Bengal Tenancy Act, 1885
Section 26F
The High Court Division made the Rule absolute on the finding that "right of pre-emption can not be defeated by a person who was not a co-sharer on the date of the transfer but subsequently alleged to have become a co-sharer......." Fatema Khatun Being dead her heirs vs. Abdul Quddus (Md. Ruhul Amin J) (Civil) 4 ADC 721
Bengal Tenancy Act, 1885
Section 26(G) and clause (1a)- The sale with a condition of re-conveyance being subsisting after commencement of Bengal Tenancy (Amendment) Act, 1940 became complete usufructuary mortgage after expiry of 15 years from the date of execution of that instrument (i.e. the Kot-kabala).
The Appellate Division observed that it was argued that the transaction in question became complete sale on 18.06.1950 since the executant of that Kot-kabala did not fulfill the condition, this argument is not at all entertainable in view of the above quoted provisions of law. Long before 18.06.1950 the above quoted provision of law came into operation and as a result the said transaction in question (Kot-kabala) stood as a complete usufructuary mortgage with the expiry of 15 years by operation of law. Khanje Ali Sikder =VS= Hazi Mozaharuddin & others, [1 LM (AD) 51]
Bengal Tenancy Act, 1885
Section 48(C)
Suit praying for partition after declaration of their title in the suit land contending. Bulmayee Barmani alias Srimati Bulmayee Barmanivs. Sree Madhuram Barman (Md. Tafazzul Islam J(Civil) Section 167 4 ADC 938
Praying for declaration of title, confirmation of possession and for perpetual injunction with alternative prayer for recovery of possession. Harunar Rashid Sheikh and others vs. Dr. Badiuzzaman Mallik and others (Md. Tafazzul Islam J) 4ADC (Civil) 841
Bengal Tenancy Act [VIII of 1885]
Sections 56(1) and 187(3)-If the word "সাধারণের ব্যবহার্য" is written in any khas khatian land or property of the government only then it may be assumed that the property is being used for public purpose and is a khas khatian property of the government. It is evident from the records.
An agent being Nayeb or agent can grant lease on behalf of the landlord being Jaminder whatsoever.
The High Court Division held that in this case" সাধারণের ব্যবহার্য" was not written in the khas khatian which is exhibit ka and therefore the petitioner cannot rely on exhibit ka to assert their claim. Regarding the competence of the Nayeb to grant lease on behalf of the Zamindar in this context 1 have also perused a decision of our Apex court cited by the opposite party in the case of Nurun Nabi Mondal Vs. Momtazuddin Mondal reported in 6 ADC (2009) 769. This decision also held that an agent being Nayeb or agent can grant lease on behalf of the landlord being Jaminder whatsoever. Exhibit 6 which is the evidence of salami najrana produced by the plaintiff also shows that consideration money was duly received by the Nayeb. The High Court Division has gone through the depositions of the p.ws particularly the deposition of the P.Ws 5 and 6. The deposition of PWs 5 and 6 appear to be significant and these two PWs elaborately made their deposition on circumstances of the Jaminderi estate and the fact of taking pattan from the Nayeb. The trial court did not rely on the deposition of the P.Ws 5 and 6 on the ground that they could not produce their নিয়োগপত্র and also on the ground there was some inconsistency between the names of the Nayeb and Tahoshilder. The High Court Division's considered finding is that producing a নিয়োগপত্র from such a long time back and considering that they were only ordinary employees in the Moharaja estate, it is not logical and reasonable to assume the existence of a নিয়োগপত্র dating back to so many years. Regarding the confusion over the name of the Nayeb and Tahoshilder, it is the High Court Division's considered finding is that it is quite probable that there may be some confusion over the names of the Nayeb and Tahoshilder considering that so many years have lapsed in time and it is quite probable that PW 5 and PW 6 could not clearly remember the name. Under the facts and circumstances the High Court Division is of the considered findings that the appellate court correctly gave its judgment in favour of the plaintiff appellant and which need not be interfered with. The High Court Division finds no merit in this Rule. In the result, the Rule is discharged. Government of Bangladesh and another Vs. Syedur Rahman Sarker and others (Civil) 19 ALR (HCD) 416-421
Bengal Tenancy Act [VIII of 1885]
Sections 56(1) and 187(3)- Section 187(3) of Bengal Tenancy Act clearly provides that any document which section 56(1) of the Act stipulates to be seen by the certified landlord except some document, the authorised any other document agent may be signed or certified by any agent from the landlord authorized on that behalf. Government of Bangladesh and another Vs. Syedur Rahman Sarker and others (Civil) 19 ALR (HCD) 416-421
Bengal Tenancy Act
Section 103B
Seeking separate saham of 34 decimals of land on partition of 1.14 acres of land.
That Hakim Jan Bibi's heirs by inheritance is not entitled to any land since Hakim Jan Bibi during her life time exhausted her interest in respect of the land she got by inheritance from Omar Ali and thus the successive heirs of Hakim Jan Bibi is not entitled to any share in the land in suit by inheritance but the heirs of Jebal Hossain will get 14 1/3 decimals of land on the basis of Ext.7.
The High Court Division on modification of the judgment and decree of the lower appellate Court allotted 14 1/3 decimals of land in the share of the heirs of Jebal Hossain from the land in suit. The High Court Division while making the Rule absolute observed that heirs of Hakim Jan Bibi shall not get any land from the land in suit by inheritance. Mohammad Younus and others vs. Abdus Sukkur and others (Md. Ruhul Amin J) (Civil) 4ADC 296
Bengal Tenancy Act
Section 103B
Seeking separate saham of 34 decimals of land on partition of 1.14 acres of land.
In the absence of seeking declaration of title and recovery of possession the suit is not maintainable. Abdus Sukkur and others vs. Mohammad Younus and others (Md. Ruhul Amin J)(Civil) 4ADC 654
Praying for permanent injunction restraining the defendants from entering into the suit land or from dispossessing him from the suit land. Md. Shamsul Haque and another vs. Md. Abdul Jalil Khan and others (Syed J.R. Mudassir Husain CJ) (Civil) 4ADC 658
The defendants proved their right, title and interests in the suit land together with their possession and the plaintiff failed to prove the settlement in his name alone and so the trial court erred in law in not enquiring as to how the defendants come into possession of the suit land; Waez Uddin and others vs. Anwara Begum and others (Md. Tafazzul Islam J) (Civil) 4ADC 661
Bengal Tenancy Act [VIII of 1885]
Section 103B -The presumption of the C.S. Khatian under Section 103B of the Bengal Tenancy Act is that every entry in a record of right finally published shall be the evidence of the matter referred to in such entry and shall be presumed to be correct until it is proved to be incorrect. The Chief Engineer, Roads & Highway Directorate, Shorok Bhaban, Ramna, Dhaka. Vs. Advocate Asaduzzaman Siddique and others. (Civil) 20 ALR (AD) 36-63
Bengal Tenancy Act [VIII of 1885]
Section 103(B)(5) It is true that according to Section 103(B)(5) of the Bengal Tenancy Act every entry in a record of right finally published shall be the evidence of the matter referred to in such entry and shall be presumed to be correct until it is proved to be incorrect. The Chief Engineer. Roads & Highway Directorate, Shorok Bhaban, Ramna, Dhaka. -Vs- Advocate Asaduzzaman Siddique and others. (Civil) 20 ALR (AD) 36-63
Bengal Tenancy Act [VIII of 1885]
Section 103(b) - Adverse possession
Preparation of C.S record under section 103(b) of the Bengal Tenancy Act, 1885 has presumptive value that every entry in a record of rights finally published shall be the evidence of the matter referred to in such entry and shall be presumed to be correct until it is proved to be incorrect.
Since the defendant purchased land in the year of 1939 and 1942 from Rokabjan and Phuljan though they have no right and title to transfer the property but the defendant No. 1 did not challenge the said deeds so, by adverse possession they are entitled to get the said portion of the land.
The High Court Division found that two sisters of Abdul Hakim Talukder Phuljan and Rupjan transferred some portion of the land in favour of Aftabuddin and Usafuddin. It appears that the defendant Nos. 11 and 12 claimed that Rokabjan and Phuljan by registered kabla exhibits-1 and 1(a) transfered the property in favour of defendant Nos. 11 and 12 in the year 1939 and 1942 and Amiruddin predecessor of the plaintiff No. 1-10 purchased 16 decimals land from defendant No. 6 by Kabla exhibits-1(b) and 1(c) and also purchased 10.14 decimals of land from defendant No. 2 by kabla exbibits-1(d) and 1(e) and Nasiruddin husband of Rukabjan purchased 83 decimals by exhibit-1(1) from the defendant No. 2 one of the son of Syed Ali the son of Tofani Talukder who was the C.S recorded owner. (Since Syed Ali is the another C.S recorded owner as such by the said purchase deed it cannot be said that the C.S record was not rightly prepared in the name of defendant No. 1.) It appears that since the defendant No. 11 and 12 purchased land by exhibits-1 and 1(a) in the year of 1939 and 1942 from Rokabjan and Phuljan though they have no right and title to transfer the property but the defendant No. 1 did not challenge the said deeds so, it is the High Court Division view that by adverse possession they are entitled to get the said portion of the land. The trial court also considering the evidence on record about the saham of the other defendants took view that they are entitled to get their respective saham. On perusal of the findings of the trial court the High Court Division finds that the said findings are on the basis of the evidence. So, the High Court Division does not interfere with the said findings of the trial court. Considering the aforesaid facts and circumstances of the case, it is the High Court Division view that at the time of appeal challenging the C.S record is clearly barred by limitation. However, considering the facts and circumstances of the case and the aforesaid observation it is the High Court Division view that the judgment of the trial court should be modified. Thus the High Court Division finds merit in the appeal. In the result, the appeal is allowed in part. The judgment and decree is hereby modified. The plaintiff Nos. 11-12 do get the saham of the land which was purchased from Rupjan and Rokabjan through registered deeds exhibits 1-1(a) in the year of 1939 and 1942. The defendant Nos. 2-5 do get their saham excluding the portion which was transferred in favour of the plaintiffs and defendants plus 11% cents. The defendant No. 6-18 do get saham for 1.09% acres plus .07% cents of land. The defendant Nos. 55-66 do get saham for 91 acres in pursuance of the Heba deed Exhibit-A-III. Shadat Hossain Talukder and others Vs. Md. Kalimuddin Patwary and others (Civil) 18 ALR (HCD) 30-38
Bengal Tenancy Act [VIII of 1885]
Section 103B(5)
Arbitration Act, 1940
Section 30 -A mere error of law could not vitiate an award but that if the error in law was apparent on face of it, the award could be set aside.
The Arbitrator could not re-delegate his power and as such, there was a neglect of duty and that mishandling and neglect of duty constitute misconduct.
The Appellate Division observed that he High Court Division noted that a mere error of law could not vitiate an award but that if the error in law was apparent on face of it, the award could be set aside. The High Court Division came to a finding that there was gross error in the award and that the award proceeding was mishandled by the Arbitrator, Mr. Mahmudul Islam Chowdhury, the then Member of Parliament, who was appointed Arbitrator but that the whole arbitration proceeding was conducted by Mr. K.A. Rouf, a retired District and Sessions Judge. The High Court Division further held that the Arbitrator could not re-delegate his power and as such, there was a neglect of duty and that mishandling and neglect of duty constitute misconduct. Md. Kabir and others. -Vs. Dreebajati Hore and others. (Civil) 15 ALR (AD)22-24
