Special Powers Act, 1974
Section —2(f)
Criticizing
the Government do not come within the mischief of prejudicial act as well
Order
of Detention
—The High Court Division upon hearing the parties found that the order of
detention has been made without application of mind and upon colorable exercise
of power and that there is no nexus between the grounds and the purpose of the
detention made the Rule absolute on the finding that: “In consideration of the
materials produced and the submissions of the learned Counsels of both the sides,
we are of the view that the allegations made in the grounds do not come within
the mischief of prejudicial act as defined in section 2(f) of the Special
Powers Act, 1974. Admittedly, there is no other allegation neither in the
grounds served vide Annexure-I nor in the affidavit-in-opposition submitted by
the respondent Nos. I and 5 except those as stated there in the memo of
grounds. Memo making of G.D. entry as contained in the memo of grounds. Mere
making of G.D. entry as contained in the memo of grounds and describing him as
terrorist, miscreant, bomber etc. are not enough to detain a citizen of the
country in custody curtailing his civil liberties. We also find that there is
no specific case mentioned in the grounds nor about his involvement in alleges
supply of M- 16 Rifle. Even if there has been any specific case filed against
the detenu subsequent to his arrest he will face legal consequence in the said
case. Delivering of speeches, making of political statements, criticizing the
Government and its activities and attending political meetings of the
opposition political parties do not came within the mischief of prejudicial act
as well.” —Held In view of the above, we do not find any substance in the
submission of the learned Deputy Attorney General. The petition is dismissed.
Govt. of Bangladesh Vs. Professor Apu Ukil 16
BLT (AD)126
Section-3(2)
The
Government is not empowered by law to extend the period of detention under
section 3 of the Act so passed by the District Magistrate or Additional District
Magistrate, under section 3(2) of the Act.
Mohammad Sayed Vs. Govt. of Bangladesh 16 BLT
(HCD)27
Section—27(6) and 27(6A)
In case
of non-appearance of an accused in course of his trial after his release on
bail the procedure as laid down in Sub-section (6) has got no application. In
such clear indication of law we are of the view that there was no necessity to
adopt to the procedure mentioned in Sub-section (6) of Section 27 in the
instant case, inasmuch as the accused petitioner was allowed bail during trial
and thereafter he remained absent.
Mojibur Rahman @ Babu Vs. Deputy Commissioner
and Ors 16 BLT (AD)185
The Stamp Act, 1899 (II of 1899) Section- 18
The very
act of revalidating or restamping the power of attorney is defendant upon
reciprocal arrangement.
Molay Behari Biswas Vs. Govt. of Bangladesh
5BLT (AD)-109
Section-35
A
failure to comply with the stamp duty as provided under the Stamp Act may
entail penalty but the instrument cannot be thrown away for want of stamp as
inadmissible in evidence not being duly stamped.
Abdul Karim & Ors. Vs. Mvi Serajuddin
Ahmed & Ors. 7BLT (AD)-160
The State Acquisition and Tenancy Act, 1950 Section
—2 clause —23 read with Registration Act,
Section-60
The
plaintiff claims the suit land on the basis of registered Patta of 1945 —patta
holder remains as under Raiyat under Sebayat who was a raiyat of the deity and
entire right does not evaporates and no recital is necessary in a patta
regarding legal necessity and after promulgation of state Acquisition and Tenancy
Act the patta holder under raiyat automatically became tenant under the
government under the law whether any entry was made or not.
Mofizul Haque Khan Chowdhury Vs Jogesh Chandra
Basu Molick & Ors 16 BLT (HCD)310
Section- 17(3)
Whether the Patta is a genuine document as it was
executed in 1956
As per
provision of the State Acquisition and Tenancy Act after the whole sale
acquisition of rent receiving interest by notification no. 18636 dated
13.12.1955 no under tenancy could be created. In this view of this matter the
patta in question is not a valid document in the eye law and it conveyed no
title.
Tayab Ali Shaik & Ors. Vs. Hashem Shaik
& Anr 12BLT(HCD)510
Section —20
The case
of the plaintiff is that the ex-landlord auction purchased the suit land in rent
sale and certified copy of the sale certificate was produced without calling
for the original of the same and as such the High Court Division was not
inclined to rely upon the same —Held: in our view, the High Court Division took
correct view that the plaintiff could not prove that the ex-landlord auction
purchased the suit land and made the same khas and thereafter, the same vested
in the Government as excess non-retainable khas land of the ex-landlord. But no
paper has been produced by the plaintiff in that respect to show that the
Provisions of Section 20 of the State Acquisition and Tenancy Act, 1950 were
duly complied with in the matter of acquisition of khas lands in excess of the
limit imposed by law.
Bangladesh & Ors Vs. M. Ali Khondokar 15
BLT (AD)161
Section-20(2)(a)(iii)
It
appears that a vast tract of land within the reserved forest has been claimed
by Abbas Ali Munshi as he plaintiff in Title Suit No.160 of 1966 on the basis
of taking pattan from the exlandlord in the year 1946. But in that suit he
could not produce any supporting evidence of title as claimed. Moreover, in
view of the statement made in the plaint that the suit land has been recorded
as forest land, the trial court committed an error of law in decreeing the
suit, mechanically, ex parte without considering the effect of the provisions
of the S.A.T. Act, as well as the Specific Relief Act.
Bangladesh Vs. Karimun Nessa & Ors. 9
BLT(AD)-242
Section-43 (2) Read with Section-44 (3)
Publication
of a notification in the official gazette declaring that a compensation
assessment-roll has been finally published for a village or group of villages
or local area as the case may be, specifying in such notification the date of
the final publication of the compensation assessment-roll, as required under
section 43 (2) is a conclusive proof of such publication and of the date
thereof. After the said notification all interests of tenants in respect of
their non-returnable property would vest in the Government under section 44 (3)
of the said Act with effect from the first day of the agricultural year next
following the date of publication of such notification in the official gazette.
Even if there be any defect in the preparation and publication of the
compensation assessment-roll that by itself shall not stand in the way of the
vesting.
Md. AliAkbarVs. Govt. of Bangladesh & Ors.
5BLT (AD)-145
Section-68C
Admittedly
the period for which the rent suit was filed is the period covered by the years
1359 to 1362 B.S. which is prior to the date of the State Acquisition &
Tenancy Act came into force. But the provision of section 68C does not make any
suit for realisation of the arrear rent by the ex-landlord either barred or
prohibited and therefore the said rent suit was not barred or invalid as was
illegally found by the trial court and was upheld by the High Court Division.
Amullya Ranjan Das & Ors Vs. Gol Bahar
Khatun & Ors. 12 BLT (AD)-37
Section-81(b)
Complete
and legal settlement—unless and until the provision of section 81(b) is
complied with through registration of the lease deed, cannot be called a
complete and legal settlement.
Abdul Kader & Ors Vs. Abdullah & Ors.
6BLT (HCD)-112
Section-82 (1)
It is
the evidence of P.W. I that he cultivates his land with the aid of ‘Baragadars’
and in the background of the said evidence of P.W. 1 the High Court Division
held that the preemptor is a bonafide cultivator because of satisfying one of
the circumstances as set forth in sub-section 1 of Section 82 of the Act—Held:
Pre-emptor is a bonafide cultivator.
Md. Fazlu Miah & Ors Vs. Asabur Rahman
& Ors 12 BLT (AD)252
Section-90
On
remand —Pre-emption
under section 96 of the State Acquisition and Tenancy Act — since the vital
question regarding the quantum of land in possession of the pre-emptor as
ordained by section 90 of the S.A.T. Act has remained unsettled with reference
to any evidence equity demands that the pre-emptor should not be non-suited on
a mere technical ground, which was never agitated and decided in the trial
Court, and as such it is found expedient in the interest of justice that the
case be sent back to the trial Court on remand for a fresh hearing.
M.A Karim & Ors. Vs. Md. Shamsuddin 5BLT
(HCD)-161
Section-91
Pecuniary
jurisdiction—
for pre-emption actual value of the land—whatever might be the actual price of
the land, the amount stated in the deed of sale as consideration shall have to
be taken as the valuation of the proceeding for the purpose of pecuniary
jurisdiction.
Most. Sajeda Khatoon Vs. Asad Ali &Ors. 9
BLT (HCD)-267
Pre-emption —subsequent
reconveyance not defeat pre-emption
Sale of
a property takes effect from the date of the execution of the sale deed and as
such any subsequent agreement for re-conveyance of the property cannot defeat
the right of preemption
Captain Mohd. Lutfar Rahman Vs. Mohd. Abu
Taher & Ors. 9BLT (HCD)-429
Sections-91 and 92
Evidence
Act—pre-emption—if the Ext-1 is read in juxtaposition with provision of
sections 91 and 92 this Ext-i is an out and out sale but not a deed of gift.
When
this application under section 96 of the State Acquisition and Tenancy Act was
filed for pre-emption at that time this new case was made by the pre-emptee
petitioner. If I read the evidence of P.Ws. and O.P.Ws. and Ext. A in
juxtaposition with the provisions of section 91 of the Evidence Act, it and out
sale deed and by no manner of interpretation it can be treated as a deed of
gift. The oral evidence as given by the O.P.Ws. cannot alter or change the
contents of the sale deed Ex. 41 have gone through the evidence of P.Ws. and
0/Ws in this case. It appears to me that if I read and the deed of sale along
with the evidence of P.Ws. 1 and 2 it will be clear that it is a deed of sale
out and out. The D.Ws. wanted to prove by saying that due to love and affection
this property was given to the plaintiff by way of gift and not by way of sale.
This oral evidence is contrary to the deed, Ext. A which cannot be accepted in
view of the provisions of sections 91 and 92 of the Evidence Act.”
Mst. Saleha Bibi Vs. Taib Ali & Others
1BLT (HCD)-57
(b)
Question of Joinder of necessary parties at appellate stage—Objection as to the
impleading of a party ought to have been taken at the earliest stage — Since
the objection has not been raised earlier it cannot be raised at an appellate
stage.
Mst. Saleha Bibi Vs. Taib Ali &Others 1
BLT (HCD)-57
Section-92
Government claimed the suit land on the basis
of eascheat.
Held: On
an examination of the written statement I could not find out the disclosure of
the name of any raiyot of the holding who had died in testate leaving behind no
heir to inherit the property and the property became escheat to the government.
In the absence of any assertion or any evidence in that behalf the government
is not permitted to treat a property as escheat and became government khas land
under Section 92 (l)(a) of the State Acquisition and Tenancy Act. Further,
before taking any such steps the Revenue Officer shall cause a notice to be
published in the prescribed manner declaring his intention to enter on the
holding and specifying the reason thereof and also inviting objections from all
persons interested in the holding and shall consider any objection that may be
submitted to him within the period specified in that behalf in the notice and
shall record a decision There is complete absence of pleading of this mandatory
provision of Sub-section 3 of section 92 of the State Acquisition and Tenancy
Act. There is no evidence before the court that the Revenue Officer caused any
notice published in the prescribed manner before he took the decision. The
Revenue Office is again required to enter on the land in order to complete the
vesting of the property in the government as khas land and to this item also
there is no evidence that the Revenue Officer at any time entered on the suit land
and complied with the provisions of Sub-section 2 of Section 92 of the State
Acquisition and Tenancy Act.
Mollick Ali
Ahmed & Ors Vs. Govt. of Bangladesh & Ors 16 BLT (HCD) 221
Section-92(4)
Institution
of civil suit within 90 days is not mandatory. The provision of section 92(4)
of the Act instituted a civil suit within 90 days of the notice-served by the
designated Revenue Officer does not provide for any penal consequence for
failure of the aggrieved party institute the suit within 90 days of the notice.
The provision for institution of the civil suit within 90 days is thus found to
be directory and not mandatory.
Hindu Devi Lakshimi Gobinda Jew Vs. Bangladesh
& Ors. 7BLT (HCD)-133
Section-95
The
historical background of the legislation as mentioned in P.O. 88 of 1972 in
respect of subsisting usufructuary mortgage is hit by Section 95A of the State
Acquisition and Tenancy Act which is meant to protect the helpless raiyat. A
raiyat in Bangladesh cannot enter into any form of usufructuary mortgage other
than complete usufructuary mortgage which is capable of enjoyment for a maximum
period of 7 years and the raiyat will get back his property under Section 95 of
EBSAT Act.
Asmat Ali Vs. Abdur Rafique Mridha & Ors.
9 BLT(AD)-77
Section 95
A rayat
shall not enter into any form of usufructuary mortgage other than a complete
usufructuary mortgage in respect of a holding or of a portion or a share
thereof and the period for such complete usufructuary mortgage shall not exceed
seven years.
Selim Saial Vs A. Majid Molla & Ors. 14
BLT (HCD)62
Section-95A
The
appellant sold the land to respondent No. 1 by Kabala dated 24.6.1967 and the
agreement for reconveyance of the said land executed on the same day stipulated
a period of 4 (four) years from the said date. The time for reconveyance
expired on 23.6.1971 — so the transaction cannot be said to be alive and
subsisting on the date of promulgation of P.O. No. 88 of 1972, i.e. on 3.8.1972,
section 95A will have no application to the transaction which was past and closed
— appeal dismissed with cost.
Abdul Kaleque Sarnamath Vs Abdul Kaleque
Sarnamath & Ors. 3BLT (AD)-140
Section-95A
Plaintiff
transferred 54 acres agricultural land to the defendant, by kabala executed on 10.7.49.
Transferee executed an Ekrarnama on 13.7.49. Both the documents were registered
on 7.11.49. Transferee agreed to reconvey the land as per terms of Ekrarnama if
consideration money was paid back within 6 years—The transfer in question is a
complete usufructuary mortgage although it is sale with a condition to reconvey
and although it took place, before the commencement of the second Amendment of
the Act.
Md. Rajiuddin Chowdhury Vs Suruj Ali 3BLT
(HCD)-135
Section-95A
Cases of
sale attended with agreement for reconveyance whether or not registered would
be within the ambit of complete usufructuary mortgage for a period of 7 years
and provisions of Section 95 (4) (5) would apply to such transfers. A contrary
view would clearly make the provision of Section 95A nugatory and frustrate its
purpose.
Abdus Salam Sheikh & Ors Vs. Puspa Rani
Shil & Ors. SBLT (AD)-58
Section-95A
In the
instant case two sale deeds being Exts. 4 and 5 are registered sale deeds of
the year 1968 when section 95A of the State Acquisition and Tenancy Act was not
born even. These two registered deeds of out and out sale without any condition
shall prevail over other oral evidence and this cannot be constructed in any
manner whatsoever as an out and out sale with an agreement of reconveyance, so
the question of invoking section 95A of the state Acquisition and Tenancy Act
does not arises at all.
Hazi Nur Mohammad Sarker & Ors. Vs. Kashem
Mollah 8BLT (HCD)-72
Section-95A
The deed
of sale was executed on 18.12.1969 and the Ekrarnama was also executed and
registered on the same date being 18.12.1969 stipulating terms and conditions
that after 7 years he would get back his property. The transaction was alive
and subsisting on the date of promulgation of P.O. 88 of 1972 i.e. on
03.08.1972.
Md. Abdul Karim Khan Vs. Md. Abdul Hamid Gayeen
& Ors. 9BLT (HCD)-260
Section —95A
The
amended provision of section 95A of the State Acquisition and Tenancy Act read
with P.O. No. 80 of 1972 providing for a complete usufructuary mortgage is made
when there is a transfer of any land by out and out sale together with an
agreement for reconveyance constitutes complete usufructuary mortgage for
maximum 7 years. Accordingly section 95A provides that in any transaction when
the transferor received from the transferee any consideration and transferee
acquires the right to possess and enjoy usufructuary of such holding etc. for
specified period in lieu of such consideration than such transfer shall be
deemed to be a complete usufructuary mortgage for maximum 7 years and the
provision of section 95(4) and (5) of the State Acquisition and Tenancy Act
shall apply for restoration of possession. After an enjoyment of usufructs for
a maximum period of 7 years under section 95A of the state Acquisition and
Tenancy the right to get back the property accrues. In that event the provision
of Transfer of Property Act shall not apply to such kind of transaction except
those which were not alive when P.O. No.88 of 1972 was promulgated being
transaction past and enclosed.
Md. Yaor Mia & Anr Vs. Haji Shah Dhanai
Ali & Ors 16 BLT (AD)55
Section —95A
Section
95A of the State Acquisition and Tenancy Act has no application to a
transaction which was past and closed before the promulgation of President
Order No. 88 of 1972.
Mahadeb Chandra Mondol & Anr. Vs. Dulal
Chandra Mondal & Ors 16 BLT (AD)357
Section-95A Read with Section-95 Sub-Sections-(4)
and (5)
Respondent
No. 4 sold .87 acres of land to the appellant by a registered kabala dated
11.1.1965 corresponding to 27th Poush 1371 B.S and handed over the
possession of the said land to the appellant. On the same date a
contemporaneous agreement was made between the appellant and respondent No. 4
to the effect that the appellant would enjoy the usufruct of the land for 5
years with effect from first Ashar 1371 B.S. to Agrahayan 1376 B.S. and if the
respondent could return the entire consideration money to the appellant within
the next 2 years starting from the month of Poush 1376 B.S. then the respondent
would get back the land and in case of failure of the respondent to repay the
consideration money within the stipulated period he would have no right to
claim the land or anything from the appellant — In order to recover the
disputed land under the agreement which expired on 10.1.72 long before the
promulgation of P.O. No. 88 of 1972 on 3.8.72, respondent No. 4 filed R.P. Case
No.67 of 1973 on 25.6.1973 against the appellant for redemption of the land
which was allowed — Held: It was a case of an out and out sale with a
contemporaneous agreement for reconveyance relied on 32 DLR (AD) 233 — the
appeal is allowed.
Anwaruddin Bepari Vs. The Asst. Comm. (Land)
& Ors. 4BLT (AD)-52
Section 95A read with The Registration Act,
1908 Section 17(2)(v)
An Agreement for re-conveyance merely creating a right to obtain another document
does not require registration as engrafted in section 17(2)(v) of The
Registration Act, 1908 and on the strength of an unregistered deed of Agreement
of re-conveyance, property conveyed in the sale deed can be reconveyed on
institution of a suit for specific performance of contract. But a deed of
Agreement of re-conveyance if to be deemed and treated to be an usufructuary
mortgage under section 95A of The Act, the Agreement must be a registered one.
Selim Saial Vs A. Majid Molla & Ors. 14
BLT (HCD)62
Section-96
Pre-emption—The law on pre-emption is a beneficial
legislation for the benefit of the cosharers and contiguous land holders in a
proceeding under Section 96 of the Act and that statutory right cannot be
defeated by a casual plea of waiver and acquiescence unless a clear case of
estoppel is made out by cogent and convincing evidence. Even a certain amount
of inaction or lack of vigilance and indolence on the part of the pre-emptor
cannot constitute estoppel unless by conduct the preemptor is proved to be in
loco parentis with the pre emptee and he has taken an active part in bringing
about the disputed transfer.
Mst. Tahera Khatun Bibi & Ors Vs. Abdul
Jalil Mondal & Ors. 7 BLT (HD)-308
Section-96
Defect
of parties—As a matter of fact, some of the S.A. recorded tenants as appeared
from the khatian filed in this case have been omitted. In view of the legal
position the application for pre-emption was not legally maintainable for
non-impleading necessary parties in the pre-emption proceeding.
Indrojit Kundu & Ors Vs. Biswajit Kundu
& Ors. 7BLT (AD)-386.Section-96
The land
in question was transferred by a kabala dated 18-1-78 and registered on 22-1-
81 the respondents knew of the transfer long before the date of registration
and as such limitation will start from the date of this knowledge as contended
by the petitioner’s Advocate.
Held:
The right to pre-emption accrues on the date the kabala is registered and from
this date, the application for pre-emption in this case was filed within the
prescribed time.
Md. Moslem Uddin & Anr Vs Md. Abdul Hakim
& Ors. 3BLT (AD)-134
Section – 96
In the
present case admittedly the application for pre-emption was filed after 7 years
of transfer and a heavy burden lies on the preemptor to discharge the onus of
proof that he filed the case within four months from the date of his knowledge.
The pre-emptor having failed to discharge the initial onus by adducing cogent
and reliable evidence the learned Single Judge ought to have held that the
application for pre-emption is baited by limitation.
Abdul Mazid Howlader & Anr Vs. Lahajuddin
Howlader & Ors. 4BLT (AD)-275
Section-96
It is
admitted by the parties that no notice about the transfer was ever served upon
the pre-emptor petitioner the learned Subordinate Judge came to the finding
that the petitioner pre-emptor knew about the transfer as he belonged to the
same family—Held: The learned Subordinate Judge however did not consider or
discuss as to any notice was at all served upon the petitioner or not and
further more he came to the wrong finding that as he being one of the member of
the family, he also knew about the transfer. this finding is absolutely wrong
and is not sustainable in law.
Nasiruddin Ahmed Vs. Abdul Majid Howlader 8
BLT (HCD)-322
Section-96
Both the
courts below having found that the original pre-emptor became a co-sharer in
the holding on the basis of a deed of gift High Court Division committed no
illegality in holding that he was not a co-sharer by inheritance. Present
petitioners are not preemptor but they are merely representatives of the
pre-emptor and as such there is no scope to hold that they were co-sharers by
inheritance at the time of filing the case for pre-emption. Subsequent becoming
of their co-shares by inheritance during pendency of the case cannot alter the character
and status of the original pre-emptor.
Khorshed Alam & Ors. Vs. Abdur Rob &
Ors 9 BLT (AD)-34
Section-96
Waiver and Acquiescence
Held: In
our view High Court Division has correctly held in the light of the observation
in a case reported in 44 DLR (AD) 62, said expressing of inability cannot be
considered waiver and acquiescence on the part of the pre-emptor and that his
right of pre-emption cannot be denied while the same has been sought to be
enforced within time and that otherwise not incompetent in law and fact.
Kohinoor Hamid Vs. Abdul Khaleque & Ors (AD)-172
Section-96
Both the
courts below having found that the original pre-emptor became a co-sharer in
the holding on the basis of a deed of gift High Court Division committed no
illegality in holding that he was not a co-sharer by inheritance. Present
petitioners are not preemptors but they are merely legal representatives of the
pre-emptor and as. such there is not scope to hold that they were co-sharers by
in heritance at the time of filing the case for preemption. Subsequent becoming
of their cosharers by inheritance during pendency of the case cannot alter the
character and status of the original pre-emptor.
Khorshed Alam & Ors. Vs. Abdur Rob &
Ors. 9 BLT(AD)-34
Section-96
The law
is now settled that homestead of the raiyat outside municipality is Preemptible
under sect ion 96 of the Act.
Md. Fazlu Miah & Ors Vs. Asabur Rahman
& Ors 12 BLT (AD)252
Section-96
Since
Pre-emptor Subitri Sundari Mali transferred by way of gift deed dated 27.10.1999
in favour of substituted opposite party No. 1(a) the contiguous plot No. 334
and got no subsisting interest on the contiguous plot No. 334 to the plot
transferred which is plot No. 335 she got no right to be graced with a verdict
of pre-emption. Both Pre-emptor and the Pre-emptee acquired equal status that
is strangers to case holding.
Md. Mafizul Islam Sarker Vs. Sunil Chandra
Biswas & Ors. 12 BLT (HCD)-169
Section – 96
Whether the Pre-emptee a co-sharer by
inheritance in the case holding.
The High
Court Division on consideration of the evidence and the material on record
specially heba-bil-ewaj deed dated 7.10.1968 Ext.2 executed by Abdus Samad
Pandit, father of pre-emptee in favour of his wife Ful Banu, opposite party
No.54 came to the conclusion that Abdus Samad Pandit, father of the preemptee
did not exhaust his entire share in this khatian and accordingly the pre-emptee
son of Abdus Samad Pandit is a co-sharer by inheritance. Therefore, the
pre-emption of Khatian No. 543. Accordingly the High Court Division modified
the judgment of the appellate court and trial court and allowed pre-emption in
respect of land of khatian No.1369, 583, 585, 1682. The Rule was accordingly
made absolute in part – Petition is dismissed.
Abul Kashein Vs. A. N. M. Azizur Rahman &
Ors 14BLT(AD)13
Section – 96
Right of Pre-emption
It is
not enough that the pre-emptor must have subsisting interest at the time of
filing of the pre-emption cases but the pre-emptor also must have interest at
the time when the final order pre-emption case is passed.
Sushil Kumar Ghosh Vs. Md. Nurul Hawlader
& Ors. 14 BLT (AD)69
Section—96
The
intention of the legislature according to provisions of section 96 of the State
Acquisition and Tenancy Act, 1950 is very clear that to shut the door against all
strangers, who shall encroach upon the ownership and possession of the real
co-sharers and whereupon the real co-sharers can remain in enjoyment of their
property and others cannot interfere with their right and possession.
Md. Rajab Ali Sheikh & Anr. Vs. Md.
Redoyanul Islam & Ors 14 BLT (HCD)357
Section-96
Non-impleading the Co-sharers in the
Preemption application
It
appears that the pre-emptor claimed property as usual by inheritance from his
father, and admitted that they were three brothers but he did not implead the
other two brothers, who are necessary parties in the preemption application.
Furthermore, one Bhimdeb and Biddhadhor. who were cosharers in the Parcha have
also not been impleaded. Although there was no specific written objection regarding
defect of parties of the aforesaid persons but the petitioner himself admitted
in his cross-examination and having failed to implead them as parties even at
the appellate stage, the case must be held to be bad for defect of parties for
non-impleading the co-sharers in the pre-emption application.
Sree Biraj Mohan Roy Vs. Binodini Roy &
Ors 12 BLT (AD) 111.
Section —96(1)
Miscellaneous
Case was filed on 13.3.1990 seeking pre-emption of the transfer that was made
by the kabala dated 18.1 . 1990 and was registered on 17.2.1990 and the
reconveyance took place on 28.3.1990. So the contention that exception ought
not to have been taken in respect of the reconveyance which took place before
the expiry of time prescribed by law for seeking pre-empt ion is of no substance.
Ambiya Khatun & Ors. Vs. Noor Ahmed &
Ors 13 BLT (AD)206
Section – 96(1)
In the
instant case, admittedly, the respondent No.1 being a co-sharer by purchase was
entitled to pre-empt the transferred land by either filing an application under
section 96(1) of the State Acquisition and Tenancy Act within 4 months of the
service of the notice given under section 89 of the State Acquisition and
Tenancy Act or if no notice has been served as aforesaid, within 4 months of
the date of knowledge of the transfer.
Moharaja Bibi & Ors. Vs. Khandakar
Mosharraf Hossain & Ors. 14 BLT (AD)269
Sections-96(1) & 2(13)
Part of
a holding—in the instant case, the preemptor is being a co-sharer and the
purchaser, being stranger, case land being part of a holding that is portion of
a compact land, although there is no Khatian Number or Plot Number of the transferred
land, it constitutes a part of an agriculture holding, so preemption, is to be
allowed.
Abdul Jabber & Ors. Vs. Mohammad Sekander
& Ors. 6BLT (HCD)-172
Section-96(3)
In the
face of the specific statutory bar the preemptor is not at all entitled to
claim any money above the amount specifically mentioned in the disputed deed of
transfer.
Mrs. Ayesha Khatun Vs. Mst. Jahura Akter Banu
& Ors. 7BLT (HCD)-245
Section-96 (3a)
Petitioner
as co-sharer in the case holding filed the pre-emption Misc Case 409/73. In
terms of compromise the pre-emption case was allowed and the consideration
money was withdrawn by the purchaser pre-emptee and had given delivery of
possession of the case land to the pre-emptor, petitioner — The Appellate Court
dismissed the preemption Misc. Case 409/73 on the ground that since the
registration under section 60 of the Registration Act was not completed in time
before filing the pre-emption case it was not maintainable — petitioner
thereafter again filed the Misc Case 369/75 within the statutory period of
limitation from the date of registration of the deed under section 60 of the
Registration Act, and he made a prayer to exempt him in depositing the
consideration money again. Trial court did not pass any order but kept the
application with record—on appeal the appellate court allowed on the ground of
non-depositing the consideration money along with the pre-emption application—
Held: It is on record that in view of the compromise between the pre-emptor and
the opposite party No. 2 who is the purchaser pre-emptee the money was
withdrawn by the pre-emptee purchaser and in that view of the matter, she did
not contest either in the trial court in the first or second time pre-emption
cases or in the appeals. Since the money was withdrawn by the rightful person,
the second deposit is not necessary and the conception of it in the present
circumstances is a redundant one. So the appellate court wrongly and illegally
under mis-interpretation of law and fact, has allowed the appeal by the
impugned judgment and order which resulted and error in the decision
occasioning failure of justice and the view taken by the trial court was a
correct and legal one. Law and the courts of law have been established to meet
the ends of justice to the deserving party in the litigation. So an aggrieved
person should not be under double jeopardy.
M. Ishahaque Ali Vs. Danesh Ali & Ors.
5BLT (HCD)-103
Section -96(3)(a) read with Evidence Act, 1872
Section-91
Pecuniary
jurisdiction — for pre-emption — actual value of the land — whatever might be
the actual price of the land, the amount stated in the deed of sale as
consideration shall have to be taken as the valuation of the proceeding for the
purpose of pecuniary jurisdiction.
Most Sajeda Khatoon Vs. Asad Ali & Ors. 9
BLT (HCD)-267
Section-96(4) and 6(b)
In the
instant case, prima-facie, upon assertion of the applicant-petitioner that he
is the cosharer by inheritance if found to be true having undoubtedly a prior
claim over the preemptor who is admittedly a co-sharer by contiguity and there
being no other claimant- applicant to pre-empt the case land, the Subordinate
Judge did not commit any error of law in directing the applicant-petitioner to
deposit the consideration amount and the compensation thereon in the facts and
circumstances of the case.
Md. Chan Mia Vs. Md. Dabirul Islam Khan &
Ors. 12 BLT (AD)-31
Section-96(10)
Since
the original jama of the C.S. Khatian remained intact, the pre-emption case hit
by section 96(10) of the State Acquisition and Tenancy Act as both parties are
co-sharers by inheritance.
Mafizuddin & Ors
Vs. Mohammad Shorab Ali & Ors (AD)162
Section-96(10)(a) Read with Registration Act Section-47
Clause
(a) of sub-section 10 of section 96 of the State Acquisition and Tenancy Act
stands as a bar for the pre-emptor to pre-empt the land under the deed of
transfer in favour of the pre-emptee who became a co-sharer in the tenancy by
way of inheritance not on the date of transfer but subsequent in the date of
transfer.
Abdul Malek Majhee
Vs. AA. Howlader & Ors 5BLT (HCD)-168
Section-96(10)(b)
Instant
case, the contest is between the preemptor and the pre-emptee as to whether the
kabala in question was a sale or an ewaz. The pre emptor was not a party to the
document. She is perfectly at liberty to question the nature of the transaction
and the pre-emption court has full jurisdiction to entertain the preemptie’s
challenge.
Tambia Khatun Vs.
Rafiqullah 8BLT(AD)-230
Section 96 (10) (c) read with Section-23 of
Succession Act, 1925
The
learned Judge of the High Court Division erred in law in holding that cousin
sister’s son is a relation by consanguinity within three degrees from the donor
and the transaction in question is covered by Sub-Section 10(c) of the State
Acquisition and Tenancy Act, 1950 as contended by the petitioner’s Counsel.
Held :
In the instant case the parties are Muslims and the Principle of Succession
Act, 1925 is not applicable — The learned Judge of the High Court Division
applied the principle enunciated in the case reported in 20 DLR 376 and rightly
held that a cousin sister’s son is within three degrees of consanguinity from
the donor.
Shamsul Islam &
Ors. Vs. Badiar Zaman & Anr. 4BLT (AD)-12
Section-96 (10)(d)
Whether the alleged
agreement for reconveyance dated 4.3.84 Ext. B as a bar against Pre-emption
O.P.W.l
stated in his evidence that the deed of agreement was not registered for
financial reasons from that it is evident that the parties were fully aware of
the necessity and importance of registration of this valuable document
witnessing an agreement for reconveyance of the case land but the fact of the
agreement for reconveyance was not at all mentioned in the sale deed and it was
left unregistered on unconvincing grounds— Admittedly the case land has not as
yet been reconveyed by the pre-emptee in favour the vendors of the disputed
sale deed, although in the meantime more that 15 years have passed. In the
facts and circumstances of the case, it is evident that the opposite parties
entered into an unholy alliance amongst themselves to defeat pre-emption by
fabrication the so-called agreement for reconveyance for the purpose of the
case — Held: I am of the view that the learned courts below clearly erred in
law in disallowing pre-emption on an erroneous view regarding the real import
of section 96 subsection 10(d) of the State Acquisition and
Tenancy
Act.
Sri Joy Sankar
Sarker Vs. Atul Ch. Sarker & Ors. 7BLT (HCD)-119
Section-96 (10) (b)
By 3 consecutive
deeds were executed in the same sitting and registered on the same by bearing
Nos 12006, 12007 and 12008 captioned as sale deeds transfers of some lands were
affected. By deed No. 12006 Ahmed Ali, Belayet Ali. Arab Ali and Rajab Ali
transferred 18 decimals of land to Mokbul Hossain, Amzad Hossain and Afzal
Hossain, by deed No. 12007, Mokbul Hossain, Amzad Hossain and Afzal Hossain
transferred 4h12 decimals of land to Belayet Ali, Arab Ali and Rajab Ali by
deed No. 12008, Mokbul Hossain, Amzad Hossain and Afzal Hossain transferred
13’12 decimals of land to Ahmed All—if these 3 deeds considered together, then
the transactions would be treated as exchanges and that the land transferred by
deed No. 12008 cannot be pre-empted.
Ahmed Ali Vs. Ramjan
Ali 2BLT (HCD)-223
Section-96 (10)(d) read with Section 95
Agreement
being an unregistered one thus cannot be deemed to be a complete usufructuary
mortgage deed and the same cannot at all come under the mischief either of
section 95 or 95A of The Act. Corollary thereof is that Sub 10(d) of section 96
of The Act cannot stand as a legal bar or legal predicament on the part of
Pre-emptor. First party in having a favorable judicial verdict of an order of
pre-emption over the land under pre-emption proceeding.
Selim Saial Vs. A.
Majid Molla & Ors 15BLT(HCD)69
Section 96 read with Non-Agricultural and
Tenancy Act, 1951, Section —24
High
Court Division reserved judgment of the trial Court on the sole ground that the
land sought to be pre-empted is within the municipality and consequently being
nonagricultural land pre-emption application filed under Section 96 of the
State Acquisition and Tenancy Act was not maintainable. —Held: The application
for pre-emption was quite in from except mis-description or misquoting of the
provision of law in the cause title or in other words non-inserting of the
correct provision of law under which relief sought. In our view the aforesaid
state of the matter does not dis-entitles a person of the relief if the Court
finds that he is entitle to the relief sought and in such a situation the Court
is required to grant the relief sought for. In the instant Miscellaneous Cases
similar thing having had happened, the Court ought to have granted the relief
prayed for.
Rokeya Begum, Vs. Md
Nurul Absa, & Ors 15BLT(AD)13
Section-96 and 117
Unless
it is established that the parent jama has been duly separated on proper
service of notice upon all the co-shares a co-sharer to it his right of
pre-emption subsists.
Md. Tofazzal Hossain
& Ors. Vs. Momtaj Begum & Ors. 8BLT (HCD)-85
Section-117(c)
Co-sharer in the
joint tenancy
The
property was originally owned and possessed by Golam Mortuza Khan. After his
death the petitioner and his three brothers and six sisters inherited. They are
living separately—Mutation of the Dhaka Municipal Corporation to be valid must
be based on an order in writing of the Revenue officer concerned making the
joint tenancy subdivided and rents distributed. It cannot be other way round.
Separate holding number given by a Municipal Corporation cannot replace an order
under Section 117(c) of the State Acquisition and Tenancy Act. so the heirs of
Golam Mortuza Khan must be held to be still enjoying the joint tenancy left by
him. Similarly no amicable partition among the cosharers even if reached in
writing nor even a decree passed in a partition suit allotting different shares
to the co-shares can substitute the order as mentioned in Section 117(c) of the
State Acquisition and Tenancy Act. In such view of the legal position as well as
the factual position, the court of appeal below was perfectly justified in
holding that the joint tenancy of Golam Murtoza khan was never subdivided and
the rents were never distributed amongst his heirs, pre-emptor and his brothers
and sisters in accordance with law, and thereby the pre-emptor did not cease to
be a co sharer in the joint tenancy left by him.
Harunur Rashid Vs.
Afroza Khanam & Ors. 9 BLT(HCD)-135
Section-117(1)(c)
An order
of a competent Revenue Officer separating the jama in strict compliance of the
provision of section 117(1)(c) of the SAT Act if not appealed only then it
becomes final and binding upon all the co-sharers of the holding and in other
case(s) it is not.
Rokeya Begum, Vs.
Md. Nurul Absar & Ors 15 BLT (AD)13
Section-117(1)(c)
Since it
has not been established that the claimed pathway is of the Municipality or is
a recorded path we are of the view the High Court Division was in error in
holding that pre-emptor was not a contiguous land holder to the land sought to
be pre-empted. It may be mentioned that the land of R. S. Khatian No.791/I is
the ‘ejmali’ land of the recorded tenants and the same was never partitioned
amongst the co-sharers either by the decree of
the
Court or by any other mode of portion.
Rokeya Begum, Vs.
Md. Nurul Absar & Ors 15BLT(AD)13
Section – 144A
In the
instant case the plaintiffs name has been recorded in the finally published
R.S. Khatian in respect of the suit property and the Government is realizing
rent from him regularly thereby recognizing him as a tenant. Recognition of the
plaintiff as a tenant in respect of the suit property by the Revenue Authority
of the Government is binding upon the vested property department and
consequently the latter cannot claim the suit property as vested property.
Maran Mondal &
Ors. Vs. A. D. C. (Rev). 6 BLT (HCD)-22.