MAFIZUDDIN & ORS Vs. MOHAMMAD SHORAB ALI.

JUDGEMENT

(1.) This petition for leave to appeal is directed against the judgment and order dated 16.11.2005 passed by a Single Bench of the High Court Division in Civil Revision No.393 of 1993 discharging the Rule.

(2.) Short facts are that the pre-emptor filed Miscellaneous Case No.15 of 1987 under section 96 of the State Acquisition and Tenancy Act for pre-emption in the Court of Assistant Judge, Birol, Dinajpur stating, inter alia, that the pre-emptee Nos.6 & 7 transferred the case land in favour of the pre-emptee Nos.1-5 by kabala dated 17.02.1987. The further case is that the land of S.A. No.316 measuring an area of 1.12 acre belonged to Jagadish Roy who settled the said land by registered kabulyat dated 22.03.1938 in favour of Dundu Shah, Dukhu Shah and Separ Mohammad. The S.A. record was prepared accordingly in their names. The pre-emptee Nos. 6-7 being co-sharers in the jote sold .09 acre of land by a kabala dated 17.02.1987 in favour of the pre-emptee Nos.1-5 who are stranger purchasers. The pre-emptor is a co-sharer by inheritance. No notice of the kabala under preemption was served upon the pre-emptor.

(3.) The pre-emptee Nos.1-5 contested the case by filing a written objection denying the material allegations made in the miscellaneous application and further contended that the case is barred under section 96(10) of the State Acquisition and Tenancy Act. Their further case is that the land of C.S. Khatian No. 268 of Mouza and Police Station Birol, District-Dinajpur belonged to Pamir Mohammad, the grandfather of the pre-emptee Nos. 1-5 and others. The preemptee Nos. 1-5 are co-sharers tenants to the said C.S. Khatian No.268. The S.A. Khatian was not recorded in the name of father of the pre-emptees through oversight. The co-sharership of the pre-emptee remains unaffected since they are also co-sharers by inheritance. So, the case is liable to fail against them.