Equivalent Citation: 34 DLR (1982) 181

IN THE SUPREME COURT OF BANGLADESH

(HIGH COURT DIVISION)

Civil Revision No. 98 of 1978

Decided On: 04.02.1982

Appellants: Rai Kishori Saha

Vs.
Respondent: Basat Ali Sardar

Hon'ble Judges:
Mustafa Kamal, J.

Counsels:
For Appellant/Petitioner/Plaintiff: Rafiqur Rahman with Serojur Rahman

For Respondents/Defendant: A.N.M. Shahidullah, For O.P. No. 1

Subject: Limitation

Acts/Rules/Orders:
Code of Civil Procedure, 1908 (CPC) - Section 115; State Acquisition And Tenancy Act, 1950 -
Section 96

JUDGMENT

Mustafa Kamal, J.

1. This Rule u/s 115 (old) of the Code of Civil Procedure arises out of an application for pre-
emption. The pre-emptor petitioner filed Misc. Case No. 92 of 1970 for pre-emption of the case
land u/s. 96 of the Slate Acquisition and Tenancy Act in the 1st Court of Munsif, Serajganj. The
learned Munsif after discussion of the evidence on record came to the finding that the pre-
emptor petitioner is a co-sharer of the can joke. He also came to the conclusion that the Misc.
Case was not barred by limitation. There were some other findings which are not material for
the purpose of this Rule. The learned Munsif allowed the Misc. Case for pre-emption by his
judgment and order dated 20-3-74. On appeal the learned Subordinate Judge, Patna held in
Misc. Appeal No. 51/74 by his judgment and order dated 26-7-77 that, firstly, the Misc. Case is
barred by limitation and, secondly, that the pre-emptor petitioner has a very limited interest in
the care jute, being a Hindu widow and as such cannot be considered to be a full-fledged co-
sharer entitled to file a pre-emption case. The learned Subordinate Judge allowed the appeal.

Thereafter the pre-emptor petitioner obtained the present Rule.

2. Mr. Rafiqur Rahman learned Advocate for the petitioner submits that the learned Subordinate
Judge acted illegally and with material irregularity in the exercise of his jurisdiction in holding
that the Misc. Case was barred by limitation.

3. The kabala under pre-emption was registered on 20-10-69. The pre-emptor petitioner claims
knowledge of the sale on and from 11-2-70 and she filed the Misc. Case on 19-2-70. The
learned Subordinate Judge has come to a finding of fact that pre-emptor petitioner hat failed to
prove that she came to know about the sale in question on 11 -2-70. That finding does not
materially affect the case of the pre-emptor petitioner. As the pre-emptor petitioner has filed the
Misc. Case within 4 months from the date of registration of the Kabala under pre-emption it is
immaterial whether she knew about the sale prior to 11-2-70. The learned Subordinate Judge
therefore acted illegally and with material irregularity in holding that the Misc. Case was barred
by limitation.

4. Mr. Rafiqur Rahman next submits that the learned Subordinate Judge acted illegally and with
material irregularity in denying the pre-emptor petitioner the right of pre-emption the untenable
ground that she is not a full-fledged co-sharer of the case jote.

5. The pre-emptor petitioner is a Hindu widow. She is a co-shares of the case jote by way of
inheritance from her dead husband. She has only a limited interest in the case jote in that her
interest will revere back to the reversioners after her death. Can it be said that this limitation on
her ownership is a feller on her right to exercise pre-emption.

Mr. A.N.M. Shahidullah, learned Advocate for the Opposite party No. 1 is unable to lay hit
hands on any provision of the State Acquisition and Tenancy Act which specifically debars a
co-sharer of a limited interest from exercising the right of pre-emption. Section 96 of the State
Acquisition and Tenancy Act merely mention "co-sharer tenants of the holding" and does not
qualify the word "co-sharer" so as to exclude Hindu widows holding a limited interest. Nor does
II stand to reason that the Hindu widows should be debarred from pre-empting, when there is no
bar in law preventing them from purchasing land and when, in fact, pre-emption is but a
purchase with a priority. Nor does it seem to be a reasonable apprehension that any addition to a
Hindu widow's estate tantamount to an opening up of a door to the reversioners who may be
strangers to the case land. The apprehension it misplaced because the reversioners will, in any
case, eventually come to own the estate of Hindu widow. However much the other co-sharers
may wish to the incursion of stranger-reversioners cannot be prevented once a Hindu widow
comes to acquire a limited interest in land.

I, therefore, find no good ground for refusing a Hindu widow of her right of pre-emption as a
co-sharer simply because she has a limited interest in the case jote. The earned Subordinate
Judge acted illegally and with material irregularity in denying the pre-emptor petitioner the right
of pre-emption on the alleged ground of limited ownership.

In the result the Rule is made absolute but without any order as to costs. The judgment and
order of the learned Subordinate judge are set aside and those of the learned Munsif are
affirmed.

Let the records be sent down immediately.