AHMED SAFA Vs. AMIN SHARIF

JUDGEMENT

(1.) This petition for leave to appeal is directed against the judgment and order dated 29.03.2006 passed in Civil Revision No. 3679 of 2000 by the High Court Division discharging the Rule and affirming those dated 05.07.2000 passed in Miscellaneous Appeal No. 304 of 1998 by the learned Additional District Judge, 4th Court, Chittagong affirming those dated 10.08.1988 passed by the learned Assistant Judge, Banskhali, Chittagong allowing the pre-emption.

(2.) The facts, in short, are that the respondent Nos.1-4 as pre-emptors filed an application under Section 96 of the State Acquisition and Tenancy Act and in the alternative under Section 24 of the Non-agricultural Tenancy Act against the petitioner and opposite party Nos. 21-22 praying for pre-emption of the land of kabala dated 30.03.1986 alleging that the suit property originally belonged to Chandra Kumar, Banomali, Ramchandra and Raimohan and it was recorded as such in the R.S. record. Rai Mohan Saha sold his share in favour of Saber Ahmed by a kabala dated 24.05.1972 and then Saber Ahmed sold .03 acre of land from R.S. Plot No. 1685 in favour of Rashid Ahmed. Ramchandra died leaving 3 daughters Kiron Bala, Promila Bala and Nanibala. The son of Nanibala is Gouranga Prosad. Those sons of Kiron Bala and Promila Bala were opposite party Nos. 9-11 and 13-14 respectively. Gouranga son of Nanibala while she was alive on 24.10.1985 sold his expected share in favour of Surat Afzal Begum. Moniruzzaman purchased before hand the entire share of Nonibala on 24.12.1980. So, the pre-emptor became co-sharer in the holding. That pre-emptee Nos.1-2 on 07.02.1987 disclosed his purchase. The pre-emptor than obtained certified copy and filed the case on 24.04.1987. So, the pre-emptors are entitled to pre-emption.

(3.) The pre-emptees appeared in the case by filing a joint written objection stating that the pre-emptors are not at all co-sharers in the case holding inasmuch as they had taken kabala from Surat Afzal who had taken kabala on 24.10.1985 from Gourango and pre-emptors took kabala from Surat Afzal on 17.12.1985. The mother of Gouranga Nanibala sold her entire share to Moniruzzaman on 24.12.1980. So, the pre-emptors acquired no title in the case land. The pre-emption is barred by limitation. The case is also barred by defect of parties inasmuch as Nanibala, Kiron Bala and Promila Bala (who are still living) are necessary parties. Hence the petition is liable to be rejected.