It is true that at present the suit land is situated within Gopalganj municipality and it is the case of the plaintiff that she along with her husband and other family members has been residing there by erecting huts and that she has also let out some portion of the hut to P.W. 3. The trial court believed the plaintiffs settlement and dakhilas Ext.1 series upon assigning proper reasons.
Plaintiff got the settlement as far back as on 15 Chaitra 1355 B.S. which corresponds to March, 1948 but the Non-Agricultural Tenancy Act, 1949 came into force on 20th October, 1949. As such its application in respect of the suit property does not arise at all.
Mrs. Nir Bala Das Vs. Ganesh Chandra Dhupi 7BLT (AD)-358
Under the section a tenant must show that the had been holding the property in question for a period of not less than twelve years without any lease, Mere suggestion of uninterrupted possession for “12 years” or that the plaintiff had acquired “an absolute title” is not enough to raise such a plea. (1) claim adverse possession it must be specifically pleaded in the plaint. (2) hostile must be asserted, (3) adverse possession must be adequate in continuity (4) Evidence must be adduced to show when possession became adverse so that the starting point of limitation against the party there was no attempt to prove since when
the adverse possession has started.
Sree Mati Gouri Das & Ors, Vs. A. B. Hasan Kabir & Ors. 11 BLT (AD)-87.
In view of the nature of settlement as given to Abdul Hakim “Mirash Bandubasta” of the suit land, followed by continuous possession over 12 years, by raising constructions, such settlement, falls into one such class under Section 7(2) of the Non-Agricultural Tenancy Act. The tenancy in question was created prior to 22.3.42 which continued on 20.10.49 when Act XXIII of 1949 came into force and in view of Section 89A of the said Act, the plaintiffs accured an interest to continue such possession as of right which is protected from eviction. The interest of Abdul Hakim in the suit land in such tenancy has been transmitted by inheritance to the plaintiffs on the death of Abdul Hakim under clause (II) of Sub-section (5) of section 7.
Ramjan Mia & Ors. Vs. Idu Mia & Ors. 10BLT(HCD)-229
Principle of waiver and estoppel
Respondent No. 2 the alleged vendor of the petitioner having acquired right, title and interest in the case land by virtue Of the solenama, where the pre-emptor-respondent was a defendant—Held: The compromise decree having not been passed against the preemptor the same did not affect her right of preemption.
Mil Siddiqur Rahman Vs. Most Jinnatunnessa & Anr. (CM) 7BLT (AD)-28
Question of Limitation
The pre-emptor is entitled to make the application for pre-emption within 4 months from date of registration and not from the date of receipt of copy of sale deed.
Harunur Rashid Vs. Afroza Khanam & Ors. 9 BLT(HCD)-135
The pre-emptor, his sister and brothers may be co-sharer in original S.A. Khantian but not after separation of Jama in mutation case. They are no longer remained co-sharers in the new mutation khatians, opened separately in favour of their respective names. As such the pre-emptor was not entitled to pre-empt the case land.
Hafez Abdul Karim Vs. Male Mohammad 8BLT(HCD)-144
Because of the decree in the partition suit as there has been ceasing of co-sharership between the plaintiff and the defendant of the partition suit that ended in final decree upon allotment of separate saham to respective parties and that as the preemptors got the jama of khatian No.3232/1 (Ext.3) split up in respect of their land purchased from the heirs of Hannan, son of Abdur Razzaque and got a separate khatian opened in their names before the transfer to the pre-emptee and consequent thereupon as they ceased to be the co- sharers of khatian No.3232/I or in other words land of the said khatian pre-emption sought for on
the basis of purchase of land made from the heirs of Abdul Hannan, son of Abdur Razzaque against the preemptee who purchased the land sought to be pre-empted from heirs of Abdur Razzaque was not available. The High Court Division as well
as the appellate Court in the materials on record as discussed above assumed that khatian No.3232/I/I (Ext.A) was started in the name of preemptors in respect of the land Abdul Gafur got in pursuant to the decree in partition suit and thereupon erroneously -allowed preemption.
Alfazuddin Ahmed Vs. Abdur Rahim & Ors. 13 BLT (AD)236
Section 24 read with Section 85(2)
The application of section 24 NAT Act has been excluded by the provision of section 85(2) of NAT Act in respect of the land mentioned in section 85(1) (a.b.c.d.e) and land of Dhanmondi R.A being the land of one of the category of lands as in section 85(1) (a.b.c.d.e.) application of provision of section 24 NAT Act has been excluded by section 85(2) NAT Act.
Kamrun Nahar Begum. Vs Nurul Alain Chowdhury & Anr. 13 BLT (AD)75
Section-24 and Code of Civil Procedure, 1908 Section-99
Whether pre-emption in one single application for separate purchases by different sellers and purchasers be maintainable.
Both the trial court and the High Court Division on appeal allowed the respondents application for pre emption—Held: We think the better view is that the principle as section 99 of the Code of Civil Procedure will come to the aid of respondent No. 1.
Alhaj Md. Kholilur Rahman & Ors. Vs. Abdur Rahman Bhuiyan & Ors. 7BLT (AD)-268
By now it is well settled that for the purpose of pre-emption under section 24(1) of Non-Agricultural Tenancy Act Co-sharership in the land is material. A co-sharer in land becomes entitled to pre-empt under Section 24(1) of the Act if any portion of such land is transferred to stranger.
Md. Shah Aim Vs. Alhaj M.S. Shahifur Rahman & Ors. 11 BLT (HCD)-189.
Section-24(1) read with Code of Civil Procedure, 1908 Section-2(2)
A reference to Section 2(2) of the Code of Civil Procedure shows that a decree may be either preliminary or final. Explanation to Section 2(2) provides that “a decree is preliminary when further proceedings have to be taken before the suit can he completely dispose of. It is final when such adjudication completely disposes of the suit”. In a suit for partition, after filing of the report along with the case map, field book, saham list by the Advocate Commissioner final decree takes effect and thereafter remains nothing to be done. In a pre-emption proceeding under Section 96 of the State Acquisition and Tenancy Act, the question of co-sharership in the tenancy is relevant, but the Section 24(1) of Non-Agricultural Tenancy Act the co-shareship in the land is maternal. In that view of the matter, the passing of the final decree in a partition suit finally determines the rights of the co-sharers in the land. Hence, the application for the pre-emptor respondents on the basis of co-shareship is not maintainable.
Md. Shafiuddin Chowdhury Vs. Abdul Karim & Ors. 8BLT(AD)-165
Section-24(1) read with State Acquisition and Tenancy Act, 1950 Section-117
There is no escape from the irresistible conclusion that even if the land in the expression. ‘co-sharer in the land’ in Section 24(1) of the Act, 1949 is not synonymous to a holding but conceiving of such land without reference to the word ‘co-sharer’ is neither feasible nor possible. And the word ‘co-sharer’ in the phrase ‘co-sharer in the land’ is the key to find whether the preemptor is entitled to preempt. A final decree passed in a partition suit or amicable partition though separates and divides the land for the purpose of possession but does not ipso facto terminate co-ownership in such land till subdivision of the holding and distribution of rents takes place only in accordance with law. Subdivision of a holding and distribution of rents may also take place in a revenue survey subsequent to the cadastral survey with or without the plot or plots divided into different small plots. As stated above, such subdivision may also takes place at the instance of one or more of the co-tenants of the holding in accordance with the provisions of S. 117 of the State Acquisition and Tenancy Act, 1950. Such subdivision always terminates the joint tenancy or more precisely co-sharership in the land, no matter whether the land is subdivided or separated or not and after such subdivision, the old co-owners of the holding in such land cannot be deemed to still continue as co-sharer in the land within the meaning of S.24(1) of the Act, 1949.
S. M. Nasirul Haque Vs. Omar Faruque Chowdhury & Ors 10 BLT (HCD)-318.