The New Nation - Internet Edition

Appellate Division

(Civil)

Md. Joynul Abedin-J.

Md. Abdul Matin-J.

CIVIL PETITION FOR LEAVE TO APPEAL NOS.1055 AND 1056 of 2006

(From the judgment and order dated 29.03.2006 passed by the High Court Division in Civil Revision Nos.1805 and 1806 of 1994.)

Md. Murtoza Ali & anrtttttt

ttttttt Petitioners (In both the cases).

Vs.

Renu Bibi @ Saifur Nessa & ors ttt

ttttt.. Respondents (In both the cases).

For the Petitioners

(In both the cases) : Mr. A. J. Mohammad Ali, Senior Advocate instructed by Mr. A. K. M. Shahidul Huq, Advocate-an-Record.

For Respondent No.1

(In both the cases)

Mr. Mohammad Ali, Advocate instructed by Mr. Md. Nawab Ali, Advocate-on-Record.

Respondent Nos.2-6 -Not represented

Judgment: December 4, 2007 State Acquisition and Tenancy Act,1950-

Section 96- Pre-emption at the instance of cosharer-

Plea of waiver and acquiescence raised does not defeat the right of pre-emption.

In this case admittedly the pre-emptor is a co-sharer. It is also not disputed that he filed the pre-emption case within for months of the date of knowledge of the transfer, but the court of appeal made out a case of waiver and acquiescence from the so-called attending circumstances without reference to any evidence that the preemptor participated in the talk of sale or consented to the transfer tttt..(Para 9)

JUDGMENT

MD. ABDUL MATIN-J: These two petitions for leave to appeal Nos. 1055 and 1056 of 2006 are directed against the judgment and order dated 29.03.2006 passed by the High Court Division in Civil Revision Nos.1805 and 1806 of 1994 making the Rule absolute and reversing the judgment and order dated 14.02.1994 passed by the then learned Subordinate Judge, Artho Rin Adalat, Sylhet in Miscellaneous Appeal No. 31 of 1993 (heard analogously with Miscellaneous Appeal No.32 of 1993) reversing the judgment and order dated 08.03.1993 passed by the learned Senior Assistant Judge, Sadar Court, Sylhet in Miscellaneous Case No.19 of 1992 (heard analogously with Miscellaneous Case No.20 of 1992).

2. Both the petitions being disposed of by the same judgment and common questions of law and fact arising therein, the two leave petitions are disposed of by this single judgment.

3. The respondent No. 1 as pre-emptor filed Miscellaneous Case being No. 102 of 1980 in the Court of the then learned Munsif, Sadar Court, Sylhet and subsequently the case was transferred to the Court of learned Assistant Judge, Sylhet and renumbered as 19 of 1992. The pre-emptor filed another Miscellaneous Case being No.103 of 1980 and subsequently the case was renumbered as 20 of 1992.

4. The case of the pre-emptor respondent, in short, is that he is the cosharer of the case land and other lands by inheritance with opposite party Nos.3 to 6; opposite party Nos. 3 to 6 transferred 1.80 acres of land to pre-emptee opposite party Nos.1 and 2 on 08.02.1977 and 03.02.1979 without serving any notice under Section 89 of the State Acquisition and Tenancy Act or without any knowledge of the petitioner. Petitioner filed 2(two) separate cases for each transfer as stated above; the petitioner is a married woman living with her husband; she same to Naiyor to her father's home and came to know about the disputed sale on 10.03.1980 and thereafter obtained certified copies of the kabalas and filed the pre-emption cases after making deposit of the value of the case land together with 10% compensation money.

5. The pre-emptee petitioners entered appearance wherein opposite party No.1 also represented opposite party No.2 on the strength of a power of attorney in his favour; they filed written objection denying the allegations of pre-emptor petitioner and asserted that the preemptor's claims for pre-emption is without any cause of action and barred by limitation; their specific case was that the case land originally belonged to Syed Ali who died leaving behind Rahima Bibi and two sons opposite party Nos. 3 and 4, two daughters opposite party Nos.5 and 6, the then minor Renu Bibi (respondent No.1 herein) the settlement record of the land belonging to Syed Ali was recorded in the name of all his above named heirs; thereafter on the death of Rahima Bibi pre-emptor petitioner opposite party Nos.3 to 6 inherited the property of Syed Ali; the pre-emptor petitioner was given in marriage to one police officer by her brother opposite party Nos.3 and 4, pre-emptee opposite parties came to know from opposite party No.3 on 25th Poush 1385 B.S. pre-emptor petitioner has gifted her share of the property to opposite party No.3 and on 1370 B.S. by oral gift, thereafter opposite party No.1 went to the house of opposite party Nos.3-4 and came to know definitely that the preemptor petitioner actually gifted her share of the property to opposite party Nos.3 and 4; the negotiation for sale of the case property was made by the preemptor and in her presence price of the case land was fixed at Tk.30,000/- that thereafter 2( two) kabalas each for 90 decimals of land one dated 03.02.1977 and other dated 08.02.1977 the opposite party Nos. 1 and 2 got transfer of the case land from owner opposite party Nos.3 to 4 and have been possessing the land since purchase; after purchase the pre-emptee filed Miscellaneous Case No.1920/79-80 and separated the khatian in their names and paid development cost and spent also Tk. 10,560/ - on improvement of land; due to increase of price of the land. The opposite party Nos. 3 and 4 managed to file the pre-emption cases in the name of their sister for wrongful gain. The case is hit by waiver, estoppel and acquiescence.

The pre-emption case is liable to be dismissed.

6. The learned Assistant Judge involved the Miscellaneous Case Nos. 19 and 20 of 1992 by the same judgment and the pre-emptee preferred Miscellaneous Appeal Nos.31 and 32 of 1993 and both the Miscellaneous appeals were allowed by the learned Special Judge and judgment and order of the trial Court was set aside.

7. As against the judgment and order of the appellate Court the pre-emptor filed Civil Revision Nos.1805 and 1806 of 1994 and the High Court Division after hearing made the Rules absolute in both civil revisions and set aside the judgment and order of the court of appeal below and restored those of the trial Court. The pre-emptee petitioners have challenged the judgment of the High Court Division in both the leave petitions.

8. The learned Counsel for the petitioners submits that the finding of fact arrived at by the appellate Court being the final court of facts, the High Court Division had no jurisdiction to disturb the final finding of facts without reversing the finding of the appellate Court.

9. In this case admittedly the pre-emptor is a co-sharer. It is also not disputed that he filed the pre-emption case within four months of the date of knowledge of the transfer, but the court of appeal made out a case of waiver and acquiescence from the so-called attending circumstances without reference to any evidence that the pre-emptor participated in the talk of sale or consented to the transfer.

10. It appears that both the trial Court and the High Court Division rightly held that the pre-emptor being a co-sharer having filed the case within the statutory period of limitation is entitled to preemption as prayed for and committed no illegality in allowing the pre-emption in favour of the respondent pre-emptor.

11. We find no merit in these petitions which arc accordingly dismissed.