Present:

Mr. Justice Sheikh Abdul Awal

and

Mr. Justice Md. Mansur Alam

First Miscellaneous Appeal No. 343 of 2008

In the  Matter of:

Memorandum of appeal from the original order.

-and-

In the Matter of:

Mukunda Chandra Mondal and another.

                         .......Pre-emptor-appellants.

        -Versus-

Md. Abdul Barek being dead his legal heirs Jahanara Begum and others.

     ......Pre-emptee-respondents. Mr. Nawz Sharif, Advocate

  ……. For the appellants. None appears.

......For the respondents.

Heard on 04.05.2025, 05.05.2025 and Judgment on 05.05.2025.

Sheikh Abdul Awal, J:

This First Miscellaneous Appeal at the instance of the pre-

emptor-appellants  is  directed  against  the  judgment  and  order dated 18.08.2008 passed by the learned Joint District Judge, 5th

Court, Dhaka in Pre-emption Miscellaneous Case No. 10 of 2005 disallowing the pre-emption case.

The short fact relevant for disposal of this Appeal is that the appellant, Mukunda Chandra Mondal and another as pre-emptors filed Miscellaneous Case No. 10 of 2005 against the pre-emptee purchasers and others in the Court of the learned Joint District Judge,  5th  Court,  Dhaka  for  pre-empting  the  case  land  as described  in  schedule  of  the  pre-emption  application  on  the allegation that the pre-emptors are co-sharer to the case land by inheritance , pre-emptee opposite party No. 7 (vendor) secretly transferred  the  case  land  to  the  pre-emptee  Nos.  1-6  without serving any notice on the pre-emptor appellants, the pre-emptors need the case land and hence the case.

Pre-emptee-purchasers contested the case by filling written objection denying all the material allegations made in the pre- emption application.

At the trial the pre-emptors examined 4 witnesses as PWs and pre-emptee-purchasers examined 2 witnesses as OPWs and both the parties also exhibited some documents to prove their respective cases.

The learned Joint District Judge, 2nd Court, Shariatpur upon hearing the parties and on considering the materials on record by his  judgment  and  order  dated  18.08.2008  disallowed  the miscellaneous case (pre-emption) on the ground that  the pre- emptors are not co-sharer in the case land and that they are not entitled to get the case land under pre-emption.

Being aggrieved by the aforesaid impugned judgment and order dated 18.08.2008, the pre-emptor-appellants preferred this First Miscellaneous Appeal before this Court.

Mr. Nawz Sharif, the learned Advocate appearing for the pre-emptor-appellants submits that the pre-emptors are co-sharer to the case jote, there is nothing on record to suggest that pre- emptee respondents before transfer the case land served notice upon the pre-emptors or pre-emptors denied to purchase the case land although the learned Joint District Judge, 5th Court, Dhaka most illegally held that the pre-emptors are not co-sharer to the case jote and the property in question was not secretly transferred. The learned Advocate to fortify his submission has relied on the decision reported in 35 DLR 338.

No one appears to oppose the appeal.

Having heard  the  learned  Advocate  for  the  appellants, perused the pre-emption application, written objection, evidence of  PWs  and  DWs  and  having  gone  through  the  materials  on record  including  the  impugned  judgment  and  order,  the  only question that calls for our consideration in this appeal is whether the trial  Court  committed  any  error  in  disallowing  the  pre- emption.

On scrutiny of the record, it appears that the PWs in their respective evidence stated nothing that the pre-emptors are co- sharer to the case jote and without serving any notice upon the pre-emptors transferred the case land to pre-emptee purchasers. It further  appears  that  PWs  in  their  respective  deposition  stated nothing that the pre-emptee purchasers are stranger to the case jote. Moreover, OPW-1 in his deposition stated that- “

”

In view of the above, it cannot be said pre-emptee vendor secretly transferred the land in question beyond the knowledge of others. It is found that the trial Court as first court of fact on due consideration  of  the  entire  evidence  and  materials  on  record arrived at a finding that: 

“Since the khatian has been separated from the khatian of the petitioners, it can be said that the petitioners  are  not  the  co-sharers  in  the  disputed khatian. Hence, this point is decided in the negative i.e. against the petitioners.

Since petitioners are not the co-sharers in the disputed khatian, they are not entitled to get relief for pre-emption regarding the disputed property.”

This  being  purely  a  finding  of  fact  based  on  proper assessment of the evidence on record. In this pre-emption case, the pre-emptors could not prove that they are a co-sharer and the property was secretly transferred, thus their claim to pre-emption will likely be unsuccessful. The learned Judge of the trial court appears to have considered all the material aspects of the case and justly dismissed the pre-emption case. The decision cited by the learned Advocate for the appellant is distinguishable on facts. No interference is, therefore, called for.

In the result, the appeal is dismissed without any order as to costs.

Send down the LC Records at once.

Md. Mansur Alam, J:

I agree.