TAMBIA KHATUN Vs. RAFIQULLAH

JUDGEMENT

(1.) This appeal by leave at the instance of preemptor appellant Tambia Khatun a against the Judgment and order passed by the High Court Division on 8.4.96 making the Rule absolute issued in Civil Revision No. 863 of 1994.

(2.) The appellant instituted Miscellaneous Case No. 86 of 1991 under section 96 of the State Acquisition and Tenancy Act, 1950 for pre-empting. 24 acres of land transferred by respondent No. 2 in favour of respondent No. 1 by a deed of exchange dated 8.6.91. Her case was that she was a co-sharer in the holding along with respondent No.2 who transferred the portion of the holding along with respondent No. 2 who transferred the portion of the holding by the so-called deed of exchange without service of notice upon her as required under section 89(4) of the Act. The land transferred is a part of ejmali tank and homestead of the appellant and respondent No.2. Her further case was that although the land was transferred but respondent No. 1 was not inducted into possession of the same. Respondent No.2 also transferred previously some other land from the said holding to stranger-purchasers without serving notice upon the appellant and the appellant by instituting pre-emption case got those lands pre-empted in her fabour. The present transfer is a devise to defeat the right of pre-emption of the appellant by creating a deed of exchange. Respondent No. 2 on 19.10.91 retransferred 4 gandas of land to respondent No. 1 on 15.10.91 when a son of the appellant went to catch fish from the tank respondent No. 1 and husband of respondent No.2 raised objection and disclosed about the transfer of the portion of the said holding to him.

(3.) Respondent No. 1 contested the case by filing a written objection contending, inter alia, that the case was barred by limitation and that transfer of a portion of the tank and homestead was effected by a deed of exchange and not be sale.