MOHAMMAD AKBAR CHOWDHURY Vs. KHALILUR RAHMAN

JUDGEMENT

(1.) This petition for leave to appeal is directed against the judgment and order dated 28.11.2005 passed by the High Court Division in Civil Revision No.6562 of 2001 discharging the Rule and upholding the judgment and order dated 09.09.2001 passed by the learned Subordinate Judge, Patiya, Chittagong in Miscellaneous Appeal No.48 of 2000 reversing the judgment and order dated 28.02.2000 passed by the learned Assistant Judge, Boalkhali, Patiya, Chittagong in Miscellaneous Case No. 12 of 1997, allowing the pre-emption case.

(2.) The facts, in short, are that the case holding under R.S. Khatian No. 2185 in R.S. Plot No.12753, measuring .24 acres belongs to Rajoni and Monomohan in equal shares. Thereafter one Azizur Rahman purchased .12 decimals and the other 12 decimal was purchased by Sharat Chandra and then Sharat Chandra was inherited by Himongshu who sold the same to the petitioner and thus he became co-sharer by purchase. The further case of the pre-emptor is that the contiguous southern plot being R.S. Plot No.12754 contiguous western plot of the case holding Nos.12729 and 12755 belong to preemptor petitioner by purchase. The petitioners mother Mohsena Khatun Purchased 17 decimals land on 20.04.1969 from contiguous southern plot No.12754 and has been enjoying the same. Later on by amicable partition dated 23, 11.1987 said mother of the petitioner gave 17 decimals of land to him and the possession was also delivered to him. He, being the absolute owner of the said land contiguous southern plot No.12754, mutated his name and by paying regular rent he has been exercising right, title and possession over the same land. By developing the said land he built his residential house therein. The case holding in plot No. 12753 is to the contiguous north of his residential house in plot No. 12754. The petitioner came to learn from opposite party No.1, on 10.01.1997 for the first time that he purchased 12 decimals of land from case plot No.12753. No notice under Section 89 of the State Acquisition and Tenancy Act, 1950 was served on him and he (pre-emptee) never possessed the case plot. Being informed by the opposite party No.1, the petitioner searched in the sub registry office and took certified copy of the kabala on 18.01.1997 and became aware for the first time that the case land was secretly purchased by the opposite party No.1, on 29.02.1992. The case land is necessary for enjoyment of his land and property in contiguous southern plot No. 12754 and hence he was compelled to institute Miscellaneous Case No.12 of 1997 for pre-empting the kabala dated 29.02.1992 within stipulated time of getting knowledge by getting certified copy dated 18.01.1997.

(3.) The opposite party No.1 contested the said Miscellaneous Case No.12 of 1997 by submitting written objection denying the contention of the pre-emptor in his petition, stating that the application for pre-emption was not maintainable in law, the same was barred by law and bad for defect of parties. The pre-emptor petitioner was not entitled to pre-empt the case land as he was not co-sharer in any way. The case land was purchased by him by registered deed dated 29.02.1992 and hence forth the (pre-emptee) has been continuously in possession within the knowledge of the pre-emptor and hence the pre-emption petition was barred by limitation. The claim of the petitioner as a tenant holding land contiguous to the case land was also not correct and hence the pre-emption case was liable to be dismissed with case.