Decided on December 21,2018

Rejia Sultana W/O Sahnanullah Appellant
Md Nasif Khan And 8 Ors Respondents


Prasanta Kumar Deka, J. - (1.) Heard Ms. D. Borgohain, the learned counsel for the appellant and Mr. A. Sattar, the learned counsel for the respondent Nos. 1 & 2. The names of proforma defendant Nos. 3 to 9 were struck off vide order dated 15.10.2014 of this Court. Title Suit No. 41/05 was initially filed by Md. Azad Ahmed as the plaintiff No. 1 and Md. Nasif Khan against his brothers and sisters, the defendant Nos. 1 to 8 and the defendant No. 9, Mustt. Rejia Sultana for enforcing the right of pre-emption with respect to a plot of land purchased by the said defendant No. 9 who is the present appellant in this second appeal. The respondents herein this appeal are one Nasif Khan, the plaintiff-respondent No. 1 and one Mustt. Runuma Begum the proforma-defendant No. 10 in the suit. The plaintiffrespondent No. 1 Md. Azad Ahmed withdrew vide order dated 07.10.2005 from the suit as plaintiff thereby leaving the present plaintiff-respondent No. 1 as the sole plaintiff.
(2.) The facts pleaded by the plaintiff-respondent No. 1 that land measuring 8.9 lechas covered by Dag No. 1117 Periodic Patta No. 946 of town Nagaon Kissam forms the subject matter of the suit. One Malekan Nessa, mother of the plaintiff-respondent No.1 and the defendant Nos. 1 to 7 along with proforma defendant No. 10 was the original owner of the land who were possessing and residing in the same house. On her death the said land devolved upon the legal heirs and regarding share of the legal heirs thereon, a dispute arose and Title Suit No. 118/96 was filed by the defendant Nos. 1,2, 3, 4, 5, 6 and 7 and proforma defendant No. 10. Therein it was decided that no partition took place amongst the legal heirs of Malekan Nessa and all the legal heirs are entitled as shareholders of the said land. The plaintiff-respondent No.1 along with the other plaintiff expressed their willingness to purchase the share of other co-sharers at the market price. On 22.03.2005 the defendant No. 9 i.e. the present appellant along with others came to the land and tried to enter into the house as the said defendant-appellant purchased the land. On enquiry the plaintiff-respondent No.1 came to know that defendants No. 1, 2, 3 sold their shares by Registered Sale Deed No. 3261/04. The plaintiff-respondent No. 1 expressed his willingness to purchase the share of the defendants sold by them to the defendant appellant. The plaintiff-respondent No. 1 also came to know that vide Sale Deed No. 3260/04 the defendant Nos. 4, 5, 6 and 7 sold their shares of land measuring 5.2 lechas to the defendant appellant. The plaintiff-respondent No. 1 claimed his right of pre-emption to be enforced over the said land. The said defendants sold a part of undivided property left by Malekan Nessa and the plaintiffs respondents are co-sharers of the land and the plaintiff-respondent No.1 resides on the back portion of the land. The plaintiffs respondents have pre-emptory right over the undivided shares of the defendant No. 1 to 7 and accordingly the plaintiff-respondent No. 1 sought for declaration and enforcement of his pre-emptory right over the suit land.
(3.) The defendant No. 9-appellant jointly filed her written statement along with defendant Nos. 5, 7 and 8 contesting the suit stating inter alia, that there is no cause of action for the suit and the same is also not maintainable. The case of the defendants is that the entire land in the suit originally belonged to Malekan Nessa. Referring to the declaration made in the decree of the Title Suit No. 118/96, the defendants claimed that they have equal right and interest over the land left by Malekan Nessa. The plaintiff-respondent sold 19 1/3 lechas of land to one Mamoni Hazarika vide Sale Deed dated 20.07.1994 and delivered possession of the land. After selling of the land by the plaintiff-respondent No. 1 along with the other brother to a stranger they cannot ask for pre-emptory right over the land sold to the defendant /appellant by defendant Nos. 1 to 7. Accordingly, they sought for dismissal of the suit.;

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