Abdul Mumin alias Tanu Miah Vs. Mahfujur Rahman (4)

Appellate Division Cases

(Civil)

PARTIES

Abdul Mumin alias Tanu Miah………………….. Appellant (in all the appeals)

-vs-

Mahfujur Rahman and others…………. Respondents (in C.a. No. 85 of 1998)

Pervejur Rahman and others ……………Respondents (in C.a. No. 86 of 1998)

Riajur Rahman and others ………………Respondents (in C.a. No. 87 of 1998)

Salimur Rahman and others …………….Respondents (in C.a. No. 88 of 1998)

Selima Rahman and others ……………..Respondents (in C.a. No. 89 of 1998)

JUSTICE

Md. Ruhul Amin. J

M. M. Ruhul Amin. J

Md. Tafazzul Islam. J

JUDGEMENT DATE: 28th June 2004.

The Non-Agricultural Tenancy Act, 1949, Section 24.

The State Acquisition and Tenancy Act, 1950, Section 96,143,117(C).

S.M. Basiruddin Vs. Zahurul Islam Chowdhury 35 DLR (AD), 230. Md. Khairullah Bhuiyan Vs. Haji Nurul Alam Chowdhury. beins dead his heirs Amena Khatun 35 DLR (AD)338.

“Since in the instant Cases the holding in question has been separated or sub divided upon opening a new khatian at the instance of the pre-emptor, the pre-emptor cesaed to be a co-sharere in the holding in question” ………………..(5)

Since there was no legal partition or that there was no partition by registered instrument and consequently there having no partition of the land of khatian No. 450 in the eye of law and that a suit for partition is being pending and as such the High Court Division and the appellate Court were not correct in holding that pre-emptor ceased to be a co sharer is no merit since the fact of opening of khatian No. 450/1 as clearly manifest there has been a partition among the cosharers of the khatian No.450 and that the said partition was given effect by opening of the aforesaid khatian and as such as in fact there had been partition of the land of khatian No. 450 the High Court Division and the appellate Court below were quite correct in rejecting the prayer for pre-emption on the finding that pre-emptor ceased to be the cosharer. ………………………(8)

As the law is now settled that pre-emption under Section 24 of the Non Agricultural

Tenancy Act can be sought for by a person who is a co -sharer of the land sought to be pre-empted …………………………….(26)

Civil Appeal No. 85-86 of 1998 (From tlie Judgment and Order dated 3D, 1997 passed by the High Court Division in Civil Order Nos. 3230,3231.3232.3233 and 3234 of 1997)

Khondker Mahbubuddin Ahmed, Senior Advocate instructed by A.K.M. Shahidul Huq,

Advocate-on-record………………… For the Appellant (In all the appeals)

Rokonuddin Mahmud, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-onrecord. ……………………Respondent No. 1 (in all the appeals)

Not represented …………………….Respondent Nos. 230(in all the appeals)

JUDGMENT

1. Md. Ruhul Amin, J :- These appeals, by leave, are against the order dated June 30, 1997 of a Division Bench of the High Court Division passed in Civil Order Nos. 3230, 3231, 3232, 3233 and 3234 of 1997 rejecting the 5 revisional applications summarily. The revisional applications were tiled against the judgment and order dated 10.4.1996 of the 1 s t Court of Additional District Judge. Sylhet. passed in Miscellaneous Appeal Nos. 76. 77, 78. 79 and 80 of 1994 allowing the same upon reversing the judgment and order dated August 31.1994 in Miscellaneous Case (Preemption) Nos. 179. 180, 181. 182, and 183 of 1989 allowing the same. The Miscellaneous Cases were filed under Section 24 of the Non-Agricultural Tenancy Act, 1949 seeking pre-emption in respect of the sale by 5 different kabalas dated 5.9.1988. The claim of pre-emption was made on the assertion that by inheritance the preemptor is the co-sharer of the land of lot Nos. 2183 and 2184 of khatian No. 450.

2.The pre-emptor claimed to have inherited the land of khation No. 450 from his father late Abdul Mogni and uncle Abdul Ghani who died leaving only daughter. Respondent No.2 Farida Begum.It was the case of the pre-emptor that Farida Begum as co-sharer of the khatian in question sold parcels of land by five registered kabalas dated September 5, 1988 to Mehfuzur Rahman, the Respondent No.l in each of the appeal. It was also averred by the pre-emptor that a suit for partition, partition Suit No. Ill of 1988, is pending before the 2 n d Court of Joint District Judge, Sylhet as regard the land of khatian No. 450 filed by one of the co-sharers by name Abdul karim.

3. The prayer for pre-emption was opposed upon assertion that there was amicable partition of the land of khatian in question amongst the co-shaerers and the pre-emptor and other cosharers of the khatian had separated their jamas and have recorded their names in respect of their respective saham got by amicable partition in separate khatians, that the pre-emptor in respect of his share separated the jama and has got his name recorded in khatian No. 450/2 and as such pre-emptor ceased to be the co-sharer of the land of the case khatian. The pre-emptees. contended that they had effected improvement of the disputed land.

4. The trial Court allowed the prayer for pre emption on the finding that the pre-emptor and the seller opposite party are co-sharers of the khatian and that pre-emptees failed to establish that there had been partition of the land of khatian by the decree of the Court or by a registered deed of partition. The trial Court also held that the Miscellaneous Cases were not barred by limitation and further held that opening of khatian No. 450/1 and 450/2 do not establish that the jama of the khatian No. 450 was separated. The trial Court while allowing the prayer for premption awarded Compensation pf Tk. 1.00.000/- to the preemptees. On appeal the judgment and order of the trial Court was reversed and the Miscellaneous Cases were dismissed. The appellate Court held that upon amicable partition amongst the co-shaerers the pre-emptor splitting jame got his name recorded in khatian No. 450/2 and as such pre-emptor was not entitled to pre-empt the sale held on September 5.1988.

5. Thereupon the pre-emptor moved the High Court Division in revisional jurisdiction. The High Court Division by common order , as stated hereinabove, rejected the revisional applications summarily upon observing “Since in the instant Cases the holding in question has been separated or sub divided upon opening a new khatian at the instance of the pre-emptor, the pre-emptor cesaed to be a co-sharere in the holding in question”.

6. Leave was granted to consider the submissions that the High Court Division erred in law in affirming the judgment of the appellate Court which was passed upon reversing the judgment of the trial Court without adverting to the specific finding of the trial Court to the effect that the appellant retained his status as a co-sharer in the case land in view of inheritance through his uncle despite the separation of Hie jama as alleged, that there having no partition of the case land between the pre-emtpor and the vendor and a suitfor partition, being Partition Suit No. Ill of 1988, being pending the preemtpor did not cease to be a co sharer of the non agricultural land in question according to the principle of law enunciated in the case of S.M. Basiruddin Vs. Zahurul Islam Chowdhury and another reported in 35 DLR (AD), 230 and thus the High Court Division erred in law in rejecting the revisional applications summarily without consideration of this aspect of the cases.

7. The learned Counsel for the appellant, in all the appeals, submitted that amicable partition of the land of the khatian No. 450 alleged by the pre-emptees being not partition in the eye of law and thus there being no ceasing of co-share ship in the land of the khatian by the so called amicable partition the High Court Division as well as the lower appellate Court were in error in holding that pre-emptor ceased to be a co-sharer of the land of khatian No. 450 and as such he was not entitled to seek pre-emption in respect of the purchase made by the preemptees. The learned counsel also submitted that in fact by the opening of khatian No. 450/1 and 450/2 in the name of the heirs of late Abdul Mogni and the pre-emptor there was no separation of jama or sub division of the holding as contemplated by section 117(c) of the State Acquisition and Tenancy Act. rethar the same were up dating of the record of right i.e khatian No. 450 as per provision of Section 143 of the State Acquisition and Tenancy Act, 1950 . The learned Counsel continued since there was no legal partition i.e partition by metes and bounds by the decree of the Court or by a registered instrument of partition and consequent thereupon there was no separation of title of the recorded tenants of khatian No. 450 and as by amicable partition title is not separated but only possession is separated and it being the case of the pre-emptees that there was a amicable partition amongst the co-sharers of the khatina no.450 and as thereby there had been no separation of title the High Court Division as well as the appellate Court below were in error in holding that pre emptor ceased to be a co sharer in respect of the land of khatian No. 450 and consequent thereupon in rejecting the prayer for pre-emtion, that ratio decidendi of the decision reported in 35 DIR(AD) 230 being that by a legal partition co-sharer of a holding ceases to be co-sharer of the original holding and in the instant case there being no legal partition, rather a partition suit being pending, the High Court Division and the lower appellate Court were in error in rejecting the prayer for pre-emption upon holding that the pre-emptor ceased to be a co sharer in the background of the assertion made by the pre-emptees that there had been amicable partition of the land of khatian No.450 amongst the co-sharers and that in the light of the amicable partition the pre-import got his share recorded in khatian No. 450/2, that the ratio dicidendi of the decision reported in 35 DLR(AD) 338 has no manner of application in the facts and circumstances of the instant case.

8. The learned Counsel for the Respondent No.l submitted that the very fact of opening of khatian No. 450/1 clearly shows that after amicable partition amongst the co-sharers of khatian No. 450 the heirs of late Abdul Mogni got the aforesaid khatina opened in their nemes in respect of the land inherited from their father and their late uncle. Abdul Gani and that opening of the said khatian No. 450/1 and later on opening of khatian No. 450/2 in the name of the pre emtpor as there has been ceasing of co share ship of the heirs of late Abdul Mogni in respect of the land of khatian No. 450 the High Court Division and the Court of appeal below were quite correct in rejecting tlie prayer for preemption upon arriving at the finding that the pre-emptor ceased to be the co-sharer in respect of the land of khatian No. 450. Tlie learned Counsel also submitted that after opening of the new khatian in the name of the pre-emptor he is claiming the land separately from the land recorded in khatian No. 450/1 and that in the light of amicable partition separate Municipal holding has been opened in respect of the land of respective co-sharers, he also submitted that the contention of tlie pre-emptor that since there was no legal partition or that there was no partition by registered instrument and consequently there having no partition of the land of khatian No. 450 in the eye of law and that a suit for partition is being pending and as such the Higli Court Division and the appellate Court were not correct in holding that pre-emptor ceased to be a co sharer is no merit since the fact of opening of khatian No. 450/1 as clearly manifest there has been a partition among the co-sharers of the khatian No.450 and that the said partition was given effect by opening of the aforesaid khatian and as such as in fact there had been partition of the land of khatian No. 450 the High Court Division and the appellate Court below were quite coirect in rejecting the prayer tor preemption on the finding that pre-emptor ceased to be the co-sharer.

9. One of the points for consideration where of leave has been granted is that there having been no partition of the case land between the pre-emptor and the vendor and a suit for partition, being partition Suit No. Ill of 1988. being pending, the pre-emptor did note case to be a co-sharer of the non-agricultural land in question in the background of the principle of lawenunciated in the case reported in 35 DLR (AD) 230 and as such the High Court Division erred in law in rejecting the revisional applications without any consideration of this aspect of the case.

10. It may be mentioned the learned Counsel for the appellant placed reliance heavily in support of the appeal on the decisional reported in 35 DLR (AD) 30 and as against that learned Counsel for the Respondent No. 1 in all the appeals, while supporting the judgment of the High Court Division placed reliance on the decision in the case of Md. Khairullah Bhuiyan Vs. Haji Nurul Alam Chowdhury. being dead his heirs Amena Khatun and others reported in 35 DLR(AD)338.

11. For appreciation of the contentions of tlie learned Counsels made in the light of the decisions in the aforesaid two cases facts of the same in short need by stated. In both the aofesaid cases pre-emption was sought under Section 24 of the Non-Agricultural Tenancy Act.

12. Facts of the case reported in 35 DLR( AD) 230. in short, are that the land of C.S Khatina No. 214 was owned by Akshoy Kumar Saha Banik and Rangubala Chowdhurani. Akshoy Kumar Saha Banik instituted Title Suit No. 126 of 1946 for partition and by the decree passed in the suit Akshoy Kumar Saha Banik got share and Rangubala Choudhurani got share. Akshoy Kumar Saha Banik sold his share to Nafisa Khatun by the sale deed dated 19.7.1952 and thus she became the co sharer of Rangubala. Rangubala Chowdhurani created a lease in respect of her Share in favour of Ayesha Khatun by a registered lease deed dated 23.12.1953 . Natisa Khatun sold her share to the Respondent No. l(pre-emptor) by the sale deed dated 18.4.1972 . Ayesha Khatun also sold her interest to the appellant (pre-einptees) by a registered sale deed dated 10.9.1973 . This sale was sought to be pre-empted claiming to be the co-sharer of the holding primarily on the plea that on the acquisition of rent receiving interest under raiyat being up graded to raiyat and thereupon only one S.A. khatian having been prepared recording the names of the persons who acquired interest in the land of C.S. khatian No. 214.

13. The prayer for pre-emption was opposed contending that seller Ayesha khatun (Respondent No.2) was not a co sharer in the tenancy, because the land of the tenure was partitioned by the decree in Title Suit No. 126 of 1946 between Akshoy Kumar and Rangubala and that a separate tenancy was created in favour of the Respondent No.2 by Rangbala by granting permanent lease reserving to herself annual rent of Tk.l/ and that Ayesha Khatun paid the rent to the lessor till the rent receiving interest was acquired by the Government. It was also the case of the pre-emptees that S.A. khatian was not correctly prepared because neither pre-emptor( Respondent No.l) nor his vendor was co sharer of Respondent No.2 and that he (pre-emptees ) after purchase applied for mutation of his name and accordingly his name was mutated in the S.A. khatian and the jama was separated. The trial Court allowed the prayer for pre-emption and the appeal by the pre-emtpees was dismissed, pre-emptees went on revision before the High Court Division but did not have the desired result.

14. Leave was granted to consider whether the High Court Division was correct in making no distinctions between the expression ‘holding” as occurring in Section 96 of the State Acquisition and Tenancy Act and the expression ‘non-agricultural land’ as occurring in Section 24 of the Non-Agricultural Tenancy Act, 1949.

15. In support of the appeal it was argued that i:p gradation of an under tenant to the status of a tenant under the Government on the acquisition of rent receiving interest did not have the effect of merging the 2 distinct interests i.e of Akshoy Kumar and Rangubala on one side and that of Ayesha Khatun on the other side and that Ayesha Khatun attained the status of full tenancy on up-gradation and ceased to be the co sharer of the tenant of successor in interest of Akshoy Kumar and an alternative argument was made that sharers of Akshoy kumar and Rangubala having been partitioned by the decree of Civil Court in partition suit and on the creation of 2 separate Municipal holdings Akshoy kumar and Rangubala ceased to be the co-sharer of the tenancy. It was also argued that expression ‘non-agricultural land’ as occurring in section 24 of the Non-Agricultural Tenancy Act not being the synonymous with the expression ‘holding ‘ as occurring in Section 96 of the State Acquisition and Tenancy Act the High Court Division fell into an error in treating the successor-in-interest of Akshoy Kumar as cosharer of Ayesha Khatun and thereupon allowing the prayer for pre-emption.

16. The Appellant Division held that though the raiyati interest vested in the Government by virtue of acquisition of the superior interests, but for that by the process of merger the under raiyat has not stood up graded to a raiyat for all purposes or in other words it can not be said “If an under raiyat become a tenant direct under the proprietor, he becomes a raiyat as his landlord who was a raiyat disappears from the scene”. In the said case it has also been held that the expression “non-agricultural land” occurring in section 24 of the Non-Agricultural Tenancy Act does not convey the same meaning as conveyed by the expression “holding” occurring in Section 96 of the State Acquisition and Tenancy Act and that different sub-sections of Section 24 of the Non-Agricultural Tenancy Act sufficiently indicate that the legislature did not use the expression ‘non-agricultural land’ currying the same meaning as the expression ‘holding’ defined in State Acquisition and Tenancy Act. The expression ‘non-agricultural land’ may represent the entire land comprised in a tenancy or it may form a part as owned and possessed by a tenant or tenants on partition and is not synonymous with the word ‘holding’ as used in Section 96 of the State Acquisition and Tenancy Act. It has further been held that the prevision of Section 24 of the Non-Agricultural Tenancy Act as stand after amendment provides right of pre-emption only to the co-sharer tenants in the land. While allowing the appeal it was held that Respondent No.l not being a co-sharer in the land transferred, though may be co-sharer in the tenancy, the right of pre-emtion did not accrue in his favour and as such his prayer for pre emption was not entertain able.

17. So it is seen from the aforesaid decision that the expression ‘non-agricultural land’ may represent entire land comprising in a tenancy or it may form a part as owned and possessed by the tenants on partition and because of such partition they ceased to be co-sharer in the land possessed by them separately and that pre-emption under Section 24 of the Non-Agricultural Tenancy Act is available only to the co-sharer tenant in the land and that expression non-agricultural land’ used in section 24 of the Non-Agricultural Tenancy Act is not synonmous with the word ‘holding’ as used in State Acquisition and Tenancy Act. Facts of the case reported in 35 DLR( AD: 338. in short, are that pre-emption was sought in respect of an auction sale in Certificate Case No. 408 of 1967-1968 claming to be the cosharers by purchase of the land of plot No. 107 and 87 of Khatian No. 14 from recorded tenant H.E. Percival by the kabala dated 29.12.1965. It was the case of the pre-emptors that their names were mutated in khatian No. 14 . It may be mentioned H.E. Precival was the owner of the land of khatian Nos. 14.18.20. and 24. plot No. 108 originally was listed in khatian No. 14 . At one stage of the certificate proceeding the land of the afoesaid 4 khatians were amalgamted in khatian No. 18 comprising plot Nos. 10S. 116.117.119 and 121 and finally in the certificate case land of khatian No. 1 8 was put to auction and the same was purchased by Ihe preeinptees.

18. The prayer for pre-emption was opposed contending, inter alia, that though the pre-emptors were co-sharers of khatian No .14 but they ceased to be the co sharers of the said khatian while the different plots of khatian Nos. 14. 18. 20 and 24. as owned and possessed by H.E. Percival were amalgamated and consolidated in one khatian. namely khatian No. 18. land of which was sold in auction and where in the pre-emptors were not co-sharers of the certificate debtor. Pre-emption case was dismissed by the trial Court and on appeal the prayer for pre-emption was allowed. The pre-emptees moved the High Court Division but without any success.

19. Leave was granted to examine the question whether after creation of a new tenancy by amalgamation and consolidation of holdings pre-emptors could rightly be claimed to be cosharers of the recorded tenant H.E. Percival and also to consider the question whether a person claming to be the co-sharer in the holding and not in the land transferred could validly maintain an application for pre-emption under Section 24 of the Non-Agricultrual Tenancy Act. 1949.

20. The Appellate Division by majority decision restored the judgment of the trial Court holding that although at one point of time the pre-emptors were the co-sharers of the khatian No. 14 by purchasing land of plot Nos. 107 and 87 and plot No. 108 was in the said khatain. but when the land of the different khatinas. i.e khatian Nos. 18, 20. 24 as well as the land of plot No. 108 of khatian No. 14 was consolidated in oils khatan i.c . in khatian No. 18. the pre-emptors ceased to be the co-sharers of the recorded tenant H.E Percival in respect of the land of khatian No. 1 8. Pre-emptors prayer for pre-emption

was not allowed since on the consolidation and amalgamation of the land of H.E. Percival in a new khatian i.e. khatian No. 18 . the preemptors ceased to be the co-sharers of the recorded tenant of the said khatian. So it is seen that a tenant though at one time was the cosharer in a particular tenancy along with the cosharer in a particular tenancy along with the person who acquired interest subsequently in the land of the tenancy, but when the land of the original tenant or tenants of the said holding wherein purchaser-tenant(s) has no right, is listed in a different khatian and thus leaving the land of the tenant (s) who became the co-sharer in the tenancy either by purchases or by some other mode( s) in the o]d tenancy there exists no co-share-reship in respect of the land so listed in two (2i different khatians and as such prayer for pre-emption by one of the recorded tenant of the original tenancy is not available in respect of the land of the new tenancy or khatian and vice-versa.

21. It may be mentioned the second point in the leave was left undiscussed. The admitted position in the instant case is that appellant’s predecessor Abdul Mogni and appellant’s uncle. Abdul Ghani along with others were the tenants of khatian No. 450. It is the case of the pre-emtpor appellant that his uncel Abdul Ghani died leaving no male issue and as such Abdul Mogni and for that matter his heirs also inherited the property of Abdul Ghani along with his daughter. It is seen from the materials on record that heirs of Abdul Mogni some time in 1985 upon splitting up jama separated their share whatever they had in plot Nos. 2180-2 184 of khatian No. 450 by opening new khatian No. 450/1 and that lateron upon splitting up the jama the appellant in the year 1995 separated his share in plot Nos. 2183 and 2184 of khatian No. 450/1 by opening new khatian no. 450/2.

22. It is the case of the pre-empteesrespondent that there has been a amicable partition of the land of khatian No. 450 between the heirs of Abdul Mogni and Abdul Gani. As against this it was the contention of the appellant that there was no partition by metes and bounds amongst the heirs of Abdul Mogni and Abdul Gani. In the background of the aforesaid contention of the appellant it has been submitted by the learned Counsel for the pre-empt’irappellant that in the absence of a legal partition”, that is partition by metes and bounds through a decree of a court, and in the absence of any partition by any legal instrument of partition there had been no separation of title, as such pre-emption sought by the appellant was very much available and that amicable partition is no partition in the eye of law.

23. The learned Counsel for the pre-emptor-appellant has placed reliance on the decision reported in 35 DLR (AD) 320 in support of his submission that in the absence of legal partition, i.e. partition by metes and bounds by the decree of the court in a partition suit, or partition by registered or legal instruction there is no severance of title and there is also no severance of possession. In the above referred case it has not been held that in the absence of legal partition that is in the absence of partition by the decree of the Court or in the absence of partition by legal instrument there shall be no severance of possession. In the said decision taking the word partition/division in general term it has been held that by partition or division of the land of the tenancy among the tenants possession of the tenants become separate and previous joint possession of the tenants ceases.

24. In the instant case it was contended from the side of the pre-emtpees-respondent that there was amicable partition of the land of khatian No. 450 amongst the heirs of Abdul Mogni and Abdul Gani. This contention appears to be correct in the background of the fact of the opening of khatian No. 450/1 in the name of the heirs of Abdul Mogni. In the aforesaid state of the matter it is seen that jointness of possession of the land of khatian No. 450 among the heris of Abdul Mogni and Abudl Gani ceased. The pre-emptees purchased the land of khatian No.450 from the heirs of Abdul Gain. The prer-emptor prior to the transaction under pre-emption got opened separate khatian. khatian No. 450/2. taking out his share from the land of khatian No. 450/1. In our opinion in the afore state of the matter there being to jointness of possession between the pre-emptor and the pre-emptees in respect of the land of khatian No. 450 and jointness of possession or co-sharership in the land transferred being the requirement for seeking preemption in respect of non-agricultural land and the said legal requirement being absent in the instant case, pre-emptor’s prayer for pre-emption is not legally available to him.

25. The finding of the trial court that by the disputed alleged Reparation of jama the preemptor in view of his inheritance from his uncle retained his status as a co-sharer in the land of khatian No. 450 appears to be not well founded in that no material has been brought is record to establish that khatian No. 450/1 in the name of heirs of Abdul Mogni was opened only in respect of the property they inherited from Abdul Mogni or in other words in th khatian No. 450/1 property inherited from Abdul Gani was not listed.

26. As the law is now settled that pre-emption under Section 24 of the Non Agricultural Tenancy Act can be sought for by a person who is a co -sharer of the land sought to be preempted. It has already been mentioned Abdul Mogni’s heirs taking out the land whatever they inherited from Abdul Mogni and Abdul Ghani in the land of khatian No. 450 got recorded their share in khatian No. 450/1 with new jama on in other words upon splitting up of the original jama and this step of Abdul Mogni’s heirs reflects that whatever quantity of land they got by inheritance in the land recorded in khatian No.450 and were possessing got the same recorded in the new khatian i.e khatian No. 450/1. This shows said step was taken by the heirs of Abdul Mogni by the Division/partition amongst the heirs of Abdul Mogni and Abdul Gani of the land whatever they had in the said khatian. In the background of the partition/division heirs of Abdul Mogni and Abdul Ghani brought to an end of joint possession of the land inherited by them in khatian No. 450. It is also seen that later on the appellant whatever share he acquired in the property of Abdul Mogni and Abdul Ghani he got said share recorded in a new khatian i.e khatian No. 450/2 with a new jama. This shows that whatever quantity of property he got from his father and also from Abdul Gani he got that quantity of property recoded in khatian No. 450/2. This fact demostrates that he is in possession of the property recoded in khatian No. 450/2 and thus he ceased to be a co possessor or joint possessor of the property of khatian No. 450. The very fact of opening of khatian by the appellant in his name shows that he is in exclusive possession of the land of his share in plot Nos. 2183 and 2184. On the opening of new khatian No. 450/1 in the names of the heirs of Abdul Mogni comprising the land of aforesaid two plots and some other plots inherited by them from Abdul Mogni and Abdul Ghani and later on upon opening of the khatian No. 450/2 comprising the share of appellant in plot Nos. 2183 and 2184. in other words in respect of the share which he had in the land of khatian No. 450/1, he ceased to be a co-sharer in the land of khatian No. 450, or in other words in respect of the land whatever left in the sahre of heirs (s) of Abdul Ghani in khatian No. 450. Thus the appellant being not the recorded tenant of khatian No. 450 and that being not the co-sharer of the land as recorded in khatian No. 450 or in other words appellant being the tenant of the tenacy as in khatian No. 450/2 and consequently not being the co-sharer of the tenancy or the land as in khatian No.450 as such was not entitled to seek pre-emption of the land sought to pre-emtped since the land so sought ot be preempted is of khatian No.450. The jointeness of possession amongst the heris of Abdul Mogni and Abdul Ghani in respect of the land on kahtian No.450 has been served by the fact of opening of khation No. 450/1 in the name of the heirs of Abdul Mogni in respect of the land which they inherited from Abdul Mogni and Abdul gani. The opening of new khatian in their nemes by the heirs of Abdul Mogni shows that they are in specific possession of the land of the plots listed in the said khatian nd further opening of khatian No. 450/2 with separate jama comprising land of plot Nos. 2183 and 2184 by the appellant in his name in respect of the quantity of land he got by inheritance out of the land of khatian No. 450/1 shows that he is in specific possession of the land of the plots listed in the said khatian.

27. The learned Counsel for the appellant has submitted that opening of khatain No. 450/1 and khatian No.450/2 are not in fact separation of jama or creation of new tenancy with separate jama upon splitting up of tenancy of khatian No. 450, but in fact is correction of record of right making the same upto date as contemplates by section 143 of the State Acquisition and Tenancy Act or in other words the learned Counsel wants to say that there is mere mutation of the names of the heirs of Abudl Mogni, The Submission so made is not well founded in that had the steps that were taken by the heirs of Abdul Mogni were in fact making the record of right upto date there was no earthly reason for starting a new khatian with different jama i.e khatian No. 450/1 in the name of the heirs of Abdul Mogni and later on khatian No. 450/ 2 in the name of the appellant, In our opinion mutation of the names because of transfer or inheritance would he certainly noting down the names of the transferee (s) or the names of the heir (s) of original recorded tenant (s) in the record of right as stands at that particular moment and that not to open a separate khatian with separate jama as in the instant case has happened. It is also seen from the record that heirs of Abdul Mogni paid rent as against the khatian No. 450 /I. This fact shows that heirs of Abdul Mogni ceased to be the tenants of khatian No. 450.

28. In the background of the materials on record and the discussions made hereinabove it is seen that jointness of possession of the land of khatian No. 450 amongst the heirs of Abdul Mogni and Abdul Gani ceased on the opening of a khatian No . 450/1 by the heirs of Abdul Mogni in respect of the land they got by inheritance from Abdul Mogni and Abdul Gani and that later on upon the opening of khatian No. 450/2 in the name of the appellant and as in respect of non agricultural land pre-emption is available only to a non-agriculture tenant who is a co-sharer of the land so transferred i.e cosharership in the land transferred is the sole criterion for the purpose of seeking pre-emption when a part of the non-agricultural land held by a non-agricultural tenant is Trasferred to a stranger i.e a person who is not a co-sharer tenant in the land so transferred and as in the instant case it is seen that appellant is not a cosharer tenant in the land sought to pre-empted, as such he is not entitled to seek pre emption of the land transferred by the heir of Abdul Ghani to the pre-emptees. Accordingly all the appeals are dismissed There is no order as to cost.

Ed

Source: I ADC (2004), 515