MD. BABAR ALI Vs. MD. SHAMSUL ALAM

JUDGEMENT

(1.) This petition for leave to appeal is directed against the judgment dated 6.7.2004 passed by ail Single Bench of the High Court Division in Civil Revision No.357 of 1998 discharging the Rule obtained against the judgment and order dated 10.7.98 passed by the learned Additional District Judge, Kurigram in Miscellaneous Appeal No.181 of 1997 allowing the appeal upon reversing those of dated 11.3.97 passed by the learned Senior Assistant Judge, Kurigram Sadar in Miscellaneous Case No.10 of 1995 allowing pre-emption.

(2.) The petitioner filed the above miscellaneous case under section 24 of the Non Agricultural Tenancy Act stating, inter alia, that the case land situated at C.S. Dag No. 1006 was owned by Hanif Faruk Ansari; the S.A. record contained 13 decimals of land of the above dag and also other land of the Jote; Hanif Faruk Ansari died leaving opposite party Nos. 2-15 who, on 20.1.1995, sold 6 decimals of land from the aforesaid dag to the petitioner and on 3.4.1995 they, without any notice to the petitioner also sold the disputed land measuring 6 decimals to the pre-emptee opposite party No.1 who is a stranger to the case land; the petitioner on 6.4.1995 came to know about the disputed kabala and than he procured certified copy of the same and filed the case on 08.04.1995.

(3.) The pre-emptee opposite party Nos. 1, 17 and 19, who are the respondent Nos. 1-3 herein, contested the case by filing written objection contending, inter alia, that Nanda Lal and others who were the tenants under Solemanddin, the superior landlord, sold the case land to Hanif Faruq Ansari and others; on 22.5.60 Hanif Faruq Ansari sold 43 decimals of land from Khatian No. 751 and 32 decimals of land from Khatian No. 752 in favour of Karim Box, Hedayetullah and Rahim Box; on 27.05.66 Hanif Faruq Ansari along with others also sold 8 decimals of land of S.A. Khatian No. 752 in favour of Karim Boxs and others and then he also sold the remaining land in favour of Salimullah and others; R.S. Khatian No. 644 was prepared jointly in the names of Hanif Farook Ansari and Karim Box; Rahim Box died leaving behind sons Rabiul, Asgar, Abdur Razzaque and also wife Ranjona Bewa; Karim Boxs died leaving behind four sons three daughters and wife Kabujan; Hedayetullah died leaving behind shamsul Haque, the respondent No. 1, and also 4 other sons, wife Rabeya and five daughters, Ayesha, Julekha and 3 others; Julekha died leaving his brother, sister and mother as her heirs; when the opposite party Nos. 2-15 proposed to sell 12 decimals of land, the opposite party No.1 and one Badrul Hasan agreed to purchase the same and accordingly on 12.10.1988 the opposite party Nos. 2-15 executed a bainapatra in their favour on receiving Tk. 10,000/- and the opposite party No.1 had been enjoying said land since then; on the proposal of the opposite party No.1 to sell the disputed land Rabiul, Asgar and Rejaul Kabir desired to purchase the was agreed that the price of the land will be Tk. 90,000/- and on 3.4.95 opposite party Nos. 2-15 will execute kabala in favour of the opposite party No.1 and then on 4.4.95, the next day, the opposite party No.1 will execute the sale deed in favour of Rabiul, Asgar and Rejaul Kabir and then the land was accordingly sold; then Rabiul, Asgor and Rejaul Kabir also incurred expenditures in the case land by cutting earth and construction tinshed house therein. The learned Senior Assistant Judge, after hearing, allowed pre-emption. On appeal the learned; Additional District Judge, Kurigram, after hearing, allowed the appeal. Then the High Court Division after hearing discharged the Rule.