ABDUL WAZED SHARIF Vs. SHUDHIR RANJAN BISWAS

JUDGEMENT

(1.) This appeal, by leave, arises out of the judgment and order dated 19.6.97 of the High Court Division passed in Civil Revision No.74 of 1988 discharging the Rule obtained against the judgment and order dated 7.1.88 of the learned District Judge, Gopalganj, passed in Miscellaneous Appeal No. 37 of 1989 reversing those of dated 17.9.1985 of the Munsif (now Assistant Judge), Sadar, Gopalganj passed in Miscellaneous (Pre-emption) Case No.195 of 1976 dismissing the case.

(2.) The pre-emptor respondent Nos.1 and 2 filed the above case under section 96 of the State Acquisition & Tenancy Act, 1950 for pre-emption of the case land on the averments that the appellant and his brother Abdus Samad Sharif entered into a contract on 29.12.1963 with the respondent Nos.3 and 4 as well as the father of the respondent No.5 for purchase of the case land at a consideration of Tk.5000/- and then, in pursuant to a decree dated 28.8.73 in a suit for specific performance of contract, obtained a kabala with respect to the case land which was registered on 16.9.73 through Court; the preemptee-appellant and his brother are strangers to the case land and though the preemptor-respondent Nos.1 and 2 are co-shares by inheritance no notice was served upon them and they also had no knowledge of the above transfer till later part of Agrahayan, 1383 B.S. when he for the first time came to know about the above transfer and then he, after obtaining the certified copy of the kabala on 20.12.76, filed the case for preemption.

(3.) The pre-emptee appellant contested the above case and filed written objection stating that the case is not maintainable, the preemptors having exhausted their subsisting interest in the case jama by different transfers had no longer any right for preemption of the case land as co sharer and further after purchasing the property the preemptee developed the case land by felling earth at the cost of Tk. 15000/-.