SULTAN AHMED Vs. AKHTARUZZAMAN

JUDGEMENT

(1.) In this appeal by special leave, Pre-emptees are the appellants. The question raised is whether the order of pre-emption against them, as finally upheld by the High Court Division in revision, is sustainable in law in view of the fact that a co-sharer in one of the plots of the holding transferred was not impleaded in the preemption proceeding.

(2.) This arises from Miscellaneous Case No.29 of 1976 of the Second Court of Munsif, Noakhali, which was filed by the respondents under section 96 of the State Acquisition and Tenancy Act. They claimed pre-emption of a land transferred by a kabala dated 18 November 1975, by their co-sharer, Opposite Party No. 4 in the said case to these appellants, strangers, without giving them any notice. The trial Court by an order dated 22 February 1980 allowed the pre-emption case; but on appeal, Miscellaneous Appeal No. 70 of 1980, the learned Subordinate Judge set aside the order and dismissed the preemption case. This order was challenged in revisionCivil Revision No. 277 of 1984and a learned Single Judge of the High Court Division, by the impugned Order dated 24 March 1986, reversed the order of the Appellate Court and restored that of the trial Court.

(3.) The application for pre-emption was opposed, among other things, on the ground that Nurul Islam, father of the purchasers was a co-sharer by inheritance in Plot No. 2085 of the Khatian constituting the "holding" transferred and secondly, Nurul Islam was himself the actual purchaser under the kabala in question in the benami of his sons, the pre-emptees; but Nurul Islam was not made a party to the application for pre-emption, and as such the application for pre-emption was liable to be dismissed. Evidence was led to show that Nurul Islam's homestead stands in Plot No. 2085, and he himself deposed in the case stating that he had purchased the land under pre-emption in the benami of his sonsa fact admitted by P.W.1one of the Pre-emptors, in cross-examination saying that they had come to know of the benami purchase before the filing of the application for pre-emption.