- (1.) THE respondent No.1 in S.A. No.36 of 1984 (Akbar Hossain) as plaintiff filed title suit No.18 of 1975 which was subsequently re-numbered as title suit No. 71 of 1981 before the learned Trial Court concerned against the appellant in both the second appeals and against one Abdul Aziz. In such suit the respondent No.1 prayed for a decree for pre-emption of the 17 gondas, 3 karas and 1 kranti share of the appellant in both the second appeals, that is, Sk. Shabajan Molla in respect of the premises No. 7A, Tiljala Lane (Eastern Portion), now numbered as 7C, Tiljala Lane, P.S. Karaya, District 24-paraganas which was sold by the said Abdul Aziz to the said Sk. Shabajan Molla. THE case of the said Akbar Hossain was that the said Akbar Hossain and Abdul Aziz were co-shares in premises No. 7A, Tiljala Lane in which the said Abdul Aziz had only 17 gondas, 3 karas and 1 kranti and the said Akbar Hossain was the owner of the remaining lions share in the suit premises but the said Abdul Aziz sold his aforesaid undivided share to the Sk. Shabajan Molla by a registered deed of sale in which the said Akbar Hossain had no consent and on receiving information of completion of the said sale on 9.1.1975 from one Md. Anis the said Akbar Hossain had at once declared his intention to assert his right of pre-emption by uttering, I do claim my shuffa and with the least practicable delay the said Akbar Hossain affirmed his intention, referring expressly to the fact that talab-in-mowasibat had already been made, made a formal demand on the premises which were subject of sale, in presence of two witnesses, who were very close neighbours of Akbar Hossain. THE plaintiff in the said suit, that is, Akbor Hossain pleaded that the said Akbar Hossain duly performed both the demands, talab-in-mowasibat and talab-inishhad as prescribed by Mohammedan Law. THE said Akbar Hossains case was that he had declared his readiness and intention to pay to the buyer (Sk. Shabajan Molla) such sum as the Court determines. THE said Sk. Shabajan Molla contested the said suit by filing a written statement contending, inter alia, that the said Akbar Hossain had no locus standi to file the present suit and it was the case of the said Sk. Shabajan Molla that the said Akbar Hossain has already transferred his right, title and interest in the disputed property and, thus, he has lost his right to file any suit for pre-emption. THE said Sk. Shabajan Mollas further case was that the plaintiff in the said suit, that is, Akbar Hossain knew about the sale when Letters of attornment were issued to the tenants.
(2.) THE said Sk. Shabajan Molla prayed for dismissal of the suit filed by the said Akbar Hossain. It may be noted that in such suit Rabia Begum was added as a co-plaintiff. The said Sk. Shabajan filed title suit No.128 of 1975 against one Rabia Begum and one Sk. Manjur Ali praying, inter alia, for a decree for pre-emption of the undivided 15 annas 2 gondas and 2 kranties share of the disputed property against the defendant No.1 in the said suit ( i.e., Rabia Begum) and his case was that his co-sharer Akbar Hossain sold away his 17/18th undivided share in favour of Rabia Begum who in turn, after purchase, sold away half of it to Sk. Monjur Ali. According to Sk. Shabajan, he being a co-sharer, he intended to preempt after performing all formalities as provided in Mohammedan Law. The defence of Rabia Begum was that her vendor Akbar Hossain did not sell his entire share but retained for himself a fraction of the land while disposing of the major portion in favour of Rabia Begum. It appears that the said suit was contested by Rabia Begum who filed a written statement in the said suit.
(3.) THE two suits were heard together and by a common judgment and decree dated 30th November, 1981 the learned Trial Court decreed the said T.S. No. 71 of 1981 and the said Akbar Hossain was directed to deposit in Court or to pay the said Sk. Shabajan directly the purchase money for the premises No. 7C Tiljala Lane containing by ad-measurement an area of 17 gondas, 3 karas and 1 kranti share as described in the schedule of the plaint of T.S. No. 71 of 1981 within 21 days and on payment of such purchase money on or before the day referred to above the defendant shall deliver possession of such property to the plaintiff No.1 whose title thereto shall be deemed to have accrued from the date of such payment. If the purchase money is not paid within 21 days from the date hereof the suit shall be dismissed with costs payable to defendant No.1 alone. THE said learned Trial Court was further pleased to order that the said judgment in the said T.S. 71 of 1981 will also govern T.S. 128 of 1975. That challenging the said judgment and decrees passed in the aforesaid two suits the appellant herein filed two appeals being title appeal No. 36 of 1982 (arising from the title suit No. 71 of 1981) and title appeal No. 110 of 1982 (arising out of title suit No. 128 of 1975). The said two title appeals were heard together analogously and the learned Lower Appellate Court by judgment and decree dated 8th June, 1983 affirmed the judgment and decrees passed by the learned Trial Court. The learned Lower Appellate Court held that Akbar Hossain was entitled to a decree of pre-emption and the suit filed by Sk. Shabajan, i.e, the appellant in the present appeals, must be dismissed.;