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.
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.
Tabibur Rahman Mollah Vs. Md. Sayidur Rahman Being Dead his heirs and legal
representatives. 4BLD (AD) 162
Section — 23(1)
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.
Aklima Khatun and another Vs. Shah Alam and another. 1BLD (HCD) 34
1968 SCMR34I: 2IDLR (SC)l34, AIR 1949 Mad 307; 49 IA 195; referred.
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
Alam and another Vs. Alhaj Ak- jima Khatun and another. 3BLD(AD)45
judgment reported in 1BLD (HCD) 34 has been affirmed by the above judgment i.e
3BLD (AD) 45]
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.
Khan Vs. Mannujan Hossain aa others. 1BLD (HCD) 423
5OCWN 806, 50 CWN 841 29DLRI 64 29DLR
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.
Khan Vs. Mannujan Hussain others, 3 BLD (AD) 303
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.
judgment reported in 1 BLD (HC 423 has been reversed by. the above judge i.e.,
3BLD (AD) 303]
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.
Krishna Banik and others Kailash Chandra Saha and others. 4 BLD (AD) 320
33 DLR (AD) 505—-Cited.
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.
Ali Vs. Maleka Khatun and others. 5BLD (HCD) 277
35 DLR (AD) 230; PLD 1971 (Bagdul Jadid ) 42 ; BLD 1967 (SC) 411—- Cited.
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.
Ali Vs. Maleka Khatun and others. 5BLD (HCD) 277
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
Nath Mistry and others Vs. Baziur Rahman Sarker and others, 6 BLD(HCD)46
29 DLR164; 35 DLR(AD)225— Cited.
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.
Basu Roy and another Vs. Municipal Committee, Mymensingh. 6BLD (AD) 297
I 7DLR (SC)74—Cited.