IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Moinul Islam Chowdhury

CIVIL REVISION NO. 2500 OF 2013

IN THE MATTER OF:

An  application  under  section  115(1)  of  the Code of Civil Procedure. (Against Order)

-And-

IN THE MATTER OF:

Md. Abdus Satter Miah and another

--- Preemptee-Appellant-Petitioners. -Versus-

Most. Fatema Khatun and others

--- Preemptor-Opposite Parties. Mr. Md. Mahbubur Rahman with

Mr. Md. Kawser Ali, Advocates

--- For the Preemptee-Appellant-Petitioners. Mr. Humayun Kabir Sikder, Advocate

---For the Preemptor-Respondent- O. P. No. 1.

Heard  on:  19.07.2023,  30.07.2023  and 07.08.2023.

Judgment on: 07.08.2023.

At  the  instance  of  the  present  preemptee-appellant- petitioners, Md. Abdus Satter Miah and another, this Rule was issued upon a revisional application filed under section 115(1) of the Code of Civil Procedure calling upon the opposite party No. 1 to show cause as to why the impugned judgment and order dated  02.04.2013  passed  by  the  learned  Joint  District  Judge, Court No. 1, Sirajgonj in the Miscellaneous Appeal No. 76 of

2011 disallowing the appeal and thereby affirming judgment and order dated 21.08.2011 passed by the learned Assistant Judge, Kamarkhand,  Sirajgonj  in  the  Miscellaneous  Case  No.  15  of 2007  (Preemption)  allowed  the  application  for  preemption should not be set aside.

The relevant facts for disposal of this Rule, inter-alia, are that the present preemptor-respondent- opposite party No. 1 as the petitioner filed the Miscellaneous Case No. 15 of 2007 in the court  of  the  learned  Assistant  Judge,  Kamarkhand,  Sirajgonj under section 96 of the State Acquisition & Tenancy Act, 1950 claiming a right of preemption upon the suit land described in the schedule of the plaint. The said petitioner claimed that the total land measuring 1.52 acres originally belonged to Entaz Mollah and Nuru Mollah. Nuru Mollah died leaving behind his heirs including his full brother Entaz Mollah and the R. S. Record was published in their names. Ziaton Bewa wife of Nuru Mollah died leaving  behind  3  daughters  who  are  the  preemptors,  namely, Fatema,  Khodeza  and  Zobeda.  The  said  Entaz  Mollah  died leaving behind 3 sons, namely, Amir Hossain, Babu and Saiful and 3 daughters, namely, Bulbuli, Chanu and Lebu Khatun and the land was subsequently transferred to the next successors, namely, Amir Hossain and Lebu Khatun. The preemptor is the co-sharer by inheritance in the said case jote ( S¡a) and she was never served with a notice for sale nor she was any knowledge thereabout the said purchasers are the strangers.

The said purchasers contested the said case by filing a written statement contending, inter alia, that the property was sold to them by the owner of the land being preemptee-seller- respondent No. 2. The preemptees constructed a homestead after filling the said land with earth and also running their business and they have spent in total Tk. 2,15,250/- (Two Lac Fifteen Thousand  Two  Hundred  and  Fifty)  and  these  matters  are admitted facts.

The learned Assistant Judge, Kamarkhand, Sirajgonj as the learned trial court heard the matter and allowed the preemptors right  by  the  judgment  and  order  dated  21.08.2011.  Being aggrieved a miscellaneous appeal was preferred by the present preemptee-appellant-petitioners  as  being  the  Miscellaneous Appeal No. 76 of 2011 in the court of the learned District Judge, Sirajgonj  which  was  subsequently  sent  to  the  learned  Joint District  Judge,  Court  No.  1,  Sirajgonj  for  hearing  who  after hearing disallowed the appeal and thereby affirmed the judgment and order of the learned trial court by his judgment and order dated 02.04.2013.

Mr.  Md.  Mahbubur  Rahman,  the  learned  Advocate appearing along with the learned Advocate Mr. Md. Kawser Ali submits that the value of expenditure was decided by the learned trial  court  who  upon  receipt  of  the  factual  report  from  the Advocate  Commissioner  who  submitted  a  report  before  the learned court for taking a decision as to the expenditure which was improper and not acceptable.

The  present  Rule  has  been  opposed  by  the  present preemptor-respondent-opposite party No. 1.

Mr.  Humayun  Kabir  Sikder,  the  learned  Advocate, appearing  on  behalf  of  the  present  preemptor-respondent- opposite party No. 1 submits that the learned courts below came to a concurrent finding as to the right created under the provision of section 96 of the State Acquisition and Tenancy Act, 1950 for preemption which is admitted by the parties.

Apart from this, in support of the claim of the preemptee- purchaser-appellant-petitioners  adduced  witnesses  and  filed some  documents  to  prove  their  case  while  the  preemptor- opposite party adduced 3 witnesses and filed some documents to

prove the case under section 96 of the Act, 1950 and the learned trial court has given findings in his judgment and order which reads as follows:

…“Learned trial court observed in his judgment

that “OPW-1, Bx R¡š¡l a¡q¡l Sh¡eh¾c£­a h­me, B¢j haÑj¡ e

j¡¢V ®g m il¡V L l h¡s£ L l¢Rz 3 ¢V Ol a¥ m¢Rz N¡Rf¡m¡ m¡N¡Cu¡¢Rz 1 ¢V BW¡ l¡ q¡a Bw¢nL f¡L¡z 1 ¢V 13 q¡a Hhw 7 q¡a

Hhw Bl HL¢V 14 q¡az ®j¡V 3 ¢V Ol Bj¡l ®j¡V 2,15,250/- V¡L¡

MlQ q u Rz”…

In view of the above findings of the learned trial court and the learned appellate court below has to take a decision whether or  not  this  revisional  application  is  valid  or  not.  The  most important part of this case of the development cost to get by the preemptee-purchaser-petitioners.

In  this  regard,  I  have  carefully  examined  the  report submitted by the learned Advocate Commissioner after making a proper assessment of the valuation which is a total amount of Tk. 92,000/-, whereas, the claim of the present preemptee-petitioners is more than this amount.

In  view  of  the  above  report  submitted  by  the  learned Advocate Commissioner and also in view of the claim made by the learned Advocate for the present preemptee-petitioners as to the  large  amount  of  Tk.  2,15,250/-  (Taka  Two  Lac  Fifteen Thousand Two Hundred and Fifty.

I  have  perused  the  lower  court  records  and  also  the petition submitted before this court I am of the opinion that the reasonable  amount  would  be  Tk.  1,15,000/-  (Taka  One  Lac Fifteen  Thousand)  which  the  preemptor  must  pay  to  the preemptee-petitioners on the basis of the present market value.

On the basis of the above discussions, I am inclined to dispose of the Rule as this Rule does not have merit any further.

Accordingly,  the  Rule  should  be  disposed  of  with  the modification of spending money.

In  the  result,  the  Rule  is  hereby  disposed  of  with  the following directions:

The  preemptor-respondent-opposite  party  No.  1,  Most. Fatema Khatun, is hereby directed to pay Tk. 1,15,000/- (Taka One  Lac  Fifteen  Thousand)  to  the  preemptee-purchaser- appellant-petitioner Nos. 1 and 2, Md. Abdus Satter Miah and Most. Sharia Begum, within 3 (three) months from the date of the receipt of this judgment and order upon the land as they have spent filling by the earth.

The preemptee-purchaser-appellant-petitioners are hereby also directed to be given an execution as Registry Kabala Deed to the preemptor-opposite party No. 1, Most. Fatema Khatun, within  the  same  period  of  time,  otherwise,  the  preemptor- opposite party No. 1 would get the same by the learned trial court.

The  interim  order  passed  by  this  court  at  the  time  of issuance  of  this  Rule  staying  the  operation  of  the  impugned judgment and order dated 02.04.2013 passed by the learned Joint District  Judge,  Court  No.  1,  Sirajgonj  in  the  Miscellaneous Appeal No. 76 of 2011 affirming the judgment and order dated 21.08.2011 passed by the learned Assistant Judge, Kamarkhand, Sirajgonj in the Miscellaneous Case No. 15 of 2007 (Preemption) is hereby recalled and vacated.

The concerned section of this court is hereby directed to send down the lower courts records along with a copy of this judgment and order to the learned courts below immediately.