GOLAM MOSTAFA BHUIYAN Vs. ABU TAHER

JUDGEMENT

(1.) This petition for leave to appeal arise from the judgment and order of the High Court Division dated 21st May 2008 in Civil Revision No.1442 of 2008.

(2.) Petitioner instituted Miscellaneous Case No. 7 of 1999(Preemption) in the Court of Senior Assistant Judge, Sadar, Noakhali for preemption of the case land claiming as co-sharer as well as holding lands contiguous to the lands transferred under section 96 of the State Acquisition and Tenancy Act. Petitioner's case in short is that Rashed Miah Bhuiyan, Tanu Miah Bhuiyan, Abdur Razzaque, sons of Soa Miah Bhuiyan were the owners of lands in D.S. Khatian No. 657 corresponding to M.R.R. khatian No.729 of mouja 314 Kasherpar Senbagh, Noakhali. Preemptor being the son of Rashed Miah Bhuiyan is a co-sharer by inheritance in the lands of D.S. khatian Nos. 651 and 657 corresponding to M.R.R. khatian Nos. 729 and 721 respectively of plot No. 2261. The Pre-emptor-Petitioner is also holding lands contiguous south of plot No.2261 being plot No. 2326 of M.R.R. khatiankhatian No. 587 corresponding to M.R.R. khatian No. 640 by a registered deed dated 9th February, 1968 from Montaj Miah and therefore, the petitioner is also a co-sharer in the said holding. In the lands of D.S. khatian No. 657 corresponding to M.R.R. khatian No.729, D.S. khatian No. 651 corresponding to M.R.R. khatian No.721, D.S. khatian No.587 corresponding to M.R.R. khatiankhatian No. 657 corresponding to M.R.R. khatian No. 729 and D.S. khatian No. 587 at a consideration of Tk. 30,000/- to the pre-emptee-respondent by registered deed dated 1st September, 1988. The respondent no.3 Abdullah, another co-sharer sold .20 acres of land out of D.S. khatian No. 204. Rashed Miah Bhuiyan and Abdur Razzaque Bhuiyan purchased some lands of plot No.2259 of D.S. No. 640 the petitioner is a tenant holding lands contiguous to the lands of plot no. 2326. Said Abdur Razzaque Bhuiyan, the opposite party No.2 in the preemption case sold .291/2 acres of land of D.S. No.657 corresponding to M.R.R. khatian No.729 on the same date to the respondent No.1 at a consideration of Tk. 22,000/-; the respondent No. 4 Abul Kashem by registered deed dated 5th September, 1998 transferred .16 acres of land out of M.R.R. khatian No.729 at a consideration of Tk. 25,000/-to the respondent No.2 by registered deed dated 5th August, 1988. The respondents No.5 and 6 Shamsul Huq and Setara Begum sold .18 acres of land out of lands of D.S. khatian No. 657 corresponding to M.R.R. khatian Nos. 729 and 204 to the respondent No.1 at a consideration of Tk. 20,000/- by registered deed dated 3rd September, 1988. The respondents with a malafide motive to defeat the right of preemption mentioned the deeds as deeds of exchange but in fact by these deeds the respondents No. 2-6 sold the case lands to the respondent No.1. The respondent No. 3 executed deed no. 5254 in favour of the respondent No.1. The respondent No. 5 executed deed No. 5297 in favour of the respondent No.1; and the respondent No.2 executed deed No. 5251 in favour of respondent No.6; the respondent No.4 created deed No. 4786 in favour of respondent No.7, the brother-in-law of the respondent No.1; the respondent No.1 also created deeds No.5460 and 5502 for the same land through the respondent No.7. These deeds were created within a space of 15 days with a view to defeat the right of preemption.

(3.) The respondent No.1 contested the case by filing a written objection. His case is that the preemption case is not legally maintainable, inasmuch as, the deeds in question being deeds of exchange, the lands covered with the deeds are not pre-emptible. His further case is that the respondent No.2 to 6 sold lands to the respondent No.7 who in turn transferred the same to the respondent No.1 and these deeds being separate transactions can not be claimed for preemption in the same case. He further claimed that he improved the case land by constructing houses and the case is, therefore, liable to be dismissed.