Pre-emption | Case Reference

A case of pre-emption case under Mahamadan law. The Pre-emption was allowed

The pre-emptor forcibly took possession of the suit land alleging that the land was vacant and they entered into possession. The pre-emptor without any order from the court took possession of the suit land by dispossessing the appellant while the appeal was pending. Furthermore, the appellant prayed for stay of operation of the impugned judgment and order and considering these facts the High Court Division made the rule absolute and directed the pre-emptor to hand over possession to the pre-emptee within 15 days failing which the trial court was directed to restore pos- session of the pre-emptee. Jamuna Knitting vs Messers Yunusco (M. A. Aziz J) (Civil) 3 ADC 632

Meaning of pre-emption: The word 'pre-emption' was derived from Latin 'prae' which means 'before' and 'emptio' which means 'buying'. The legal meaning of the word 'pre-emption' is 'the act or right of purchasing before others or in preference to others'. According to Encyclopaedic Law Dictionary by A.R. Biswas, pre- emption is 'the legal right of buying a thing before all others.' In international law, pre-emption is the right of a government to purchase, for its own use, the property of the subjects of another Power in transitu, instead of allowing it to reach its destination.' The word 'pre- emption' is a well-understood term of law. It is a right of substitution conferred on someone either by statute, custom or contract. The right is to step into the shoes of the vendee preferentially on the terms of sale already settled between the vendor and the vendee, AIR 1996 SC 3.

Origin of pre-emption law: The law of pre-emption is based upon the texts of Islamic law, and while there seem to be foreign elements in it, it is a well-established doctrine in India. It was adopted by Islam, in general, to prevent the introduction of a stranger among co-sharers and neighbours, likely to cause both inconvenience and vexation, PLD 1960 Dacca 416. In course of time, however, pre-emption became adopted by the Hindus in the sub-continent as a custom, 1885 ILR 7 AII 790, 13 BLC 606.

History of pre-emption law in India: The history of pre- emption in India has been given by Sir John Edge, Lordship of Privy Council, in Digambar Singh V. Ahmad Said Khan case as follows: ÒPre-emption in village communities in British India had its origin in the Mohamedan law as to pre-emption, and was apparently unknown in India before the time of the Moghul rulers. In the course of time customs of pre-emption grew up or were adopted among village communities. A custom of pre-emption was doubtless in all cases the result of agreement amongst the share-holders of the particular village, and may have been adopted in modern times and in villages which were first constituted in modern times." 

Object of right of pre-emption: In a case held that the whole frame-work of law of pre-emption both u/s 24 of the NAT Act and u/s. 96 of the SAT Act has been made with the purpose of and intention to check infiltrators from outside to come within a holding enjoyed by its co- sharers, 5 MLR 140. Law of pre-emption is beneficial legislation for the benefit of the co-sharers, 51 DLR 136. Since sec. 96 of SAT Act is a beneficial legislation, intended for the convenience of the co-sharers of a holding and holding land contiguous to the land transferred. But it is also cloglon transfer of property. Any provision of law barring claim of pre-emption must be strictly construed, 13 BLD (AD) 41. The intention of the legislature according to provisions of sec. 96 of SAT Act is very clear that to shut the door against all strangers, who shall encroach upon the ownership and possession of the real co-sharers and whereupon of the real co-sharers can remain in enjoyment of their property and others cannot interfere with their right of possession, 14 BLT 357.

Nature of the right of pre-emption: The foundation of the right is avoidance of inconvenience and disturbance which would arise from the introduction of a stranger into the land. Law of pre-emption imposes a limitation or  disability upon ownership of a property to the extent that it restricts the owner's unfettered right of sale and compels him to sell the property to his co-sharer or neighbour. The benefit and the burden of the right of pre-emption run with the land and can be enforced by and against the owner of the land for the time being, 42 DLR 189. The right of pre-emption is a personal right, it cannot be transferred, 1956 PLR (WA) 1116. It is not a resale but substitution, 12 DLR 737. The effect of pre- emption is to substitute the pre-emptor in the place of original transferee, 1959 SCR 878. Accordingly, an order of pre-emption can only be executed against the transferee or his successors in interest and not anybody else, 28 DLR (AD) 91. Right accrued u/s. 26 of the Bengal Tenancy Act not destroyed by sec. 96, 26 DLR (SC) 58. Co-sharer of land as used in sec. 24 and co-sharer of holding as contained in sec. 96 carry the same meaning so far the right of pre-emption is concerned, 7 MLR 46.

The right of pre-emption is a heritable right. It can not be refused with the death of the vendor having successors, 1981 BLD (AD) 101.

Principle of equity in case of pre-emption: Right of pre- emption is a creature of the statute and not based on a village contract or custom. Accordingly principles of justice, equity and good conscience cannot be applied, 30 DLR 75.

Contrary situations - The principle of equity is applicable in a pre-emption case, 1971 PLD 162, Agreement for purchase held on 27.02.1965, sale deed was executed and registered on 04.08.1983. Meanwhile, a case land was enormously improved and price of land increased much. It is a great hardship to allow the case, ultimately case was dismissed, 6 ADC 150. The vendor and the vendee are at liberty to avoid pre-emption by all lawful means, 37 DLR 324.

Priority of application of Muslim law over any other state law: Sec. 96(17) of SAT Act provides that "Nothing in this section shall take away the right of pre-emption conferred on any person by the Mohammadan Law." Similarly, sec. 24(10) of NAT Act provides that "Nothing in this section shall take away the right of pre-emption conferred on any person by Muhammadan Law."

Therefore, provisions of both these Acts, i.e. SAT Act and N.A.T. Act, will have no affect upon Muslim Laws, what means a Muslim, by observing formalities and fulfilling conditions in Muslim Laws, shall preserve all right of shufa'a (pre-emption). That is to say, though laws of the lands, narrowed rights of pre-emption, but a Muslim can still get properties of all natures, whether in or out of municipality, by applying right of shufa'a. If there is any case of competition between the right given by the Mohammedan law and the right created by the sec. 96 or sec. 24, the right under the former will prevail. Thus if a co-tenant elects to bring an application under either the statutes or under the Mohammedan law and neither joins with the other the application under the provisions of the statutes should not be disposed of without first hearing the suit under the Mohammedan law or both should be heard together and if the plaintiff succeeds in the suit on merits the application under the statutes should be dismissed, AIR 1936 Cal 398. 

Co-sharership cannot be ceased by mere mutation'

The High Court Division upon discussing all the facts and circumstances of the case came to a conclusion that the mutation of any person's name in the holding is nothing but only for payment of rent and the co-sharership cannot be ceased by mere mutation' and accordingly the High court division found that "both the Courts below failed to consider that mere mutation in fact ceased any one to be a co-sharer and, as such, both the courts below arrived at an erroneous finding in holding that due to mutation the right of pre- emption of the pre-emptor has been lost and consequently the pre-emptor lost his co- sharership in the holding". In section 24 of the Non-Agricultural Tenancy Act it is provided that if a co-sharer tenant owns a portion of land in any plot, he is to be treated as co-sharer in the entire plot even if the land of that plot is recorded in more than one Khatian. Thus in spite of the fact that the khatian is separated by mutation the pre- emptor is still a co-sharer in the case plot. This vital aspect has not at all been considered by the courts below and thereby both the Courts below erred in law in disallowing pre-emption. The High Court Division having rightly considered this aspect of law made the Rule absolute and set- aside the judgments of both the Courts below. [73 DLR (AD) (2021) 57]

Reliance may be placed on the case of Fazaruddin vs Maijuddin, 44 DLR (AD) 62 where it has been held that knowledge of transaction of the pre-emptor and subsequent acts of pre-emptees possession do not constitute waiver and acquiescence. Right of pre-emption cannot take away by mere verbal assurance of the person having such right unless other facts and circumstances make out a case of acquiescence or waiver. [73 DLR (AD) 158]

Reliance may also be placed on the case of Md Dewan Ali vs Md Jasim Uddin, (2008) 13 f MLR (AD) 198 = 60 DLR (AD) 73, where it has been held as under:

"Right of pre-emption accrues on the date of registration of the sale deed. The pre emptive right of purchase of the case land accrued to the pre-emptor only after the case land was sold to the purchaser pre-emptee by its owner and not before. Preemptive right does not exist before sale and so it is not enforceable before sale. Any such right before sale is an inchoate and immature right. Hence no conduct of the pre-emptor before sale of the case land refusing to purchase the same or consenting sale thereof to other can constitute waiver, acquiescence or estoppel demolishing his right of pre-emption. The bare requisite for extinction or demolition of pre-emption right lies in the accrual or existence of such right. In the instant case, the facts and circumstances proved on evidence do not establish that the conduct of the pre-emptor amounted to waiver, acquiescence or estoppel affecting his right of pre-emption." [73 DLR (AD) 159]

S. 96—Raiyat defined—Right of pre-emption.

Where the petitioners were allowed to exercise their right of pre-emption in respect of certain nonagricultural lands sold away by their co-sharers to a third party, the first appellate Court disallowed it, on the ground that the land had been acquired by the Provincial Government and the mere deposit of money would not be enough to cover the requirement of section 96.

Held: As the land is not used for cultivation, the petitioners do not come within the definition of ‘raiyat’ within the meaning of section 96 of the East Bengal State Acquisition and Tenancy Act, 1950. 10 PLR (Dac) 1018.

—In order to maintain a claim for pre-emption, the pre-emptor should have an interest in the holding as a co-sharer-tenant not only at the time of the tiling of the application for pre-emption but also throughout the proceedings. Lakhi Kanta Patibar Vs. Sunil Kurnar Patibar (1965)17 DLR 327.

 —Former raiyat possessing some lands in his khas possession within a holding and letting out some portion in the same to an under raiyat—After acquisition of the rent-receiving interest by the Government the under-raiyat in respect of his share of lands under the original raiyat became himself a raiyat directly under the Government—This results in effecting two separate tenancies, each independent of the other—When therefore the original ratyat transfers (after the acquisition under the Act) some lands which were in his possession the original under raiyat who now became a raiyat directly under the Government cannot claim pre-emption on the ground of his being a co-sharer, as under law he cannot be treated as a co-sharer.  Huzzat Ali Vs. Imamuddin Bapari (1961)13 DLR 819.

 

—Application for pre-emption shall have to be filed within four months of the date of knowledge. Provisions of section 96 are procedural laws.

The question is whether to an application by a non-notified co-sharer for pre-emption in respect of a transfer, which took place, before the section 96 of the East Bengal State Acquisition and Tenancy Act came into force but filed after the said date, the provisions of the said section will apply or it will be governed by section 26 of the Bengal Tenancy Act read with the general law of Limitation. Huzzat Ali Vs. Imainuddin Bapari (1961) 13 DLR 819.

 —Pre-emption, right of contiguous landowners—Sub-section (2) has two parts—Co-sharer applying for pre-emption need not impicad contiguous land holders as parties, but a contiguous land owner applying for pre-emotion must implead other contiguous land holders as well. Raji Wahad Ali Vs. Kadam (1962) 14 DLR 204.

 

—Co-sharer becomes party to a pre-emption proceeding from the date of notice on him—Notice on him to represent minors will not in law make him a party as a co-sharer.

Right of the remaining co-sharer tenants to join within prescribed time—Application for rateable preemption under 96(4) not possible unless application under section 96(1) was first made. Syed Abdul Karim Vs. Harendra Chandra Dhupi (1962) 14 DLR 847.

 —Pre-emption application having been filed in Court any re-conveyance of the property by the transferee to the transferor will not defeat the application for pre-emption. Abu Hossain Vs. Md. Masim Au (1967) 19 DLR 677.

 —The suit for pre-emption was framed as one under section 96 of the LB State Acquisition Act but subsequently it being found, having the nature of the land, that pre-emption could be claimed under section 24 of the LB Non-Agricultural Act a prayer for treating the claim as one under section 24 of the EB Non-Agricultural Act was made before the High Court Division which court rejected it on the ground that it was a new case altogether.

Held: The prayer ought to have been granted as it is not correct to say that new case has been made—Such amendment could also be allowed if no mention of section 24 is made in the plaint. Jadav Chandra Mali Vs. A Khaleque (1975) 27 DLR (SC) 114.

 

—A nadabipatra being merely a deed of disclaimer disclaiming any interest in the properties transferred by an earlier sale deed is not itself deed of transfer and, therefore, no right of pre-emption can be claimed upon the registration of such a deed of nadabipatra.

Simply the fact that the document was registered and ad valorem stamp fee was paid on the document by itself cannot turn a deed of disclaimer into a deed of transfer. (1959) 11 DLR 539.

—Hiba and hiba-bil-iwaj—Love and affection combined with payment of money—Deed interpreted not as hiba-bil-iwaj and provisions of sec. 26F not applicable. (1960) 12 DLR 479.

 

—A non-notified co-sharer u/s. 88 can maintain pre-emption application.

Since the respondent pre-emptor is entitled to maintain the application for pre-emption under section 26F of the Bengal Tenancy Act, the respondent, a non-notified co-sharer seeking pre-emption under section 26F of the Bengal Tenancy Act is entitled to the application for pre-emption within three years from the date of the sale.

Addition of opposite parties made beyond the period of limitation cannot be a bar for denying the right of the respondent. Begum Asia Rahman Vs. Abdul Bashir (1974) 26 DLR (SC) 59.

 —Right accrued u/s. 26F, BT Act is not destroyed (in respect of pre-emption) by virtue of s. 96 of the State Acquisition Act.

It appears on a comparison of provisions of sections 26F of the Bengal Tenancy Act and 96 of the State Acquisition Act that the legislature by repealing the Bengal Tenancy Act did not destroy the right accrued under the Bengal Tenancy Act. From the provisions of the State Acquisition Act it cannot be said that the right accrued under section 26F of the Bengal Tenancy Act was destroyed. Begum Asia Rahman Vs. Abdul Bashir (1974) 26 DLR (SC) 59.

 

—Provision of section 96 is different from that of section 26F of BT Act.

Right of pre-emption accrued before the repeal of the Bengal Tenancy Act does not cease to be a right under the repealed Act by virtue of section 8 of the Bengal General Clauses Act, 1899. An applicant seeking to enforce his right of pre-emption accrued under section 26F of the old Act is entitled to the rule of three years limitation as was available to him before the repeal. Abdul Malek Vs. Abdur Rahman (1967)I9DLR 318.

 —Proviso (As stood amended by EB State Acquisition and Tenancy Act, (4th Amendment) Ordinance, 1961, giving retrospective effect to its provision.

Even though the sale deed was not legally valid when it was executed as well as when suit in relation to the sale was filed, it would be treated as valid if during the pendency of the suit a new law [in the present case 4th Amendment Ordinance of 1961] permitting such transfer comes into existence, since the Court is bound to apply the current law to its decision. Rais Ali Vs. Jobed Ali (1967) 19 DLR 510.

 —Petitioner acquired a right of pre-emption in respect of the land in suit under section 26F of B.T. Act but application for pre-emption was made when section 96 of the State Acquisition Act came into force—Petitioner is entitled to pre-empt the land under the provisions of section 26F, BT Act. Abdul Basir Bhuiyan Vs. Begum Asia Rahman (1967)19 DLR 615.

 —Only co-sharer tenants who arc occupancy raiyats can seek pre-emption under section 26F. The right of pre-emption under section 96, on the other hand, is an incident of a holding of a “raiyat” who is entirely different from an occupancy raiyat under the Bengal Tenancy Act, and who is a malik according to section 82(8) of that Act. Abdul Basir Bhuiyan Vs. Begum Asia Rahman (1967) 19 DLR 615.

—The procedure of the section 96 is not retrospective in operation. To give it a retrospective effect will give rise to many difficulties resulting in injustice to an applicant whose right to pre-empt accrued when section 26F of the BT Act was operative.

Hence any construction that the procedure prescribed in section 96 has retrospective effect in the case of enforcement of a right of pre-emption accrued under the repealed section 26F is textually inadmissible. Abdul Basir Bhuiyan Vs. Begum Asia Rahman (1967) 19 DLR 615.

 —Several holdings transferred by one document—Co-sharer of one such holding entitled to apply for pre-emption with regard to that holding—A prayer may be made by one application in respect of two distinct holdings. Mosammat Asimon Nessa Vs. Md. Akbar Ali Sheikh (1967) 19 DLR 659.

 —Pre-emption proceeding will be. governed by the BT Act, even after the coming into operation of Act XXVIII of 1951, unless Part V, is put in operation by Notification.

The right of pre-emption vested (in the co sharer) under section 26F of the Bengal Tenancy Act if the sale in question had taken place prior to the coming into operation of Part V of the East Bengal State Acquisition and Tenancy Act. Md. Haratulla Sardar Vs. Md. Majid Baksh Daria (1967) 19 DLR 630.

 —Transfer is affected by hiba-bil-ewaz—Price stated in the document not conclusive for pre-emption purpose.

Where a transfer is effected by hiba-bil-ewaz in spite of the value put in the transfer deed by the transferor of the ‘hiba bil ewaz’ and that for the purpose of registration of the deed, the transferee when faced with a pre-emption application by a co-sharer of the holding is not estopped from proving that the price of the land transferred is higher than what has been stated by the transferor of the deed. Md. Azizul Bari Vs. Md. Ismail (1967)19 DLR 184.

 

—Korfa interest has ceased to exist from the date of acquisition 0/the rent-receiving interest under section 3—They (korfa tenants) having become raiyats the provisions of pre-emption by co-sharer tenant available to them.

After the wholesale acquisition by the Government of rent receiving interest in 1956 there will be one kind of raiyat only in the country under the Government and that being the position there could not be any question of korfa or any other kind of sub-tenants.

The holders of korfa being upgraded to the status of raiyat, a co-sharer in respect of such interest has got the full right of pre-emption available to them under section 26F of the BT Act. Priya Bala Dew Vs. Fazar Ali  (1966) 18 DLR 480.

 

—Section 96 and the procedure and limitation under it have no retrospective application. Serajuddin Ahmed Vs. Haris Mia (1968) 20 DLR 312.

 

—If by one document lands of several holdings to which the applicant is a co-sharer tenant are sold—one application for pre-empting the lands of all the holding is maintainable if the applicants claim is not barred otherwise. Hajee Majarullab Sowdagar Vs. Mvi. Narul Haque (1971)23 DLR 68.

 

—Pre-emption—one application for preemption was filed with regard to three independent sales of several holdings to which the applicant was a co-sharer tenant.

Held: The application is maintainable if it is not barred by limitation and not also barred otherwise. Hajee Majarullah Sowdagar Vs. Mvi. Nurul Haque (1971) 23 DLR 68.

 

—Pre-emption—persons to be impleaded as parties in an application for pre-emption.

The persons who are to be impleaded as panics in an application for pre-emption are as follows:

(i) In the case of an application by a co-sharer by inheritance all other co-sharers by inheritance are to be impleaded.

(ii) In the case of an application by a co-sharer by purchase all other co-sharers by inheritance or by purchase are to be impleaded.

(iii) In the case of an application by a holder of land contiguous to the land transferred, all co-sharer tenants, either by inheritance or by purchase, as well as other holders of land contiguous to the land transferred, must be impleaded. Hajee Majarullah Sowdagar Vs. Mvi. Nurul Haque (1971) 23 DLR 68

 

—A claim for pre-emption under section 96 supported by the record-of-rights showing the applicant as the owner of the contiguous plot of land cannot succeed where the Court has given judgment in favour of the applicant on the basis of record-of- rights alone ignoring relevant documents produced by the opposite party which showed that the recording of the applicant’s name in the record-of-rights was not correct. Kutu Chand Miah Vs. Rabindra Kumar Deb (1970)22 DLR 295.

 

—By consenting to a transfer made in pursuance of a compromise decree a person loses his right of pre-empting altogether.

In pursuance of a compromise decree passed in a suit for specific performance of contract, X transferred certain land to A and B (the co-sharer tenants by purchase in the disputed plot) by a registered deed Ext. 1. Thereupon, A filed an application for preempting B’s share of land in his favour.

Held: By consenting to the transfer A has lost his right of pre-emption in respect of the suit land. A is, therefore, estopped not only against the vendor and Lhe4vcndec but also against a rival pre-emptor. Md. Ali Khandakar Vs. Haji Mokshed Ali Khan, (1970) 22 DLR 449.

 

—Petitioner purchased the disputed property in a sale held in execution of a certificate. The opposite party claiming to be the co-sharer tenant of the holding by inheritance filed an application for preemption of the disputed property.

Held: The opposite party is entitled to preempt the land under section 96 of the EB State Acquisition and Tenancy Act. Md. Amjad Hussain Talukdar Vs. Basirannessa Bibi (1970) 22 DLR 489

 

—Question relating to jurisdiction— statutory right of pre-emption not liable to be defeated by question of jurisdiction.

The statutory right of pre-emption, if otherwise available to opposite party No. I  is not liable to be defeated by reason of an erroneous decision given by the Court on the question of jurisdiction. For it is an universally by recognized principle that the Court will not permit an injustice being done to any person by reason of an erroneous order made by it, and when the erroneous order is reversed, the Court will restore the parties to the position which they would have otherwise occupied but for the erroneous order. Abul Hossain Vs. Pulin Behari Sikdar (1920) 22 DLR 535.

 

—Court’s pecuniary jurisdiction.

Determination of pecuniary jurisdiction— Amount of consideration money or the value of the transferred holding as stated in the deed of transfer determines the valuation of the application for preemption and its forum. Abul Hossain Vs. Pulin Behari Sikdar (1920) 22 DLR 535.

 

—Pre-emption in respect of non-agricultural land is only possible under section 24 of the E. B. Non-Agricultural Tenancy Act—Provision of section 96 of the EBSAT Act not applicable to such case.

The question is whether an application for preemption under section 96 of the Act in respect of non-agricultural land is maintainable.

The petitioner as owner of a land contiguous to the land under pre-emption, filed the application under section 96 of the East Bengal State Acquisition and Tenancy Act. The land of which pre-emption is sought is a non-agricultural land.

Held: Pre-emption in respect of nonagricultural land can be claimed only under the provisions of section 24 of the Non-Agricultural Tenancy Act and not under 96 of the State Acquisition Act.

Section 24 of the East Bengal Non-Agricultural Tenancy Act has made specific provisions for preemption of lands which are non-agricultural lands. Forman Ali Howladar Vs. Helaluddin Pashari (1968) 20 DLR 1197.

 

—Pre-emption under section 96 relates to raiyati holding.

As all the co-sharer tenants of the raiyati holding concerned are required to be impleaded even in an application for pre-emption under section 96(1) by a contiguous owner, the clear inference is that the land liable to be pre-empted by the contiguous owner must be the land pertaining to a ralyati holding. Forman Ali Howladar Vs. Helaluddin Pashari (1968) 20 DLR 1197.

 

—Homestead within a municipality or nonagricultural land cannot be pre-empted under section 96 of the Act by a contiguous owner of the land— Purpose for which the land was leased out is the determining factor whether it is agricultural or nonagricultural land.

Character of land is determined by the purpose for which the lease is taken. Deed of settlement is - therefore a document of great importance for determination of the character of land. In the present case it was stated in the lease-document that the lessee shall be able to construct pucca structure, buildings and also utilize the same for gardening and such other purposes. The tenancy therefore, as originally created comes within the meaning of ‘homestead’ as defined in section 2(14) of the Act.

A homestead land cannot be a raiyati land (agricultural land) even if some part of it is used for “purpose connected with agriculture”.

Section 96 of the Act lies down that the right of pre-emption is available only in respect of agricultural land. There is specific provision for preemption. of non-agricultural land in the East Bengal Non-Agricultural Tenancy Act. Under that Act a contiguous owner cannot claim right of preemption. Section 96 of the Act is confined to agricultural land and therefore a right of pre-emption under this section cannot be claimed in respect of a homestead land within a Municipality. [EB Nonagricultural Tenancy Act: (XXIII of 1949)]. Mst. Lutfun Nahar Vs. Syeeda Hashmat Ara Begum (1969) 21 DLR 633.

 

—Pre-emption cannot be claimed under section 96 in respect of homestead land (Chandina) within a Municipality. Abdul Khaleq Vs. Jadav Chandra Mali (1968) 20 DLR 562. 

 

—Transferor of the land is not a necessary party in a pre-emption case.

In a Suit for pre-emption the co-sharers are made parties in order to enable them to exercise their similar right if they so desire. The transferor of the property is no doubt a co-sharer of the properly transferred but he cannot like other co-sharers claim for pre-emption in respect of the property transferred by him. So for determination of the case the transferor may be a proper party but not a necessary party in the suit for pre-emption. Non inclusion of a transferor of a land sought to be pre-empted will not, therefore, liable the suit to be dismissed for defect of party. Ruhul Amin Mestory Vs. Fazar Banu (1969)2 1 DLR 647.

 

—One of the several co-sharers is entitled to pre-empt to the extent of his own share in a preemption case.

Eleven co-sharers claimed pre-emption in respect of the land transferred. The trial Court granted the prayer for preemption but the lower appellate Court dismissed the whole pre-emption case. As against this order of dismissal of Out of eleven co-sharers moved the High Court in revision. High Court held the order of the Munsif but held that the petitioner before the High Court is entitled to preemption only to the extent of his own share and nothing more. Ibid.

 

Ss. 96 and 89(4)—A notified co-sharer tenant may apply for pre-emption within four months from the date of service of the notice and a non- notified co-sharer tenant as well as tenants having lands contiguous to the land transferred for whom no provision has been made for service of notice of the transfer may apply for pre-emption within four months of the date of knowledge of the transfer— Question of knowledge of the transfer is immaterial in respect of a notified co-sharer tenant. Syed Ali Vs. Abdul Khaleque (1969) 21 DLR 463

 

Sec. 96—Identifier of the executants of a document not supposed to know the contents thereof.  Habibur Rahman Vs. A Waded (1969) 21 DLR 382.

 

—Right of pre-emption is a statutory right— Joint deposit of consideration—Homestead when part of a holding—Improvement effected on that land.

Right of pre-emption under section 96 of the State Acquisition and Tenancy Act is a statutory right and is to be exercised within the scope of the statute itself. There is no embargo in the State Acquisition and Tenancy Act that the right of preemption shall stand forfeited if a disqualified person is joined with the pre-emptor in an application for pre-emption.

A joint deposit of consideration money does not frustrate a right of pre-emption.

The homestead being a part of the holding of a raiyat is not excluded from the operation of section 96 of the Act.

Improvement made by the pre-empted does not create a clog to the right of pre-emption and does not alter the nature of the transfer. Asiruddin Sk. Vs. Serajuddin Talukder (1978) 30 DLR 75.

 

—Sale of the land in dispute took place on 7.4.69.

On 1.8.69 a co-sharer applied for pre-emption in respect of the land sold. The vendor thereupon produced a reconveyance deed executed on 26. 7. 79 selling the same land back to him on the basis of oral agreement which was however registered on 5.8.69.

Held: The application for pre-emption must fail as the land had already been reconveyed to the original vendor. Upendra Chandra Roy Vs. Janab Ali  (1977)29 DLR 229.

 

—Partial pre-emption of a holding not permissible.

In section 2(13) of the Act the term holding has been defined to mean a parcel or parcels of land or an undivided share thereof, held by a raiyat or an under raiyat and forming the subject of a separate tenancy. It is undisputed that partial pre-emption of a holding or a share thereof which has been transferred is not permitted in law. The pre-emptor must pre-empt the entire land of the holding or portion thereof which has been transferred. Aktamunnessa Vs. Habibullah (1976)28 DLR 400.

 

—Three separate plots of land were transferred by a deed of sale. A tenant holding land contiguous to the land transferred applied u/s. 96 for two out of three plots averring that these two plots are contiguous to his land. The Court on evidence found that only one plot was contiguous to the applicant’s land and allowed pre-emption of that plot only.

The High Court upheld this decision over-ruling the contention that this will lead to partial preemption. Sreemati Monkhushi Das Vs. Abdus Sobhan (1977) 29  DLR 195.

 

Division of a holding u/s 88 UT Act leaving out some co-sharers—Their right not affected.

A division of a holding effected u\s 88 BT Act leaving out some of the co-sharers not a valid division—Pre-emption application by co-sharers who had been left out in s. 88, division cannot be defeated—No presumption against them that they produced no rent-receipt in respect of the holding. Abdus Salam Vs. Md. Nurul Islam (1975) 27 DLR 37.

 

—Sale of the land in dispute took place on 7.4.67. Right accrued under section 26F, BT Act not destroyed under section 96. Begum Asia Rahman Vs. Abdul Bhuiyan (1974) 26 DLR (SC) 58.

 

—Onus is on the person who seeks to repurchase the land sold to show that the area of lands in his possession does not exceed the maximum he is entitled to retain under sec. 90. Nayeb Ali Vs. Akhtar Rahman (1977) 29 DLR 153.

 

—Court’s judgment should record a finding when allowing an application for pre-emption that the applicant is co-sharer or a tenant holding contiguous land. Ibid.

—Court must also record a finding that the person who seeks pre-emption is entitled to so preempt on the basis of sec. 90.   Ibid.

—Between the dates of filing of the- application for pre-emption, and its final disposal the vendor filed a suit for specific performance of contract against the transferee on the ground that at the time of the transfer of the holding the transferee stipulated to reconvey the property to the vendor and on that agreement obtained an ex pane decree against the transferee.

Held: This being the situation pre-emption application cannot be granted. Yekub Khan Vs. Amjad Ali Khan (1977)29 DLR 164.

 

—Seller is a necessary party in a pre-emption proceeding if after his transfer, he still remains a co-sharer in respect of the property sold by him.

A seller is not a necessary party in a preemption proceeding unless it can be shown that he has still some subsisting interest in the holding after the transfer in question was made. For instance, if it is found that the vendor has some interest left in the holding even after the transfer in question and thus he is still a co-sharer in the holding, in that case there cannot be any doubt that he is a necessary party in a pre-emption proceeding under section 96 of the Act. Monohar Ali Vs. Abdul Majid (1974) 26 DLR 359.

 

Section 96—

Right of pre-emption— Waiver and acquiescence—Statutory right of pre-emption cannot be taken away by mere verbal assurance of the person having such right, unless other facts and circumstances clearly make out a case of acquiescence or waiver. Fazaruddin vs Maijuddin 44 DLR (AD) 62.

 

Section 96—

The right of pre-emption accrued to the pre-emptor is not affected by the subsequent acquisition of co-shareship by the pre-­emptee. Abdul Baten vs Abdul Latif Sheikh 45 DLR (AD) 26.

 

Section 96—

Right of pre-emption is a heritable right—In a pending proceeding the heirs are entitled to be substituted in the place of the deceased pre-emptor  so as to proceed with the case. Inu Mia and others vs Mokhlesur Rahman & others 45 DLR (AD) 171.

 

Section 96—

Principle of contiguity— Pre­emption in respect of two plots transferred when cannot be allowed—Admittedly the pre-emptor 's land, plot No. 2575, is contiguous to plot No. 2574, but it is not contiguous to plot No. 2573. If both these plots were closely contiguous to each other and formed a compact block of land, then only the principle could be applied. Jahiruddin Mollah vs Hosne Ara Begum 45 DLR (AD) 118.

 

Section 96—

Hardship to purchaser of land­—It is a great hardship to be deprived of the case land without being paid the price prevailing at the time of execution and registration of the disputed sale deed. But section 96 of the State Acquisition and Tenancy Act having not provided relief for such circumstances it is not within the power of this Court to mitigate such hardship. Lal Chand Sardar vs Abdul Huq Howlader and others 47 DLR 401.

 

Section 96—

Reconveyance made during pendency of a pre-emption proceeding cannot take away the right of pre-emption of the co­sharer. Khorshed Ali and another vs Aftabuddin and others 47 DLR 607.

 

Section 96—

To reveal the truth whether a transfer in question is really sale or not, in a pre­emption proceedings can be looked into so that law cannot be violated or broken down by the unscrupulous person in the society. Baseruddin Pramanik (Md) vs Golapjan Bewa 48 DLR 137.

 

Section 96—

Homestead is included within agricultural holding and, as such, it is pre-­emptible. Muslim Halder (Md) vs Hajrat Ali Halder & others 48 DLR 175.

 

Section 96—

Since the Khatians are different the pre-emptor cannot be held to be a co-sharer in the case holding and as such she is not entitled to pre-emption. Fatema Bibi vs Sree Manik Lal Somaddar & others 50 DLR (AD) 97.

 

Section 96—

Suit-holding being homestead situated in the rural area is an agricultural land pre-emptible under section 96 of the Act. Abdul Khaleque vs. Abdur Noor and others 49 DLR 74.

 

Section 96—

lt is inconceivable as to why for non-deposit of the improvement cost at the time of filing of the pre-emption case, which is yet to be determined by the Court on taking evidence, pre-emption could be refused. Abul Kalam (Md) and others vs Md Shamsuddin 49 DLR 502.

 

Section 96—

Section 96 is confined to agricultural land and, therefore, a right of pre­emption under this section cannot be claimed in respect of homestead land within a municipality. Mantu Faraji alias Jamal Faraji and others vs Mahiuddin Khan 50 DLR 147.

 

Section 96—

The statutory right of pre­emption cannot be defeated by a casual plea of waiver and acquiescence unless a clear case of estoppel is made out by cogent and convincing evidence and unless by conduct the pre-emptor  is proved to be in loco parentis with the pre-emptee  and he has taken an active part in bringing about the disputed transfer. Tahera Khatun Bibi and others vs Abdul Jalil Mandal 51 DLR 134.

 

Section 96—

The principle as to deposit is not rigid and it is not mandatory that the entire deposit, both the consideration money and compensation, should be paid before filing of the case. Abdus Sobhan Sheikh vs Kazi Moulana Jabedullah and others 52 DLR 289.

 

Section 96—

Since the order of amendment relates back to the date of filing of the case, the instant case is not barred by limitation as it was filed originally within the statutory period of 120 days. Abdus Sobhan Sheikh vs Kazi Moulana Jabedullah and others 52 DLR 289.

 

Section 96—

Non—Agricultural land means a piece of land in joint possession and enjoyment without partition which may form the tenancy or a portion of tenancy. Syed Sad Ali vs Bidhan Chandra Dev and ors 52 DLR 609.

 

Section 96—

Subsequent becoming of co­-sharers by inheritance during pendency of the case cannot alter the character and status of the original pre-emptor. Momtazuddin Sarker and others vs Abdur Rob and others 53 DLR (AD) 67.

 

Section 96—

Claim of Pre-emption­—Estoppel—The petitioner was not only aware of the transfer made by his own brother but he had also given consent to the transaction having involvement in the negotiation. He may be held estopped from enforing his right of pre-emption. Aumullaya Chandra Haldar vs Md Mohsin Ali Mandal & ors 54 DLR 500.

 

Section 96—

While deciding an application for preemption, the Court cannot go behind the intentions of the parties in executing the deed of the transfer. Any evidence to vary the terms of such deed is barred under the provisions of section 91 of the Evidence Act. Sazeda Khatun vs Asad Ali and others 54 DLR 285.

 

Section 96—

Pre-emption—Limitation—The pre-emptor  claimed to have knowledge of the transfer of the land after six and half years of the transfer. He offered no explanation for such a late knowledge nor did he explain the source of his knowledge of the transfer. So, his claim is not credible. Madinullah Miah vs Md Abdul Mannan & anr 54 DLR 507.

 

Section 96—

The defect was brought to the notice of the pre-emptor  by the pre-emptee  at the earliest opportune moment and yet the pre-emptor  took no step to amend his plaint and make all the co—sharers of the 'case holding' parties in the case. The Subordinate Judge, when he found defect of parties, ought to have dismissed the case, instead of remanding it to the Court below. Madinullah Miah vs Md Abdul Mannan & anr 54 DLR 507

 

Section 96—

Order XLIII, rule 1 of The Code contains provisions for appeal against an order passed in a suit. Order XLIII, rule l(c) does not provide for an appeal against an order rejecting a petition laid under Order IX, rule 9 of the Code directed for restoration of a pre-emption ·proceeding on setting aside order of dismissal. Haripada Mandal vs Bidhan Chandra Mondal 55 DLR 515.

 

Section 96—

In a pre-emption case the trial Court is not precluded from determining the petitioner's prima facie right in the case holding acquired through the kabala produced in Court. Badiul Alam being dead his heir Fazlul Karim vs Md Nurul Islam 55 DLR 517.

 

Section 96—

In a pre-emption case when the case holding does not appear to be a mortgaged property or charged for mortgage sale, such holding even if sold in execution of any money decree, any alienation by the judgment debtor does not come within the purview of the doctrine of lis pendens in absence of the proof of service of notice under Order XXI, rule 54 of the Code upon the alienor or the alienee as the case may be. Badiul Alam being dead his heir Fazlul Karim vs Md Nurul Islam 55 DLR 517.

 

Section 96—

Right of Pre-emption accrues after transfer of land and statutory right of preemption cannot be taken away by mere verbal assurance of the person having such right unless other facts and circumstances clearly make out a case of acquiescence or waiver. Iqbal Hossain Talukder (Md) vs Md Joinal Abedin Talukder and 76 ors 55 DLR 604.

 

Sections 96, 96(10)(c)—

A deed of Hiba-Bil-­Ewaj in exchange of Jainamaj, Tajbih and the Holy Quran is not a transfer for any pecuniary consideration. Such a transfer in a holding by a deed of Heba-Bil-Ewaj within three degrees of relationship by consanguinity between the donee and the donor, is exempted from pre-emption. As a sequel to it any subsequent purchase by the donee of any land in the holding is outside the purview of pre-emption. Jinnat Ali (Md) vs Md Abdu Bakkar Siddique and others 55 DLR 92.

 

Sections 96 & 117—

Unless it is satisfactorily proved that the parent jama has been separated in accordance with the provisions of section 117 of the SAT Act on proper service of notices upon all the co—sharers, the parent jama remains intact and a co-sharer to the holding continues to be a co-sharer to it and his right of pre-emption remains unaffected. Tofazzal Hossain (Md) and others vs Momtaz Begum 52 DLR 223.

 

Section 96(1)—

"Knowledge" as referred to in sub—section ( 1) of section 96 of the Act means and includes a definite and complete knowledge in order to qualify the petitioner to file pre­emption application. Abdul Sattar & another vs Osimuddin & others 42 DLR 24.

 

Section 96(1)—

Limitation referred to in sub­section (1) of section 96 not applicable when a pre-emptor  makes an application for pre-emption against a purchaser.

For the purpose of impleading a remaining co-sharer in a proceeding under section 96 of the Act the period of limitation as provided in sub­section (1) of section 96 of the State Acquisition and Tenancy Act in filing an application for pre­emption by pre-emptor  against a purchaser for pre—empting the latter's kabala shall not apply. Abdul Barek vs Yarunnessa 37 DLR 151.

 

Section 96(1)—

There being no evidence of record by the pre-emptee  challenging the date of knowledge of the pre-emptor  about the transfer of the land, the contention that the application for pre-emption is barred by limitation is untenable in law. Jafar Ali vs Hushiar Ali 46 DLR (AD) 187.

 

Section 96(1)—

Choice of some holdings for pre-emption out of several holdings sold, whether it will be a case of partial pre— emption— The effect and purport of section 96( 1) of the SAT Act is not that the right of pre-emption accrues only holding—wise but also transaction—wise. The clear intention of the Legislature was to confer a right of pre-emption holding—wise and not transaction­wise. In the context of section 2(13) of the SAT Act read with section 96(1), the right of pre­emption has not been conferred with reference to the number of properties transferred by a particular deed. A distinct right has been conferred in respect of a distinct holding. Birendra Nath Chakraborty vs Subal Chandra Biswas 43 DLR 276.

 

Section 96(1)—

Decision of the Courts below allowing prayer for pre-emption to the extent of shares of fictitious sellers is illegal. Solaiman Ali Sheikh (Md) and others vs. Abu Bakar Siddique Sheikh and others 49 DLR 477.

 

Section 96(1)—

When pre-emptor  exercises his right of pre-emption after a long lapse of time a heavy duty is cast upon him to prove his knowledge about the impugned transfer by most convincing evidence so as to circumvent the apparent bar of limitation. Habibur Rahman alias Md Habibur Rahman and another vs Mobarak Ali Rari and others 50 DLR 193.

 

Section 96(1)—

There being no evidence on record challenging the date of knowledge of the pre-emptor  about the transfer of the land, the contention that the application is barred by limitation is untenable in law. Abdur Rashid Mia (Md) vs Md Hasem Ali Mia 56 DLR 155.

 

Section 96 (1)(2)—

Once the pre-emptor  files pre-emption application within the statutory period of 4 months such application is not liable to fail for non—impleading of necessary parties within the period of said 4 months provided such necessary parties are impleaded at any stage of the proceedings. Abdus Satter and others vs Abdun Noor and others 49 DLR 414.

 

Section 96(1)(4) as also clause (b) of section 96 (6)—

Court's direction to make deposit in case of rateable pre-emption.

Where the transferee is also an applicant for rateable pre-emption despite the fact that he is entitled to receive back the money he has paid he must make the deposit proportional to the ratable pre-emption, but the court may grant an exemption regarding his deposit in his case. Abdul Hadi Bepari vs Safaruddin Mondal 38 DLR (AD) 265.

S. 96(I)—Time for application by co-sharer.

Sub-section (1) of section 96 of the Act requires an application for pre-emption to be made by a co sharer within four months from the date of knowledge of the sale when no such notice was issued. Nekjan Bibi Vs. Sarojan Bibi (1967) 19 DLR 655.

 

—Right of pre-emption when accrues.

Right of pre-emption does not accrue on the date of knowledge but on and from the date of the transfer. The period of 4 months referred to in section 96(1) of the State Acquisition and Tenancy Act is the limitation prescribed for exercising the right by a tenant holding land contiguous to the land transferred from the date of the knowledge of such transfer. Habibur Rahman Vs. Satish Ch. (1977) 29 DLR 178.

—Petitioner seeking pre-emption is to prove the date of his knowledge of transfer that his petition is within time. Ibid.

 

—Right of pre-emption accrues not on the date of execution of the deed but on the date of its registration.

A sale-deed in respect of a portion of a holding in favour of A was executed on 20.2.59 but it was registered on 2.8.65.

Another sale-deed in respect of another portion of the same holding was executed in favour of B on 10.3.61 and registered on 28.3.61. In a contest over the claim of pre-emption between A and B, question arose who is the earlier purchaser of a portion of holding so as to entitle him to maintain an application for pre-emption under section 96 of the Act.

Held: Right of pre-emption accrues not on the date of execution but on the date of registration of the document and hence in the present case B acquired the right of pre-emption of the land sold to A inasmuch as B’s document was registered in 1965 though the execution of A’s deed as in 1959 and that of B’s deed was in 1961. Abdur Rahman Vs. Baser Ali (1969) 21 DLR 599.

 

—Pre-emption—Holding consists of several plots—One co-sharer transfers his share in all plots—Other co-sharer must apply for pre-emption in respect of all plots.

If a particular holding comprises several plots, belonging to two-or more co-sharers, and if one of the co-sharers transfers his share in all the plots of the holding to a stranger purchaser, the remaining co-sharers in that case, shall have to apply for preemption with respect to all the plots otherwise it will amount to partial pre-emption. Janab Ali Sardar Vs. The Controlling Authority (1972) 24 DLR 186.

 

—In several districts (see the body of the judgment) by virtue of government notification section 96 becomes operative with effect from 1.8.63—All transfers before this date, in respect of pre-emption rights in these districts, will be governed by section 26F, Bengal Tenancy Act. Tamoshi Bewa Vs. Janu Shah (1973) 25 DLR 397.

 

—Application for rateable pre-emption u/s. 96(4) not possible unless application u/s. 96(1) was first made. Haji Wahab Ali Vs. Kadam Ali (1962) 14 DLR 204.

 

S. 96(1)—Preemption coming under first part and that coming under 2nd part of s. 96(1)-Requirement that has to be met in each case of pre-emption.

In a case of pre-emption coming under the first part the pre-emptor is required to establish his locus standi by showing that he is a co-sharer tenant of the holding. In such a case rule of partial preemption has been applied. In a case of pre-emption coming under the second part of sub-section (1) of section 96 the tenant is not required to meet the same test. In case of tenant’s right of pre-emption falling under the second part, the pre-emptor is required to establish that he has land contiguous to the land transferred. The expression holding land contiguous to the land transferred cannot be suetched to support the view that even in such a case the preemptor is required to include in the application for pre-emption also the lands to which he does not hold contiguous land and implead all the tenants holding contiguous lands to non-contiguous lands. Akhtarun Nessa Vs. Habibullah (1979) 31 DLR (AD) 88.

 

—Preemption falling under 2nd part of sub-section (1), Test—Contiguity of the land sought to be pre-empted.

A pre-emptor coming under the second part of sub-section (I) of section 96 cannot maintain his application for pre-emption for the land transferred to which he has no contiguity. According to subsection (5) (b), in such an application only those tenants holding lands contiguous to the land sought to be pre-empted are to be impleaded; and tenants holding lands contiguous to other lands transferred under the kabala but not subject to pre-emption, are not required to be impleaded. Sub-section (5) (b) removes any doubt that there might be. Akhtarun Nessa Vs. Habibullah (l979) 31 DLR (AD) 88.

 

Non-agricultural land and pre-emption.

—Pre-emption in respect of non-agricultural land is only possible under section 24 of the E.B. Non-Agricultural Tenancy Act. Provision of section 96 of the EBSAT Act not applicable to such case. Forman Ali Howlader Vs. Helaluddin Pashari (1968) 20 DLR 1197.

 

—The petitioners were allowed to exercise their right of pre-emption in respect of certain nonagricultural lands sold away by their co-sharers to a third party but the first appellate Court disallowed it, on the ground that the land had been acquired by the Provincial Government and the mere deposit of money would not be enough to cover the requirement of section 96.

Held: As the land is not used for cultivation, the petitioners do not come within the definition of ‘raiyat’ within the meaning of section 96 of the EBSAT Act, 1950. 10 PLD (Dac) 1018.

 

—Homestead within a municipality or nonagricultural land cannot be pre-empted under section 96 of the Act by a contiguous owner of the land— Purpose for which the land was leased out is the determining factor whether it is agricultural or nonagricultural land.

The tenancy in the present case as created comes within the meaning of “homestead” as defined in section 2(14) of the Act.

A homestead land cannot be a raiyati land (agricultural land), even if some part of it is used for purpose connected with agriculture.”

Contiguous owner cannot claim right of pre-emption. Section 96 of the Act is confirmed 10 agricultural land and therefore a right of pre-emption under this section cannot be claimed in respect of homestead land within a Municipality. Mst. Lutfun Nahar Vs. Syeeda Hashmat Are Begum (1969) 21 DLR 633.

 

—Pre-emption cannot be claimed under section 96 in respect of homestead land (Chandina) within a Municipality. Abdul Khaleq Vs. Jadav Chandra Mali (1968) 20 DLR 562. (Reversed by 27 DLR (AD) 114.

 

—Several holdings—If by one document lands of several holdings to which the applicant is a co sharer-tenant are sold—one application for preempting the lands of all the holdings is maintainable if the applicant’s claim is not barred otherwise. Hajee Majardullah Sowdagar Vs. Nurul Hague (1971) 23 DLR 68.

 

—One application for pre-emption was filed with regard to three independent sales of several holdings to which the applicant was a co-sharer tenant.

Held: The application is maintainable if it is not barred by limitation and not also barred otherwise. Ibid.

 

—Partial pre-emption

The right of pre-emption is given to the co sharer under section 26F of the Bengal Tenancy Act with reference to ‘the holding,” that is to say, that the right accrues holding-wise. It must necessarily follow that even if there has been a sale of several holdings by one transaction and by a single document, a co-sharer has a right under the aforesaid section, in respect of a particular holding covered by the same document and of which he is to be a co-sharer. It would be a misnomer to describe it as a partial transaction.

The right conferred upon a co-sharer under the provisions of section 26F of the Bengal Tenancy Act is a distinct holding. A prayer may be made in one application relating to two distinct holdings. Conversely, two distinct applications may be made in two different periods. Mosammat Asimon Nessa Vs. Md. Akbar Ali Sheikh (1967) 19 DLR 659.

 

The expression ‘partial pre-emption’ is to be understood with reference to the definition of ‘holding’ read with the provisions of section 96 of the Act and not with reference to the number of properties transferred by a particular deed.

If a particular holding comprises several plots, for example, belonging to two or more co-sharers, and if one of the co-sharers transfers his share in all the plots of the holding to a stranger-purchaser, the remaining co-sharer or co-sharers, in that case, shall have to apply for pre-emption with respect to all the plots; otherwise, it will amount to partial preemption and such partial pre-emption cannot be allowed because a co-sharer cannot be allowed to pick and choose arbitrarily. Tamizuddin Vs. Guljan Bibi (1974) 26 DLR 95.

 

Contiguous land owner applied for pre-empting one piece adjacent to it.

Three separate plots of land were transferred by a deed of sale. A tenant holding land contiguous to the land transferred applied u/s 96 for two out of three plots averring that these two plots are contiguous to his land. The court on evidence found that only one plot was contiguous to the applicant’s land and allowed pre-emption of the plot only. The High Court upheld this decision over-ruling the contention that this will lead to partial pre-emption. Sreemati Monkhushi Vs. Abdus Sobhan (1977) 29 DLR 195.

 

—Pre-emption of a part or share of holding when its price is mentioned separately in the kabala— allowable. Diam Hossain Vs. Haran Das (1961) 13 DLR 283.

 

—Application for pre-emption shall have to be filed within four months of the date of knowledge. Provisions of section 96 are procedural laws.

Application by a non-notified co-sharer for prescription in respect of a transfer, which took place before section 96 of the Act came into force but filed after the said date.

Held: The right of pre-emption of the co sharers has been re-enacted in s. 96 of the Act and a person having no notice of the transfer has to apply within 4 months from the date of his knowledge. This is a procedural law and this being so the provisions of s.96 will apply to the case of a co-sharer not served with notice and if he does not come to the court within four months of the date of knowledge his application will be dismissed. Hazzat Ali Vs. Imamuddin Bapari (1961)13 DLR 819.

 

—Expiry of the time limit dates from the time of knowledge. Impleading one as a party when time is expired does not extend the time limit. Syed Abdul Karim Vs. Harendra Chandra Dhupi (1962) 14 DLR 847.

 

—If a party does not apply for pre-emption within the prescribed period he loses his right to preemption. A case of pre-emption does not abate if such a person is not impleaded.

If the right of parties seeking pre-emption u/s 96(1) becomes unenforceable by the date of presentation of the application for pre-emption on account of the lapse of the period of limitation the suit for preemption does not abate if they are not made parties to the suit. Benodoni Das Vs. Matilal Sikder (1969) 21 DLR 262. (Reversed by 28 DLR (AD) 5 which was overruled by 33 DLR (AD) 113).

 

—When the original pre-emption fails on the ground of limitation the co-applicant’s fails for pre-emption (according to their share) under section 96(4) though made in rime, not sustainable.

If the first application for pre-emption by a co. sharer tenant is made after the expiration of the periods of limitation it will not be a vali4 application within the meaning of opening words of subsection(4).

A co-applicant is entitled to pre-emption only when the first co-sharer petitioner has applied with the periods of limitation u/s 96(1).

Although the two co-applicants in the r’ case applied within the two months of the date if the service of notice of the application u/s 96(4) they are not entitled to the benefit of proportionate pre-emption. Bijan Bala Chowdhury Vs. Maniruddia Biswas (1972) 24 DLR 170.

 

General

By consenting to a transfer made in pursuance of a compromise decree a person loses his right 01 pre-emption altogether.

In pursuance of a compromise decree passed 11, suit for specific performance of contract, X transferred certain land to A and B (the co-sharer tena by purchase in the disputed plot) by a resisted deed Ext.  Thereupon, A filed an application for preempting B’s share of land in his favour.

 

Held: By consenting to the transfer the purchaser of the land has lost his right of pre-emption in respect of the suit land. A is, therefore, estopped not only against the vendor and the vendee but also against a rival pre-emptor. Md. Ali Khandakar Vs. Haji Morshed Ali Khan (1970) 22 DLR 449.

 

—The statutory right of pre-emption if otherwise available to opposite party No. 1, is not liable to be defeated by reason of an erroneous decision given by the Court on the question of jurisdiction. For, it is an universal recognized principle that the Court will not permit an injustice being done to any person by reason of an erroneous order made by it, and when the erroneous order is reversed, the Court will restore the parties to the position which they would have otherwise occupied but for the erroneous order. Abul Hussain Howladar Vs. Pulin Behari Sikdar (1970) 22 DLR 535.

 

—Right accrued under section 26F B.T. Act not destroyed by section 96. Begum Asia Rahman Vs. Abdul Basir Bhuiyan (1974) 26 DLR (SC) 58.

 

General—Court’s pecuniary jurisdiction.

Amount of consideration money or the value of the transferred holding as stated in the deed of transfer determines the valuation of the application for pre-emption and its forum. Abul Hussain Howladar Vs. Pulin Behari Sikdar (1970) 22 DLR 535.

 

Land sold in execution of a certificate—Co-Sharer is entitled to preemption. Petitioner purchased the disputed property in sale held in executiOfl of a certificate. The opposite party claiming to be the co-sharer tenant of the holding by inheritance filed an application for pre-emption of the disputed property.

Held: The opposite party is entitled to preempt the land under section 96 of the EB State Acquisition and Tenancy Act. Md. Amjad Talukder Vs. Basirunflessa Bibi (1970)22 DLR 489.

 

—Change of law pendente lite Court to give effect to it.

Even though the sale-deed was not legally valid when it was executed as well as when suit in relation to the sale was filed, it would be treated as valid if during, the pendency of the suit a new law (in the present case EBSAT 4th Amendment Ordinance of 1961 permitting such transfer) comes into existence, since the Court is bound to apply the current law to its decision. Rais Ali Vs. Jabed Ali (1967) 19 DLR 510.

 

Title Suit, when the pre-emptor not a party to it.

A decree in a title suit can not affect the right of a pre-emptor when the suit was brought without impleading the pre-emptor. Pre-emptor is entitled to get the transferred right of the vendor. Meher Abjan Vs. Jalal Ahmed Howlader (1961)13 DLR 642.

 

—A Nadabi-PatIa being merely a deed of disclaimer disclaiming any interest in the properties transferred by an earlier sale-deed is not itself a deed of transfer and, therefore, no right of pre-emption can be claimed upon the registration of such a deed of Nadàbi Patra. Simply the fact that the document was registered and ad-valorem stamp fee was paid on the document by itself can not turn a deed of disclaimer into deed of transfer. Muhammad Arabullah Vs. Durgaprasad Tribedi (1959)11 DLR 539.

 

—Division of a holding u/s 88 BT Act leaving out some co sharers—Their right not affected.

A division of a holding effected u/S. 88 BT Act leaving out some of the co-sharers not a valid division. Pre-emtion application by co-sharers who had been left out in s. 88, division cannot be defeated—No presumption against them that they produced no rent-receipt in respect of the holding. Abdus Salam Vs. Md. Nurul Islam (1975) 27 DLR 27.

 

—Sale of the land in dispute took place on 7.4.67.

On 1.8.69 a co-sharer applied for pre-emption in respect of the land sold. The vendor thereupon produced a reconveyance deed executed on 26.7.69 selling the same land back to him on the basis of oral agreement which was however registered on 5.8.69.

Held: The application for prc-emption must fail as the land had already been reconveyed to the original vendor. Upendra Chandra Vs. Janab Ali (1977) 29DLR 229

 

—Right of pre-emption—Joint deposit of consideration money Homestead when part of holding— Improvement effected on that land.

The right of pre-emption shall not be forfeited if a disqualified person is joined in a pre-emption application for pre-emption.

A joint deposit of consideration money does not frustrate a right of pre-emption.

Homestead being a part of the holding of a raiyat is not excluded from the operation of section 96 of the Act. Aseruddin Sk. Vs. Serajuddin (1978) 30 DLR 75.

 

—Extent of contiguity of land is the only test for determining order of priority—Right in respect of contiguous plots as envisaged u/s. 96(5)(b).

“Extent of contiguity of land” is the only test for determining the order of priority as among tenants claiming pre-emption on the ground of holding land, contiguous to the land transferred. If land transferred consists of one plot, all the tenants having land contiguous to the land under pre-emption are to be impleaded. Their right is to be determined in the manner as provided in sub-section (5)(b). In a case where land transferred consists of more than one plot, a tenant or tenants having land contiguous to the plot or plots may apply for pre-emption but in such a case, a tenant having land contiguous only to one of the plots, cannot claim pre-emption of other lands.

In an application by a tenant claiming preemption on the ground of contiguity of land, such tenant may apply to the court for the holding or portion or share to be transferred to himself or themselves. Akhtarun Nessa Vs. Habibullah (1979) 31 DLR (AD) 89.

 

—Deposit of consideration money if does not accompany the application for pre-emption but made later on—if the deposit is within 4 months from the date of registration of the deed or 4 months from the knowledge of transfer, is a sufficient compliance with law and is a valid deposit under the law. Md. Mafizuddin Sarder Vs. Md. Abdul Jabbar (1982) 34 DLR 272.

 

—A Hindu widow having life-interest in the property is entitled to pre-emption u/s. 96(1) of the SAT Act.

Notwithstanding the fact that a Hindu widow has life interest in the property in question during her life-time, she remains a full owner thereof with complete right of acquisition and dispensation subject to law. Such a widow can be safely said Lo be a co-sharer of any holding or of any property as contemplated u/s. 96 of the State Acquisition and Tenancy Act. Rai Krishna Shaha Vs. Md. Matleb Ali Pramanik (1982) 34 DLR 178.

 

—Proviso: Prior to allowing a pre-emption application, Court not obliged to record a finding that the applicant is a cultivator and land in his possession does not exceed the prescribed limit if the application is allowed as required u/s 90. Chandu Mia Mestry Vs. AKM Wajih Ullah & ors. (1981) 33 DLR 134.

 

—Proviso: Omission to state that the petitioner is a bonafide cultivator, but the statement that he is in possession of the land through bargadar is enough. Ibid.

 

S. 96(1) Read with S. 90—A person seeking pre-emption u/s 96(1), if fails to state in his application what is required of u/S 90, his application must fail.

In the instant case, the pre-emptor opposite party no. I did not make any averment on section 90 of the State Acquisition Act at all. He has, therefore, failed to show that he is a person to whom the transfer may be made under section 90. Since he has failed to meet one of the basic requirements of section 96(1) his application for pre-emption is not maintainable. Md. Rais Ali Vs. Imam Hussain and Ors (1981) 33 DLR 318.

 

—From judgment of the Munsif, in a pre-emption case, appeal will lie to the District Judge. Md. Eshaq Vs. Ruhul Amin (1982) 34 DLR 342.

 

—Co-sharer by inheritance shall have the highest priority followed by a co-sharer by purchase and thereafter a contiguous owner. Co-sharer comes first in priority over a contiguous owner. Dhirendra Narayan Das Vs. Gouranga Mohon Das (1982) 34 DLR 177.

 

—Co-sharer by inheritance has the highest priority to claim of pre-emption in any holding. Rafiqul Alam Vs. Rahimuddin Sarkar (1982) 34 DLR 180.

 

S. 96(1)(2)—Sub-sections (1) and (2) explained.

From a plain reading of sub-section (I) of section 96 of the Act, it appears that it consists of two parts : the first part giving right of pre-emption to one or more co-sharer tenants and the second part giving right of pre-emption to a tenant or tenants holding land contiguous to the land transferred.

Sub-section (2) also consists of two parts. The first part deals with an application for pre-emption by a co-sharer tenant or tenants. The second part deals with an application for pre-emption by a tenant or tenants holding land contiguous to the land transferred. In the former case all other co-sharer tenants of the holding and the transferees are to be impleaded and in the latter case all the co-sharer tenants and all the tenants holding lands contiguous to the land transferred and the transferee to be made parties. Akhtarun Nessa Vs. Habibullah (1979) 31 DLR (AD) 88.

 

—Pre-emption right accrues on transfer of the land—All the necessary parties to the pre-emption application must be impleaded.

The right of pre-emption as provided under subsection (1) of section 96 is a statutory right. The cause of action for pre-emption of any transfer accrues to the co-sharer tenants and contiguous land owners. The right of the applicant or applicants claiming to be co-sharer tenants or owner of contiguous land, is not absolute but subject to the right of other co-sharers and other holders of land contiguous to the land transferred as the case may be for proper adjudication. To give full effect to the statutory provision, all the necessary parties must be impleaded, because relief cannot be given in the absence of such party. Abdus Samad Vs. Md. Sohrab Ali (1981) 33 DLR (AD) 113.

 

Pre-emption under section 96 relates to raiyati holding.

As all the co-sharer tenants of the raiyati holding concerned arc required to be impleaded in an application for pre-emption under section 96(I) by a contiguous owner, inference is that the land liable to be pre-empted by the contiguous owner must be the land pertaining to a raiyati holding. Forman Ali Howladar Vs. Helaluddin Pashari (1968) 20 DLR 1197.

 

—Owner of contiguous land whom to be impleaded—Sub-section (2) has two parts—Co-sharer applying for pre-emption need not implead contiguous land holders as parties, but a contiguous land owner applying for pre-emption must implead other contiguous land holders as well. Raji Wahab Ali Vs. Kadam Ali (1962) 14 DLR 204.

 

Necessary parties—not impleaded. Suit for pre-emption abates, if necessary parties are not substituted.

After the filing of the application for preemption and lapse of statutory period of limitation to pay for rateable pre-emption the co-sharer tenants and other parties concerned become un-necessary parties and as such Rule cannot be affected for not substituting their heirs. Binodini Dasi Vs. Mail Lal Sikdar (1969) 21 DLR 262. [Reversed by 28 DLR (AD) 5].

 

—One contiguous holder should not necessarily be contiguous holder in respect of all lands transferred—All contiguous holders of land should be impleaded as parties. Syed Abdul Karim Vs. Harendra Chandra Dhupi (1962) 14 DLR 847.

 

Parties impleaded after the limitation period—Application for pre-emption cannot be said to be not maintainable because necessary parties were impleaded by subsequent amendment after the expiry of the period of limitation, when the application for pre-emption itself was made in time. Nekjan Bibi Vs. Sarojan Bibi (1967) 19 DLR 655.

 

S. 96(1)(2)(3)—Limitation of four months in sub-section (1)—Parties subsequently added—Effect.

Limitation of 4 months in sub-section (1) lays down the time within which pre-emption application must be made—Mere addition of parties without claiming any relief against them under sub-section (2) does not attract rule of sub-section (1) but if relief is claimed—question of limitation would be involved. Nekjan Bibi Vs. Sarojan Bibi (1967) 19 DLR 655.

 

Sec. 96(1) and 3(b)—Tahurul Karim made an application for pre-emption u/s. 96 on the ground of his holding land contiguous to the land transferred—while this application was pending in court, Abdul Hashim, a co-sharer of the land, filed an independent application u/S. 96(1) within 4 months of the date of transfer. Hashim’s application not covered by s. 96(3)(b).

“Since Abdul Hashim has an earlier and independent knowledge of the transfer,” he need not apply under sub-section (4); his application u/s. 96(1) competent. Tahurul Karim Vs. Abdul Hashem (1978) 30 DLR 8.

 

S. 96(1)(4)—Right of pre-emption can be exercised under sub-section (I) as well as under subsection (4) of s. 96 which thus provide a twofold period of limitation.

Section 96(1) provides for a period of limitation of 4 months from the date of service of notice under section 89 or within 4 months from the knowledge of the transfer in respect of a person who claims to be a co-sharer; for a person claiming pre-emption as a tenant holding land contiguous to the land transferred, the period of limitation is 4 months from the date of the knowledge of such transfer. Tahurul Karim Vs. Abdul Hashem (1978) 30 DLR 8.

 

—Sub-section (4) of section 96 provides that the remaining co-sharers including transferee may join in a pending application.

The two-fold remedy refers to the two different sources of the knowledge of the transfer and the consequently two different periods of limitation, otherwise the expression “whichever is earlier” becomes superfluous.

It is, therefore evident that this is an enabling provision and does not operate as a bar to an independent proceeding under section 96(1) of the Act. Tahurul Karim Vs. Abdul Hashem (1978) 30 DLR 8.

 

—When the original pre-emption application for pre-emption under section 96(1) fails on the ground of limitation the co-applicants’ prayer for pre-emption (according to their share) under section 96(4) though made in time, not sustainable.

The words, “when the application has been made under sub-section (1)” of section 96. If the first application for pre-emption by a co-sharer tenant is made after the expiration of the periods of limitation as stipulated in sub-section (1), it will not be a valid application within the meaning of the opening words of sub-section (4).

Therefore, it necessarily follows that a Co. applicant is entitled to pre-emption according to his share only when the first co—share petitioner has applied within the periods of limitation as prescribed in sub-section (1) of section 96.

Since in the present case the petitioner’s application for pre-emption was filed beyond the period  limitation as prescribed in sub-section (I) of section 96 it was not an application within the meaning of sub-section (4) of section 96; so, although the two co-applicants in the present case applied within the two months of the date of the service of notice of the application, they are not entitled to the benefit of proportionate pre-emption. Bijan Bala Chowdhury Vs. Maniruddin Biswas (1972) 24 DLR 170.

 

—The expression partial pe-emption is 10 be understood with reference to the definition of ‘holding ‘read with the provisions of section 96 of the Act and not with reference to the number of properties transferred by a particular deed.

If a particular holding comprises several plots. for example, belonging to two or more co-sharers, and if one of the co-sharers transfers his share in all the plots of the holding to a stranger-purchaser, the remaining co-sharer or co-sharers in that case, shall have to apply for pre-emption with respect to all the plots; otherwise, it will amount to partial preemption and such partial pre-emption cannot be allowed because a co-sharer cannot be allowed to pick and choose arbitrarily. Tamizuddin Vs. Guljan Bibi (1974) 26 DLR 95.

 

—Contiguous land owner applied for pre-empting one piece adjacent to it. Three separate plots of land were transferred by a deed of sale. A tenant holding land contiguous to the land transferred applied u/s. 96 for two out of three plots averring that these two plots are contiguous to his land. The court on evidence found that only one plot was contiguous L the applicant’s land and allowed pre-emption of the plot only. The High Court upheld this decision over-ruling the contention that this will lead to partial pre-emption. Sreemati Monkhushi Vs. Abdus Sobhan (1977) 29 DLR 195

 

—Pre-emption of a part or share of holding when its price is mentioned separately in the kabala— allowable. Diam Hossain Vs. Haran Das (1961) 13 DLR 283.

 

S. 96(1)(5)(b)—No contiguity with the land transferred, no pre-emptive right—Parties to be impleaded in cases arising out of contiguity. Akhtarun Nessa Vs. Habibullah (1979) 31 DLR (AD) 90.

—If the land forms a share of a holding the preemptor is required to apply for the share only. Determination of the claim of the pre-emptor in such a case would be only on the basis of the contiguity of land and not on the basis of holding or portion or share thereof.   Ibid.

 

—Pre-emption may not be refused on the analogy of non-joinder of all co-sharers in a partition suit. Ibid.

—Objection as to omission of necessary party if not taken will be treated as being waived by the party. Ibid.

—‘Contiguous’, means ‘touching’. If the Government is the owner of the contiguous land, contiguity in respect of land touching the Government’s land is broken. Ahmed Hossain Vs. Basharat Ali (1980) 32 DLR (AD) 55.

STATE ACQUISITION AND TENANCY ACT, 1950 [SECTION 96] - PART III

State Acquisition and Tenancy Act, 1950 [XXVIII of 1951]

 

Section 96(2)—

A co-sharer can be added before trial begins as party to a pre-emption proceeding under section 96(2) even alter the period of limitation for filing an application for pre-emption has expired—In a proper case such a prayer can however be refused.

Abdul Barek vs Yarunnessa 37 DLR 151.

 

Section 96(2)—

Order I, rule 9 of the Code of Civil Procedure is applicable in case of non-­joinder of necessary parties in the application for pre-emption in view of section 141 of the Code of Civil Procedure. Section 96(2) of the said Act creates obligation on the part of the pre-emptor to make co-sharer tenants in the disputed holding as parties to the pre-emption application.

Abdus Satter and others vs. Abdun Noor 49 DLR 414.

 

Section 96(2)—

Omission to make a party if bonafide, should not be refused on the ground of delay, for the sake of proper and complete adjudication.

Hasina Khatoon and another vs. Md Samsur Rahman and others 49 DLR 187.

 

Section 96(3)(a)—

In a pre-emption case when the statutory deposit of money was already received by the pre-emptee  upon a compromise that the case will not be contested, the pre-emptor  when circumstanced to take a second proceeding for pre-emption of the self—same land, need not deposit consideration money again.

Ishaque Ali (Md) vs. Danesh Ali and others 49 DLR 294.

 

Section 96(3)(a)—

While deciding the application for preemption, the Court cannot go behind the intentions of the parties in executing the deed of the transfer. Furthermore, any evidence to vary the terms of such deed is also barred under the provisions of section 91 of the Evidence Act.

Sazeda Khatun vs Asad Ali and others 53 DLR 563.

 

Section 96(3)(a)—

Under this provision the Court has no jurisdiction to ignore the amount as consideration for the transfer for all purposes including that of the valuation of the proceeding for its pecuniary jurisdiction. The proceeding under section 96 of the Act is essentially summary in nature.

Sazeda Khatun vs Asad Ali and others 54 DLR 285.

 

Section 96(3)(a)(b)—

Whatever may be the actual payment of consideration, the parties are bound by the recital of the kabala in question and if the consideration written in the kabala is deposited along with the statutory compensation such deposit cannot be considered to be insufficient or inadequate.

Aumullaya Chandra Haldar vs Md Mohsin Ali Mandal 54 DLR 500.

 

Section 96(3)(b)—

The learned Counsel appearing for the appellants canvassed that it was statutory obligation on the part of the pre-emptor  to deposit the balance consideration within the period and since he failed to do so the prayer was illegally granted. This point has no substance.

By opposing respondent's prayer for deposit of the balance consideration the appellants were trying to achieve something indirectly namely, frustrating the very pre-emption proceeding—The payer was rightly granted—High Court Division was correct in taking the view.

Serina Begum vs Mafizul Islam 42 DLR (AD) 77.

 

Sections 96(3)(b) & 7(b)—

The trial Court's order rejecting application praying for improvement expenses for the land sought to be pre—empted is contrary to the provisions of section 96(3)(b) & 7(b).

Monabbar Hossain vs Joynal Abedin 46 DLR 377.

 

Section 96( 4)—

Transferee—co-sharer—His right to purchase when lost— The pre-emptee  tried to resist the claim of the pre-emptor  but did not join in the application for pre-emption. Such pre-emptee cannot be granted relief in the name of even—handed justice on the ground that the parties being co—sharers by purchase stood on equal footing.

Golchera Khatun vs Sayera Khatoon 45 DLR (AD) 133.

 

Sections 96( 4) & 6(b )—

The applicant, a co-­sharer by inheritance, steps into the shoes of the pre-emptor  and both the provision of sections 96(4) and 6(b) of the Act are applicable in his case—It would not be an illegality to order him to deposit the consideration money together with the compensation prior to the determination of the issues as to limitation and co-sharership.

Chan Miah (Md) vs Md Dabirul Islam Khan 106.

 

Section 96(6)(b)—

Under section 96(6)(b) of the State Acquisition and Tenancy Act it is the duty of the Court while allowing an application of a co—applicant for proportionate pre-emption to determine the amount to be paid by the co-­applicant within reasonable time and the co-­applicant is not required to deposit the amount suo motu on his application.

The right of a co—applicant to proportionate pre-emption is lost by dismissal of the original pre-emption case but on restoration of the same at the instance of the original applicant the right of the co—applicant is restored although the restoration of the original case was not at his instance inasmuch as the case is restored in its entirety with all its legal consequence.

Himanshu Bikash Singha vs Maulavi Serajul Islam 40 DLR 246.

 

Sections 96(9)(C) & 151—

Application of section 5 of the Limitation Act in a proceeding under section 96 of the State Acquisition and Tenancy Act has not been barred where residuary Article 181 of Limitation Act has been made applicable. The Court may in his discretion condone the delay in preferring an application under section 96(9)( c) of the State Acquisition and Tenancy Act provided the condition of section 5 of the Limitation Act is fulfilled.

Shamser Ali vs. Toimus Ali 49 DLR 488.

 

Section 96(10)—

When a transfer is made as in the present case by way of heba-bil-ewaz and the transferees are not within three degrees of consanguinity the pre-emption is to be allowed.

Solaiman Ali Sheikh (Md) and others vs Abu Bakar Siddique Sheikh and others 49 DLR 477

 

Section 96(10)—

A transfer by bequest or gift or by exchange is excluded from the clutch of pre­emption.

Hafiz Ahmed vs Ahmedur Rahman and others 48 DLR 170.

 

Section 96(10)(b)—

When the nature of transaction becomes doubtful on the specific allegation made by the pre-emptor  then the matter is required to be tested by adducing evidence in order to ascertain the nature of transaction and to decide the case properly.

Alfazuddin Mollah and others vs Md Almas Chokder and anr 179.

 

Section 96(10)(c)—

Pre-emption— Relations by consanguinity—the donor's daughter's sons are not relations by consanguinity within three degrees of the donor. They cannot, therefore, get the protection of clause (c) of sub—section (10) of section 96 of the State Acquisition & Tenancy Act. The Courts below committed error of law in their decisions occasioning failure of justice in holding otherwise.

Mr. Amanullah vs Mohammad Sharif 44 DLR 228.

 

Section 96(10)(c)—

A cousin sister's son is within three degrees of consanguinity from the donor.

Shamsul Islam and others vs Badiar Zaman alias Bablu and another 48 DLR (AD) 88.

 

Section 96(10)(c)—

This provision restricts the right of pre-emption by providing that when a portion or share of a holding is transferred by gift by the husband to the wife and vice versa or ifthe donee is a relation of the donor by consanguinity within three degrees, it has not been designed to help the donor or donee to curtail the right of pre­emption of a co-sharer of a holding where his right of pre-emption has already arisen prior to such gift.

Tayeb (Md) vs. Haji Najir Ahmed and others 49 DLR 253.

 

Section 96(10)(c)—

A transaction by way of Hiba-bil-Ewaz without pecuniary consideration is covered by the exception mentioned under section 96(10)(c) and the land covered by such deed of Hiba-bil-Ewaz is not pre-emptible. But such land would otherwise be pre-emptible if the donee is not a relation of the donor within three degrees by consanguinity.

Golam Mustafa and others vs Kazem Ali Khan @ Kazal Khan and others 50 DLR 544.

 

Section 96(10)(c)—

Heba-bil-Ewaz is valid and complete even without delivery of possession.

Golam Mustafa and others vs Kazem Ali Khan @ Kazal Khan and others 50 DLR 544.

 

Section 96(10)(c)—

Since the deed of Hiba­-bil-Ewaj was validly made it was not liable to be cancelled by donor by the deed of cancellation unilaterally except by filing a proper suit in this behalf.

Golam Mustafa and others vs Kazem Ali Khan @Kazal Khan and others 50 DLR 544.

 

---Md Younus Talukder, the defendant No. 2, has got his name mutated and his Jama was separated in respect of 12 decimals of land (the suit land), that falls into a separate Jama. As such, the 12 decimals of the suit property has ceased to be the part and parcel of the common Jama of Plot No. 403 of Mouza Mozafforpur and, admittedly, Md Younus Talukder was neither father, nor the predecessor of the plaintiff. So, the plaintiff has ceased to be a co-sharer in the suit property, sold by his father to Md Younus Talukder by registered deed 1227 dated 3-4-1994 and the suit property has, thereafter, become a property under separate Jama and khatian. As such, the plaintiffs had no locus-standi to file the Title Suit No.77 of 2011, seeking pre-emption in respect of the suit plot. 73 DLR (2021) 295

STATE ACQUISITION AND TENANCY ACT, 1951 [SECTION 96] - PART II

Citation: (1974) 26 DLR 93, (1977) 29 DLR 178, (1966) 18 DLR 480, (1979) 31 DLR 230, (1979) 31 DLR (AD) 118, (1980) 32 DLR (AD) 183, (1980) 32 DLR (AD) 231, (1981) 33 DLR 254, (1981) 33 DLR 168, (1981) 33 DLR 318, (1981) 33 DLR (AD) 269, (1981)33 DLR (AD) 269,

Subject: State Acquisition and Tenancy

Delivery Date: 1970-01-01

 

 

State Acquisition and Tenancy Act, 1951

 

—Partial pre-emption—Elucidated.

The expression ‘partial pre-emption’ is to be understood with reference to the definition of holding read with the provisions of section 96 of the Act and not with reference to the number of properties transferred by a particular deed.

If a particular holding comprises several plots, for example, belonging to two or more co-sharers, and if one of the co-sharers transfers his share in all the plots of the holding to a stranger-purchaser, the remaining co-sharer or co-sharers, in that case, shall have to apply for pre-emption with respect to all the plots; otherwise it will amount to partial preemption and such partial pre-emption cannot be allowed because a co-sharer cannot be allowed to pick and choose arbitrarily according to his own convenience in pre-empting the lands of the same holding.

Clause (c) of sub-section (10) of section 96 of the Act stands as a bar to the petitioner’s prayer for pre-emption with respect to the lands of schedule 4. But that cannot render the petitioner’s application as one for partial pre-emption in respect of the lands of the schedules which are quite distinct and separate holding.

Tamizuddin Ahmed Vs. Guljan Bibi (1974) 26 DLR 93.

 

—Transfer before Part V becomes operative will be governed by the BT Act even though the application made after Part V came into force.

Habibar Rahman Vs. Satish Chandra (1977) 29 DLR 178.

—Read with Ss. 3 and 44(4)—Korfa interest has ceased to exist from the date of acquisition of the rent-receiving interest under section 3 of Act XX VIII of 1951—They (korfa tenants) having become ralyats the provisions of pre-emption by a co-sharer tenant available to them.

Priya BaIa Devi Vs. Fazar Ali and others (1966) 18 DLR 480.

 

—Application for pre-emption was filed in court after the kabala in respect of the land sought to be pre-empted was executed, but before it was duly registered in accordance with s.61 of the Registration Act. The question arose whether in view of the fact that the registration of the kabala took place alter the date of the filing of pre-emption application it can be maintained as a proper application under s. 96 of SA and T Act.

Held: Though in the present case pre-emption application was filed earlier than the registration of the kabala, yet in view of the fact that the document was duly registered under s.60 of the Registration Act, the application may be treated as maintainable because the defect of non-registration was cured when the application was pending in the Court.

Altab Mia Vs. Wahab Ali (1979) 31 DLR 230.

 

—Pre-emption application was filed in Court 3 days before the deed of sale in question was registered—Defect gels cured as soon as the document was registered while the pre-emption application was pending before the Court.

Abdur Rahinan Vs. Makus Ali (1979) 31 DLR (AD) 118.

 

—There being no word of limitation as to the nature of transfer in section 96 of the Act any transfer, which is a transfer in the eye of law, subject to the restrictions laid down in the section, is pre-emptible.

Badsha Mia Bepari Vs. Abul Bashar (1980) 32 DLR (AD) 183.

 

—Sale in pursuance of a decree for specific performance of contract is pre-emptible. Ibid.

—Sale in pursuance of a decree for specific performance of contract is pre-emptible—Provisions embodied in section 26F of BT Act and those in section 96, State Acquisition Act, similar in nature.

In this regard the decision of Chandra Kumar Maladas v. Abdul Motaleb 19 DLR (SC) 36 may be cited where an auction-sale was assumed without contest to be pre-emptible under section 26F of the Bengal Tenancy Act. The language of section 96 of the State Acquisition and Tenancy Act is substantially the same as that of section 26F of the Bengal Tenancy Act and so the cited decision gives ample authority for holding that a sale in pursuance of a decree for specific performance of contract is preemptible.   Ibid.

 

—It is true that the earlier decisions are with regard to section 26F of the Bengal Tenancy Act but the material provisions of section 26F of the Bengal Tenancy Act and those of section 96 of the State Acquisition and Tenancy Act arc substantially the same. The interpretation given earlier does not militate with the language of section 96 of the Act and so is applicable to the section as well.

Belayet Hossain Vs. Md. Abu Taher (1980) 32 DLR (AD) 231

 

—Subject of pre-emption must be strictly construed as it operates as a clog on a citizen’s right to deal with his property in tile ways he likes.

Ahmed Hossain Vs. Basharat Ali (1980) 32 DLR (AD) 55.

 

—Right of pre-emption accrues with effect from the date of the registration of the deed.

Ashutosh Mali & ors. Vs. Shemsunnahar & ors. (1981) 33 DLR 254

 

—An order passed in a pre-emption suit conclusively determines the rights of the parties and as such has the effect of a decree—So provisions under Order 23, r. 3 regarding a compromise arrived at between the parties concerned arc applicable in a case of pre-emption u/s 96 of the SAT Act.

The proceeding under section 96 of the East Bengal State Acquisition and “tenancy Act is in the nature of a suit. The right, title and interest of the transferee vest in the petitioner, if is successful, and as such the order passed in a pre-emption proceeding conclusively determines the rights of the parties with regard to the land in dispute and as such this is an original proceeding and the determination of the right of parties are conclusive, whether it is called a decree or an order and the effect is the same. Therefore the provisions of Order 23, rule 3 of the Civil Procedure Code would apply in a proceeding under section 96 of the East Bengal State Acquisition and Tenancy Act whether it is in the trial Court or in the appellate Court.

Serajul Mostafa Vs. Ali Ahmed Sikdar & ors. (1981) 33 DLR 168.

 

—A person seeking pre-emption u/s. 96(1), if fails to state in his application what is required of u/s. 90, his application must fail.

Md. Rais Ali Vs. Imam Hussain (1981) 33 DLR 318.

 

—The manner of impleading of parties in a partition suit is governed by Order I, rule 10, CP Code while that of implcading of parties in a pre-emption case under SAT Act is governed by section 96(2) of this Act—When impleading of parties in a preemption proceeding not necessary.

Md. Abdul Jalil Vs. Durjan Ali alias Siddique Hossain (1981) 33 DLR (AD) 269.

 

—The distinctive features of Motilal’s case 28 DLR (1976) page 5, vis-à-vis the instant case, has been pointed Out in para 12.

The observation of the High Court Division relying on Motilal’s case shows that it was for the pre-cinptcc to lead evidence to the effect that the left out co-sharers still got interest in the land sought to be pre-empted.

The facts of the instant case are not attracted by the decision in Motilal’s case: on the contrary, these facts are attracted by the decision in the case of Abdus Samad Vs. Sohrab Ali (1981) 33 DLR (AD) 113 in which it has been held that non-joiner of parties who got right of pre-emption is fatal to the proceeding.

Md. Abdul Jalil Vs. Durjan Ali alias Siddique Hossain (1981)33 DLR (AD) 269.

 

—Prior to allowing a pre-emption application. Court not obliged to record a finding that the applicant is a cultivator and land in his possession does not exceed the prescribed limit if the application is allowed as required u/s.90.

Chandu Mia Mestry Vs. KM Wajih Ullah (1981) 33 DLR 134.

 

—Omission to state that the petitioner is a bonafide cultivator, but the statement that he is in possession of the land through bargadar is enough. Ibid.

 

—No appeal lies under the State Acquisition and Tenancy Act against an order dismissing an application under Order 9, rule 13 CPC for restoring a proceeding under section 96 of the said Act decreed ex-parte.

Haji Karimdad Vs. Insaf Meah (1981) 33 DLR 435.

 

—High Court entitled, on going through the record of the case, to come to a finding that the petitioner is a bonafide cultivator.

Chandu Mia Mestry Vs. AKM Wajih Ullah (1981) 33 DLR 135.

 

—Order made u/s 96 is an order within the meaning of it as given in s. 2(14) CP Code.

The definition of an order given in the Civil Procedure Code fully applies in the case of an order passed by a civil court in a proceeding under section 96 of the State Acquisition and Tenancy Act.

Abdul Hamid. Vs. Abdul Jayar (1981) 33 DLR 341.

 

S. 96 read with S. 144 CPC

An order passed by a civil court in a proceeding u/s. 96 of SAT Act being not a decree in a suit, no application for restitution of property u/s. 144 CP Code will be allowed.   Ibid.

 

S. 96—Right of pre-emption not dependent on the initiation of a proceeding by a co-sharer tenant or owner of the contiguous land.

Abdus Samad Vs. Md. Sohrab Ali (1981) 33 DLR (AD) 113. (28 DLR (AD) 5, overruled by this decision.

 

—Pre-emption right accrues on transfer of the land—All the necessary parties to the pre-emption application must be impleadcd. Ibid.

—Ingredients of s.24 of Act XXIII of 49 and those of sec.96 of Act. XXVIII of 1951 are different— Provisions of sec. 24 of Act XXIII of 1949 attracted in case of a land in a municipal area.

Md. Abdur Rouf Vs. Ahmuda Khatun (1981) 33 DLR (AD) 323.

 

—Partial pre-emption not allowed where a Co. sharer tenant claims pre-emption-—Contiguous landholder may pre-empt only that part which is contiguous to his land.

Haji Tajamal Ali Vs. Abdus Sattar (1982)34 DLR (AD) 217.

—Several plots transferred—These several plots however make one compact block of land— Claimant can pre-empt entire block. Ibid.

—Policy behind allowing pre-emotion to Contiguous land-holder—Entire land constituting one compact block (though in khatian they are recorded as several plots of land) can be pre-empted on the basis of contiguity u/s. 96. Ibid.

 

—When the pre-emption case was filed, the kabala was not registered—It was however registered when the case came up in appeal at the appellate stage. But as at that stage kabala was registered the defect about the document not being registered was cured—Case remanded to the Lower Court for disposal.

Lebu Miah Vs. Ganesh Chandra Nath (1982)34 DLR (AD) 220.

 

—When plots are several in numbers, but themselves constitute one compact block, the entire compact block is to be treated as contiguous to the land of the person claiming pre-emption.

Haji Tajamal Ali Vs. Abdus Sattar (1982) 34 DLR (AD) 217.

 

—If the registration of the sale-deed takes place when a revision arising out of the pre-emption case was pending in the High Court Division the application should not be rejected even though on the date where it was filed in the original court the application was premature, since during the pendency of the case before the High Court Division document was duly registered.

Jatindra Chandra Urang Vs. Md. Shamsuddin (1982)34 DLR 264.

 

—A Hindu widow having only a life-interest has inalienable right to pre-empt any land to which she is a co-sharer—Reversioner right will not be affected as after widow’s death the land shall revert to him.

Rai Kishori Saha Vs. Basat Ali Sardar (1982) 34 DLR 181.

 

—Pre-emption application maintainable if the kabala (though not registered when the pre-emption application was filed) is registered when the preemption proceeding is pending in court.

Tofazzal Hossain Vs. Md. Yunus Au Biswas (1982) 34 DLR 402.

 

—A decree in a partition suit does not result in splitting up the land which can be done u/s. 117 of the SAT Act (=s. 88 of the BT Act). Therefore right of pre-emption not extinguished by partition decree.

SM Basiruddin Vs. Zahurul Islam Choudhury (1983) 35 DLR (AD) 230.

 

—Question of benami transaction can not be decided in proceedings u/S. 96.

Respondent I claimed pre-emption of the transferred land sold under a kabala on the ground that respondent 2(the vendor) sold the land to A (a stranger) without serving notice upon him (i.e. respondent I) though he was a co-sharer in the holding by inheritance. A’s case was that there was really no transfer as it was he (i.e. A) who purchased the land from respondent 6 in October 1970 in the benami, respondent 2 of his nephew.

Held: In a proceeding for pre-emption under section 96 of the State Acquisition and Tenancy Act, the Court is not required to entertain the question whether the vendor was benamdar of the person seeking pre-emption.

Ashwini Kumar Karmaker & others Vs. Hari Mohan Shil & others (1983) 35 DLR (AD) 334.

 

—Father got the land (subject matter of preemption) from one of the original owners by purchase—Sons by devolution get the same on father’s death—Sons are co-sharers with the original owners by inheritance.

Abdul Haque Miah Vs. Abdul Rashid (1983)35 DLR (AD) 54.

 

—Partition simpliciter does not split up the land.

Partition on the land amongst co-sharers on the basis of civil Court decree—does not bring about the division of the tenancy having the same jama.

S. M. Basiruddin Vs. Zahurul Islam Chowdhury (1983)35 DLR (AD) 230.

 

—The view taken by Rahman, J. in (1960) 12 DLR 849 that when a transfer is made on condition for reconveyance, the right of pre-emption is subject to this condition for reconveyance is found to be correct being in accord with section 40 of the Transfer of Property Act as well as with reason.

Shafi Khan Vs. Mannujan Hussain and others (1983) 35 DLR (AD) 225.

 

—Pre-emption right—Decree in a collusive decree conveying the land back to the vendor—No automatic right of pre-emption.   Ibid.

—Period of ignorance as to the sale of a land sought to be pre-empted—Plea of such ignorance can not extend to 12 years when the pre-emptee had been cultivating the land within the sight of the preemptor for over a decade.

Anil Kumar Vs. Syed hafiz Moinuddin (1983) 35 DLR 39.

 

—Objection as to non-joinder of a party not taken at the earliest stage—deemed to have been waived—Disclosure of some names not impleaded as party in application u/s. 96 will not render the application bad for defect of parties.

Shahidur Rahman Mollah Vs. Abdul Halim Molla (1983) 35 DLR 79.

 

—If the land sought to be pre-empted has already gone back to the original vendor, no right of pre-emption can be claimed.

Ramesh Chandra Barman Vs. Naresh Chandra Barman (1983) 35.

 

—Subsequent transferee takes the transfer subject to the right available against the original transfer whether the transfer was made before or after the application for pre-emption.

Hajera Bibi Vs. Noor Jahan Begum (1983)35 DLR 238.

 

—Vendor transfers the land to N on 28.3.74. N retransfers the same to the vendor on 3 1.3.74. Co sharer of the vendor claims the land by pre-emption u/S. 24 of the Non-Agricultural Tenancy Act on 1.11.74 (i.e. after the land had gone back to the vendor) claiming that he acquired a right of pre-emption as soon as the original sale took place on 28.3.74 and further the subsequent sale to the vendor is fraudulent just to deprive the co-sharer of his right of pre-emption.

A co-sharer applicant for pre-emption may add a subsequent transferee from the original transferee who may be substituted for the original transferee and such subsequent transferee entitled only to the amount deposited in favour of the original transferee.

Hajera Bibi Vs. Noor Jahan Begum (1983) 35 DLR 238.

 

—Error on the face of record—Failure of the appellate Court to give decision on limitation is an error of law apparent on the face of the record which calls for an interference. Ibid.

—When no notice is served on the co-sharer, onus of proving date of transfer does not lie on the co-sharer—If however evidence on the issue is led by both the parties the court may come to its conclusion on the basis of evidence led. Ibid.

 

—Different sahams which were allotted to different co-sharers appertain to one holding—In the revenue records of the Government it is also not shown that the holding has been splitted up—In case of transfer by one co-sharer of his share of the land—in such case a pre-emption case will lay. Abdus Salam Vs. Md. Ustar and another (1983) 35 DLR65.

 

Held: With the conveyance of the land by N to the vendor on 31.10.71, it must be held there was no transfer of land which could be a subject-matter of pre-emption. Shafi Khan Vs. Mannujan Hussain and other (1983) 35 DLR (AD) 225.

 

—Right of pre-emption. when cannot aid when can be defeated. The real question is whether by virtue of retransfer the vendor actual got back the land. If it is so pre-emption right not arise—If the transaction is a colorable on. a mere paper transaction, then there has been no real re-transfer and pre-emption right will prevail. Ibid.

 

—Right to pre-emption as a contiguous owner not having been raised in the original application u/ s. 96 can not be allowed to do so by subsequently amending the application to include a claim to that effect. Al-haj Moulvi Idris Miah Vs. Sree Shushil Ranjan Dutta (1984) 36 DLR 206.

 

—The question of benami cannot be gone into in a summary proceeding under section 96 of the State Acquisition and Tenancy Act. The facts of the case of 6 DLR 589 and 51 CWN 644 are altogether different from that of the instant case. S Joga Maya Debi Vs SDD Singh Hazari (1984) 36 DLR 272.

 

—Claim for rateable pre-emption by the transferee can be made even in his written Statement which he files in traversing pre-emption application u/s. 96, SA & T Act. Md. Reazul Karim Vs. Mst. Shirin Begurn (1984) 36 DLR 250.

 

—Pre-emption: Question of benami nature not to be agitated in pre-emption proceeding

But if in fact no transfer of the land took place and the alleged vendor continuing to be in possession, such a question can be gone into. Ashwini Kumar Karmaker Vs. Hafizur Rahman Munshi (1984) 36 DLR (AD) 1.

 

—S. 96 read with Or. 9, r 13, Civil Procedure Code.

No appeal lies against an order dismissing an application made under Or. 9, r. 13 CP Code for restoring a proceeding under section 96, State Acquisition & Tenancy Act, disposed of ex-parte.

The State Acquisition and Tenancy Act does not provide for any appeal from such an order i. e. an expane order passed in an application u/s. 96 of the Slate Acquisition & Tenancy Act. Belayet Hossain Vs. Md. Abu Taher (1980) 32 DLR (AD) 231.

The State Acquisition and Tenancy Act does not provide for any appeal from such an order i. e. an ex-parte order passed in an application u/s. 96 of the Stale Acquisition & Tenancy Act.   Ibid.

Order VII Rule ll(d) Instant pre-emption case instituted by the pre-emptor dated on 10.6.2007 and claimed the case land as co-sharer by purchase, -Held; The instant case is under the new provisions of law of State Acquisition and Tenancy (Amendment) Act, 2006 which is barred by law since the pre-emptor is co-sharer by purchase not by inheritance. No application under Section 96(i)(a) shall lie unless the applicant is a co-sharer tenant in the holding by inheritance. Md. Rafiqul Islam Vs. Md. Nasir Uddin & Ors 21 BLT (HCD) 152.

The Non-Agricultural Tenancy Act, 1949

(Act No. XXHI of 1949)

Section 24 and Section 85(2)— Right of pre-emption- Whether available in respect of land held by tenant under Government for 99 years lease. The State Acquisition and Tenancy Act, 1950— Section 81A(2)—

The land held by tenant under 99 years lease under the Government, is not subject to pre-emption as contemplated under section 85(2) of the Non-Agricultural Tenancy Act, 1949. Therefore the lands of the Dhanmondi Residential area are not subject to pre-emption. Mosaddeque Hossain (Md.) Vs. Dr. Esmat Mirza and others. 3, MLR (1998) (AD) 145.

Section 24- Right of pre-emption of cosharer of land-After partition—

Right of pre-emption under section 24 of the Non-Agricultural Tenancy Act, 1949  is available to the co-sharer of the land while such right unde'r section 96 of the State Acquisition and Tenancy Act, 1950   is  available  to   cosharer  of the tenancy. After the final decree in partition suit finally determining the right of the cosharers in the land, the right of preemption under section 24 of the Non-Agricultural Tenancy Act is not available to the cosharer. The plea of execution of the final decree is immaterial. Shaji uddin Chowdhury (Md.) VS. Md. Abdul Karim and others. 5 MLR (2000) (AD) 19.

Section 24— Application of Pre-emption— Conversion into one under section 96 of SAT Act, 1950—

A party cannot suffer for the mistake of his lawyer. Regard being had to the intent and purpose of both section 24 of the Non-Agricultural Tenancy Act and section 96 of the State Acquisition and Tenancy Act preventing intrusion of strangers to the joint property, conversion of application under section 24 of the Non-Agricultural Tenancy Act into one under section 96 of the State Acquisition and Tenancy Act, 1950 together with the deposit of balance compensation after the amendment is allowed by the court are held to be valid and the application is held not barred by limitation. When transferee of a cosharer is made party, the transferor co-sharer having no subsisting interest in the tenancy is not a necessary party. Abdus Sobhan Sheikh Vs. Kazt Moidana Jahedullah & others. 5 MLR (2000) (HC) 140.

Section 24— Right of preemption— Partial pre-emption not permissible—

The provisions of pre-emption in section 24 of the Non-Agricultural Tenancy Act, 1949 shall not apply to transfer to a cosharer in the tenancy whose existing interest has accrued otherwise than by purchase. Partial pre-emption is not permissible under section 24 of the non-Agricultural Tenancy Act, 1949. Transfer of portion or share of non-agricultural land to a stranger opens right of pre-emption to the cosharer. But no such right is available where land is transferred to a cosharer in the tenancy. S.M. Bashiruddin Vs. Zahurul Islam Chowdhury and another. (1983) 35 DLR (AD) 230.

Section 24— Has no application to a case of agricultural land out side Municipal area—

Section 24 of the Non-Agricultural Tenancy Act, 1949 provides for filing application for pre-emption in respect of non-agricultural land within a Municipal area and this section has no application to a case of agricultural land situated out side the municipal area. Abdul Mqjid Vs. Satya Bhola Nath. 39 DLR 233.

No right of preemption to contiguous owner under section 24—

Contiguous owner cannot claim pre­emption under section 24 of the Non-Agricultural Tenancy Act, 1949. Abdul Majid Vs. Satya Bhoia Nath. 39 DLR 233.

Pre-emptor gets the land by arrangement.

If a pre-emptor succeeds in having the property transferred to himself from the purchaser by private arrangements instead of bringing a suit, it would not be right to say that he has not exercised his right of pre-emption. Mehr Baksh Vs. Mala Dad (1951) 3 DLR 224.

In the absence of a proof that physical possession of a property was taken by the vendee on the date of the execution of the deed, the period of one year under Article 10 of the Limitation Act, within which the pre—emptor is entitled to exercise his right of pre—emption must be taken to have commenced from the date on which the deed in favour of the purchaser was registered.   Ibid.

Pre-emption—covenant for

A covenant for pre-emption or a covenant giving an option of repurchase, if entered into after the coming into force of the Transfer of Property Act, does not create any interest in the land itself and the covenant is merely a personal covenant, binding the parties to the contract, and such covenants can only be enforced by a Suit for specific performances under section 27 of the Specific Relief Act. Such covenant could be enforced against a transferee only if such transfer was gratuitous transfer with notice. Nagendra Chandra Vs. Parameswar Roy, (1957) 9DLR 476.

Partial pre-emption—Co-sharers pre-empting of land and claiming rest in their own right—Suit incompetent. 1957(1) PLR WP (311.)

State Acquisition and Tenancy Act (28 of 1951) Section 96

Section 96 of the Act, the right of pre- emption of the co-shares re-enacted through the new legislation called the State Acquisition and Tenancy (Amendment) Act, 2006 (Act XXXIV of 2006); provision of section 24 of the Non-Agricultural Tenancy Act, 1949 (Act XIII of 1948) attracted in case of a land in a Area...(10) [73 DLR 395]

State Acquisition & Tenancy Act (28 of 1951) 

Section 96

Since the vendor and the pre-emptor are Muslims and one of the purchaser-pre-emptee is Hindu wants to invoke his pre-emption right, he can easily invoke the right of pre-emption under the provision of statutory law and not under Muhammadan Law. The right of pre- emption could not be enforced by a Muhammadan against a Hindu vendee. The pre-emptor invoked the right of pre-emption under the Muhammadan Law, same is clearly barred by law. The suit is barred by law. [73 DLR 395]

State Acquisition and Tenancy Act (28 of 1951) Section 96

The contents of the deed will get priority until and unless it is rebutted by sufficient convincing credible evidence, with that of the oral evidence adduced from the sides of the parties. It is the incumbent duty upon the pre- emptor to prove by sufficient tangible, credible evidence that the deed-in-question is out and out a sale deed, in disguise of a deed of exchange. [73 DLR 407]

Sale of leasehold interest in the land does not give rise to the right of preemption as held by the Supreme Court in Munni Lal v. Bishwanath Prasad (AIR 1968 SC 450).

The pre-emptee petitioner presuming that the respondent No. I was going to file a preemption case against the above kabala dated 5.2.1982 got an area of 2.48 acres of land transferred in their favour from Malekun by a deed of heba- bil-ewaz dated 20.3.1982 and so the said deed dated 20.3.1982 is a colourable transaction for defeating preemption. Haji Ebad Ali Akanda vs. Haji Basiruddin Akanda (Md. Tafazzul Islam J) (Civil) 4ADC 790

The Pre-emption was allowed

The pre-emptor forcibly took possession of the suit land alleging that the land was vacant and they entered into posses- sion. The pre-emptor without any order from the court took possession of the suit land by dispossessing the appellant while the appeal was pending. Furthermore, the appellant prayed for stay of operation of the impugned judg- ment and order and considering these facts the High Court Division made the rule absolute and directed the pre-emp- tor to hand over possession to the pre- emptee within 15 days failing which the trial court was directed to restore pos- session of the pre-emptee. Jamuna Knitting vs Messers Yunusco (M. A. Aziz. J) (Civil) 3ADC 632