MD. DEWAN ALI Vs. MD. JASIM UDDIN

JUDGEMENT

(1.) This appeal by leave is directed against the judgment and order dated 30.6.2002 passed by a Single Bench of the High Court Division in, Civil Revision No.1727 of 1995 discharging the Rule.

(2.) Relevant facts are that Mizanur Rahman and Yakub All owned and possessed .42 acres of land of Plot No.31 of S.A. Khatian No.40 of Mouza Kaempur under Police Station-Arihazar, District-Narayanganj. The S.A. Khatian was prepared in their names. Mizanur Rahman sold his .21 acres of land to Akkas Ali. Akkas Ali died leaving his son Abdur Rashid as his only heir. Abdur Rashid sold the said land by two registered deeds on 6.5.1987 to Md. Jasimuddin (the pre-emptor) now respondent. Said Yakub Ali sold his: 21 acres of land to his wife Saleha Bibi on 27.2.1965. Saleha Bibi on 28.1.1993 sold the said land, which is the case land, to Md. Dewan Ali (the pre-emptee) now, the appellant. Jasimuddin obtained the certified copy of the sale deed of the case land on 11.4.1993 and came to learn definitely about the said sale and filed preemption Miscellaneous Case No. 6 of 1993 against the appellant Md. Dewan Ali claiming him as the co-sharer in the case holding alleging that said Md. Dewan Ali is a stranger-purchaser and Saleha Bibi sold the case land to him (Md. Dewan Ali) without serving notice under section 89 of the State Acquisition and Tenancy Act upon him.

(3.) Md. Dewan Ali and Saleha Begum contested the preemption case by filing a joint written objection contending, inter alia, that Akkas Ali admittedly was the owner of .21 acres of land and he died leaving one son Abdur Rashid and two daughters and they were necessary parties in the case, but they not having been made parties the case was bad for non-joinder of necessary parties. Saleha Begum in the month of Agrahayan 1397 B.S. mortgaged the case land for Tk. 8,000/- to the pre-emptor Jasimuddin on the basis of an unregistered agreement on condition that on re-payment of the said money the pre-emptor Md. Jasimuddin would restore possession of the case land to her. Later on, Saleha Bibi being in need of cash money to clear up the bank debt of her deceased husband Yakub Ali offered to sell the case land to Jasimuddin as it was earlier mortgaged with him. But the pre-emptor Md. Jasimuddin refused to purchase the same. Thereafter, within the full knowledge of the pre-emptor Md. Jasimuddin the case land was sold to the pre-emptee Md. Dewan Ali. It is also contended in the written objection that the pre-emptor Md. Jasimuddin in presence of respectable persons of the locality including Mohammad Ali, O.P.W.2, refused to purchase the case land and pressed for refund of his mortgage money of tk. 8,000/- by Saleha Bibi through O.P.W.2 Mohammad Ali. Accordingly Saleha Bibi refunded the aforesaid amount of mortgage money to pre-emptor Md. Jasimuddin and sold the case land to pre-emptee Md. Dewan Ali by a registered sale deed and the pre-emptor Md. Jasimuddin delivered possession of the case land to the pre-emptee Md. Dewan Ali.