Non-Agricultural Tenancy Act, 1949

 

 

Non-Agricultural Tenancy Act, 1949

 

Section-2(4)

It is true that at present the suit land is situated within Gopalgonj 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. [Para-12]

Mrs. Nirmala Bala Dos Vs. Ganesh Chandra Dhupi 7 BLT (AD)-358

Section-24

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 pre-emptor the same did not affect her right of preemption. [Para-5]

Md. Siddiqur Rahman Vs. Most. Jinnatunnessa & Anr (Civil) 7BLT (AD)-28

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 preemption—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. Khalilur Rahman & Ors. Vs. Abdur Rahman Bhuiyan & Ors. 7 BLT (AD)-268

Non-Agricultural Tenancy Act, 1949

 

Non-Agricultural
Tenancy Act, 1949

 

Section—7

The
tenancy in question having been created prior to and continued when the Act
came into force on 20.10. 1949, and such tenancy transmitted by inheritance,
the plaintiffs acquired an interest to continue such possession as of right
which is protected from eviction.

Ramzan Mia
and others v. Ida Mia and others, 22 BLD (HCD) 211.

 

Section—24

Pre-emptors
are required to establish a definite and distinct case, and not a ‘prima facie’
case of being co-sharers of the land sought to be pre-empted.

Hiran
Chandra Dey v. Md. Abdul Qu. yum and others, 22 BLD (AD) 128.

 

Sections—24
and 85(2)

“Tenant’
ordinarily means an occupier of immovable property paying rent to a person who
is generally called “landlord.” There are two categories of tenants : one, who
has full ownership in the land with. the right to transfer and inherit and the
other who has no such right. Non-Agricultural Tenancy Act was enacted for the
first category of tenants and not for the second category. Section 85(2) of the
Act speaks about the second category of tenants.

Since
the lease-hold right in the land within the Dhanmondi Residential Area is
transferable and heritable and yearly rent is payable to the Government, its
owner is a non-agricultural tenant and not a “tenant” as mentioned in section
85(2) of the Act. An application under section 24 of the Nonagricultural
Tenancy Act in respect of any land situated within Dhanmondi Residential Area
is maintainable in law.



Dr. Ismat
Mirza and others Vs Md. Mosaddique Hossain and others, 17 BLD(HCD) 152.

Ref:
33 DLR 10; 17 DLR 384; (1964) 1 Q.B. 395—Cited.

 

Section—24(3)

Improvement
costs

Section
24(3) of the Non-Agricultural Tenancy Act, 1949, appears to be a primafacie bar
against the pre-emptee’ s claim for improvement cost for any improvement made
after receiving notice of the pre-emption case. He can succeed in his claim
only\ when he satisfactorily proves that he made the alleged improvement
bonafide for the beneficial development of the case property.

Md. Belayet
Hossain Vs. Shah Alam Parvez and others, 19 BLD (HCD) 359.

 

Section—26

The
payment of rent to the government in respect of the suit land shows that the
plaintiffs have been recognised as tenants under the government.

Ramzan Mia
and others v. Idu Mia and others, 22 BLD (HCD) 211.

 

NON-AGRICULTURAL TENANCY ACT, 1949

 

NON-AGRICULTURAL TENANCY ACT, 1949 (XXIII OF 1949)

 

Section — 2(4)

Whether “Tilla Ban” or elevated homestead
Is non-agricultural land
— Whether a holder of a contiguous land can preempt
the same—Whether a particular land is non-agricultural land is to be determined
with reference to the user thereof and if it is held on lease with reference to
the purpose of the said lease—it is to be determined upon evidence and there is
no material on record to hold the same a non-agricultural land— There seems to
be no reason at all for holding that the case land is non-agricultural land—
The wide definition of land is capable of taking in even a Tilla Ban (elevated
homestead land) unless it can be shown that it is non-agricultural land—State
Acquisition and Tenancy Act (xxxviii of 1951) Ss.2( 16) &96.

Sayeda
Khatun and another Versus Abdur Rahman and others. 6BLD(AD)330

 

Sections — 2(5) and 7

‘Non-agricultural Tenant’‘—Meaning of
such a tenant—Non-agricultural tenant does not include any person who holds any
land on which any premises occupied by such person are situated, if such
premises have been erected or are owned by the person to whom such occupier is
liable to pay rent for such occupation—Mere using of his own materials’ does
not make the tenant owner of the land as well as of the structures—The
landlords gave permission for using these materials on condition that the
tenant would remove his materials whenever the landlords require the land—When
land was not leased out but premises thereupon was leased out— Continuous
occupation of the premises for over 12 years by the tenant did not bring him
within the category of ‘Non-agricultural tenant’ and as such protection under
section 7 was not available to him.

Md.
Tabibur Rahman Mollah Vs. Md. Sayidur Rahman Being Dead his heirs and legal
representatives. 4BLD (AD) 162

 

Section — 23(1)

Oral
gift of non-agricultural land by a Muslim is valid not with sanding subsequent
execution and registration of a deed of gift. The provision of 23 of the
Nonagricultural Tenancy Act prohibiting transfer of nonagricultural tenancy
without a registered document shall not apply to gifts of immovable property by
a Muslim. A valid gift of immovable property with building and structures inter
vivos can be made under the Muslim Law by oral gift. According to Muslim Law an
oral gift is complete as soon as the declaration of gift and the delivery of
possession is given by the donor to the donee. When these essential conditions
are complied with, the gift becomes perfectly valid and if a written deed is
executed afterwards and registered, the oral gift would be valid
notwithstanding the latter instrument of gift.

Alhaj
Aklima Khatun and another Vs. Shah Alam and another. 1BLD (HCD) 34

Ref:
1968 SCMR34I: 2IDLR (SC)l34, AIR 1949 Mad 307; 49 IA 195; referred.

 

 

Section —23

Oral gift— Whether it attracts the
provisions of Section 23 of the Non-Agricultural Tenancy Act—If the property
was nonagricultural tenancy it would be hit by section 23 of the
Non-Agricultural Tenancy Act— The provisions of Non-Agricultural Tenancy Act do
not apply as the suit properly was not non-agricultural land held by a
nonagricultural tenant—Section 23 of the Non Agricultural Tenancy Act (XXIII of
1949) is not attracted to oral gift of non-agricultural land held by a tenant
directly under the Government long before the coming into force of the said
Act.

Shah
Alam and another Vs. Alhaj Ak- jima Khatun and another. 3BLD(AD)45

[The
judgment reported in 1BLD (HCD) 34 has been affirmed by the above judgment i.e
3BLD (AD) 45]

 

Section —24

Pre-emption-Right of pre-emption
accrues as soon as transfer is made—Subsequent transfer is subject to that
right—Original transfer without an agreement for recon -veyance—The fact that
the subsequent transferee is the original transferor, who continued to be a
co-sharer after the original transfer of no consequence.

Shafi
Khan Vs. Mannujan Hossain aa others. 1BLD (HCD) 423

Ref:
5OCWN 806, 50 CWN 841 29DLRI 64 29DLR
229—Cited.

 

Section—24

Pre-emption-Whether the right of
emption is available when the land sought 1 be pre-empted has already been
recovery a the vendor—The main question for exemption will be whether he
actually got back land—If the answer is the affirmative. The position will be
as if no transfer was at made by him—If it is found that the resale mere paper
transaction then the resale may ignored and preemption may be allowed.

Shafi
Khan Vs. Mannujan Hussain others, 3 BLD (AD) 303

Ref
12 DLR 849; 53 CWN 678; 57 253; 13 DLR 287; 58 CWN 1000; 50 C 806; 50 CWN 807;
19 DLR 677; 29 D9 164; 29 DLR 229; 18 DLR 317—-Cited.

[The
judgment reported in 1 BLD (HC 423 has been reversed by. the above judge i.e.,
3BLD (AD) 303]

 

Section —24

Pre-emption—Co-Sharer’s right when
ceases—A co-sharer seeking preempting must have a subsisting interest in the
holding at the time when he files an application f pre-emption.

Sunil
Krishna Banik and others Kailash Chandra Saha and others. 4 BLD (AD) 320

Ref:
33 DLR (AD) 505—-Cited.

 

Section —24

Pre-emption—-Whether a person in
pos-session of land in part performance of a contract is a co-sharer entitling
him to pre-empt the sale-— The pre-emptor having been in possession as part
performance of contract for sale can be deemed to be a co-sharer for the
purpose of pre-emption.

Abid
Ali Vs. Maleka Khatun and others. 5BLD (HCD) 277

Ref:
35 DLR (AD) 230; PLD 1971 (Bagdul Jadid ) 42 ; BLD 1967 (SC) 411—- Cited.

 

Section —24

Separation of jama—Question of right
pre-emption-—-The separation of jama in favour of opposite party No.1 having
been .reated subsequent to the impugned transfer, the separation in favour of
the opposite party No.1 cannot Affect the petitioners right to re-emption.

Abid
Ali Vs. Maleka Khatun and others. 5BLD (HCD) 277

 

Section —24

Pre-emption—-question of pre-emption
after reconveyance—-The case land has been retransferred to the vendor in
pursuance of civil Court’s decree and the vendor is in possessions of the case
land—-This being the position there is nothing left with the transferee which
can be pre-empted—-The Court can look into the question of re-sale of the
property if it is found that the re-sale of the property is a colorable show up
or a mere paper transaction and the right, title and possession of the property
have not gone back to the vendor—It can then ignore the re-sale and allow the
pre-emption case.

Satindra
Nath Mistry and others Vs. Baziur Rahman Sarker and others, 6 BLD(HCD)46

Ref:
29 DLR164; 35 DLR(AD)225— Cited.

 

Section—85

Tenancy right under Government— Whether
after the acquisition of rent receiving interest a leasee under the Municipality
has become a tenant under the. Government— Whether he can be evicted from the
land by the Municipality—Whether Municipality is a local authority—Whether the
land belonging to the Municipality is exempt from acquisition—Local authority
is understood to mean an authority entrusted with the administration of a local
fund— The Municipality is a local authority—The property had vested in the
Municipality which is not a rent receiver and therefore exempt from acquisition
of the property—The defendant did not acquire tenancy right under the
Government—Defendant also did not acquire tenancy right under the
Non-Agricultural Tenancy Act since land belonging to the Municipality is exempt
from its provisions.

Narendra
Basu Roy and another Vs. Municipal Committee, Mymensingh. 6BLD (AD) 297

Ref:
I 7DLR (SC)74—Cited.

 

Non-Agricultural Tenancy Act, 1949

 

Non-Agricultural Tenancy Act, 1949

 

Section-2(4)

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

 

Section-7(2)

Adverse
Possession

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.

Section-7(5)

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

Section-24

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

Section-24

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

Sectiion-24

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

Section —24

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

Section-24( 1)

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.