Appellate Division Cases
(Civil)
PARTIES
Mosa. Rabeya Khatun……………… Petitioner.
-Vs-
Md. Afzal Hossain Prang, and others………………… Respondents.
JUSTICES
Mohammad Fazlul Karim J
M.M. Ruhul Amin J
Judgment Dated: 9th September 2007
The State Acquisition and Tenancy Act, Section 96, 96(3)(a)
It appears from the record that the preemptor filed a pre-emption case under Section 96 of the State Acquisition and Tenancy Act and the trial Court dismissed the pre-emption case holding that the pre-emptors were not the contiguous land holders of the land under pre-emption. On appeal, the Court “of appeal below found that the disputed property is a compact block of land and the plots are contiguous to each other and also contiguous to preemptors’ land. The Court of appeal below specifically found that the pre emptor is a cotiguous land holder of the disputed jote…………………. (5)
We find the land transferred, though it consists of several plots, is a compact block of land, all the plots being themselves contiguous to each other. This compact block of land being contiguous to the pre-emptor’s land he is entitled to pre-empt the entire block. One of the purposes for allowing preemption to a contiguous land holder appears to help enlarge small uneconomic agricultural holdings in the country by consolidation and amalgamation. In a case like the instant one, the different plots constituting the land transferred but forming a compact area, the pre-emptor, if successful in his pre-emption, will be in a position to enlarge his existing holding. Be that as it may, he is entitled to preempt the whole of the land transferred on the basis of ‘contiguity’ within the meaning of Section 96 of the State Acquisition and Tenancy Act……………. (5)
Mohammad Naxvab Ali, Advocate-on-Record……………. For the Petitioners.
Bivash Chandra Biswas, Advocate-on-Record. ………………..For Respondent Nos. 1-2
For the Respondent Nos.3-82 ……………..None represented.
Civil Petition For Leave To Appeal No. 164 of 2006
(From the judgment and order dated the 6th day of December, 2005 passed by the High
Court Division in Civil Revision No.2638 of 2004).
JUDGMENT
Mohammad Fazlul Karim J: At the instance of the petitioner this petition for Leave to Appeal is directed against the judgment and order dated 06.12.2005 passed by the High Court Division in Civil Revision No.2638 of 2004 discharging the Rule affirming the judgment and order dated 28.06.2004 passed by the Joint District Judge, 1st Court, Bogra in Miscellaneous Appeal No. 129 of 2002 allowing those dated 08.09.2002 passed in
Miscellaneous Case No.31 of 1998 by the learned Senior Assistant Judge, 1st Court,
Bogra dismissing the same.
2. The respondent No.l as pre-emptor filed a Miscellaneous Case No.34 of 1998 under Section 96 of the State Acquisition and Tenancy Act in the Court of the learned Assistant Judge, Bogra for getting pre-empted the land transferred by the pre-emptee Nos.2-4 in favour of preemptee by a kabala deed dated 22.05.1997 as contiguous land holder. The pre-emption case was filed stating, inter alia, that the pre-emptors were owner of Plot
No.981 and 962 and those two plots were contiguous to the Plot Nos.967,966,965 and 964; that the land of those four plots belonged the pre-emptee Nos.2-4 who sold 0.57 decimals of land from those four plots by kabala deed No.8257 dated 22.05.1997 in favour of the pre-emptee No.l; that the pre-emptee No.l is a stranger purchaser to the said land; that the pre-emptors being contiguous land holder came to know about the said transfer on 01.04.1998, got the certified copy of the kabala deed on 05.04.1998 and filed
the preemption case on 14.08.1998.
3. The pre-emptee No.l contested the case by filing written objection denying the
contiguity of the pre-emptors with the case land; that the preemptee is the owner of a portion of land of Plot Nos.981 and 962; that the Plot Nos.981 and 962 are in spite of contiguous to Plot No.967 but the portion of land possessed by the pre-emptors are not contiguous in the portion of land transferred by the deed under preemption from Plot No.962; that the portion of land Plot No.967 which is contiguous to the land of Plot No.981 is in possession of the pre-emptee Nos. 17 and 18; that thereafter, the contiguous portion of land of Plot No.967 measuring an area of 0.9 decimals of land is in possession of Moslem and Younus who have not been made parties; that thereafter, 0.18 decimals
of land which is just contiguous to the Plot No.967 belongs to the preemptee-petitioner; that the land of Plot No.962 of the petitioner is contiguous to the Plot No.967; that there is no contiguity of the pre-emptor’s land with the land of Plot Nos. 964, 965, 966 and 967; that the pre-emptors were given offer to purchase the land under pre-emption but they denied to purchase the same expressing their inability; that thereafter, the preemptee
Nos.2-4 sold the case land by the kabala under pre-emption in favour of the pre-emptee No.l (petitioner) within the knowledge of everybody; that the preemptors being not contiguous land holders the pre-emption case is liable to be dismissed.
4. Mr. Mohammad Nawab AH, learned Advocate-on-Record, appearing for the petitioner submitted that the High Court Division erred in law in failing to discuss and consider the evidence of P.W. 1 who himself admitted the fact that out of four plots of the land under pre-emption he is not a contiguous land holder in respect of plot Nos.964, 965 and 966 and in view of that admission the judgment and order is liable to be set aside; that it erred in law in failing to consider the admitted testimony of the P.W. 1 that the preemptee is a contiguous land holder to plot No.962 only and in view of the said evidence the preemption at the instance of the pre-emptor was barred by law; that pre-emption case
was not all maintainable in view of the fact that deposit of money as against the kabala deed under pre-emption was not made to the credit of the pre-emptee as per mandatory provisions of Section 96(3)(a) of the State Acquisition and Tenancy Act.
5. It appears from the record that the preemptor filed a pre-emption case under Section 96 of the State Acquisition and Tenancy Act and the trial Court dismissed the pre-emption case holding that the preemptors were not the contiguous land holders of the land under pre-emption. On appeal, the Court of appeal below found that the disputed property is a compact block of land and the plots are contiguous to each other and also contiguous to preemptors’ land. The Court of appeal below specifically found that the pre emptor is a
cotiguous land holder of the disputed jote. The Court of appeal below relied upon a
decision in the case of Haji Tajamal Alivs-Abdus Sattar and another reported in 2BCR (AD) 317 wherein it is held that the preemptor being the contiguous land holder is entitled to pre-emption of the whole land transferred consisting of several plots out of which his land is contiguous to any of such plots and several plots forming a compact block of land, all the plots being contiguous to each other and contiguous to preemptor’s land, the pre-emptor petitioner is entitled to pre-empt the entire block. The Court of appeal below relying upon decisions as reported in 2BCR(AD) 317 ibid which has also been published in 34DLR(AD) 217 considering the materials on record allowed the pre-emption setting aside the judgment and order of the trial Court holding, inter alia, that ” we find the land transferred, though it consists of several plots, is a compact block of
land, all the plots being themselves contiguous to each other. This compact block
of land being contiguous to the pre-emptor’s land he is entitled to pre-empt the entire block. One of the purposes for allowing preemption to a contiguous land holder appears to help enlarge small uneconomic agricultural holdings in the country by consolidation and amalgamation. In a case like the instant one, the different plots constituting the land transferred but forming a compact area, the pre-emptor, if successful in his pre-emption,
will be in a position to enlarge his existing holding. Be that as it may, he is entitled to pre-empt the whole of the land transferred on the basis of ‘contiguity’ within the meaning of Section 96 of the State Acquisition and Tenancy Act.”
6. The High Court Division observing the facts and circumstances of the case and materials on record viewed that “the Court of appeal below on proper consideration
of the decision of the superior Court and after adverting to the reasons assigned by the trial Court, has reversed the judgment passed by the trial Court. The findings recorded by the Court of appeal below are supported by evidence on record and are based on correct principle of the appreciation of evidence. It found no illegality in the impugned judgment that calls for an interference.”
7. In view of the above, the submissions of the learned Advocate for the petitioner deserve no consideration.
8. The petition is accordingly dismissed without any order as to costs.
10. Accordingly, the petition is dismissed.
Source : V ADC (2008),646