Appellate Division Cases
Mossammat Khursheda Jahan alias Mst. Monju khorsheda …………Appellant
Syada shafinaz Jahan and others……………………………..Respondents
Md. Ruhul Amin C.J
K. M Hasan. J
Abu Sayeed Ahammed. J
JUDGEMENT DATE: 24th March, 2002
The Non Agricultural Tenancy (Act, 1985), Section 24.
That if a portion or share of the non agricultural land held by a non agricultural tenant is transferred, one or more co sharer tenants of such land may apply to the Court for such portion of share to be transferred to himself or themselves within four months of the service of notice and in case no notice has been issued then with in four months from the date of knowledge of such transfer by making a deposit in court the amount of consideration of money. The section is very clear that only a co sharer tenant and none else can pre empt………………… (10)
Civil Appeal Nos. 61 of 1995 (From the judgment and Order dated 11.1.1995 passed by the High Court Division in Civil Revision No. 291 of 1989 (Rangpur) No. 983 of 1991 (Dhaka).
Md. Fazlul Karim, Senior Advocate, instructed by Md. Nowab AH, Advocate-on-
Record………………… For the Appellant
Md. Aftab Hossain, Advocate -on-Record………………… For Respondent Nos. 1-3
Ex-Parte ………………………Respondent Nos. 4-9
1. K. M Hasan, J.:- This appeal is by special leave by the purchaser pre emptee in an application under Section 24 of the non Agricultural Tenancy Act, 1985.
2. The facts are that Syed Siddique Hossain was the owner of the suit property. He died
leaving behind his wife, five sons and three daughters who possessed the same in ejmali as co sharer teneqats. The wife and sons executed a power of attorney in favour of syed Amzed Hossain who is also a son of Syed Siddique Hosaain. The pre-emptor respondents are the daughters of Syed Sddique Hossain. The pre emptor respondents are the daughters of Syed Siddique Hossain who never executed any power of attorney . On 4.7.1974 the said attorney executed and registered a deed of agreement to sell the disputed land of the kabala in favour of the pre emptee appellant, subsequently, when the attorney failed to execute and register a Kabala in favour of the pre-emptee appellant she brought O.S. No. 9 1975 for specific performance of contract and obtained an exparte decree which was executed and a kabala was registered with respect to the disputed land and structures described in “Kha” schedule in Execution Case No. 9 of 1981 in the Court of the Subordinate Judge, Rangpur. 3
. During the pendency of the suit one of the defendants of the aforesaid suit Syed Raisul
Hoque who was also a son of Syed Siddique Hossain died in Germany issueless. His shares in the disputed property was inherited by his brothers and sisters. As the brothers were already parties to the suit, the sister, the pre emptor respondents, were substituted as heirs of the deceased brother in O.S. No.9 of 1975 and the Execution case No. 9 of 1981. The pre emptor respondents alleged that no notice of the aforesaid case was served upon them. They came to know about the agreement, suit and sale of the disputed land on 29.3.1983 for the first time and the pre emptee appellant in the meantime got possession of the land and structure from Syed Amzad Hossain, the attorney holder, The pre emptor respondents claimed that the pre emptee appellant is a stranger purchaser whereas they are co sharers by inheritance and they have no other land except the land left by their father. They filed miscellaneous Case no . 147 of 1983 for pre emption under Section 24 of the Non Agriculture Tenancy Act.
4. The pre emptee appellant contested the case by alleging that Syed Halima Hossain , the
wife of Syed siddique Hossain and her sons offered to sell the case land to her. Accordingly she purchased the disputed land for Tk. 12000/= on 4.7.1974. Her further case is that on the death of Syed Raisul Hoque the pre emptee appellants were substituted as defendants in the suit and the court passed a decree against them also. The pre emptee appellant got the Kabala executed and registered through court in execution of exparte decree against the defendants including the pre emptor respondents.
5. Her further case is that the application for pre emption is not maintainable and the pre
emptor respondents are not entitled to file any Pre emption case as they themselves transferred the disputed land by disputed kabala. She is in possession, has spent huge money for repair of the structures and for earthwork of the case land.
6. Both the trial court and the lower appellate court concurrently dismissed the miscellaneous case, In revision by the pre emptor respondents a single Judge of the High Court Division reversed the concurrent judgment and the rule was made absolute.
7. Leave was granted to consider whether he pre emptor respondents being parties to the
sale obtained thought a decree in suit for specific performance of contract can pre empty the land purchased by the pre emptee appellant . The pre emptee appellant claimed that they became the parties to the suit for specific performance of contract by being duly substituted of the deceased brother.
8. Mr. Fazlul Karim, the learned counsel submits that the courts below rejected the
prayer for pre emption on consideration of the facts that the pre emptor respondents were duly substituted as parties defendants in the suit for specific performance of contract as such they became the transferor and has no right of pre emption.
9. He further argues that the plea of lack of knowledge of preemptor respondents in respect of their being added as defendants in the suit for specific performance of contract and the decree passed against them have been rejected by both the trial court as well as the appellate court below and the learned single Judge is in an error of law in not taking into consideration this material point decided by the Courts below while reversing the judgment and order.
10. We have considered the submissions of the learned advocate and gone through the judgment and from a reading of Section 24 of the Non Agricultural Tenancy Act it appears to us that if a portion or share of the non agricultural land held by a non agricultural tent is transferred, one or more co sharer tenants of such land may apply to the Court for such portion of share to be transferred to himself or themselves within four months of the service of notice and in case no notice has been issued then with in four months from the date of knowledge of such transfer by making a deposit in court the
amount of consideration of money. The section is very clear that only a co sharer tenant and none else can pre empt. But in this particular case the pre emptor respondents are not co sharer tenants because of the decree in the suit for specific performance of contract in which they were parties by way of substitution. As a result they have themselves become the vendors of the disputed land and no longer remained co sharer tenets of the disputed land. Both the courts below disbelieved their claim that they were not aware of the suit as they became parties to the suit and the decree. Moreover, the pre emptor respondents never filed a suit for cancellation of the judgment and decree of the courts below in O.S No. 9 of 1975 on the basis of which the register deed was executed in favour of the pre emtpee appellants. In view of the above, the appeal is allowed without any order as to costs. Ed
Source: I ADC (2004), 310