ABDUL HADI BEPARI Vs. SAFARUDDIN MONDAL

JUDGEMENT

(1.) This appeal by a pre-emptee calls in question an order of the High Court Division in revision dated 30 October, 1983 maintaining the trial Court's order refusing him extension of time to deposit proportional consideration mosey for the purpose of rateable pre-emption. The impugned order has been passed in Civil Revision No. 242 of 1983

(2.) Respondent Nos. 1 to 3 filed an application under section 96 of the State Acquisition and Tenancy Act in the Court of Subordinate Judge, Mymensingh, claiming preemption of a land transferred to the appellant and three others by a kabala dated 19 March 1974. They (pre-emptors) claimed to be co-shirring in the land by purchase. This claim was resisted by the transferees including the appellant, mainly on the ground that the Pre-emptor was not co-sharers in the holding. The appellant one of the transferees 'however made an alternative prayer to the effect that 6e was also a co-sharer in the holding by purchase and fn ease the application for pre eruption was allowed, he should by given rateable pre eruption The trial Court on evidence found both the respondents and this appellant to be he co-sharers by purchase though the share of the latter was very small; the court allowed him pre emption to the extent of 8.1/2 decimals of land oat of the total area of 495.1/2 acres of the land transferred. The Court therefore in its judgment dated 30.3.81 directed the appellant to deposit the proportional amount of the consideration that is, Tk 532.40, within two months from the date and made it clear that in the case of his failure to deposit the money within the time the appellant's claim for rateable pre-emption "shall stand dismissed".

(3.) The appellant did not make the deposit as directed. Instead he challenged the entire order of pre emption in favour of the pre-emptor by an appeal, F.M.A. No. 317 of 1981, before the High Court Division which however dismissed the appeal on merit by a judgment dated 5 December 1982. The appellant fixed an application seeking special leave to appeal from this judgment of the High Court Division but it was dismissed by the Appellate Division on 21 March 1983. The appellant then appeared before the trial Court with an application for accepting his deposit but the trial Court by an order dated 10 April 1983 rejected the application taking the ground that two months' time as granted in its order dated 30 March, 1981 for the deposit had long expired and that the direction for making the deposit having been given in terms of a final order, it became functus officio and as such it was not within its Jurisdiction to allow any extension of time. This order has been upheld by the High Court Division in revision as stated above.