State Acquisition and Tenancy Act, 1950 | Case Reference

STATE ACQUISITION AND TENANCY ACT, 1950

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

Section 2A

Interest of any 'local authority' is exempt from acquisition under the SAT Act. The Municipality is a local authority. Narendar Nath vs Municipal Committee 39 DLR (AD) 16.

Sections 2(12) & 20(2a)—

"Hat" or "Bazar" definition of—A hat or bazar sitting once in a week is not uncommon in this country. If a hat sits once a week regularly then it will come under mischief of the SAT Act. The expression "particular days" in the definition of 'hat or bazar' if read together with necessary emphasis that the word 'particular' deserves, then it will be clear that the word 'days' will also include a day as well in view of the provision of the General Clauses Act and the history of relevant legislation. Bangladesh vs Shakhipur lslamia High School 45 DLR (AD) 23.

Section 2(3)

When the writ petitioners challenged the original order of appeal passed by the Member, Land Appeal. Board and the writ-petition was maintainable against the said order, the order of review is not at all necessary to be chal- lenged. Because, if the main order is to be declared illegal and without lawful authority, then order passed on review is Non-est in the eye of law. ......(24)

Azizul Hague Sarker vs. Md. Wazed Ali (M. Enayetur Rahim J) (Civil) 20 ADC 568

Section—2(13), 96(1)

After State Acquisition and Tenancy Act came in 1950 the owners and possessors of all kinds of lands have become direct tenants under the Government. The pre-emptor is being a co-sharer and the purchaser being stranger, case land being part of a holding that is portion of a compact land, although there is no khatian number or plot number of the transferred land, it constitutes part of an agricultural holding according to section 96(1) and section 2(13) of the State Acquisition and Tenancy Act and as such the pre-emption in the instant case is to be allowed. Abdul Jabbar and others Vs Mohammad Sekandar and others, 19 BLD (HCD) 83.

Section 2(2)

The defendant No.2 Additional Deputy Commissioner (Revenue), Manikganj contested the suit by filing written statement. His material defence case was that after the State Acquisition and Tenancy Act, 1951 this land has been vested upon the Government under section 2(2) of the Hats and Bazars Or- dinance and accordingly the suit land measuring 1 decimal has been recorded in the name of the Government, that the suit land is within the periphery of Dharla Hat. That the plaintiff was aware of the R.S. khatain but took no step for correction of that record. That as the suit land is within periphery of Dharla Hat the plaintiff is not entitled to any relief in this suit. Government of Bangladesh vs. Md. Altab Hossain Khan (Nazmun Ara Sultana J) (Civil) 9 ADC  683

Mr. Mahbubey Alam, the learned Counsel for the petitioner has mainly argued to the effect that the lower ap- pellate court and the High Court Divi- sion have committed great error in not considering at all the fact that Abdul Latif was a ejaradar for a limited pe- riod under the Chittagong Zilla Parishad, that though the relevant kha- tian-the exhibit-1 and the exhibit-A clearly showed that Nabid Ali was a mere "dakhalkar" under Abdul Latif and Abdul Latif was a ejaradar under Chittagong Zilla Parishad for a period of 5 years only but both the High Court Division and the lower appellate court have failed to take into consideration these documentary evidence at all and also to comprehend the same and thus have failed to come to a right decision. Drawing our attention to exhibit-A the learned Counsel for the petitioner has argued that this exhibit-A proves clearly that Chittagong District Board was the owner of the suit land and under this landlord Abdul Latif was a mere ejaradar for a period of five years only from 1926-1931 and in the cir cumstances Abdul Latif had no right to settle the suit land to Nabid Ali. Chit- tagong Zilla Parishad vs. Nurul Haque (Nazmun Ara Sultana J) (Civil) 9 ADC760

Section 2—

Land in the periphery cannot be deemed to be 'in the hat or bazaar' within the meaning of section 20 of the State Acquisition and Tenancy Act, 1950.. Such land was therefore never intended by the legislature to vest in the Government. Hasna Banu vs Bangladesh and others 56 DLR 344

Sections 2(13)—

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 transaction­ wise. 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.

 

Sections 2(13) & 96(1)—

The pre-emptor being a co-sharer and the purchaser being a stranger, case—land being part of a compact land, although there is no khatian number or plot number of the transferred land, it constitutes a part of an agriculture holding, so pre-emption is to be allowed.

Abdul Jabber and others vs Mohammad Sekander and others 51 DLR 62.

 

Section 3—

If there is no service for acquisition under section 3 the presumption is, there has been no acquisition under the State Acquisition & Tenancy Act. Narendar Nath vs Municipal Committee 39 DLR (AD) 16.

 

Section 3, 43(2), 44, 87 

The plaintiff did also not raise question of law mixed with fact before the appel- late court and the question so raised could only be adjudicated upon taking fresh evidence. The law is settled now that an order of remand is not well founded in law if the same is premium for the laches and negligence of one of the parties to the suit or to enable a party to fill up a lacuna in his case which inspite of the opportunity to fill up the said gap, the party did not care to take step in that regard. M. A. Hashem vs Shafiuddin Ahmed (Md. Ruhul Amin J) (Civil) 3ADC 311

 

Section 3(4)(e)—

After the abolition of all rent receiving interests in the country there is only one class of tenancy under the Government whose rights and liabilities are governed by a uniform law. Government of Bangladesh vs Abani Kanta Chakrobory 38 DLR (AD) 93.

 

Section 3— 

Considering the Exhibit 3 it appears that the suit land is chandina land for which the case is vested in the government after acquisition of wholesale interest of the Zamindars pursuant to the provisions of section 3 of the SAT Act and hence neither the plaintiffs' predecessor nor the plaintiffs did acquire any title in the suit land by virtue of alleged rokka pattan. From the other exhibits it is clear that the suit land is khash land of the Government when PW 5 admitted in cross-examination that there was interpolation on the rent receipts and such interpolation alone creates doubt as to the genuineness of the same. Non-consideration of such vital evidence the courts below committed error in finding title of the plaintiffs in the suit land as a result of which the finding of fact;arrived by it is not infallible and can be interfered with in revision. Bangladesh vs Rafeda Khatun 14 BLC 220

 

 

Section 3— 

By Notification No. 4839-LR dated 2nd April 1956, all lands other than retainable khas lands, have, in fact, been acquired by the Government in accordance with the provisions of section 3 of the Act, vesting the same in the Government, and, as such, on 22-8-1956 Sita Sundari had no right to settle with the father of the defendants under the alleged Patta. The Patta is void ab initio. Mridul Kanti Sarder vs Krishna Charan Sarder 14 BLC 848.

 

Sections 3, 20, 43, 44 and 46E—

On a reading of sections 3,20,43, and 44 of the Act together, it appears that non-retainable khas land belonging either to the rent receiver or to the tenant shall be deemed to have been acquired by the Government and vested in the government with the publication of a notification about final publication of the compensation assessment roll in the official gazette from the first day of the agricultural year next following the date of publication of such notification. Bangladesh vs Serajul Haque 11 BLC 714.

 

 

Sections 3(1), 43(2), 46C and 46E(3)— 

Considering the facts and circumstances of the case and the submissions of the learned Advocates of the respective parties and on perusal of the Rule 42A of the State Acquisi­tion Rules, 1955 as well as the application filed by the leave petitioner Bhawal Raj Court of Wards Estate dated 14-7-2002 and the gazette notifications dated 24-3-1952 and 29-2-1956 as well as ground rent payment receipts issued by the Government revenue office and earlier by the Bhawal Raj Court of Wards Estate and also the transfer made through registered deed of gift and having regard to the fact that the SA record of right and RS record of right were correctly prepared in the names of the writ petitioners and or their predecessors-in-interest in respect of their respective lands arid also the fact of admission, as to the possession of the writ petitioners in their respective case lands in the draft Mahanagar record of right, there is no reason to interfere with the judgment and order passed by the High Court Division. The learned Advocate appearing for the leave petitioner, when confronted with the aforesaid gazette notifications dated 24-3-1952 and 29-2-1956, as to acquisition of rent receiving interest and the vesting of lands of the leave petitioners, including the case lands, found it difficult to substantiate the locus standi of the leave petitioner in challen­ging the draft records of right prepared in the names of the respective writ petitioners in respect of their respective case lands prepared during the Mohanagar Survey. Further, with the publication of the gazette notifications dated 24-3-1952 and 29-2-1956 the leave petitioner ceased to have any right, title and interest and possession in the case lands, because of acquisition, and vesting of said lands in the Government. Bhawal Raj Court of Wards Estate vs Rasheda Begum 15 BLC (AD) 115

 

Sections 3(1)(2), 42, 43(2)—

The interest of the rent receivers held under any waqf, waqf-al-al-aulad, debutter or other religious trust acquired under sub-section (1) or non-retainable khas land acquired under sub-section (2) of section 3 finally vested in the Government free from all encumbrances with the publication of the compensation assessment roll under section 42 and declaration about such publication under section 43(2) of the SA&T Act, 1950. Zareen Biscuit Company vs Sayed M Salimullah 16 BLC 267.

Section 9—

Fourth Amendment of the section in 1951 provided that the amendment made shall have retrospective effect with effect from the very beginning.

Shafiqur Rahman vs Idris Ali 37 DLR (AD) 71.

 

Section 9—

The appellants need not have joined the pre—emptor respondent because to join in the application for pre-emption filed by contiguous land—holder is unnecessary—Section 26F of Bengal Tenancy Act limited pre-emption to co—sharers only, either by purchase or by inheritance; it did not extend the right of pre­emption to a tenant having land contiguous to the land transferred. Shafiqur Rahman vs Idris Ali 37 DLR (AD) 71.

Section 10A— 

When Government can­not take over possession of—'In view of the provision of section 10A the Government cannot take over possession of the property of the Waqf Estate from which income is being used for the purpose of charitable organization. Syed Jaglul Hossain Pasha vs Bangladesh 17 BLC 33

Section 11—

In view of the serious contradiction between the evidence of the PWs and the deed itself (Exhibit-2) in respect of source of interest of the inheritors and also on the vague point of Uma Charan's acquiring the occupancy right under section 11 of the State Acquisition and Tenancy Act and its legal implication, it cannot be held the vendors of the plaintiff inherited Chakran interest of Uma Charan or the plaintiff acquired any interest under his kabala, Exhibit-2. Mridul Kanti Sarder vs Krishna Charan Sarder 14 BLC 848

 

Section 11- Title Suit Chakran tenant Question of limitation the appellate Court, being the last Court of fact observed that the cause of action arose on 14.11.1999 when the defendants challenged the plaintiffs title, and the defendants did not claim to have denied the plaintiffs title earlier.

The judgements of the trial Court, appellate Court and the High Court Division, we are of the view that the appellate Court correctly and properly reversed the judgement and decree of the trial Court giving cogent reasons. We are in respectful agreement that when land is given to a family on account of service rendered, i.e. as chakran tenants, a part of that family does not lose their right of tenancy simply on the ground that part of the family ceased to render the service. If in fact the service to the landlord had ceased, it was up to the landlord to take action for his eviction. The tenancy of a particular member of the chakran tenant family cannot cease automatically. Moreover, the evidence of the P.Ws, which was accepted by the appellate Court being the last Court of fact shows that the plaintiffs were in ejmali possession of the suit land. The trial Court fell into error in discarding the evidence of the P.Ws. simply for the reason that the plaintiffs paid for cost of their conveyance to the Court.... Amal Chandra Dhupi alias Das VS= Lakshan Chandra Das, [10 LM (AD) 5]

Section 19(1)—

High Court Division's failure to appreciate the approach and findings of the lower appellate Court. A large part of the judgment is devoted to defendant's weakness in the case including rejection of objection under section 19(1) of State Acquisition and Tenancy Act which was wholly unnecessary as it did not prove or strengthen the plaintiffs case.

The learned Judge found fault with the subordinate judge for not considering the weakness of the defendant's case and particularly the rent—receipts produced by him and thus considered himself justified to interfere in second appeal. It must be said that the learned Judge made a fundamental mistake in ignoring altogether that the defendant's case was disbelieved by the lower appellate Court but even then the plaintiff was held not to be entitled to a decree as he could not establish his own case. Naim-uddin Sardar vs Md Abdul Kalam 39 DLR (AD)237.

 

Section 19(1)

For a declaration of title in the suit property and permanent injunction. Banka Bihari Mondal vs. Md. Tufazzel Sardar (Md. Joynul Abedin J) (Civil) 6 ADC 416

Sections 19(1), 22 & S—

Leave was granted to consider whether, in view of the provision of section 22 of the State Acquisition and Tenancy Act, 1950 the learned judges of the High Court Division were wrong in holding that the lands in question were not liable to assessment of rent.

In view of the provisions of section 22 of the Act all lands are subject to assessment and payment of rent.  Bangladesh vs Zeenat Taxile Mills 40 DLR (AD) 189.

 

State Acquisition and Tenancy Act 1950

Section 19(1) 

Acquired exclusive title in the suit land by way of purchase from the heirs. The plaintiffs are in ejmali possession of the suit land with the defendants and have been enjoying the usufructs of the suit land by plucking fruits from tree and grazing cattle. The defendants suddenly started constructed a hut in a better portion of the suit land without making any amicable arrangement with the plaintiff. Tara Mia Vs Taru Mia (M. M. Ruhul Amin J)(Civil) 3ADC 181

Section 19(2)

Whether the trial Court and the High Court Division have failed to consider that before acquisition of rent-receiv- ing interest there can not be any cause of action to file an application under Section 19(2) of the State Acquisition and Tenancy Act and that the rent-re- ceiving interest of Dhaka where the suit plot at the relevant time was situ- ated having been acquired in the year 1963, the alleged case under Section 53 of the State Acquisition and Ten- ancy Act is collusive and void and without considering the aforesaid legal provisions and whether the courts below erred in law in relying upon the judgment of Special Appeal No.239 of 1962 in finding title in favour of the defendant-respondent. Government of Bangladesh vs. Md. Khoshal (Syed Mahmud Hossain J) (Civil) 10 ADC 244

Sections 20, 43 & 44—

The process of acquisition becomes final only after publication of the notification in the official Gazette declaring that the compensation assessment roll has been finally published. The property vests in the Government only after such notification is published. The present case does not come within the mischief of President's Order 90l72 since the plaintiff seems to be in possession of the property and there is absence of the required notification. Khorshed Ahmed Chowdhury vs Bangladesh 43 DLR 264.

 

Section 20(1)—

There is no scope for retaining possession of non—retainable khas land by any tenant now in Bangladesh on any ground whatsoever. Ali Akbar (Md) vs Bangladesh, represented by the Scretary, Ministry of Land and others 48 DLR 544.

 

Section 20(5)(i)(e)—

Waqf Estate-Acquisition—The Waqf Estate has been owning and possessing the properties through different persons and since it is a Waqf-a-Lillah, 100% income of the Waqf properties have been using for charitable purposes, under section 20(5) (i)(e) of the Act, has made it clear bar to acquire the properties of the Waqf Estate, the Government has no jurisdiction to acquire the properties of the Waqf Estate. Syed Jaglul Hossain Pasha vs Bangladesh 17 BLC 33

  

Section 20— 

Plaintiff has failed to prove oral settlement by dakhila when PW 3 admitted in his cross-examination that the suit land has remained as a khal since SA operation. Law does not permit to grant any settlement of any khal and, as such, the case of the plaintiff is barred by law. People's Republic of Bangladesh, DC, Khulna vs Shatindra Nath Mondal 11 BLC 327.

 

 Section 20— 

The High Court Division took correct view that the plaintiff could not  prove that the ex-landlord auction purchased he suit land and made the same khas and thereafter, the same vested in the Govern­ment as excess non-retainable khas land of the ex-landlord. But no paper has been produced by the plaintiff in that respect to show that the Provisions of section 20 of the State Acquisition and Tenancy Act, 1950 were duly complied with in the matter of acquisition of khas lands in excess of the limit imposed by law. Bangladesh vs Md Ali Khondker 12 BLC (AD) 160. 

 

Sections 20, 43 and 44— 

It is admitted that nature of land is forest. The defendants claim the suit land on the basis of amalnama dated 15th Poush, 1344 BS taken by Abdul Gafur; that Zaminder granted Dakhilas; that RS and SA record were prepared in the name of Abdul Gafur and that Abdul Gafur paid rent to the government. CS record which was finally published long before 1938 AD and thus the appearance of the name of Abdul Gafur in CS Khatian, who alleged to have taken settlement some time in 1938 AD, have been proved to be fabricated and manu­factured one. Moreover, the amalnama has not been proved as per law. Since the foundation of Title of the defendants-respondents has not been proved and thus the CS khatian has been proved fabricated and manufactured and the SA khatian prepared on the basis of alleged CS khatian has no leg to stand. Dhakalias granted on the basis of khatian does not create any title which was also obtained fraudulently.  Bangladesh vs Serajul Plaque 11 BLC 714.

 

Section 20, 90 & 86- Appellate Division sum up as under:

(i) Land of a holding or a portion thereof is lost by diluvion prior to 4th November, 1972, the rent of the holding shall on application by the tenant would abate by such amount as would be considered by the Revenue Officer to be fair and equitable.

(ii) The right, title and interest of the tenant shall be extinguished if such land were lost by diluvion or the process of diluvion takes place before or after the date of coming into force of section 86 substituted by P.O.135 of 1972.

(iii) If the diluvited land or a portion thereof re-appeared after the commencement of P.O.135 of 1972 but in respect of which the right of the original tenant or his successor-in-interest whose land was so lost, to re-possession was not recognized or declared by the competent authority or the court, all land so lost, which may reappear on or after 4th November, 1972, shall vest absolutely in the Government.

(iv) In making settlement of the said land, notwithstanding anything provided in paragraphs (ii) and (iii) above, the preference shall be given to the tenant or his successor-in-interest whose interest was lost by diluvion subject to the condition that such land or a portion thereof re-appeared within twenty years of such loss subject to the condition that the total area of land possessed by the tenant or his family does not exceed the ceiling prescribed by sections 20 or 90 of the Act of 1950.

v) The rights which had already accrued to the tenant or his successor-in-interest on the day of coming into force of section 86 by P.O.135 of 1972 had not been affected but such rights were affected only prospectively.

(vi) If the land or a portion thereof is diluviated after 13th July, 1994, the rent or the land development tax of the holding of the tenant or his successor-in-interest be abated on his application, such amount as may be considered by the Revenue Officer and the act of such loss by diluvion shall be recorded by such Revenue Officer.

(vii) The right, title and interest of the tenant or his successor-in-interest shall subsist of a holding or a portion thereof during the period of loss by diluvion from 15th July, 1994, if such land re-appear in situ within thirty years of loss.

(viii) The Collector, either on his own motion or on the basis of application of the tenant or his successor-in-interest shall exercise the right of immediate possession of the land so re-appeared and shall give public notice of the said fact, prepare a map, make survey of the land and after forty five days of completion of survey, allot the land to the tenant or his successor- in-interest such quantity of land which together with the land already held by him shall not exceed sixty standard bighas.

(ix) Section 86 substituted by the State Acquisition and Tenancy (Amendment) Act, 1994 (Act XV of 1994) shall have prospective operation...... Bangladesh =VS= Md. Kazemuddin Miah, [3 LM (AD) 74]

Sections 20(4A), and 20(5)- Tarapur Tea Estate The transfer of the tea estate was made by resorting forgery, inasmuch as, the writ petitioners procured a forged permission. Secondly, it is reported that after taking possession, the writ petitioners set up a medical college and established a housing estate and a market. Naturally they demolished the tea plantations and used the land for commercial purpose which is not permissible under any law of the land.

The High Court Division was totally unmindful to the laws applicable in this case or in the alternative, it was totally confused as to the application of law in the matter and delivered a judgment which has no sanction of law. The judgment of the High Court Division is, therefore, liable to be interfered with and accordingly it is done. Accordingly, we sum up our opinion as under:

(a) a religious and charitable trust by way of debutter is created only when a property is dedicated for the worship or service of the idol;

(b) a Hindu idol is founded upon the religious customs of the Hindus;

(c) a Shebait, cannot delegate his duties to another, no matter whether such other is a stranger or a co-trustee on the principle of the maxim 'Delegatus non potest delegare';

(d) an idol is a juristic person in whom the title of the property of the endowment vests; but it is only in an ideal sense that the idol is the owner;

(e) the office of the Shebait being used for religious purposes under the Hindu Law, apostasy is a disqualification in the heir and execution of his inheritance as well as for holding the office of Shebaitship;

(f) when a pious Hindu establishes a Deity cannot conceive of its 'seba' and 'puja' being carried on under the supervision of a non-Hindu religion believer;

(g) the founder of an endowment can confer upon a Shebait appointed by him the right of nominating his successor subject to the limitation that the nominee cannot be a believer of any religion other than a Hindu religion;

(h) the deed of endowment does not permit the alienation of the debuttor property i.e. Tarapur Tea Estate by the Shebait or his nominee;

(i) the transfer of the Tarapur Tea Estate for 99 years by the alleged Shebait is void ab initio.

(j) the writ petitioners are directed to Shift Ragib Ali Medical College and Hospital at a suitable place within six months from the date of the judgment so that the academic education of the students is not hampered;

(k) The conversion of a portion of the tea estate into a medical college, a housing estate and use of the same for other purposes is totally illegal, and therefore, Tarapur Tea Estate should be restored to its original position;

(1) the Deity installed by the founder should be installed at its original place, if it is removed from its original site in the meantime;

(m) the withdrawal of Tk.30,76,189.20 as compensation money from the government by Ragib Ali was illegal and without jurisdiction. Ragib Ali is directed to refund the said amount within 7(seven) days from the date of receipt of the judgment to the legal Shebait of the Deity and in the absence of the legal Shebait, in the account of the Deity;

(n) the writ petitioners Abdul Hai and Ragib Ali are directed to hand over vacant possession of Tarapur Tea Estate in favour of the Shebait of the Deity within 1(one) month from the date receipt of the judgment;

(o) the constructions made on a portion of the Tarapur Tea Estate should be dismantled within six months and the writ petitioners are directed to transplant tea plantations thereon. If they fail to dismantle them, the Shebait shall dismantle them with the help of police and the city corporation, and the costs be recovered from the writ petitioners by the Deputy Commissioner,

(p) In the absence of a legal Shebait of the Deity, the Deputy Commissioner is directed to appoint a Shebait of the Deity in consultation with the ten leading Shebaits or priests of the temples of Sylhet town;

(q) The writ petitioners are directed to refund Tk.5,00,00,000/- (five crore) which they admittedly earned by exporting tea to the Shebait (Para 10 of the writ petition).

The Deputy Commissioner, Sylhet shall monitor the implementation of the directions given above. If the writ petitioners fail to comply with the direction, he shall take legal action against them and shift the medical college to a suitable place by freezing the bank accounts of the writ petitioners and withdrawing money from those accounts for the purpose of taking temporary lease of a house suitable for the medical college.

If the writ petitioners fail to make tea plantations, the Deputy Commissioner shall make plantations by constituting a committee at the cost of the writ petitioners and the amount be realized from their moveable and immovable properties. The Kotwali P.S. Case Nos.117 dated 27.9.2005 and 12 dated 2.11.2005 shall proceed forthwith. The Chief Judicial Magistrate or the Chief Metropolitan Magistrate, as the case may be, is directed to proceed with the cases expeditiously. The appeal is allowed with cost of Tk.5,00,000/- in the above terms. ... Ministry of land, Bangladesh VS= Abdul Hye, [9 LM (AD) 230]

Section 20(2a)— 

The submission of the learned Counsel is of no merit since prepa ration of the compensation assessment roll and the publication thereof has the legal presumption that the land claimed by the plaintiffs is of non-retainable class of land and that as on the publication of the compen­sation assessment roll in the gazette, the land has vested in the Government the plaintiffs are not entitled to raise any claim in the land and, as such, relief sought in the suit was not available to them. Gopal Das Soni vs Bangladeshi BLC (AD) 69.

Section 22—

In view of the express provisions of section 22 even the Government cannot, by an order or agreement, exempt any land from assessment of rent, for the words used in the section are mandatory, namely, "all lands shall be subject to the payment of fair and equitable rents. Bangladesh vs Zeenat Taxtitle Mills 40 DLR (AD) 189.

Section 31

Suit for confirmation of possession upon declaration of title and for recovery of khas possession after eviction and also for permanent injunction re- straining the defendants from entering into the schedule land and not to disturb the plaintiffs. Jalalbad Co-operative Housing vs. Mosammat Roushan Jahan (Shah Abu Nayeem Mominur Rahman J) (Civil) 7 ADC 486

Sections 42,43 & 44— 

Provisions made in the sections 42, 43 and 44 of the Act point to inevitable conclusions that every interest which is liable to be acquired under the Act has to be paid for and that except in the cases of acquisition under Chapter-II of the Act the Interests which are acquirable vest in the Government only if assessment of compen­sation in regard to the same has been made and published as provided in the Act. Government of Bangladesh vs Abdul MotalebU BLC (AD) 50. 

 

Section 43— 

There is no publication of compensation assessment roll under section 43 of the Act. The property in question is still the property of the Waqf Estate and it will remains so until the Government takes steps in accordance with law. Syed Jaglul Hossain Pasha vs Bangladeshi? BLC 33

 

Sections 43(2) & 44(3)—

Publication of a notification in the official Gazette declaring that a compensation assessment-roll has been finally published for a village specifying in such notification the date of the final publication of the compensation assessment-roll is a conclusive proof of such publication and of the date thereof. After the said notification all interests of tenants in respect of their non-retainable property would vest in the Government with effect from the first day of the agricultural year next following the date of publication. Even if there be any defect in the preparation and publication of the compensation assessment-roll that by itself shall not stand in the way of the vesting. Ali Akbar (Md) vs Government of Bangladesh 50 DLR (AD) 143.

 Sections—43(2) and 72 

Once notification under sub-section (2) of section 43 of the Act is published in the official gazette, such notification is conclusive proof of such publication and of the date thereof and section 72 of the Act bars a civil Court from entertaining any suit in respect of the preparation, signing and publication of a Compensation Assessment Roll or any Part thereof under Chapter V or Chapter VA of the Act. 

Bangladesh represented by the Secretary Ministry of L.A. and LR Vs Chowdhury Tanbir Ahmed Siddiky, 17 BLD (AD) 131.

 Ref: (1959)11 DLR (SC) 318; (1968) 20 DLR(SC) 144; 33 DLR (AD)13-Cited.

 

Sections 48(4) 51 & 55—

Since the Special Judge is a 'Court' such Court is sub­ordinate to the High Court Division. Any order passed by a Special Judge is amenable to the High Court Division under section 115 of the Code of Civil Procedure. Government of Bangladesh vs Abdul Motaleb BLC (AD) 50.

Section 50, 117 (3), 143 Rule 23(4) 

That the plaintiff did not acquire any right, title and interest in the land in suit since his vendor Bipin Chandra did not acquire any right, title and interest in the land in suit. The High Court Division also held since plaintiff had no title in the land in suit, the mutation in the name of the plaintiff was not legal and thus cancellation thereof by the defendant No.1 was quite legal. Bazlur Rahman Sarker vs. Kamala Kanta Barman and another (Md. Ruhul Amin J(Civil) 4ADC 524

 

Sections 54 & 116—

Since the question of title and possession have been settled by the highest Court of the country the Additional Deputy Commissioner (Revenue) had, in fact, no option in law but to mutate the name of the petitioner by correcting the record of right. Abdul Main vs Bangladesh represented by the Secretary, Ministry of Land, & ors 53 DLR 506.

Section 59(a)—

Sale accompanied by separate agreement to reconvey is a complete usufructuary mortgage. Zafar Ali (Md) vs Md Momtaz Hasan and others 49 DLR 319.

Section 68C

For declaration of title and confirma- tion of possession in the suit property. The local Tahsildar submitted a report on 6th June, 1995 stating that the suit property is not vested property and in- spite of that, a notice dated 16th September, 1997 had been served upon the plaintiffs and thus the plaintiffs instituted a suit. Awlad Ali Shiekh vs. Bangladesh, represented (S.K. Sinha J) (Civil) 8 ADC 12/

Section 72—

In matters of interlocutory injunction, the Court normally should not enter into the merit of the suit and decide whether a suit is maintainable or not. Molla Mahjenul Islam vs State and ors 53 DLR 552.

 

Section 76—

Under section 76 of the State Acquisition and Tenancy Act, 1950 the Government has the sole right to leave the suit properties in any manner it likes—Section 108 of the Transfer of Property Act (IV of 1882) covers the present case defining the rights and liabilities of the lessor and the lessee—As the respondent could not fish for the period of lease for circumstances beyond his control he could repudiate the lease as void and sue the appellant Government for rent money or compensation. Bangladesh vs Haji Mozaffaruddin 40 DLR 283.

Section 76—

In respect of fisheries which are governed by section 76 of the State Acquisition and Tenancy Act, in the absence of rules framed thereof the Government must follow some standards or guidelines, and must not act arbitrarily.  SMS Samity vs Bangladesh 39 DLR (AD) 85.

Section—81A(2)

 

Non-Agricultural Tenancy Act, 1949, Sections—85(2) and 24

 

The object of section 85(2) of the Non Agricultural Tenancy Act was to retain control over non-agricultural land held by a tenant under the Government unencumbered by the provisions of the Non-Agricultural Tenancy Act. Section 8 1A(2) of the State Acquisition and Tenancy Act determines the rights and liabilities of non-agricultural tenants other than those who have become tenants under the Government by virtue of compulsory acquisition of land . The Non-Agricultural Tenancy Act has not been mentioned to be a governing law in respect of such tenants of nonagricultural land under the Government. Hence, on both accounts, under section 85(2) of the Non-Agricultural Tenancy Act and section 81A(2) of the State Acquisition and Tenancy Act, the ouster of the Non-Agricultural Tenancy Act from the categories mentioned therein is complete. Section 24 of the Nonagricultural and Tenancy Act has no manner of application to lands of Dhanmondi Residential Area. Md. Mosaddeque Hossain Vs. Dr. Esmat Mirza and others, 18 BLD (AD) 57. 

Ref: 17 DLR384; 7 DLR 116; 33DLR 10—Cited.

Section 82—

As the appellant was a government servant and not a bonafide cultivator, he was not entitled to get khas mahal land. Abdul Khaleq vs Bangladesh 40 DLR 21.

Section 86—

In the lands which were in diluvion prior to 13th July, 1994 the right of the original tenant or his successors would continue if the lands re-appear in situ within 30 years. The Government can only claim such of these lands in diluvion which had re-appeared prior to 13th July under the PO No. 135 but cannot claim such right in respect of lands which are still in diluvion. Kajemuddin Miah (Md) vs Bangladesh and others 52 DLR 240.

 

Section 86- Section 86 by Act XV of 1994 would be prospective in operation and that the new provision would not be applicable in respect of those land which were diluviated and alluviated prior to that date, that is to say, the said land would be treated as khas land of the Government in accordance with the old provision. .....Bangladesh VS Md. Kazemuddin Miah, [3 LM (AD) 74]

Section 86- The amendment is prospective in operation and the High Court Division is not correct in giving retrospective operation of the substituted provision of sub-section (2) of section 86 of the Act of 1950..... Bangladesh VS Md. Kazemuddin Miah, [3 LM (AD) 74]

Section 86, 87 

Since the plaintiffs had title prior to diluvion in the land in suit and that as the land in suit alluviated at a time when their title in the land in suit was not affected and that the plaintiffs having had establish that they are in possession of the land in suit then merely because they did not take step for getting the land in suit recorded in their names, their title in the land in suit would not extinguish or in other words they would not be denuded of their title which they had at the time of diluvian and also after alluvion. Bangladesh vs Md. Wazed Ali (Md. Ruhul Amin J)(Civil) 3ADC 356

 

Sections 86 & 87—

Accredon or reformation in situ—The provisions of law as to accreted land or reformed land as they stand now can have effect only with respect to land accreted or re­appeared after Part V of the State Acquisition & Tenancy Act, 1950 came into force in the locality in question on August 29, 1963. The disputed land appeared above the river water as hard soil due to recession of the river in the later part of the forties or in the early part of the fifties and attached by the Collector in 1955. In these circumstances the amended provisions of sections 86 & 87 can in no way be applicable in the present case. Padmabati Biswas vs Bangladesh 44 DLR 465.

Section 86(1)(2)(3)—

Section 86(1)(2)(3) as amended by State Acquisition and Tenancy (Fourth Amendment) Order, 1972. (President's Order No. 135 of 1972) dated 4-11-1972.

Second diluvion of the suit land took place in 1362-63 BS and re-appeared in 1374 BS ­Clauses (2) and (3) attracted because diluvion took place before 'the commencement of PO No. 135 of 1972—Plaintiffs tight was never recognised under clause (3) of section 86—The view taken by the lower court and upheld by High Court Division is correct.

It appears from the footnote under section 79 of the Act (published by the Government) that Notification in respect of entire areas under the Police Stations of Muladi, Mehendiganj was published in the Gazette on 13 May 1958, that is long before 1967. Syed Nizamuddin Mohsin vs Bangladesh 41 DLR (AD) 141.

 

Sections 86(3) & 146—151

Settlement of land granted by the Revenue Authority­ cancellation of settlement by the Government whether lawful—Under section 146 of the Tenancy Act the general power of superintendence and control over all Revenue Officers is vested in the Board of Land Administration and not the Government. The Board of Land Administration is not however empowered to revise under section 146 the orders passed by the Revenue Officer under the Act, although the Board is the final authority to entertain appeal and revision against any order passed under the Act by a Revenue Officer including an order granting settlement of land. There is nothing to show that the Government is empowered under any provision of the State Acquisition and Tenancy Act to cancel or rescind any order passed by the Revenue Authorities. Saifur Rahman vs Bangladesh 43 DLR 210.

Sections—86(2)(3) and 87 

When the reformation of a diluviated land was complete before the date of coming into force of Part V of the Act, provisions of amended sub-section (3) of section 86 will not be applicable in respect of the said land. In such a case, the right of the tenant will not be extinguished or destroyed for the suit land going under water for some time before the coming into operation of this amended provision of law. Similarly, accretion which took place before coming into force of Part V of the Act shall be beyond the scope of subsections (1) (2) of Section 87 of the Act and the rights of the owner shall remain unaffected. Hajee Fayez Ahmed Vs. Shafiul Alam and another, 15 BLD (HCD) 524.

 

Ref: Abdul Mannan and ors. Vs. Kulada Ranjan Mowali and ors, 31 DLR(AD)195; Padmabati Biswas Vs. Bangladesh and others, 44 DLR 465; Lopez Vs. Muddun Mohan Thakur, 13 MI. A. 467 (PC); Rai Kiran Chandra Roy Bahadur and ors. Vs. Tarak Nath Gango Padhyay and others, 40C.W.N page 22 and 566—Cited.

Section 87, 96 

From the trend of reported decisions it is seen that even if during pendency of the case seeking pre-emption if in the back- ground of an agreement for recon- veyance, genuineness whereof has been established by reliable evidence, the right of pre-emption is not available. Harendra Nath Mahali VS Ramesh Chandra Halder (Md. Ruhul Amin J) 3ADC 433

Section 87 —

The High Court Division correctly concurred with the findings of the appellate Court that the land in question was accreted land and the plaintiffs took lease from the Government in the year 1970 under Section 87 of the State Acquisition and Tenancy Act and they have been in posses­sion for long 32 years and correctly decreed the suit. Zahur Ali Sk vs Jogendra Nath Samaddar 16 BLC (AD) 35.

Accreted land

Section 87 of the State Acquisition and Tenancy Act: It appears that the High Court Division correctly concurred with the finding of the appellate Court that the land in question was accreted (সংযোজিত) land and the plaintiffs took lease from the Government in the year 1970 under Section 87 of the State Acquisition and Tenancy Act and they have been in possession for long 32 years and correctly decreed the suit. (Para-11, Mr. Justice Md. Abdul Matin). 6 ADC 295: Zahur All Sk. & another Vs. Jogendra Nath Samaddar & others

Acquisition/Acquired Land

Acquisition of ownership by the riparian owner to accreted land

Section 87(1)(2) of the State Acquisition and Tenancy Act, 1950: Law is well settled by the decision of the Appellate Division in the case of A. Mannan and others Vs. Kulada Ranjan Mowali reported in 31 DLR(AD) 195 that accretions (সংযোজন) which took place after the publication of notifications under Section 3 or Section 43(2) of the State Acquisition and Tenancy Act, but before the Part V of the Act coming into force are beyond the scope of sub-Section (1) and (2) of Section 87. The Apex Court held that above decision as undisputed, but the same is not applicable to the present case as the plaintiffs could not establish the ownership of the riparian (নদীতীরস্থ) owner and their title thereto on the basis of kabuliat and rent receipts or other evidence and as such the said accreted land vested in the Government under the President's Order No.137 of 1972 and the suit is barred under Sub-section (3) of Section 87 of the SAT Act of 1950. (Para-4, Mr. Justice Md. Tafazzul Islam). 15 MLR(AD)99: Moulvi Abdul Qudus being died his legal heirs Md. Nurul Abser & others Vs. The Government of the People's Republic of Bangladesh represented by the Deputy Commissioner, Feni

Section 87

For declaration of the Title confirma- tion of possession and for permanent injunction against the petitioners. Zahur Ali Sk. vs. Jogendra Nath Samaddar (Md. Abdul Matin J) (Civil)6 ADC 295

Sections 89 and 96 —

It transpires that the learned Judge of the trial Court and the lower appellate Court in their judgment discussed the evidences and also perused exhibits and registered deed produced by both pre-emptor-petitioner and the pre-emptee-oppo-site parties and observed that the petitioner is a co-sharer by inheritance and admittedly, no notice was served upon him, as such, the ground of limitation from the date of knowledge of the pre-emptor-petitioner will be of no avail. Abdul Khaleque Dewan vs Sheikh Md Tajuddin BLC 611.

Section 89

In this case admittedly the pre-emptor is a co-sharer. It is also not disputed that he filed the pre-emption case within four months of the date of knowledge of the transfer, but the court of appeal made out a case of waiver and acquiescence from the so called at- tending circumstances without refer- ence to any evidence that the pre-emptor participated in the talk of sale or consented to the transfer. Md. Murtoza Ali & anr vs. Renu Bibi @ Saifur Nessa (Md. Abdul Matin J) (Civil)6 ADC 203

Section 89

It appears that the definite case of the pre-emptor is that he came to know about the transfer on 10.01.1997. The transfer in question is by sale deed dated 29.02.1992. Therefore after about five years the pre-emptor petitioners came to the court with the plea that they came to know about the same on 10.01.1997 but in the petition there is no statement as when the purchaser demanded possession and whether anybody else was present at the time of such demand. Mohammad Akbar Chowdhury vs. Khalilur Rahman (Md. Abdul Matin J) (Civil) 6 ADC 130

Sections 89 & 96—

The period of ignorance as to the sale of a land sought to be pre—empted cannot extend to 12 years when the pre-emptee  had been cultivating the land within the sight of the pre—emptor for over a decade. Habibur Rahman@ Md Habibur Rahman & another vs Moborak Ali Rariand others 50 DLR 55.

Section 90—

Waiver— The pre-emptee ­purchaser having not specifically pleaded earlier that the pre-emptor is not a bonafide cultivator, he cannot be allowed to plead it at the revisional stage—he is deemed to have waived the right to object the pre-emption application on that score. Idris Mia vs Promode Ranjan Das 45 DLR 126.

Section 90—

Mere omission to make an assertion in his application or to adduce evidence to this effect, in the absence of any averment to the contrary, will not render pre-emption application liable to be dismissed. Abul Kalam (Md) and others vs Md Shamsuddin 49 DLR 502.

Sections 90 and 96—

Pre-emption under section 26F of the Bengal Tenancy Act (VIII of 1885)—Whether the same can be allowed in favour of the pre-emptor applicant who admitedly owns more than 100 bighas of land exceeding the land ceiling prescribed by PO No. 98 of 1972— The question of land holding limitation upto 100 bighas of land does not arise as the Munsifs order was passed in 1967 when there was no law limiting and holding to 100 bighas. Appeal dismissed. Azizur Rahman vs Bhayetullah 40 DLR (AD) 224.

 

Section 90- The suit land com- promises 99 acres which is located in the coastal area. There is no doubt that the suit land is the government khas land. Therefore, the lease was made in violation of section 90 of the State Acquisition of Tenancy Act. We would like to observe here that the government cannot lease out any khas land to any person in violation of law. If the government wants to lease out the suit land such lease should be granted in due process of law keeping in mind the prevailing law of the land......Government of Bangladesh VS Messers Friends Industries Corporation, [4 LM (AD) 202]

Section 92—

There is no legal ground of taking of the suit holding in the custody of the government and no legal procedure was followed as prescribed by section 92(3) of SAT Act and, as such, taking over of the holding by Government is illegal. Bangladesh vs Abdul Aziz 16 BLC 897.

Section 92(2)

The case of the writ petitioners, in short, was that their father Md. Sirajul Islam Chowdhury and the brother-in- law of the writ petitioner No. 1, namely, Syed Muhammad Ullah were granted long term lease of 10 acres of land of abandoned property each by the Addi tional Deputy Commissioner (Rev- enue), Sylhet on 05.08.1963 for a period of 25 years for the purpose of cultivation of fruits, vegetables and orange orchard by registered deed of lease. Secretary, Ministry of Land vs. Saiful Islam Chowdhury (Nazmun Ara Sultana J) (Civil) 9 ADC 832

The suit land has been recorded in S.A Khatian No. 19 in the name of Gyanda Sundari. But subsequently, the suit land was taken over by the Government as per Section 92 of the State Acquisition and Tenancy Act. Since the plaintiff has completely failed to prove that Gyanda Sundari was living in this country around 1972-73, it can be assumed that Gyanda Sundari, wife of Purna Chandra Chowdhury, left this country.....(15)

Mukhtar Khan vs. Government of Bangladesh (Ashfaqul Islam J) (Civil) 20 ADC 584

মামলার জমি এস.এ. খতিয়ান নং ১৯-এ গ্যানদা সুন্দরীর নামে রেকর্ডভুক্ত হয়েছে। কিন্তু পরে মামলার জমি State Acquisition and Tenancy Act, ধারা ৯২ অনুসারে সরকার দখল করে। যেহেতু মামলার বাদী সম্পূর্ণভাবে প্রমাণ করতে ব্যর্থ হয়েছেন যে গ্যানদা সুন্দরী ১৯৭২-৭৩ সালের দিকে এই দেশে বসবাস করছিলেন, সেহেতু ধারণা করা যেতে পারে যে গ্যানদা সুন্দরী, পুর্ণ চন্দ্র চৌধুরীর স্ত্রী, এই দেশ ত্যাগ করেছেন.....(১৫)

মুক্তার খান বনাম বাংলাদেশ সরকার (আশফাকুল ইসলাম জে) (সিভিল) ২০ এডিসি ৫৮৪

Sections  92(l)(c) &  92(3)—

The impugned Memo issued by the defendant No. 2 is under section 92(l)(c) of the State Acquisition and Tenancy Act, which provides the interest of a raiyat in a holding shall be extinguished when he voluntarily abandons his residence without making any arrange­ment of the rent as it falls due and ceases to cultivate his holding either by himself or by members of his family or bargaders for a period of three successive years. But in the present case, it is admitted that the plaintiffs are regularly paying rents and taxes in the Tahashil Office and municipality which were accepted by the relevant officers without an objection.

Since no notice was served upon the plaintiffs under section 92(3) of the SAT Act, and in view of the cited decisions the suit is not barred by limitation. Asgar Ali Mia vs Bangladesh 16 BLC 37.

Section 92(4)—

The provision for institution of a suit in the Civil Court within 90 days of the order of the Government treating a property as an abandoned property does not provide any penal consequence for the failure of the aggrieved party to institute the suit within 90 days and, as such, it cannot be said that the aggrieved party is debarred from challenging the order of the Government subsequently by instituting a suit. Hindu Detiy Lakshmi Gobinda Jeu vs Deputy Custodian Enemy Property and others 51 DLR 300

Section 95 & 95A—

The legislative intent of section 95A is that cases of sale attended with agreement for recoveyance whether or not registered would be within the ambit of complete usufructuary mortgage for a period of 7 years and provisions of section 95(4)(5) would apply to such transfers. A contrary view would make the provision of section 95A nugatory and frustrate its purpose. Abdus Salam Sheikh and others vs Puspa Rani Shil and others 49 DLR (AD) 71.

Section 95 & 95A—

Apart from the provision of section 95A of the State Acquisition and Tenancy Act and the remedies under section 95 of the said Act, the remedy of civil Court is always available to the mortgagor in case of a mortgage. Abdul Gani Kha vs. Md Abdul Aziz Azizur Rahman and others 49 DLR 172.

Sections 95 & 95A—

President's Order No. 88 of 1972 created special forum for restoration of mortgaged property. But it did not take away right of redemption available to a mortgagor by filing a mortgage suit. Asmat Ali vs Abdur Rafique Mridha and others 52 DLR (AD) 132.

Section 95(4)—

Circle Officer (Revenue) while passing an) order under section 95(4) is not a court subordinate to the High Court Division within the meaning of section 115 CPC. Md Salim vs Zaker Ahmed 39 DLR 306.

Section 95A—

In a case of complete usufructuary mortgage the agreement to reconvey must have been executed and registered by the purchaser himself or his attorney constituted for that purpose. Nurul Islam Chowdhury & another vs Upazila Revenue Officer, Patiya, Chittaogng & others 48 DLR 2 5.

Section 95A—

Ekrarnama does not necessarily mean an undertaking to reconvey any land, it may be for various other purposes. The meaning of a particular 'ekramama' has to be drawn from its contents. Kamada Ranjan Bhattacharjee vs. Kohinur Chowdhury and others 49 DLR 454.

Section 95A—

Reconveyance—The docu­ment for reconveyance is to be executed in the same sitting at a time when the document for transfer of land by way of out and out sale is executed and registered. Rup Charan Das and another vs Bangladesh and others 48 DLR 94.

Section 95A- The kabala under pre-emption was not an out and out sale deed but a kot kabala and as such, the same was not pre-emptable- The Appellate Division observed that the High Court Division held that in a case with 'an agreement for re-conveyance with a deed of out sale as contemplated under section 95A of the State Acquisition and Tenancy Act is not required to be compulsorily registered as is required under section 95(2) of the Act. Dadan Biswas -VS- Abdul Barek Bepari, [1 LM (AD) 203]

Section 95A- Redemption suit- Legal aspect of the case, the plaintiffs also failed to prove their case factually. In the plaint, it was asserted that their predecessor-in-interest, Momtaz Miah, paid back the kabala money to the defendants' predecessor-in-interest, Moniruddin as per terms of the agreement and then he got back possession of the suit land and thereafter, he was dispossessed. The trial Court gave clear finding that the plaintiffs failed to prove that their predecessor-in- interest paid back the kabala money to Moniruddin and that he got back possession of the suit land.

The trial Court also held that as per the own case of the plaintiffs, the mortgage was redeemed with the return of the kabala money followed by delivery of possession of the suit land, but subsequently, Moniruddin did not execute and register the deed of reconveyance, if that be so, the plaintiffs could not have any cause of action to main the suit for redemption of the suit land and that they ought to have filed a suit for specific performance of contract. We have considered the evidence. The trial Court was perfectly correct in taking the said factual and legal view. But neither the Appellate Court nor the High Court Division adverted the above findings of the trial Court in decreeing the suit.

We find merit in the appeal and the same is allowed. The impugned judgment and order affirming those of the Appellate Court is set aside and those of the trial Court are restored.... Belayeth Hossain -VS-Nasrin Akhter. [7 LM (AD) 40]

Section 95A & (2)—

Agreement of reconveyance with a deed of sale, will not be required to be registered in view of the fact that in section 95A the two things namely, the deed of sale and an agreement of reconveyance shall be deemed to be a complete usufructuary mortgage. Puspa Rani Shil and others vs. Member No. 1, Land Appeal Board, Government of Bangladesh, and others 49 DLR 45.

Section 95A & 95(2)—

An agreement for reconveyance can be specifically enforced and the provision for registration for such agreement as required under section 95(2) of the Act is not applicable. Even an oral agreement proved by sufficient evidence may be specifically enforced by the transferor. Abdul Kader and another vs Abdul Aziz and others 47 DLR 67.

Section 95A—

Section 95A of the SAT Act it is clear that the transfer deed executed on 23-3-1967 is a mortgage deed. Though it is found that Section 58 (C) of the TP Act does not mention the same but ultimately Section 95A clearly provides that mortgage is appli­cable in all the holdings including house or building or any portion or share. Abdur Razzak Khandker vs Maleka Khatun 17 BLC 593

 

Sections 95A—

No conditional mort­gage is valid and any sale with condition of reconvey is a "complete usufructuary mort­gage." Budhimante Base vs Ajnacharan Biswas 17 BLC 674.

 

Section 95A—

The plaintiff's name having recorded in SA Khatian, the plaintiff having paid rent, the defendants by filing redemption case No. 50/82-83 having made a prayer for getting delivery of possession, the plaintiff having had got order of injunction against the defendants and that order having been modified directing the parties to maintain status quo and the PW 1-PW 4 having had supported the plaintiff's possession in the suit land, the Courts below were not justified to hold possession in favour of the defendants. The finding of possession as found by the Courts below are hereby set-aside. Shamsur Rahman Khalifa vs Jagodish Chandra 13 BLC 873.

 

Sections—95 and 51A

President’s Order Nos 88 and 136 of 1972 

President’s Order No. 24 of 1973

Code of Civil Procedure, 1908(V of 1908), Order 34 

P.O. 88 of 1972 created special forum for restoration of mortgaged property. But it did not take away right of redemption available to a mortgagor by filing a mortgage suit under Order 34 of the Code of Civil Procedure.

 

In that view of the matter High Court Division was totally wrong to held that the suit was not maintainable as the transaction was past and closed. [Per Latifur Rahman, C.J; (delivering the majority judgment]. Asmat Ali Vs Abdur Rafique Mridha and others, 20 BLD (AD) 197.

Ref: Bangladesh Vs. Haji Abdul Gani Biswas and ors, 32 DLR(AD)233—Cited

 

Sections—95 and 95A 

The plaintiff himself admitted the existence of a separate deed of reconveyance which was not been produced before any of the courts below which escaped the notice of the trial court as well as of the appellate court and there is also no consideration of the circumstances as regards the prevalent price of such lands at the relevant time which would have indicated the nature of the questioned document. The trial court as well as the appellate court has therefore wrongly decreed the suit. [Per Mahmudul Amin Choudhury, J (dissenting)] Asmat Ali Vs Abdur Rafique Mridha and others, 20 BLD (AD) 197.

 

 Section—95 A 

Treatment of certain transaction as Usufructuary Mortgage 

To attract the application of Section 95A of the Act the transaction in question must be a subsisting one on the date of promulgation of President’s Order No. 88 of 1972 on 3.8. 1972. Transactions which were not alive on that date are to be treated as transactions past and closed.

 

In the present case, admittedly the mortgage was for 4 years which expired long before 3.8.1972 and as such Section 95A of the Act will have no application to such a transaction which was past and closed. Abdul Khaleque Sarnamat Vs. Abdul Khaleque Sarnamat 16 BLD (AD) 210.

 

Ref: Bangladesh Vs. Haji Abdul Gani Biswas, 32 BLD(AD)233; Abu Bakkar Vs. Nazir Ahmed, 34DLR(AD)237 — Cited

 

 Section—95A 

The clear legislative intent of section 95A is that cases of sale attended with agreement for reconveyance whether registered or unregistered would come within the ambit of complete Usufructuary mortgage for a period of 7 years and provisions of section 95(4) (5) would apply to such transfer. A contrary view would clearly make the provisions of section 95A nugatory and frustrate its purpose.

 

The view taken by the High Court Division that an agreement for reconveyance with a deed of sale as contemplated under section 95A of the Act is not required to be compulsorily registered as required under section 95(2) of the Act has been affirmed by the Appellate Division. Abdus Salam Sheikh Vs. Puspa Rani Shil, 16 BLD (AD) 299.

 Ref: Bangladesh Vs. Abdul Gani, 32 DLR(AD)233—Cited.

 

 Section—95A 

The transfer of a holding by way of out and out sale, followed by a simultaneous agreement to recovery the land to the vendor, is to be deemed to be a complete Usufructuary mortgage under the provision of Section 95A of the Act. Sree Kamada Ranjan Bhattachargee Vs Kohinur Chowdhury and others, 17 BLD (HCD)460

 

 Section—95A 

The plaintiff transferred .54 acre of agricultural land to the defendant by a kabala executed on 10.7.1949 and the transferee executed an Ekramama on 13.7.1949 and both the documents were registered on 7.11.1949. In terms of the Ekrarnama the transferee agreed to reconvey the land to the transferor if consideration money was paid back within 6 years. In such circumstances, the transfer in question must be held to be a complete usufructuary mortgage although the transaction took place before the commencement of the Second Amendment of the Act. Md. Rajiuddin Chowdhury Vs. Suruj Au, 16 BLD (HCD) 96.

 

Section— 95A 

The expression “either by way of an out and out sale with an agreement to reconvy” as used in Section 95A of the S.A.T. Act indicates that the deed of reconveyance is required to be registered and it must be a contemporaneous document along with the document of transfer of land by way of out and out sale. In order to obtain the benefit under this beneficial legislation the party who seeks to obtain the benefit must strictly satisfy the authority that he has complied with the requirements of law. Rup Charan Das Vs. Government of the People’s Republic of Bangladesh. 16 BLD (HCD)419

 Ref: 8BLD(AD)84 — Cited.

 

 Section—95A 

Section 95A of the S.A.T. Act is in Part V of the Act and it came into operation in the District of Chittagong on 1st August, 1963 and as such the provisions of section 95A of the Act cannot be pushed beyond 1.8.1963 as no retrospectivity was given to it . The disputed transaction is dated 13.12.1949 and even if it is taken to be a complete Usufructuary mortgage, still then it cannot be redeemed under section 95A of the State Acquisition and Tenancy Act, the transaction being a past and closed one after the lapse of 7 years. Nurul Islam Chowdhury and another Vs. Upazila Revenue Officer, Patia, Chittagong and others, 16 BLD (HCD) 31.

 Ref: 31 DLR (AD) 195; 34DLR (AD) 237—Cited.

 

 Section—95(2)(3)

An unregistered agreement for reconveyance is enforceable in law and the provision for registration of such an agreement as required under Section 95 (2)(3) of the Act does not bar the enforcement of such an agreement. Osman Gani Talukder alias Sujat Au Talukder Vs. Md. Osman All Mondal, 16 BLD (HCD) 165

Ref: 47 DLR 67; 28 DLR221; 24 DLR 42.

 

Section—96 

Waiver and acquiescence defeat the right of pre-emption 

When the pre-emptor took a leading part in bringing about the transaction by assisting the sellers in selling the land and encouraged the buyers in purchasing it and himself negotiated the price, the conduct of the pre-emptor is sufficient to give rise to waiver and acquiescence and as such estoppel operates against him. Akhlasur Rahman & ors. Vs. Safurullah and others, 14 BLD (AD) 20.

Ref: 42 IA 10(18), (1955) ISCR 70; 38 DLR (1986) 361; 22 DLR(1970) 449; 18 DLR(SC)( 1966)364—Cited.

 

Section 96

Feeling aggrieved by the judgment and order of appellate Court, one of the pre-emptees, namely, Md. Jalil alias Abdul Jalil filed a revisional applica- tion under section 115(1) of the Code of Civil Procedure before the High Court Division which issued Rule being Civil Revision No. 4555 of 2003. After hearing the parties, the High Court Division made the Rule ab- solute reversing the judgment and order passed by the appellate Court and restoring the judgment of the trial Court by the judgment and order dated 20.01.2009. Mosammat Manikjan Bibi vs. Md. Jalil alias Abdul Jajil (Syed Mahmud Hossain J) (Civil) 8 ADC 695 

Section 96

Mansurul Haque Chowdhury, learned counsel appearing for the pre-emptors contended that the High Court Division erred in law in interfering with the finding of fact arrived at by the Court of appeal below and thereby exceeded its jurisdiction in finding that the case was barred by limitation. Siddiqur Rahman vs. Md. Monwar Hossain (S.K. Sinha J) (Civil) 8 ADC 755

The State Acquisition and Tenancy Act, 1950

Section 96

The case of the pre-emptors was that the opposite party Nos.2 and 4 were owners in possession of 1.39 acres of land of S.A. Plot No.408 of mouja Kodomrasul, Police Station-Gopalgonj and they transferred the said land to the purchaser opposite party No.1 by a registered sale deed dated 20.12.2003. That the pre-emptors were the contigu- ous land holders of this land trans- ferred while purchaser opposite party No. I was stranger to that. That the pre- emptors, knowing about that sale, filed the pre-emption case within statutory period of limitation on depositing req- uisite amount. Syed Gulam Shariar vs. Mohammad Abdul Mannan (Nazmun Ara Sultana J) (Civil) 9 ADC 214

State Acquisition and Tenancy Act, 1950

We have considered the submissions of learned Advocates of both the sides and gone through the judgments of the courts below and other relevant papers on record. It appears that the High ment, has elaborately discussed to the effect that the contiguous plot No.334 measured a total area of 74 acre of land and that Nitai Mali-the predeces- sor of pre-emptor Sabitri Sundari Mali got less then 42 acre of land in this plot in his 8 annas 13 gondas 1 kora and I kranti share and that the pre- emptor Sabitri Sundari Mali acquired this 42 acre of land of plot No.334 by virtue of inheritance from Nitai Mali and also by virtue of purchase from her other three sisters and subsequently by a registered deed of gift dated 27.10.1999 pre-emptor Sabitri Sundari Mali transferred.72 acre of land of this plot No.334 to her son Sunil Chandra Biswas. Sunil Chandra Biswas vs. Mafizal Islam Sarker (Nazmun Ara Sultana J) (Civil) 9 ADC 317

Section 96

The case of the pre-emptors, in short, was that they were co-sharers by pur- chase of the case holding and also holders of land contiguous to the case land. That the opposite party No.3 sold the case land to the pre-emptee oppo- site party No.1 by registered kabala dated 16.09.1997 beyond the knowl- edge of the pre-emptors and without serving any notice upon them under section 89 of the State Acquisition and Tenancy Act. Sabu Tara Begum vs. Manik Miah (Nazmun Ara Sultana J) (Civil) 9 ADC 403

Section 96(4)

Against the said judgment and order of the trial court the co-preemptor (the original opposite party No.23) preferred Miscellaneous Appeal No.51 of 2001, the pre-emptee-respondent Nos.2 to 5 preferred Miscellaneous Appeal No.58 of 2001 and the original pre-emptors preferred Miscellaneous Appeal No.60 of 2001 before the learned District Judge, Noakhali and all those appeals were ultimately heard and disposed of analogously by the learned Additional District Judge, 2nd Court, Noakhali who allowed Miscel- laneous Appeal No.60 of 2001 and dis- allowed the other two Miscellaneous Appeals and thereby allowed the pre- emption Miscellaneous Case No.17 of 1999 in favour of the original petition- ers only by the analogous judgment and order dated 18.02.2003. Against that analogous judgment and order the co-preemptor preferred two Civil Re- vision Nos. 1302 of 2003 and 1303 of 2003 before the High Court Division and obtained rules. A Single Bench of the High Court Division by analogous judgment and order dated 14.01.2009 made both the rules absolute setting aside the analogous judgment and order of the lower appellate court and thereby restored the judgment and order of the trial court. Md. Ismail vs. Abul Kashem (Nazmun Ara Sultana J) (Civil) 9 ADC 570

 

Section 96 

The transaction sought to be pre-empted was not an exchange but a sale but the High Court Division on consideration of the evidence of P.W.I and the Ext.4 held that pre-emptor on the death of his father inherited 6 decimals of land and he having had gifted the same during the proceeding to his wife ceased to be the co-sharer of the holding and thereupon made the Rule absolute on the finding that prayer for pre-emption is not main- tainable since the pre-emptor ceased to be the co-sharer before finality of the pre-emption proceeding. Shamsuddin Sarder being dead his heirs- Mst. Sufia Khatun and others vs. Md. Habisuddin Gazi and others (Md. Ruhul Amin J)(Civil) 3ADC 966

 Section 96

The right of pre-emption can be waived or relinquished at an earlier date than the actual completion of the sale under the law. This position is deduced on the concept that although the right of pre-emption becomes enforceable only when there is a sale, the right exists antecedently to the sale inasmuch as such right is indispensable for avoiding inconvenience and disturbances arising out of the introduction of a stranger into the land.

M.A. Majid vs. Shahab Uddin (Md. Nuruzzaman J) (Civil) 20 ADC 524

আইন অনুযায়ী বিক্রয়ের চূড়ান্ত সম্পন্ন হওয়ার তারিখের পূর্বেই প্রাক-অধিকার ত্যাগ বা পরিত্যাগ করা যেতে পারে। এই অবস্থান নির্ণয় করা হয় এই ধারণার ভিত্তিতে যে, যদিও প্রাক-অধিকার কেবল বিক্রয় সংঘটিত হলে কার্যকর হয়, তবে এই অধিকার বিক্রয়ের পূর্বেই বিদ্যমান থাকে, কারণ এটি জমিতে অপরিচিত ব্যক্তির অন্তর্ভুক্তি থেকে উদ্ভূত অসুবিধা এবং বিঘ্ন রোধে অপরিহার্য।

এম.এ. মজিদ বনাম শাহাব উদ্দিন (মোঃ নুরুজ্জামান জে) (সিভিল) ২০ এডিসি ৫২৪

Section 96 

The suit was filed seeking declaration that the judgment and order dated June 29, 1987 passed in Miscellaneous Case (pre-emption) No. 6 of 1984 of the Court of Assistant Judge, Nangalkot was fraudulent and as such liable to be set aside. Serajul Hoque Majumder vs. Bachchu Mia Mojumder (Md. Ruhul Amin J)(Civil) 4ADC 967

 

Section 96 

Miscellaneous Case No. 5 of 1998 (Preemption) under section 96 of State Acquisition and Tenancy Act 1950 praying for pre-emption of the case land on the averments that he having pur- chased 19 acres of land became co- sharer by purchase. ...(2) Mvi. Md. Shafiqur Rahman vs. Ambia Khatoon (Md. Tafazzul Islam J) (Civil) 5 ADC 48

 

The State Acquisition and Tenancy Act 1950

Section 96 

Pre-emptor ceased to be a co-sharer of the case holding due to splitting up of jama and the case is also barred by limitation. Sree Girish Chandra Barman vs. Md. Yasin Ali and other (Md. Tafazzul Islam J) (Civil) 4ADC 211

Section—96

 Acquiescence, when arises

Right of Pre-emption accrues after the transfer of the land and this statutory right cannot be taken away by mere verbal assurance of the person having such right unless a clear case of waiver and acquiescence is made out on evidence. Fazaruddin Vs. Maijuddin and others, 14 BLD(AD) 29.

 

Section—96

Objection about defect of parties must be taken at the earliest stage and it cannot be entertained at the Appellate stage. Mosammat Saleha Bibi Vs. Taib Ali Mollah and others, 13 BLD (HCD) 677.

 Ref: 41 DLR(AD)124; 41DLR, 336; 31 DLR(AD)88; 1983 BLD(AD), 105; 21 DLR (SC) 145-Cited.

  

Section—96 

A finding of fact in respect of the preemptors date of knowledge about the impugned transfer arrived at by the lower Appellate Court on assessment of evidence and the same having been affirmed by the High Court Division, the Appellate Division found no justification for interference. Amena Khatun Vs. Abdul Motaleb and Others, 14 BLD (AD) 68.

 

Section 96- Pre-emption- Preemptor filed an application under Section 96 of the State Acquisition and tenancy Act in the Court of Assistant Judge, 9th Court Dhaka giving rise to preemption Miscellaneous Case being No.69 of 2006. The case is being contested by the pre-emptee- petitioners by filing written objection. the pre-emptees filed an application for rejection of the pre-emption application on grounds (1) all necessary parties were not impleaded in the preemption application and (ii) in filing the pre- emption application, the preemptor did not comply with the provisions of Section 96 (3) of the State Acquisition and Tenancy Act as amended in 2006. Alhaj Md. Maruf Hasan Swapan & another =VS= Kohinur Aziz & others. [1 LM (AD) 273]

Section 96- Pre-emption- It is true that the High Court Division in its revisional jurisdiction cannot reassess the evidence on record and should not readily reverse the concurrent findings of fact of the trial Court and the appellate Court which are both Courts of fact. However, it is within the jurisdiction of the High Court Division in its revisional jurisdiction to see whether the trial Court and the appellate Court have misread or left out of consideration any evidence on record. The High Court Division rightly held that the pre-emptor was not able to prove that the transaction was a sale. Hence, we are inclined to agree with the High Court Division that the deed in question is a deed of exchange and, therefore, the application for pre-emption was rightly rejected by reversing the decisions of the trial Court and appellate Court. ..... Abdul Mobin (Md)-VS- Abdur Rab, [4 LM (AD) 6]

Section 96- The prayers for preemption of the original preemptor and the co-preemptor of the case land are allowed in equal share. The original preemptor shall be entitled to withdraw the money deposited by him in excess of his proportion. Masum Ali (Md) =VS= Laynur Begum, [3 LM (AD) 266]

Section 96- Pre-emption The preemptor-petitioner while deposing before court, though denied this alleged eged fact that he obtained the certified copy of the case kabala in the year 1982 for the opposite party No.2, but he did not deny the fact that he was the engaged lawyer of the opposite party No.2. The opposite party No.2 filed Other Suit No.70 of 1982 challenging the genuineness of the impugned kabala. In the circumstances it is not believable at all that the preemptor-petitioner could not know about the case kabala before his alleged date of knowledge. From the facts and circumstances stated above it is rather proved beyond any doubt that the preemptor-petitioner knew about the case transfer in the year 1982. Shantipada Shil-VS- Sunil Kumar Sarker, [3 LM (AD) 459]

Section 96- Pre-emption We state the law that no application for pre-emption under section 96 of the Act, 1950 can be rejected on the ground of long lapse of time, if the same is found to have been filed within the statutory period of limitation, making the statutory deposit and impleading all the necessary parties and of course subject to the fulfillment of other requirements of law as regards the right of pre-emption of the pre-emptors. So, the impugned judgment and order cannot be sustained and that must be interfered with. The impugned judgment and order of the High Court Division is set aside and those of the Courts below are restored....... Syed Emdad Hussain VS Muzahar Ali Mallick, (3 LM (AD) 466]

Section 96- We must state the law that the pre-emptors were not at all required to file a separate suit for the declaration that the deed in question was not an ewaj deed, but it was an out and out sale deed, as the question could very well be raised and decided in the miscellaneous case itself filed for pre-emption of the land transferred by the deed in question. And it appears to us that the suit was filed on misconception of law by the Bar at the woe of pre-emptors...... Ruhul Amin (Md) VS= Md Forkan Ullah, [5 LM (AD) 65]

Section 96- Whether the pre-emptors had no locus-standi to file the case as the case khatian had already been separated- It appears that the High Court Division considered the case of the respective party as made out in the respective pleading and the evidence on record and came to the clear finding that the order of separation of the khatian vide Mutation Case No. 683 of 1995-1996 was set aside in miscellaneous Appeal No. 03 of 1997 and that from the order in the miscellaneous appeal, it appeared that notice was served upon the dead persons named Yakub Mollah and Ramizuddin. The High Court Division also noticed that against the order passed in Miscellaneous Appeal No. 03 of 1997 cancelling the mutation of the pre-emptee, Miscellaneous Appeal No.301 of 2012 was filed before the Commissioner and the appeal was dismissed upholding the order dated 14.11.2012 in Miscellaneous appeal No.03 of 1997 and came to the conclusion that the pre-emptors were the sharers by inheritance in the case holding. On behalf of the pre-emptor-respondents, an additional paper book has been filed incorporating the orders passed in Miscellaneous Appeal No. 03 of 1997 and Appeal No.301 of 2012; from perusal of those orders, we found that the High Court Division took the correct view as to the separation of the khatian and the co-sharers ship of the pre-emptors in the case holding. ....Akhtaruzzaman Mollah(Md.) =VS= Jahirul Alam, [5 LM (AD) 166]

Section 96- Pre-emption of the case- The High Court Division as the revisonal Court upheld the judgment and order of the appellate Court for the reason that the trial Court did not consider the whole aspect of the case, whilst the appellate Court considered the deposition of the witnesses, evidence on record, the impugned deed and location of the suit land.

The appellate Court also rightly refused to accept the solenama, the contents of which tend to show that pre-emptee No.2 was in collusion with the pre-emptors having received money outside the Court. Clearly this was not the money which the pre- emptor had deposited with the pre-emption application.

In the light of the facts and circumstances discussed above, we do not find any illegality or infirmity in the impugned judgement, which in our view does not call for any interference. Tafazzal Haq(Md.) -VS- Nazrul Islam(Md.). (5 LM (AD) 284]

Section 96- Pre-emption of the case- Both the Courts below also found that the pre-emptees could not prove that the pre- emption case was barred by the principles of waiver and acquiescence. These findings of the Courts below having been based on proper appreciation of evidence on record should not be interfered with by the High Court Division as there is no mis-reading or non-reading of evidence on record.

We are of the view that High Court Division was not justified in setting aside the concurrent findings of fact of the Courts below.

This civil appeal is allowed and the impugned judgment and order passed by the High Court Division is set aside. The judgment and order passed by the appellate Court affirming the judgment and order of the trial Court is hereby restored. .....Ramoni Golder -VS- Gopal Chandra Chowdhury. [5 LM (AD) 288]

Section 96- Pre-emption- Since the pre-emptees are still co-sharers of holding by inheritance, we are of the view that the High Court Division committed error of law in allowing the prayer for pre-emption against them upon setting aside the concurrent findings of facts inasmuch as such application was barred against the co- shares. The appeal is allowed. The judgment and order of the High Court Division is hereby set aside. ....Anwar Hossain @ Babul Miah (Md) =VS= Hakimuddin, [7 LM (AD) 45]

Section 96- Pre-emption On the basis of the comments of the Tahsilder, Dandkandi Tahsil Office, the Circle Officer (Revenue), Dandkandi, allowed the prayer of the pre-emptor and eventually, the pre- emptor's name was mutated. And accordingly, the pre-emptor started paying rents separately. So factually and legally, there was no separation or sub-division of the case holding but separation of jama only to pay the rent. But both the learned Senior Assistant Judge and the learned Additional District Judge without considering the relevant provisions of law and the mutation proceedings initiated by the concerned Tahsilder and the order of the Circle Officer (Revenue), Dandkandi treated the separation of jama as separation of the case holding and held erroneously that there was separation or sub-division of the case holding and thus the pre-emptor ceased to be a co-sharer in the case holding and therefore, it was not entitled to pray for pre-emption of the case land as a co-sharer in the case holding. However, both the Courts below found that the pre-emptor was a contiguous land owner to the case land.

We find no error committed by the High Court Division in allowing the pre-emption applications of the pre-emptor-respondent setting aside those of the Courts below. Accordingly, the appeals are dismissed. ...Atiqur Rahman Chowdhury(Md.) VS= M/S. Marshu Ltd., [8 LM (AD) 244]

Section 96- Pre-emption Settled clearly that any land within rural area, whether agricultural or homestead is pre- emptable under section 96 of the State Acquisition and Tenancy Act The pre- emptor was a contiguous land holder while he instituted the case for pre-emption. In the meantime, the original pre-emptor has died and his heirs have been substituted in this case. The documents filed by the appellant before this Court though show that the substituted pre-emptors have sold out some of their lands but on examination of these deeds it is apparent that the pre- emptors still have some lands contiguous to the case land.

We find no merit in this appeal. The High Court Division rightly allowed the case for pre-emption after setting aside the judgment and order of the appellate Court below and the trial Court. Aftabuddin(Md.) -VS- Abdul Musabbir, [9 LM (AD) 24]

Section 96- The right of pre-emption is not a right to the land sold but a right to the offer of the land about to be sold. If a pre-emptor waives or gives up his right without raising any objection to the sale in favour of third party, the Court may hold that pre-emptor has already given up his right. From the pleadings and evidence adduced by the pre-emptees it appears that the pre-emptors had voluntarily abandoned their known right. There are cogent evidence reflecting the pre-emptors conduct which clearly established the abandonment of such right. It was argued by the pre-emptor respondents that the right of pre-emption could accrue to the pre-emptors only after sale of the land by the vendor, and thus they could not be said to have waived it by their refusal to purchase the case land before its actual sale to the pre-emptors The right of pre- emption can be waived even before sale, by express refusal to purchase the case land or by conduct reflecting clearly that the pre-emptors were not interested in its purchase. ... Iqbal Hossain Talukder(Md.) =VS= Most. Siddika Begum, [10 LM (AD) 143]

Section 96- অগ্রক্রয়যোগ্য গ্রামাঞ্চলে অবস্থিত জমি রাষ্ট্রীয় অধিগ্রহণ ও প্রজাস্বত্ত্ব আইনের ৯৬ ধারা অনুসারে অগ্রক্রয়যোগ্য, যদিও সে জমি বসতবাড়ি হিসেবে ব্যবহৃত হয়- আপীল বিভাগে নিষ্পত্তিকৃত বিভিন্ন মামলায় অনেক সিদ্ধান্ত রয়েছে যেখানে বলা হয়েছে যে, "আইনে এখন এটা প্রতিষ্ঠিত যে মিউনিসিপিলিটির বাইরে রায়তের বসতবাড়ি রাষ্ট্রীয় অধিগ্রহণ ও প্রজাস্বত্ত্ব আইনের ৯৬ ধারা অগ্রক্রয়যোগ্য" (স্ব-অনুদিত)। আপীল বিভাগের বিচারপতি জনাব রুহুল আমিন মোঃ ফজলু মিয়া এবং অন্যান্য বনাম আসাবুর রহমান এবং অন্যান্য, ১০ বি. এল. সি. (এডি) ১০ মামলায় এই অভিমতটি ব্যক্ত করেন। অস্ত্র বিভাগ ২০১৩ খ্রিস্টাব্দে আব্দুল কুদ্দুস বনাম রাকিব আলী এবং অন্যান্য ১ সি. এল. আর (২০১৩)১৩৩, মামলায় একই দৃষ্টিভঙ্গি ব্যক্ত করেন যেখানে বলা হয়েছে যে, "এটা সুস্পষ্টভাবে প্রতিষ্ঠিত যে, গ্রামাঞ্চলে অবস্থিত জমি রাষ্ট্রীয় অধিগ্রহণ ও প্রজাস্বত্ত্ব আইনের ৯৬ ধারা অনুসারে অগ্রক্রয়যোগ্য, যদিও সে জমি বসতবাড়ি হিসেবে ব্যবহৃত হয়"। ...নুরুল ইসলাম (মোঃ) বনাম সফুরুন্নেসা, (10 LM (AD) 290]

Section 96- Pre-emption The appellate Court set aside the order of the trial Court upon holding that the right to preemption must subsist till the conclusion of the pre-emption case. When the case was decided by the trial Court on 13.05.1992 Chandra Kumar and Bashanta Kumar no longer owned any land in the case jote and therefore they had no subsisting right to pre-empt the case land.

The Appellate Division finds that the appellate Court has properly set aside the order of the trial Court and the High Court Division correctly affirmed the judgement and order of the appellate Court. The civil petition for leave to appeal is dismissed. ...Kamrun Nahar VS Mariam Begum, [10 LM (AD) 306]

Section 96-Pre-emption- The lower appellate Court did not properly assess the evidence on record and the reversal of the findings of the trial Court was not based on correct appreciation of the deposition of the witnesses We are of the view that the appellate Court came to a finding without properly assessing the evidence of the witnesses. The pre-emptor's claim of knowledge 15 years after the pre-emptee's purchase of the case land is not supported by any witness. In our view the trial Court correctly dismissed the case for pre- emption upon finding that the application is barred by limitation. Hence, we are of the view that the reversal of the order of the trial Court by the appellate Court was not in accordance with law and the High Court Division erred in upholding the erroneous judgement and order of the appellate Court. We find merit in the appeal, which is allowed. The judgement and order of the High Court Division as well as those of the appellate Court are hereby set aside and the judgement of the trial Court is restored. ...Sree Probitra Mohan Sutradhar =VS= Md. Asgar Miah, [10 LM (AD) 600]

Section 96

The pre-emptor ceased to be a co- sharer after separation of the case hold- ing, Sree Ambika Chandra Mondal vs. Sree Amullah Chandra Sarker (Syed Mahmud Hossain J) (Civil) 10 ADC 497

Section 96

For pre-ernption in respective of L64 acres of land. Their case is that they are co-sharers in the properties of schedule" Nos. 1 and 2 as heirs of their father and contiguous owners of schedule No.3 property as heirs of their father who is owner of plot Nos. 94, 95, 96, 104, 101 and 102, purchased the said 1.46 acres of land from the vendor respondent No.3 by registered sale deed dated 04.08.1983 at a consideration of TK.2000.00. Lala Ghand Sarder vs. Abdul Huq and others (Mohammad Fazlul Karim J) (Civil) 6 ADC 150

Section 96- Pre-emption- The pre- emptor has failed to prove that he derived his knowledge about the kabala dated- We have also perused the evidence. It appears that the pre-emptor claims to have derived his knowledge about the kabala in question from his full brother Mozammal Huq P.W.2 who derived his knowledge of the kabala from one Abdul Goni on 2nd Jaistha 1388 B.S. but this Abdul Gani was not examined in the case. Therefore, it appears that the pre-emptor has failed to prove that he derived his knowledge about the kabala sought to be pre-empted on 2nd Jaistha, 1388 B.S. In view of the discussion made above, we are of the view that the High Court Division erred in law in not assessing the evidence properly and thereby discharging the Rule. The appeal is accordingly allowed without costs. Humayun Kabir Khan -VS- Md. Nurul Haque, [5 LM (AD) 421]

Section 96- Pre-emption- It is clear that the appellate Court did not properly assess all the evidence and materials on record and did not reverse the findings of the trial Court, which were based on evidence and materials on record and arrived at upon giving cogent reasons. The High Court Division was patently in error simply endorsing the order of the appellate Court without considering whether the appellate Court had properly reversed the decision of the trial Court. The appeal is allowed, without however, any order as to costs. The judgement and order of the High Court Division is hereby set aside. Abul Hossain VS Most. Sakina Khatun, [5 LM (AD) 47]

Section 96- Pre-emption No address of the purchaser was known to the plaintiff at the relevant time and as such, the question of serving letter demanding pre-emption by post upon the purchaser did not arise The Appellate Division observed that the High Court Division came to a finding that by a power of attorney dated 28.10.1995, D.W.1 was appointed as the tadbirkar of defendant No.1 and that the disputed kabala was registered on 26.09.1994 and that the demand was made on 16.01.1995 and that the suit was filed on 05.03.1995 which showed that D.W.1 was not the tadbirkar of defendant No.1 when the demand was made on 16.01.1995. The High Court Division further found that the mother of defendant No.1 who disclosed for the first time about the disputed sale was the competent person before whom the demand of pre-emption was made by the plaintiff and that the finding of the appellate Court in this regard was without any material on record. The High Court Division noted that no address of the purchaser was known to the plaintiff at the relevant time and as such, the question of serving letter demanding pre-emption by post upon the purchaser did not arise. Having gone through the impugned judgment, Appellate Division finds that the High Court Division on meticulous consideration of the evidence on record reversed the findings of the appellate Court and restored the judgment of the trial Court. Accordingly, petition is dismissed. ..... Farid Ahmed -VS- Tofazzal Ahmed & others, [1 LM (AD) 184]

Section 96(3), 96(4)- Pre-emption- Section 96(3) before it was amended that there was provision even after filing the application for pre-emption for the Court "...after holding an inquiry as to the actual amounts of the consideration money and rent paid and the expenses incurred by the transferee..." to direct "the applicant or applicants to deposit a further sum, if necessary, within such period as it thinks reasonable..."

There was power given to the Court to hold an inquiry regarding actual amounts of consideration money etc. and to allow further amounts to be deposited within a certain period after filing the application. After the amendment of the law there is no such power given to the Court to hold any inquiry regarding consideration money or allow time or opportunity to deposit in Court any amount in respect of shortfall of consideration, compensation, and interest.

The court cannot inquire into what consideration was paid and there is no provision to allow the pre-emptor to deposit any shortfall in consideration money, compensation, or interest. The purchaser is required only to give details of payments since the date of sale, i.e. in respect of rent, annulling encumbrances or making improvement.

The impugned judgement and order passed by the High Court Division is set aside and the order of the District Judge, Kushtia dated 29.02.2012 is hereby upheld and the application filed by the pre-emptee under Order VII, rule 11 is allowed. The application under section 96 of the State Acquisition and Tenancy Act for pre- emption is rejected. ...Mosharaf Hossain(Md.) VS Mst. Rekha Khatun, [10 LM (AD) 91]

Section 96 (3)- Pre-emption application fail for non deposit 1 of the value of the deed under Section 96 (3) of the Act, 1950- A deed of sale and not a deed of exchange, that the pre-emptors were co- shares in the case holding, the miscellaneous case was filed within time, there was no defect of party were ball based on proper sifting of the evidence and the High Court Division was totally wrong in holding that the deed in question was a deed of ewaz nama and not a deed of sale, the pre-emption application must fail for non deposit of the value of the deed under pre-emption and the statutory compensation thereon as discussed above and accordingly, we find on merit in the appeal and in the same is dismissed. .....Ruhul Amin (Md) VS Md Forkan Ullah, [5 LM (AD) 65]

Section 96(10) (c)- The Appellate Division finds that the two registered deeds were executed on 31.07.2001 by opposite party No. 2 Saiful Islam who is the 2nd party in the divorce agreement. The total quantum of land is 66 decimals which is the quantum of land mentioned in the divorce agreement executed and signed by the parties on 31.07.2001. Thus the nexus between the registered land deeds and the divorce agreement is obvious on the face of the record. The claim of respondent No. 1 that the transfer of land was in lieu of dower is clearly established. Md. Shahidul Islam -VS- Sobejan Khatun & others, [1 LM (AD) 75]

Section 96

It appears from the record that the re- spondents executed the kabala deed in the District Registry Office instead of Sub-registry Office presumptably to conceal the date of sale. Syedur Rah- man Chowdhury vs. Monowara Begum (Mohammad Fazlul Karim J) (Civil) 6 ADC 576

State Acquisition and Tenancy Act, 1950

Landlords filed rent suit and that suit and that suit was decreed and the decree holders put the decree into execu- tion and auction purchased the land for areas of rent and then the aforesaid land lords settled. Pulin Behari Bairagee vs. Ananda Chandra Dakua (Md. Abdul Matin J) (Civil) 6 ADC 791

State Acquisition and Tenancy Act, 1950

Landlords filed rent suit and that suit and that suit was decreed and the de- cree holders put the decree into execu- tion and auction purchased the land for areas of rent and then the aforesaid land lords settled. Pulin Behari Bairagee vs. Ananda Chandra Dakua (Md. Abdul Matin J) (Civil) 6 ADC 791

Section 96

A co- sharer by inheritance and pur- chase stating that the pre-emptee peti- tioner is a stranger to the khatian under pre-emption. Nazimuddin Molla vs. Mobasser Ali Howlader (Md. Joynul Abedin J) (Civil) 6 ADC 938

Section 96

Praying for pre-emption of the case land under section 96 of the state Acquisition and Tenancy Act. Md. Mo- barak Hossain vs. Sk. Ayub Ali (M.M.Ruhul Amin CJ) (Civil) 6 ADC 974

Section 96(10)- The High Court Division did not at all take into consideration the full purport of section 96(10) of the State Acquisition Acq and Tenancy Act, 1950 and that a pre-emption case under Section 96 of the State Acquisition and Tenancy Act depends on the very nature of transaction i.e. whether a sale or a exchange and further the High Court Division failed to consider that the appellate Court, after thorough discussion of the evidence on record both oral and documentary, correctly came to the finding the transaction was not an out and out sale but an exchange which is not pre-emptible under Section 96(10) of the State Acquisition and Tenancy Act, 1950.

It further appears that the High Court Division failed to grasp the legal aspect to the effect that under section 92 of the Evidence, Act, 1972 no evidence is admissible to vary the contents of the documents by any oral evidence and oral or extraneous evidence to contradict the terms of the contents of document is inadmissible. In view of section 92 of the Evidence Act a deed of exchange which is not pre-emptible under section 96 of the E.B. State Acquisition and Tenancy Act cannot be treated as a deed or sale and intention to treat a deed of exchange as a deed of sale is not permitted. The judgment of the High Court Division cannot be sustained and liable to be set aside...... Nur Mohammad Mondal VS Mohammad Golam Rabbani, [5 LM (AD) 390]

Section 96

The case of the preemptee-petitioner is that the case land belonged to the re- spondent no.2 Zebal Ahmed Chowd- hury who borrowed Taka 1,00,000/- from the preemptee-petitioner and in pursuance thereof, he entered into an agreement for purchasing the case land and accordingly, the respondent no.2 executed a sale deed in respect of the case land on 6th December, 2003 on condition that the respondent no.1 would reconvey the deed of sale in favour of the respondent no.2. The im- pugned deed is not an out and out sale but it is a deed of mortgage and there- fore, the preemption case is not main- tainable which is liable to be dismissed. The respondent no.2 also contested the case by filing a written objection supporting the case of re- spondent no.1. Mohammad Mujibul Hoque vs. Shamsul Alam (S. K. Sinha J) (Civil) 7 ADC 233

Section 96

The pre-emptee-petitioner is a co- sharer of the case holding by way of in- heritance. Abdul Gafur vs. Md. Nuru Miah (Md. Muzammel Hossain J) (Civil) 7 ADC 279

Section 3(1)

After the acquisition of the land of the Zaminders on cessation of the Za- mindary system the rent receiving in- terest of the Mouza under which the case lands belonged was acquired by the Government under Section 3(1) of the State Acquisition and Tenancy Act, 1950. Bhawal Raj Court of Wards Es- tate vs. Rasheda Begum (Shah Abu Nayeem Mominur Rahman J) (Civil) 7 ADC 368

Section 96

Instituted Miscellaneous Case No. 7 of 1999(Preemption) in the Court of Senior Assistant Judge, Sadar, Noakhali for preemption of the case land claim- ing as co-sharer as well as holding lands contiguous to the lands transferred under section 96 of the State Acquisition and Tenancy Act. Golam Mostafa Bhuiyan vs. Abu Taher (S. K. Sinha J) (Civil) 7 ADC 400

Section—96 

When the application for pre-emption was made in time subsequent amendment for impleading necessary parties after the expiry of the period of limitation is permissible in law. Besides making all the co-sharers of the transferred holding as parties, the petitioner claiming pre-emption as a contiguous land-holder is required to make all the tenants holding lands contiguous to the case land parties in the case. Most. Khodeza Begum Vs. Md. Illias Mia and others, 14 BLD (HCD) 388.

 

 Section—96 

Since the result of the Title Suit shall govern the result of the Preemption Case it is expedient that the suit and the Pre-emption Case be heard simultaneously. Shanti Ranjan Baroi and another Vs. Sri Jogesh Baroi and another, 14 BLD (HCD) 121. 

Ref: M/S Ayet Ali Bhuiyan and Company Ltd. Vs. Janata Bank, 40 DLR 56 and Bangladesh Shilpa Bank Vs. Bangladesh Hotels Ltd, 38 DLR (AD)70-Cited.

 

 Section—96 

Section 96 of the State Acquisition and Tenancy Act is a beneficial legislation, intended for the convenience of the co-sharers of a 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. Golchera Khatun being dead her heirs: Akhtar Hossain and others Vs. Musammat Sayera Khatun, 13 BLD (AD) 41.

 

Section—96 

Pre-emption—Subsequent re-conveyance not to defeat pre-emption 

Acquisition of title takes effect from the date of execution of the sale deed and not from the date of its registration. With the sale the vendor loses all his interests in the property and he is left with no interest therein to encumber the sale by a subsequent agreement for re-conveyance. A colourable reconveyance cannot defeat the right of pre-emption. Captain Mohd Lutfar Rahman Vs Mohd Abu Taher and others, 21 BLD (HCD) 334.

 

Ref: Abul Hossain and ors. Vs. Md. Nasim Ali and ors, 19DLR677; Md. Sukur Ali Vs. Sree Suresh Chandra Barmon and Ors, 4BLD219; Khorshed Ali and ano. Vs. Aftauddin and ors. 47DLR607; Shafi Khan Vs.Mannujan Hossain and ors., 35 DLR (AD) 225—Cited.

 

 

 

Sub—section 10(C) of Section 96 

Sub-section 10(c) of Section 96 of the S.A.T. Act 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 if the donee is a relation of the donor by consanguinity within three degrees, such a transfer is not pre emptible. Sub-section 10(c) of Section 96 clearly indicates that it has not been designed to help the donor or donee to curtail the right of pre-emption of a co-sharer of a holding where his right of pre-emption has already arisen prior to such gift. In the instant case, the vendor of the case land did not transfer his land by way of gift to his wife but he transferred the case land to opposite part No.1 by a registered kabala. Opposite party No. 1, intern, gifted the case land to opposite party No. 85. Under such circumstances, the preemption case against opposite party No. 1 is quite maintainable in law as the latter could not pass a better title to opposite party No. 85 than what he had acquired by kabala from his vendor. Opposite party No. 85 acquired title in the case land subject to the pre-emptors already accrued right of pre-emption.

Mohammad Tayeb Vs. Haji Najir Ahmed and others, 16 BLD (HCD) 173.

 

Ref. 35 DLR (1983)238—Cited

 

 

 

Section—96

 

Reconveyance made during the pendency of pre-emption proceeding cannot take away the right of a pre-emption of the co-sharer. Khorshed Ali and another Vs. Aftabuddin and others, 16 BLD (HCD) 1.

 

 

 

Section—96

 

When the pre-emptor took a leading part in bringing about the transaction by assisting the sellers in selling the land and encouraged the buyers in purchasing it and himself negotiated the price, the conduct of the pre-emptor is sufficient to give rise to waiver and acquiescence and as such estoppel operates against him. (Per A.M. Mahmudur Rahman, I, delivering the majority judgment) Most Rokeya Begum Vs Md Abu Zaher and others, 20 BLD(AD) 90

 

Ref: Akhlasur Rahman and ors Vs. Safurullah and ors, I4BLD(1994)(AD)20—relied.

 

 

Section 96

This present petitioner as pre-emptor filed two pre-emption cases being Mis- cellaneous Case Nos. 15 of 1996 and 16 of 1996 against the present respondent No.1 Md. Hazrat Ali and another under section 96 of the State Acquisition and Tenancy Act, 1950 in the court of Sen- ior Assistant Judge, 2nd Court, Gazipur. His case was that he was a co- sharer of the case holding while the purchaser O.P. No. I was a stranger to that. Md. Abdul Khaleque vs. Md. Hazrat Ali (Nazmun Ara Sultana J) (Civil) 9 ADC 848 

Section 96

In accordance with the provision of section 60 of Registration Act and thus the impugned judgment suffers from patent infirmity which calls for inter- ference by this Division. Kali Mohan Das vs. Mossammat Firoza Begum (Syed Mahmud Hossain J) (Civil) 9 ADC 862

Section 96

Right to pre-empt accrues as soon as the sale is complete and not before that and thus the doctrine of waiver, estop- pel and acquiescence has no manner of application in a pre-emption case and thus the impugned judgment calls for interference by this Division. Kali Mohan Das vs. Mossammat Firoza Begum (Syed Mahmud Hossain J) (Civil) 9 ADC 873

Section 96

The pre-emptee-petitioner is a co- sharer of the case holding by way of in- heritance and pre-emption case against him is not at all maintainable. Stand taken by pre-emptee-petitioner is that Karimuddin Bepari, predecessor of the pre-emptee-petitioner and his three brothers purchased 3.76 acres of land from heirs of Cadastral Survey recorded tenant Yukub Ali by regis- tered deed of conveyance dated 17.04.1926 and Karimuddin got .94 acres in the case holding in his share. Karimuddin Bepari breathed his last leaving behind four sons, namely,

Abdul Gani Master, pre-emptee petitioner Abdul Gafur, Abdul Kader and Nurul Hoque, two daughters, Zin- natunnessa and Arabannessa and one wife Faridunnessa. Faridunnessa breathed her last leaving behind four sons, namely, Abdul Gani Master, Abdul Gafur, pre-emptee-petitioner, Abdul Kader and Nurul Hoque, two daughters Zinnatunnessa and Araben- nessa. Abdul Gafur vs. Pre-emptor No. 1-Md. Nuru Miah (Md. Muzammel Hossain J) (Civil) 10 ADC 55

 

Section—96 

There is absolutely no evidence from the side of the preemptee that there was an offer to the preemptor and refusal of the same by him or that he himself negotiated the transaction. The High Court Division without considering the facts and circumstances relying up-on I4BLD(AD)20 and 44DLR(AD)62 wrongly applied the principle in the instant case. [Per Mahmudul Amin Chowdhury, (dissenting)] Most Rokeya Begum Vs Md Abu Zaher and others, 20 BLD (AD) 90.

 

Section—96 

Mere knowledge or proposal for transfer is not sufficient to defeat the right of the preemptor which accrues after the sale is affected. [Per Mahmudul Amin Chowdhury, J. (dissenting) Most Rokeya Begum Vs Md Abu Zaher and others, 20 BLD(AD) 90

 

Section—96

Code of Civil Procedure, 1908 (V of 1908), Order I Rule 10 

Pre-emption Proceeding—Necessary parties 

In a pre-emption proceeding the necessary parties may be added at any point of time after institution of the suit but before hearing of the same. Nizam Sheikh and others Vs Alauddin Sheikh and others, 19 BLD(HCD)197 

Ref: 14 DLR2O4, 33 DLR(AD)1 13, 1986 BLD (AD)22 1—Cited.

 

 Section 96 

That the vendor and vendee collusively created it in the District Registrar Officer to keep secrecy to avoid pre- emption and no local person has been cited as witness of the deed to maintain secrecy and that no notice of sale was given to the petitioner. Monowara Begum and others vs. Syedur Rahman Chowdhury and others (Mohammad Fazlul Karim J)(Civil) 4ADC 575

Section 96 

The pre-emptor, a co-sharer of the case jote, had no knowlege of the above trans- fer and he came to know about the same only on 3.4.88 and thereafter on 11.4.1988 he filed this miscellaneous case. Md. Kamal and others vs. Md. Hafezur Rahman and others (Md. 

 Section—96 

Non-Agricultural Tenancy Act, 1924, Section—24 

The words 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. This interpretation will not throw the land open to the unlimited number of persons but to persons who are co-sharer tenants under the same landlord in respect of undivided land though such co-sharer tenants may be co sharer tenants of the tenancy. Syed Sad Ali Vs Bidhan Chandra Dev and ors., 20 BLD (HCD) 343.

Ref: S M Basiruddin Vs Zahurul Islam Chowdhury, 35 DLR(AD) 230; Moniudra Chandra Ghose Vs. Mujibul Islam, 12 DLR page 185—discussed

 

Section—96 

Right of Pre-emption-Estoppel 

Any and every act touching the transaction in which the pre-emptor may have taken part or the mere fact of knowledge about the transfer or temporary unwillingness on his part to buy cannot debar him from claiming his right at the proper time. Therefore, when the pre-emptor’s inability to purchase the land on the ground of financial inability which was a temporary one will not operate as estoppel from purchasing the land and exercise his right of pre-emption. Abdul Khaleque Vs Mosammat Kohinor Hamid, 20 BLD (HCD) 405.

 

Ref: 44DLR(AD)62; Akhlasur Rabman and ors Vs. Satarullah and ors, 42 DLR (AD)189; Ocean Industries Ltd. Vs. Industrial Development Bank, I 8DLR(SC)364—Cited

 

Section—96(1)(2) 

Limitation and partial pre-emption 

Since one of the pre-emptees was not impleaded in the preemption case within the statutory period of limitation, the case is barred by limitation at least as against him. In such a case, even if the pre-emption case is found to be maintainable against other preemptees, who were brought on record  within time, the case must fail as a whole as partial pre-emption is not permissible under section 96 of the SAT Act. Mossammat Arifan Nessa Vs Haroonor-Rashid and others, 17 BLD (HCD) 86.

 

Ref: 32 DLR 68; 38 C,W.N. 654; 49 C.W.N. 242; 19 DLR 659; 13 DLR 323, 14 DLR 847; 28 DLR 400; 42 DLR (AD) 110; 42 DLR(AD) 1 ;—Cited.

  

Section —96 

Pre-emption 

Pre-emption is a kind of purchase in preference according to category. When the question of purchase comes, the seller or transferee must have some right or saleable interest in the holding without that what the buyer will get by pre-emption, whatever may be the nature of transfer, So, against fictitious transfer pre-emption cannot be allowed. If preemption is allowed in respect of fictitious transfer, it will illegally affect the share and interest of the real co-sharers, which cannot be allowed by a Court of law. Md. Solaiman Au Sheikh and others Vs Abu Bakar .Siddique and others, 17 BLD (HCD)444

 

Section—96 

Homestead outside Municipal area comes within its ambit 

Transfer of a homestead land by a raiyat beyond the Municipal area is pre-emptible under section 96 of the S.A.T. Act and not under section 24 of the N.A.T Act. Homestead is a part of the holding of a raiyat and is not excluded from the operation of section 96 of the Act, homestead situated in the rural area being regarded as an agricultural land. Mantu Faraji alias Jamal Faraji and others Vs. Mahiuddin Khan, 17 BLD (HCD) 600.

 

Ref: 20 DLR562; 21 DLR633; Civil Appeal No. 47-D of 1963; (Civil Revision No. 639 of 1969); 33DLR (AD)323; 30 DLR75;— Cited.

 

Section—96 

The view that whenever there is a reconveyance of the case land by the vendee to the vendor, by any means whatsoever, the right of preemption is lost is too radical a view it is contrary to the underlying principle regulating pre-emption. Only a bonafide reconveyance by which the case land has actually gone back to the original vendor may stand as a bar against pre-emption. In view of the fact that the Appellate Division has already settle the law on the subject in the case of Shaft Khan Vs. Monnuzan Hossain and others reported in 35DLR(AD) 225, the view of the taken by a single Bench of the High Court Division in the case of Abbas Au Khan vs Osman Gani, reported in 37 DLR 25 is evidently erroneous and unacceptable. Abdul Mannan Mollah and others Vs Md. Abid Ali Patwari and others, 18 BLD (HCD) 397.

 Ref: 37DLR 25—Not approved.

 

Section—96(1) 

When a pre-emptor comes to the Court to exercise his right of pre-emption, which is essentially a predatory right, after a long lapse of time a heavy duty is cast upon him to prove his alleged 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 Au Ran and others, 17 BLD (HCD) 637.

 

Ref: Anil Kumar and others Vs. Syed Hafeez Moinuddin & ors,35 DLR 39—Cited.

 

 

Section—96(1)

Testimony of a co-sharer and witnesses as to the date of the knowledge of the transfer of a portion or share of a holding of a raiyat should be considered in determining whether the an application for pre-emption under section 96(1) had been filed within four months of the date of the knowledge of the ask the transferor if he had transferred the case land or other lands. Kuleshar Barman alias Kakaru Barman ‘. Sree Naresh Chandra Barman and others,21 BLD (HCD) 597.

 

Section—96(3)

Statutory deposit

Under Section 96(3) of the Act the preemptor has to make the statutory deposit of the consideration money with compensation at the time of filing the application for preemption. The trial Court was thus wrong in accepting a short deposit. But in view of the indolence and repeated laches of the petitioner enabling him to remain in possession of the case land for over a decade and in view of the farther fact that the pre-emptee is a co-sharer to the case of the Appellate Division declined to interfere. Md. Mojibar Rahim Mondal Vs. Khoteza Khatoon, 16 BLD (AD) 281.

 

Section—96(3)(b) 

A preemptor may be held to be estopped from enforcing his right of preemption if he abandons such right either expressly or by implied conduct. Acquiescence implies that if a person abstained from interfering while a violation of his legal right is in progress it operates by way of estoppel. In the instant case, there are adequate evidence on record to prove that the petitioner had knowledge of the sale made by his brother and he gave consent to the sale in question waiving his preferential right of purchase. Sree Aumullaya Chandra Halter v. Md. Mohsin Au Mondal & others, 22 BLD (HCD) 572

 Ref: Akhlasur Ra21 BLD (HCD) 597.

 

Section—96(3) 

Statutory deposit 

Under Section 96(3) of the Act the preemptor has to make the statutory deposit of the consideration money with compensation at the time of filing the application for preemption. The trial Court was thus wrong in accepting a short deposit. But in view of the indolence and repeated laches of the petitioner enabling him to remain in possession of the case land for over a decade and in view of the farther fact that the pre-emptee is a co-sharer to the case of the Appellate Division declined to interfere. Md. Mojibar Rahim Mondal Vs. Khoteza Khatoon, 16 BLD (AD) 281.

 

Section—96(3)(b)

A preemptor may be held to be estopped from enforcing his right of preemption if he abandons such right either expressly or by implied conduct. Acquiescence implies that if a person abstained from interfering while a violation of his legal right is in progress it operates by way of estoppel. In the instant case, there are adequate evidence on record to prove that the petitioner had knowledge of the sale made by his brother and he gave consent to the sale in question waiving his preferential right of purchase. Sree Aumullaya Chandra Halter v. Md. Mohsin Au Mondal & others, 22 BLD (HCD) 572

 Ref: Akhlasur Rahman and others Vs. Serazuddin and others, 42 DLR (AD)189.

 

Section—96(10)(a) 

Clause (a) of sub-section 10 of section 96 of the State Acquisition and Tenancy Act stands as a bar against the pre-emptor to maintain his application against the preemptee, who acquired the status of a co-sharer by way of inheritance before the deed of transfer under pre-emption was registered under section 60 of the Registration Act. Abdul Malek Majhee Vs. Apser All Howlader, 17 BLD (HCD) 522.

 

Section 96 

The pre-emptees are the co-sharers of the holding by inheritance and they already being co sharers of the holding made the purchase in question in 1991 and the pre-emptees having had made the purchase at a time when they were already co-shaers by inheritance of the holding land of which sought to be pre- empted. Afia Begum vs Abdul Baset Mia (Md. Ruhul Amin J) 3ADC 447

 

Section—96 (10)(b) 

Deeds captioned as sale deeds-Can these be held to be deeds of exchange and not pre emptible?

 Three deeds were executed in the same sitting and registered on the same day bearing consecutive numbers 12006, 12007 and 12008-The transferees of deed no 12006 except Ahmed Au-are the recipients (transferees) of deed no. 12007 (recipients being Belaiyat Au, Arab Ali and Rajah Ali), The recipients (transferees of deed no. 12008 is Ahmed Ali alone, who is of the transferees of deed no. 12006-The transferees of deed no. 12006 are together the recipients of deed nos 12007 and 12008 and the transferees of deed nos. 12006 are the transferees of deed nos. 12007 and 12008-Facts and circumstances of the case lead to the conclusion that these are deeds of exchange and not of sale and as such not pre-emptible u/s 96(10)(b) of the S.A.T. Act. Patan Khan and others Vs. Amud Ali Sheikh and others, 14 BLD (HCD) 461.

 

Section 96 

A co-sharer by purchase was entitled to preempt the transfered land by either filing an application under section 96 (1) of the State Acquisition and Tenancy Act within 4 months of the service of notice given under Section 89 of the state acquisition and Tenancy Act or if no notice has been served as aforesaid, within 4 months of the date of knowl- edge of the transfer Raushan Akhter @ Moharaji Bibi vs Khandakar Mosharraf Hossian & Ors. (Civil) IADC 100

 

Section 96 

The year of the dead Co-Sharers as admitted by the pre-emptor, having not been made parties in the pre-emption case, remand order cannot be made from the High Court Division for remand of the case to the Appellate Court below for scrutining of the question of default of parties. Abdul Matlib vs Abdul Malik. (Civil) 1ADC134

 

Section 96

The application so filed seeking pre- emption was quite maintainable since the same was filed with in the time pre- scribed by law and that there was deposit of the amount mentioned in the kabala as well as the statutory compensation or other words deposit that was made in seeking pre emption was not short of the amount that was required to be deposited for the purpose of maintainability of the pre emption petition and the same was not bad for defect of party. Rokeya Begun: vs Md. Nurul Absar (MD. Ruhul Amin, J) (Civil) 1 ADC 247

 

Clase 10(b) of Section 96 

To defeat the pre emption.. when the nature of transaction become doubtful on the specific allegation for the interest of justice matter is required to be tested by adducing evidence. Alfazuddin Mollah being dead his heirs 1(a) Mizanur Rahman Mollah vs Md. Almas chokder (Sayeed J) I ADC254

Section 96—

The trial Court after hearing the parties allowed the pre-emption finding that the pre-emptor was a co-sharer by inheritance and that the pre-emptee failed to prove that he was also co-sharer which was affirmed upto to the High Court Division. Any ground not canvassed before the Courts below cannot be raised before the Appellate Division. Abdul Kashem vs Amirun Nahar 11 BLC (AD) 147.

 

Section 96—

In fact, date of registration of a kabala under section 60 of the Registra­tion Act is taken into consideration for the purpose of computation of limitation in filing a miscellaneous case for pre-emption. According to section 47 of the Registration Act, registered document dates back to its date of execution and operates from that date. There is a long line of decisions which have settled that registered document operates from the date of its execution and not from the date of its registration. Dabiruddin Mia vs Mothaharuddin Miah 12 BLC 191.

 

Section 96—

The ingredients of section 24 of the Non-Agricultural Tenancy Act and those of section 96 of the State Acquisition and Tenancy Act are different. Some of these distinctions are that while section 96 confers right of pre-emption on the holder of land contiguous to the land transferred, no such holder of land can exercise the right of pre­emption under section 24 of the Non-Agricultural Tenancy Act which merely confers the right of the pre-emption on a non-agricultural tenant in respect of non-agricultural land. Moreover, the expression 'holding' in section 96 which is not to be found in section 24 also makes for a meaningful distinction.  Sadhana Rani vs Parimal Kumar Sarker 12 BLC 465.

 

Section 96—

A careful assessment of testimonies of OPW 1, OPW 2 and OPW 3 demonstrates that pre-emptor side was approached to purchase pre-emption pro­ceeding land and pre-emptor-petitioner did not purchase land expressing inability and, therefore, mediated transaction between vendors-opposite-party side and pre-emptees-opposite-party side and pre-emptor-petitioner, thus, relinquished, abandoned, waived and acquiesced his right to pre-empt land. Syed Shamsul Alamvs Syed Hamidul Huq 12 BLC 777.

Section 96—

The case plot has already been fragmented and the holding has been separated much earlier to the institution of the case. The doctrine of pre-emption has been introduced only to help mutation and amalgamation of the holding. In the instant case, the same having contiguity has ceased to exist. There is no contiguity of the case land with the land of the pre-emptor which had separated earlier and the pre-emptor is not entitled to get pre-emption. Nurul Alam Mondal (Md) vs Md Ferdous Alam 12 BLC 787.

 

Section 96—Pre-emption multiple transfer—

In case of multiple transfer right to pre-emption accrues to a co-sharer of a holding as soon as a share of it is transferred. The co-sharer of the holding, if he so wishes, may seek pre-emption as against the first transfer in which he may make the subsequent transferee as a party. And in case of success the subsequent transferee is entitled to money not exceeding the deposit made against the first deed. Azadur Rahman vs Abdul Musabbir 17 BLC 472.

Section 96—It is evident from the materials on record that the land in question being non-agricultural in nature, which is an admitted fact, the application under section 96 of the State Acquisition and Tenancy Act is not maintainable. The pre-emptor has no locus standi to file the case, as he is not the co-sharer on the case holding number of this non-agricultural land. Abul Kadir (Md) vs Matiur Rahman Khan 11 BLC 56.

 

Section 96—

The pre-emptor in support of his initial knowledge examining himself as PW 1 and PW 2. The pre-emptee alone deposed in the case. In that state of the matter it appears that pre-emptee failed to disprove the case of the pre-emptor about the initial knowledge of the transfer by examining independent witness. Rustum Ah vs Hanufa Begum 12 BLC (AD) 146.

 

Section 96—

The learned Counsel for the petitioner argued on the question of limitation. The High Court Division, upon detailed discussion of the evidence held that preemptor was able to establish his initial knowledge about the transfer sought to be preempted and that thereafter became certain about the transfer upon obtaining certified copy of the kabala on May 17, 1992. The Miscellaneous case, was filed on May 18, 1992. The learned Counsel for the petitioner could not point out either misreading of the evidence or nonconsideration of the evidence on the point of limitation by the trial Court and by the High Court Division. Aziruddin (Md) vs Harmuj AH 12 BLC (AD) 162.

 

Section 96—

It appears that the pre-emptee has taken up defence that the pre­emptor himself negotiated the sale and settled the price of the land but instructed the pre-emptor to value the kabala showing minimum price and that has been pleaded and has been substantiated by the PW1 in his evidence. The Court's below have taken their decision lawfully and rejected the claim of pre-emption on the ground of waiver. Abdus Sattar Chowdhury vs Md Ansar AH Sheikh 16 BLC 574.

 

Section 96—

Certainly, in this case, disputed transfer under the sale deed No-8360 dated 30-11-76 corresponding to 14th Agrahayan, 1383 BS was made to this pre-emptee petitioner and not to his father. His interest in the tenancy has accrued by inheritance simply because he inherited his father's share. How and in which manner their father's interest had accrued to the tenancy is immaterial. The transfer made to the present petitioner is protected and immune from pre-emption under sub-section (10)(a) of section 96 of the SAT Act. This important question of law did not receive due consideration from the trial Court as well as lower appellate Court. Therefore, the two Courts below seriously erred in law in allowing the pre-emption application without properly applying its judicial mind into the facts and circumstances of the case. Shamsuddin vs Jatindra Chandra Urang 15 BLC 497.

 

Section 96—

It appears from the above pronouncement of this Court as well as our Apex Court that the pre-emption is to be sought on holding wise not transaction basis . In the case in hand it appears that the pre-emptor specifically claimed the pre-emption on holding/khatian wise and they did not involved the land in khatian No. 609 and 610 and accordingly they did not made co-sharer of that khatian as party and, as such, it cannot be said the present case is hit by doctrine of partial pre-emption or defect of party. Khalilur Rahman Talukder vs Khondaker R Karim Faruk 15 BLC 739.

 

Sections 96(3) (a)—

On a close and careful reading of section 96(3) (a) of the State Acquisition and Tenancy Act it appears that the pre-emptor was required to make deposit of the entire consideration money along with statutory compensation and the preemptor cannot make partial deposit in exercising the right of pre-emption. In the instant case, it appears that the price was not mentioned individually and separately and the price of the entire 64 decimal of land was shown jointly at Taka 3,00,000. As per section 96(3) (a) of the SAT Act, the pre-emptor had to deposit the entire kabala consideration plus compensation at the rate of ten percentum against the whole consideration money at the time of filing the pre-emption case. AKM Nazimuddin vs Md Delwar Hossain 13 BLC 868.

 

Section 107—

The High Court Division discharged the Rule holding that the appel­late Court has duly found that the plaintiff Bigraha is in possession of the suit land and further, the claim of alleged pattan by the defendants in the city of Barisal is hit by the provision under section 107 of the Transfer of Property Act and so the contesting defendant acquired no pattani right in the suit land on the basis of unregistered docu-ment. Moreover, the Exhibits showing payment of rent do not show that those were paid in respect of the suit land. Morium Begum vs State 13 BLC (AD) 131.

 

Section 117—

The last Court of fact has found that the plaintiff has title in the land in suit and he is in possession of the land in suit as the record of right was prepared in favour of the plaintiff, who has been paying rent for the same when the Advocate Commis­sioner's report shows that there is no structure of Dagonbhuiyan Charitable Hospi­tal and the Thana Health Complex in the land in suit. There is no infirmity in the finding of the High Court Division regarding the right, title and possession of the plaintiff in the land in suit and that claim of the defendants has not been substantiated by oral or documen­tary evidence. Bangladesh vs Sultan Ahmed 14 BLC (AD) 47.

 

Section 117(1)(c)- The pre-emptor and the vendor being full brothers, the pre- emptor is entitled to prevent any stranger from entering into what was their joint family property- The evidence on record that the pre-emptor is the full brother of the vendor of the case land. One should not lose sight of the intention of the legislature behind the provisions of law for pre- emption. Essentially the provision exists to prevent any stranger from buying land which form a part and parcel of jointly owned property. The aim of the legislature is to give opportunity to the co-sharers to buy the case land thereby excluding incursion by strangers. In the facts of the instant case, clearly the pre-emptor and the vendor being full brothers, the pre-emptor is entitled to prevent any stranger from entering into what was their joint family property. It has been rightly held that separation of the Jama is not effective since the provisions of section 117(1)(c) of the Act have not been complied with; simply having a separate Municipal holding does not sever the joint ownership of the property unless the mutation takes place in accordance with the provisions of the Act. ... Harunur Rashid -VS- Afruza Khanam, [4 LM (AD) 221]

Section 123—

The High Court Division has rightly found that the petitioner's basis of title is a registered deed from her vendor who claims the suit property by oral gift. Being a member of the Hindu Community by the alleged gift petitioner's vendor acquired no title in the suit property. So her vendor Guru Dasi Dey had nothing to transfer to the petitioner. Shahanaz Begum vs Md Kutubuddin 13 BLC (AD) 15.

 

Sections 143—

Since the petitioners predecessors, got contested decree which has been upheld by the High Court Division and they transferred the entire land by different kabala deeds, they are entitled to get their names mutated in the khatian. Shafique Uddin Ahmed vs Bangladesh 17 BLC 216.

Section 143 and 143(c)

Writ-petitioners averred in the writ petition that pursuant to an agreement for sale of the disputed property, they got a decree for Specific Performance of Contract in Other Class Suit No.40 of 1981 which decree was affirmed by this Division. Thereafter, they got a sale deed duly executed and registered through Court on 11th February, 2009. The petitioners, the writ-respondents, were under obligation to correct the record-of-rights in their favour but they were delaying the procedure for collateral purpose. Petitioner No.1 contested the petition stating that the original owners of the disputed property surrendered the same as excess land under P.O.98 of 1972 and accordingly, the property vested in the Government free from all encumbrances and thus, the vendor of the writ petitioners had no saleable interest in the disputed prop- erty and therefore, the petitioners were under no obligation to mutate their names in the record-of-rights. Govern- ment of Bangladesh vs. M. Anwar Hos- sain (S.K. Sinha J) (Civil) 8 ADC 901

 

Section 143A—

The learned Additional Attorney-General argued that the material consideration in a case under section 143A of the Act is the question of possession and since in the instant case the appellate Court which is the final Court of fact on consi­deration of the evidence clearly recorded a finding that the Government has been in possession of the disputed land and the said finding has not been reversed in revision, the learned Single Judge of the High Court Division has fallen into an error of law in interfering with the order of the appellate Court refusing correction of the record of right.

Bangladesh vs Ramiz Mia 12 BLC (AD) 201.

 

Section 143A—

It is apparent that the defendant did not take settlement of any land relating to the Taluk named as Abdul Taluk, rather he may have taken settlement of land relating to other Taluk which is adjacent to the land of Abdul Taluk. Therefore, the claim of the defendant has not been established and the Courts below without properly appre­ciating of that exhibit illegally decided the fate of the suit. It appears that the so-called record of right in the name of Abdul Monaf and subsequently corrected in the name of the contesting defendant by filing a suit under section 143 A of the state Acquisition and Tenancy Act is not at all relevant to the suit land and the plaintiff is not bound by the decree of the suit.

Famim Khatun us Fazlul Karim 15 BLC (AD) 236.

 

Section 143(a)—

Writ Petitioners having not enclosed any order of the Revenue Officer pursuant to the filing of their application for mutation and only stated that they prayed to the Assistant Commissioner for mutation of their names who expressed his inability to mutate their names. The High Court Division in no way is sitting on appeal from the order of the Revenue Officer. Since no action or order contrary to law has yet been taken by the Revenue Officer, the writ petition in the nature of mandamus is a premature one.

Government of Bangladesh vs M Anwar Hossain 16 BLC (AD) 155.

 Section 143(A)

The High Court Division while making the Rule absolute observed the appel- late court sent the suit back on remand for fresh hearing although the suit was 29 years old and the ground on which the suit was sent on remand was not tenable in the eye of law. Harunullah Akhand vs. Abdul Latif & others (M. M. Ruhul Amin J) (Civil) 6 ADC 243

The State Acquisition and Tenancy Act, 1950, 

Section 143

Principal defendant and the other re- spondents as proforma defendants for a declaration of their right, title and possession jointly with the proforma defendants in the suit land and also for a declaration that the judgment passed in Miscellaneous Case No. 132 of 1969 of the same court is collusive Jamira Khatun vs. Md. Fazlul Karim (Moham- mad Fazlul Karim J) (Civil) 6 ADC 419

Section 143A

Praying for declaration that the "Ka" schedule property as Debutter Property and the registered deed dated 13.01.1977 as described in the "Kha" schedule is illegal, collusive, null and void impleading the appellants as prin- cipal defendants. Narendra Chandra Das vs. Sree Sree Gopal Bigraha (Md. Muzammel Hossain J) (Civil) 7 ADC 216

Section 144

The conditions for correction of mouza map/change of mouza map of the 3(three) mouzas, namely: Patleechak, Moizpur and Darikhanjanpur as articu- lated by the legislature in section 144 of the Act and rule 27A(2) of the Rules, 1954 being absent, the whole exercise made in that behalf by the As- sistant Settlement Officer, the Zonal Settlement Officer, the Director Gen- eral of Land Records and Surveys, the opinion given by the local administra- tion including the Deputy Commis- sioner and the approval given by respondent No.1 vide annexure-'H' to the writ petition on such exercise could by no term be said to be with jurisdic- tion but without jurisdiction. There- fore, the High Court Division acted within its jurisdiction of exercising its power of judicial review in declaring the impugned administrative approval given by the Government to have been issued without lawful authority and is of no legal effect. Jamshed Miah vs. Md. Abdul Jalil (Md. Abdul Wahhab Miah J) (Civil) 10 ADC 451

Section 144—

The trial Court arrived at its wrong decision because of non-consideration of the material evidence on record namely, the rent receipts granted by the Government and the deed a 90 years old registered deed as well as the SA Khatian and RS Khatian standing in the names of the predecessor-in-interest and in the name of the plaintiffs respectively and the Judgment of the High Court Division is in accordance with law and hence no interference is called for.

Abdul Jabbar vs Akter Hossain Bhuiyan 17 BLC (AD) 174.

 

Section 144A—

Cadastral survey record-of-right, though, is the oldest record-of-right prepared under section 103 of The Bengal Tenancy Act State Acquisition record-of-right being a latter record-of-right got presumptive value as to its correctness as enjoined under section 144A of the State Acquisition and Tenancy Act which enjoins that every entry in a record-of-right prepared or revised under section 144 shall be evidence of the matter referred to in such entry, and shall be presumed to be correct until it is proved by evidence to be incorrect. Stale Acquisition record-of-right stands in the name of Kailash Chandra Mondal and record-of-right prepared in the name of Kailash Chandra Mondal, predecessor-father of plaintiffs-petitioners got presumptive value as to its correctness, of course, the presumption is rebuttable one.

Kartik Chandra Mondol vs Zoynal Dewan 12 BLC 652.

 

Section 144—

Without correcting the SA Khatian and RS Khatian as prepared in respect of the case lands in accordance with law earlier, the leave petitioner cannot get its name entered in the recent record of right prepared during Mohanagar Survey allegedly only on the basis of CS Khatian.

The petitioner had no locus standi to chal­lenge the draft Mahanagar Survey Khatian as prepared in the names of the respective writ petitioners, at least after publication of the gazette notifications dated 24-3-1952 and 29-2-1956.

Bhawal Raj Court of Wards Estate vs Rasheda Begum 15 BLC (AD) 115

 

Section 148- The main ground on which the order of the Additional Deputy Commissioner (Revenue), Dhaka was challenged was that the limitation for filing an appeal under section 147 of the State Acquisition and Tenancy Act, 1950(the Act, 1950), as provided in section 148 thereof was 30 days, but the appeal was filed beyond 30 days with an application for condonation of delay. Therefore, the order passed by the Additional Deputy Commissioner (Revenue) admitting the appeal condoning the delay was without jurisdiction. From the impugned judgment and order, it appears that the High Court Division accepted the said contention of the writ-petitioner and made the Rule Nisi absolute. We find nothing wrong with the view taken by the High Court Division inasmuch as limitation provided in the Act, 1950 was a special limitation......A.T.M. Nasiruddin -VS- Shirin Ahmed Chy.. [3 LM (AD) 45] 

Section 151A—

Whether there is any mosque or graveyard in the proceeding land is a disputed question of fact and such quention cannot be decided in writ jurisdiction. However, for strict compliance of the provisions of law that mosques and graveyards are to be excluded from the acquisition proceedings. If there is any mosque or graveyard on the petitioners' land, the same should be kept outside the acquisition proceedings in accordance with the law.

Ameenah Ahmed vs Bangladesh 12 BLC 514.

Suit for Declaration of title

State Acquisition and Tenancy Act [XXVIII of 1951]

Sections 144 and 144(A)

A finally published record of rights revised under Section 144(A) of the State Acquisition and Tenancy Act has a presumption of correctness and that presumption continues till it is otherwise rebutted by a reliable evidence.

The oldest record of rights being the cadastral survey prepared under section 103(B)(5) of the Bengal Tenancy Act (Act No. VIII of 1885) also got a high presumptive value as to correctness of entries therein as it has also been enjoined under section 144(A) of the State Acquisition and Tenancy Act. Of course this is a rebuttable peace of presumption, if it has been so rebutted by evidence. [2023] 27 ALR (AD) 31

From the above quoted provisions of section 96 of the State Acquisition and Tenancy Act, 1950, it is clear that sec- tion 96 contemplates two distinct applications, one application under sub-section (1) and another applica- tion by the co-petitioner under sub- section (4) to join with the original application under sub-section (1) with- in the period of limitation as provided in sub-section (4) of section 96 of the Act. The right to purchase the land transferred as contemplated under sec- tion 96 is a statutory right and this right can be exercised by two ways: one is under sub-section (1) and anoth- er under subsection (4) of section 96. Under sub-section (1) this right is to be exercised within four months of the service of the notice given under sec- tion 89, or if no notice has been served under section 89, within four months of the date of knowledge of the trans- fer. Again, sub-section (4) provides the period of limitation for the remaining co-sharer tenants or tenants holding land contiguous to the land transferred, to join in the pre-emption pro- ceedings, under sub-section (4) this right is to be exercised within the peri- od referred to in sub-section (1) of sec- tion 96 of the Act or within two months of the date of the service of the notice of the application under clause (b) of sub-section (3), whichever is earlier.....(17)

 Md. Sulaiman Bakth vs. Mazeda Shamim Ara (Md. Nuruzzaman J) (Civil) 20 ADC 262

State Acquisition and Tenancy Act, 1950

Section 96

Held; The sole point on which the Appellate Court parts with the findings of the Trial Court is that on principle of estoppel, waiver and acquiescence. The Trial Court finds that the pre-emptor was barred by application of the principle of estoppel, waiver and acquiescence and the Appellate Court on the basis of case law decided by this Division in the case of Fazaruddin vs. Maijuddin and others reversed the judgment of the trial Court which was reported to the 44 DLR (AD) 62 - On the discussion of finding of facts arrived at by the Appellate Court as well as the High Court Division, we find no basis to reopen the matter and take a diametrically opposed view the on question on which leave was granted. Because, the evidence on record does not expressly support the case of negotiation of the sale to the pre-emptor, rather, the trial Court's discussions were beyond the principles of the above referred case law. [Para-19 & 21] [31 BLT (AD) (2023) 66

Editors’ Note

The question came up for consideration in this case whether after transfer by pre-emptee[1]opposite party no.1 to co-sharer opposite party no.6 the pre-emptory right of the pre-emptor exists or not. The Appellate Division examining section 90 and 96 of State Acquisition and Tenancy Act and the view taken by their lordship in the case of 50 C.W.N. 806 as well as 35 DLR 238 and also distinguishing the facts of 35 DLR (AD) 225 held that even after subsequent transfer by the stranger pre-emptee to another co-sharer of the holding, the pre[1]emptory right of a co-sharer pre-emptor will not be defeated.

Section 96 read with section 90 of the State Acquisition and Tenancy Act: On perusal of proviso to Sub-section (1) of Section 96 of the State Acquisition and Tenancy Act it appears that the right of pre-emption is not available to a co-sharer tenant or tenants holding land contiguous to the land transferred unless he is a person to whom transfer of the holding or the portion or share thereof, as the case may be, can be made under section 90. ...(Para 16) Our apex court denied right of pre-emption in the case when the vendee retransferred the land to the vendor and the right is barred by the principle of estoppel, waiver and acquiescence. ...(Para 17)

Section 96 of the State Acquisition and Tenancy Act: We have no hesitation to hold that even after subsequent transfer by the stranger pre[1]emptee to another co-sharer of the holding, the pre-emptory right of a co-sharer pre[1]emptor will not be defeated as because the subsequent transfer is subject to the right available against the original transfer and the subsequent transferee would be impleaded as party in the pre-emption proceeding and he would be entitled to get the consideration and compensation money as deposited by the pre-emptor. ...(Para 23)  16 SCOB [2022] AD 77

Sections 116 & 117—

Sections 116 and 117 of the State Acquisition and Tenancy Act have provided procedure for amalgamation and subdivision of a tenancy or holding, and aft~ a valid subdivision of a holding and distribution of the rents, preemption at the instance of a co-sharer of the former joint holding is not maintainable. SM Nasirul Haque vs Omar Faruque Chowdhury and others 54 DLR 181.

 

Section 117—

When a valid order under section 117 of the State Acquisition and Tenancy Act is given, the court is not competent to ignore the said order when disposing of a case under section 96 of the said Act. M Bank vs Nitya Ranjan 39 DLR (AD) 75.

 

Section 117(i)(c)—

Notice having not been served upon co-sharers, mutation and sub­division effected behind their back cannot be said to be valid sub-division or splitting up of jama and in such case co-sharer in the joint tenancy cannot be said to have lost their right of pre-emption . Galam Mostafa vs Begum Rokeya Khandaker, & others 53 DLR 232.

 

Section 117(i)(c)—

Upon partition of the non-agricultural land by metes and bounds by a decree in a partition suit there occurs ceasing of co—sharership among the separate specific saham holders. Alfazuddin Ahmed vs Abdur Rahman and others 55 DLR (AD) 108.

 

Section 117(1)(c)—

Separation of jama or sub-division of a holding or tenancy distributing rents, whether in the case of agricultural land or non-agricultural land, takes place under section 117(l)(c) of State Acquisition and Tenancy Act. The original co-sharers on such separation cease to be co-sharers. Shah Alam (Md) vs Md Shahidur Rahman and others 55 DLR 214.

 

Section 143—

The decision of the Board of Land Administration travelled beyond its jurisdiction in deciding matters not within its jurisdiction under section 143 of the State Acquisition and Tenancy Act. Syed Ashfaque Hossain vs Bangladesh 41 DLR 364.

 

Section 143—

Section 143 of the State Acquisition and Tenancy Act provides, inter alia, that the record of right prepared or revised shall be maintained upto date in the prescribed manner under Part IV, or under chapter XVII by correcting clerical mistakes and by incorporating the charges on account of the mutation of names as a result of transfer or inheritance. Idris Ali vs State 38 DLR 270.

 

Section 143—

Finding of Revenue authority carries much weight so far as possession is concerned. Abdul Gani Khan vs Shamser Ali 45 DLR349.

 

Section 143—

A Revenue Officer holding an inquiry in a mutation proceeding, in the premises, does not become a court as he does not really adjudicate a right and he does not give a decision which is binding on the parties. Shahera Khatun & ors vs State and another 53 DLR 19.

Section 143(A) 

For a declaration that the suit land measuring 4.75 acres of land is comprised of a mango garden having 74 mango trees standing thereon is not a forest land and as such the vesting of control and management thereof in the Forest Department are illegal and inoperative and not binding on the plaintiffs and the plaintiffs are entitled to reversion of the same free from control and management of the Forest Department on the follow- ing allegations. Government of Bangladesh represented by the Secretary Ministry vs. Md. Ayub Ali and another (Md. Joynul Abedin J) (Civil) 4ADC 451

 

Section 143—

A criminal Court can take cognisance of any offence described in sections 463, 471, 475 and 476 of the Penal Code on the basis of complaint by an aggrieved party when such offence is alleged to have been committed by a party to any mutation proceeding in respect of a document produced in evidence in such proceeding. Shahera Khatun & ors vs State and another 53 DLR 19.

 

Sections 143 & 144—

The provisions of the Act and the Rules clearly show that the revision of the record of rights under section 144 of the Act has presumptive value, but any order of mutation of the record made under section 143 of the Act has no such presumptive value. Shahera Khatun & ors vs State and another 53 DLR 19.

 

Section 143A—

Section 143A is only concerned with the question of possession of the land—Question of title to the land is beyond the scope of this section.

Reazuddin vs Jatindra Kishore 37 DLR (AD) 202.

 

Section 143A—

Record of rights prepared on the basis of possession—High Court Division cannot interfere with lower court's decisions on grounds which cannot be considered in a case under section 143A. Reajuddin vs Jatindra Kishore 37 DLR (AD) 202.

 

Section 143A—

The word "transfer" occurring in section 143(a) is limited to transfer by the recorded tenant, not by other persons. Section 143 is not attracted when the record of­ rights is to be corrected after a finding to be given as to the title of the holders or challengers. Syed Ashfaque Hossain vs Bangladesh 41 DLR 364.

 

Section 143A, 42 

Created a kabala in their favour fraudulently by showing the same to have been executed by Kancha Mai though they never claimed the suit land by virtue of that fraudulent kabala nor did they any try to take possession of the suit land during their life time on the basis of the said kabalas. Md. Akbor Hossain and others -vs- Md. Safiruddin and others (Md. Ruhul Amin J)(Civil) 3ADC 730

Section 143 

The plaintiff has to prove his own case in order to get the decree in his favour. The plaintiff appellant having failed to substantiate his case of oral settlement by evidence is not entitled to get the decree as prayed for. Khondoker Mobarak Ali vs. Jahanara Begum (Md. Fazlul Haque J) (Civil) 1 ADC) 401

 

Section 144—

The only logical meaning of the expression 'local area' are understood by this particular statute in the context of revision of record of rights is primarily area in respect of which a record of right is to be prepared or has been prepared. Capital Co-operative Housing Society vs Bangladesh 45 DLR 289.

 

Sections 144 and 144A—

The presumption as regards the entries in the RS Khatian so attached under section 144A of the Act is rebuttable by leading evidence from the side of the person questioning correctness of the entry made therein. Government of Bangladesh, represented by the ADC vs AKM Abdul Hye and ors 56 DLR (AD) 53.

 

Section 144A—

Presumption as to correctness of record of rights—The plaintiffs having failed to displace the presumption of correctness of the RS Khatian prepared in the name of the defendant by proving their title and possession in the suit land, they are not entitled to any decree. Noor Mohammad Khan vs Bangla­desh 42 DLR 434.

 

Section 144A—

A finally published record of rights revised under section l l4A of the SAT Act has a presumption of correctness and that presumption continues till it is otherwise rebutted by reliable evidence. Dayal Chandra Mondal and others vs Assistant Custodian Vested and Non­-Resident Properties (L&B) 50 DLR I 86.

Section—144A 

Presumption of correctness of R.S. Khatian A record of rights finally published and revised under section 144A of the S.A.T. Act has a presumption of correctness and that presumption continues till it is rebutted by reliable evidence. In the instant case the plaintiffs name has been recorded in the finally published R.S. Khatian in respect of the suit property and the Government is realizing rent from him regularly thereby recognizing .him as a tenant. Recognition of the plaintiff as a tenant in respect of the suit property by the Revenue Authority of the Government is binding upon the Vested property Department and consequently the latter cannot claim the suit property as vested property. Dayal Chandra Mondal and others vs. The Assistant Custodian of Vested and NonResident Properties (L & B) and Additional Deputy Commissioner (Revenue), Dhaka and others, 18 BLD (HCD) 22.

 

Section—144A 

In the event of a conflict between the old Record of right and the recent record of right, recent record of right would prevail in as much as presumption of the record of right loses its weight with the passage of time and entry in the subsequent khatian. Fatema Khatun Vs. Fazil Mia, 21 BLD (HCD) 14.

Ref: Abdul Hamid and ors Vs. Abul Hossain Mir being dead his heirs Abdus Sobhan Mir and ors, 35 DLR HCD295—relied

 

State Acquisition and Tenancy Act

 Section 144, 144A 

There being no reliable evidence that the property legally vested in the Government as enemy property, later on vested property, as such because of the notification of December 3. 1965 it can- not be said property in suit has vested in the Government as enemy property, later on vested property. Bangladesh, represented by the additional Deputy Commissioner vs A. K. M. Abdul Hye (Md. Ruhul Amin J) (Civil) 1 ADC 15

Sections 146-151—

Settlement of land granted by the Revenue Authority—cancellation of settlement by the government whether lawful—Under section 146 of the Tenancy Act the general power of superintendence and control over all Revenue Officers is vested in the Board of Land Administration and not the government. The Board of Land Administration is not however empowered to revise under section 146 the orders passed by the Revenue Officer under the Act, although the Board is the final authority to entertain appeal and revision against any order passed under the Act by a Revenue Officer including an order granting settlement of land. There is nothing to show that the Government is empowered under any provision of the State Acquisition and Tenancy Act to cancel or rescind any order passed by the Revenue authorities. Saifur Rahman vs Bangladesh 43 DLR 210. 

 

President’s Order No. 135 of 1972

The provisions of P.O. 135 of 1972 take effect only with respect to the lands which reappeared after Part-V of the S.A. and T. Act, 1950, came into force in the locality. The suit land alleged to have accreted prior to the date when the provisions P.O. 135 of 1972 became operative in the locality, the trial Court ought to have decided this question on evidence. The case is sent back to the trial Court for fresh hearing after taking evidence. Abdul Aziz Bepari and Others Vs. Govt of Bangladesh and others, 14 BLD (HCD)225

Ref: 31 D.L.R. (AD) 195-Cited.

Section—147

 

An appeal, whether from original order or from an appellate order made under any provision of Part V of the Act by a Revenue Officer subordinate to Collector, shall lie to the Collector and for such appeal, the period of limitation is thirty days. Abdur Rahman and others Vs. The Government of the People’s Republic of Bangladesh, 13 BLD (HCD) 411. 

Ref: Jafar Ali Vs. Khagendra Chandra Dutta, 1983 BLD 32-Cited.