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Right of co-sharer not deniable

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18th-Nov-2017       
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Appellate Division :
(Civil)
Md Abdul Wahhab Miah J
Md Nizamul Haq J
Judgment
January 3rd, 2017
Masum Ali (Md)
and others      ............. Petitioners
vs
Laynur Begum and others. ............Respondents
State Acquisition & Tenancy Act (XXVIII of 1951)
 Section 96
Nowhere in Section 96 of the Act, it has been stipulated that the right of a co-sharer as co-pre-emptor shall be denied or defeated if he comes late' with the prayer for preemption of the case land and similarly there is nothing in Section 96 to deny the right of a copreemptor on the ground of the decree of necessity. ..... (7)
Abdul Wadud Bhlliyan, Senior Advocate, instructed by Sufia Khatun, Advocate-on-Record-For the Petitioners.
AK Mujibur Rahman, Advocate, instructed by Md Nurul Islam Chowdhury, Advocate-on-Record-For Respondent No.1
Not Represented-Respondent Nos. 2-40.
Judgment
Md Abdul Wahhab Miah J : This petition for leave to appeal has been filed against the judgment and order dated 2-6-2014 passed by a learned Judge of the Single Bench of the High Court Division in Civil Revision No. 1319 of 2011 discharging the Rule.
2. Short facts necessary to dispose this petition are that respondent No.1 as the preemptor filed Preemption Case No.22 of 2002 in the Court of Assistant Judge, Shahrasti, Chandpur under Section 96 of the State Acquisition and Tenancy Act, 1950 (the Act, 1950) for preemption of the case land claiming herself to be a co-sharer in the case holding by virtue of a deed at gift made by her father-in law, Abdul Gani Mistri on 23:11-1994. It appears that the present petitioner who was impleaded in the preemption application as opposite party No.38 filed an application to add him as a co-preemptor. Accordingly, he was added as a co-preemptor.
3. The trial Court by its order dated 31-1-2006 allowed the application for pre-emption in favour of the co-preemptor only on the ground that since he 'became a co-sharer prior to the original pre-emptor, so he alone was entitled to preempt the case land. Being aggrieved by and dissatisfied with the order of the trial Court, the pre-emptor filed Miscellaneous Appeal No.7 of 2006 before the District Judge, Chandpur. The learned Joint District Judge, Second Court, Chandpur by the judgment and order dated 511-2009 allowed the pre-emption application of the preemptur only on the view the that copreemptor came before the Court long after 3 (three) years and therefore, the case land was not at all necessary for him and that had he the necessity for the case land, he would have any filed the application for preemption. Against the judgment and order of the Appellate Court, the co-preemptor preferred the above mentioned civil revision before the High Court Division. A learned Judge of the Single Bench by the impugned judgment and order discharged the Rule concurring with the view taken by the Appellate Court; hence this petition for leave to appeal.
4. Heard Mr Abdul Wadud Bhuiyan, learned Advocate for the petitioner and Mr AK Mujibur Rahman, learned Advocate who entered caveat on behalf of the original-preem ptor-respondent.
5. We have perused the order of the trial Court, the judgment and order of the Appellate Court and the impugned judgment and order. Admittedly both the preemptor and the copreemptor are co-sharers in the case holding. The original preemptor became co-sharer by virtue of the Heba made by Abdul Gani Mistri on 23-11-1994 whereas, the co-preemptor became the co-sharer by virtue of his purchase by the kabalas in 1992, 1994 and 1999. So far as the Appellate Court is concerned, as stated earlier, it refused to allow the prayer for preemption of co-preemptor on the ground that he came late to be the co-preemptor i.e. after 3 (three) years, so he had no necessity for the case land and that had he any necessity for the case land, he would have filed the preemption application.
6. Mr Wadud Bhuiyan has drawn our attention to the application of the co-preemptor filed before the trial Court from where it appears that he categorically stated that the case land was adjacent to his land and it was very much necessary for him.
7. In the context, we must state that nowhere in Section 96 of the Act, 1950 it has
been stipulated that the right of a co-sharer as co-preemptor shall be denied or defeated if he comes late with the prayer for preemption of ' the case land and similarly there is nothing in Section 96 to deny the right of a co-preemptor on the ground of the decree of necessity. Therefore, the Appellate Court and the High Court Division erred in law in refusing to allow the prayer for preemption of the co-preemptor.
8. Be that as it may, since both the parties, i.e. the original preemptor and the co-preemptor are co-sharers in the case holding, we are of the view that justice would be best served if their respective prayer for preemption of the case land is allowed in equal share. It is to be further noted that when opposite party No.38, the petitioner herein was added as a co-preemptor by no logic his right of preemption on the grounds as assigned by the Appellate Court and affirmed by the High Court Division can be denied. Since both the parties have been represented by their respective learned Counsel, we do not consider it necessary to give leave in this matter, because if leave is granted it may take another decade to dispose the appeal, but the ultimate result of the appeal shall be the same. Therefore, we are inclined to dispose this petition finally in a summary manner.
9. Accordingly, this petition is disposed in the following terms;
The order of the trial Court and the impugned judgment and order affirming those of the Appellate Court are set aside. The prayers for preemption of the original preemptor and the co-preemptor of the case land are allowed in equal share. The original preemptor shall be entitled to withdraw the money deposited by him in excess of his proportion.

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