The New Nation - Internet Edition

Appellate Division

(Civil)

M.M. Ruhul Amin-J.

Md, Hassan Ameen-J.

Civil petition for leave to Appeal No. 108 of 2006.

(From the judgment and order dated 13.8:2005 passed by the' High 'Court Division in Civil Revision No.3366 of 1996.)

Master Jainul Abedin-Petitioner

Vs.

Haji Salamullah Khan & others t.

ttt. .. Respondents

For the Petitioner-Mrs. Sufia Khatun,

Advocate-on- Record.

For Respondent

No.1

Mr. Md. Nawab Al Advocate-on- Record.

Respondent Nos. 2-26-Not represented.

Judgment: 6 June, 2007

State Acquisition and 'Tenancy Act, 1950-

Section 96- In order to get an order of pre-emption the petitioner must be cosharer of the holding-

At the time when the disputed transfer was made the land of the R.S Khatian was amicably separated and two MRR Khatians were duly: prepared. The disputed kabala land belongs to the MRR Khatian of which the petitioner is not a cosharer and as such, he is not legally entitled to get the pre-emption as being not a cosharer of the holding-

The High Court Division held that the land under preemption; was recorded in RS. Khatian No. 804 in, the name of Naju Miah and Tamizur Rahman and Exhibit-1, the certified copy of the kabala deed dated 20.2.1973, shows that Tamizur Rahman transferred 1.60 acre of land from M.RR Khatian No.869. Exhibit Kha the MRR Khatian No.869 has been recorded only in the name of Tamizur Rahman and MRR Khatian No.870 was separately prepared in the name of Nazu Miah and others for area of 4.24 acres.: The High Court Division accordingly, held that the jama of RS Khatin No.804 was split up and two separate holdings namely, the MRR Khatian Nos 869 and 870 were created and as such, the pre-emptor has ceased to be a co-sharer in MRR Khatian No. 869. Accordingly he is not entitled to get pre-emption tttttt..(Para 6)

In our view, the High Court Division, therefore, was right in making the Rule absolute tttttt (Para 8)

JUDGMENT

M. M. RUHUL AMIN-'J: This petition for leave to appeal' is directed against the judgment and order dated 13.08.2005 passed by a Single Bench of the High Court division in Civil Revision No.3366 of 199 making the Rule absolute.

2. The pre-emptor instituted Miscellaneous Case No. l3 of 1986 under section 96 of the State Acquisition and Tenancy Act for pre-emption in the Court of Senior Assistant Judge, Chakaria Cox's Bazar in respect of the kabala dated 20.2.1973 executed .by Tamijur Rahman, the predecessor of the pre-emptee Nos.6-15 in respect of an area of. 1.6 acre from the land appertaining to mouza Pekua, Police Station Chakaria, MRR Khatian No.869, Plot No.386 contending, inter alia, that the land of RS. Khatian No. 804 belonged to Naju and Tamizur Rahman each having 8 annas share. Nazu died leaving the preemptor and the pre-emptee Nos, 16-23 as his heirs. In this way the pre-emptor is a co-sharer by inheritance in the case holding. One Nazir Ahmed disclosed on 25th Magh 1392 B.S. that Tamizur Rahman has transferred the case land on 11.2.1982 in favour of the pre-emptee Nos. l-5. No notice of the kabala under pre-emption was served under section 89 of the State Acquisition and Tenancy Act upon the pre-emptor. The pre-emptee Nos.1-5 are stranger-purchasers. Hence is the case.

3. The pre-emptee Nos. l-5 contested the pre-emption case by filing a, written objection and contended, inter alia, that the land of RS. Khatian No.804 belonged: to Naju Miah and Tamizur Rahman Their further case, is that by amicable arrangement between Tamijur Rahman and Md Naju Miah the lands were being possessed separately and was recorded separately in their name the land of Tamizur Rahman was recorded in PRR Khatian No.8041 and MRR Khatian No. 869 in his name and the land of Naju Miah and others were separately recorded in PRR Khatian No.804/2 and M.RR Khatian No.870. Thus the original jama was split up and the preemptor is a stranger to the said holding. Hence the pre-emption case is liable to fail.

4. The trial Court allowed the pre-emption case. On appeal in Miscellaneous Appeal No.8 of 2004 the same was dismissed. The pre-emptee then moved the High Court Division in Divisional jurisdiction and obtained the Rule, which after hearing was made absolute .

5. We have heard Mrs. Sufia Khatun, the learned Advocate-on-Record for the petitioner and Mr. Md. Nawab Ali, the learned Advocate-on-Record for respondent No.1 and perused the judgment of the High Court Division and other connected papers.

6. The High Court Division held that the land under preemption was recorded in R.S. Khatian No. 804 in the name of Naju Miah and Tamizur Rahman and Exhibir 1, the certified copy of the kabala deed dated 20.2.1973 shows that Tamizur Rahman transferred 1.60 acre of land from M.RR Khatian No.869. Exhibit Kha the M.R.R Khatian No.869 has been recorded only in the name of Tamizur Rahman and M.RR Khatian No.870 was separately prepared in the name of Nazu Miah and others for area of 4.24 acres. The High Court Division accordingly held that the jama of R.S. Khatin No.804 was split up, and two separate holdings namely, the MRR Khatian No.869 and 870 were created and, as such, the pre-emptor has ceased to be a co-sharer in MRR Khatian No.869. Accordingly, he is not entitled to get preemption.

7. The learned Advocate-on-Record for the petitioner rather conceded to this position.

8. In our view, the High Court Division, therefore, was right in making the Rule absolute. 9. Accordingly, the leave petition is dismissed.