under section 96 of the State Acquisition and Tenancy Act, 1950. Pre-emption was sought claiming to be a contiguous land owner. It appears from the judgment of the High Court Division sought to be appealed that the civil revision was heard in the absence of the opposite party since no one appeared to oppose the Rule.

(2.) The trial Court allowed the prayer for pre-emption on the finding that the pre-emptor is the contiguous land holder to the land sought to be pre-empted and that the Miscellaneous case is not barred by limitation and also not bad for defect of party. On appeal by the pre-emptee the appellate Court set aside the judgment of the trial Court on the view that the subject matter of the suit being a pond and as such being non-agricultural land pre-emption sought under section 96 of the State Acquisition and Tenancy Act was not tenable in law and that the pre-emptor was required to seek pre-emption under section 24 of the Non-agricultural Tenancy Act and that as under section 24 of the Non-agricultural Tenancy Act contiguous land holder has no right to seek pre-emption, the pre-emption sought was not available to the pre-emptor and as such trial Court was in error in allowing the prayer for pre-emption.

(3.) The High Court Division set aside the judgment of the lower appellate Court on the view that the said Court was in error in holding that pond being non-agricultural land the petition filed under section 96 of the State Acquisition and Tenancy Act is not maintainable since water of the pond in the background of the purpose for which the same is used the pond in question is agricultural land and consequently pre-emption sought for was very much available under section 96 of the State Acquisition and Tenancy Act.