STATE ACQUISITION AND TENANCY ACT, 1950
(XXVIII OF 1951)
Sections — 2(12) and 20
Non-retainable khas—hat and bazar—
Building with shop standing on land within the periphery of a hat or bazar—The
land not being physically attached to the hat or bazar, nor shown in the
settlement record as such shown in the settlement record as such cannot be
treated as part of hat or bazar.
Doser Ali Vs. Bangladesh and others, .1BLD (AD) 423
Hats and Bazars—Meaning of—It means as
place where people assemble daily or on particular days in a week for selling
and buying goods and includes all shops of such articles or manufactured
articles within such place—Franchise of Market—What it means?—It is a royal
privilege subsisting in a subject by grant—Whether it is available in our
country?— Appellants claim that Salimabad hat has the franchise from 1850 A.D.
to sit on Tuesday and Friday. in a week does not find support in law or the
pronouncement of any superior Court in this subcontinent. [Majority, (Per Munim C.J., Masud and Moshen All, Ji.
(1973) 25DLR.476; Haisbury’s Law of England. Vol. XXV, Third Ed. Page 381: Strands
Judicial Dictionary, 4th Ed. Vol.13, ?.925 2S-42’ 323? 32S, (%%4— 85) Q.B. Vol.
14 P. 245; 1916 A C.?. 57 at P.88; Strouds Judicial Dictionary, 4th Ed. Vol..
2, P.1093; I.L.R. 1890 (Cal) Vol. 17, p. 458; A.I.R. 1920 (Cal) 255, P. 256—Relied.
Hats and Bazars—Elements of—If sitting
days of a Hat or Market constitute one of its essential elements, the places
where it sits is also no less an essential element—Right to hold a hat is
connected with the ownership of the land on which it is held.
Hats and Bazars—Govt’s direction to fix
sitting days—After the acquisition of hats and bazars the discretion of the
Govt. to fix days on which a particular hat is to sit cannot be interfered with
by anybody else—if after making inquiry and local inspection, the Govt. has
fixed the days of sittings, the Court has no authority to alter them on the
ground that Govt. decision has been arbitrary or illegal.
IBLD (AD) 140; 3A11.E.R. 665 Distinguished
error could be said to be apparent on the face of the record if it was not self
evident. ft is too late in the day to say that an executive decision is beyond
scruting in the civil Court. section 9 C.P.C. being an answer. Long line of
decisions of the superior Court points out that such immunity cannot be claimed
unless such suit is barred by law specifically. If any a hat is allowed to
continue, then the date of its sittings becomes important. The date is
determined by economic factors and once the date of its assembly fulfils the
economic aspiration of the locality then it attracts the custom due to whose
patronage it thrives. If Salimabad hat is a new hat, it comes within the
mischief of law. Instead Salimabad hat was allowed to sit Ofl some other day
but not Tuesday and Friday. Here is the inconsistency. Per B.H. Chowdhury (Dissenting):
17 l.A. 122 (PC); A.I.R.1963(SC) 1633; 22 C.W.N. 50(PC); A.I.R.1949 (PC) 156;
A.I.R. l953(Bom)133; All. E.R.152(K8) 338 — relied. PLDl960(Kar)908 IODLRS23—
Mannaf Khan and others Vs. Bangladesh and another, 6 BLD (AD) 12.
Sections—2(16) and 96
Whether “Tilla Ban” or elevated homestead
is non-agricultural land— Whether a holder of a contiguous land can
pre-empt the same? —Whether particular land is non-agricultural land is to be
determined with reference to the use 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 as 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
nonagricultural land—Non-Agricultural Tenancy Non-Agricultural Tenancy Act,
1949(XXIII of 1949), S. 2(4).
Sayeda Khatun and another Vs. Rahman and
others, 6BLD (AD) 330
Lease under the Municipality— Whether
after the acquisition of rent receiving interest a lease 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—General Clauses Act, 1897 (X of l97), S. 3(38) —
Non-Agricultural Tenancy Act, l949(XXVIII of 1949), S. 85.
Basu Roy and another Vs. Municipal Committee, Mymensingh, 6BLD (AD) 297
I8DLR 618(662); 38DLR (AD) 22; 39 C.WN. (PC) 552; I7DLR (SC) 74—Cited.
Sections—3 and 20
Accretion—An accretion to the hat does
not automatically vest the accreted land in the Government as non-retainable
khas land within the meaning of section 20 of the State Acquisition and Tenancy
Act if such accretion took place before notification of acquisition under
section 3 of the said Act
Begum and others Vs. Province of East Pakistan and others, IBLD (HCD) 363
Transfer of property by will — It takes
Abdur effect after the will is probated and not on the execution of the will —
its legality or genuineness came up for consideration after the death of the
testator — Provision of forfeiture of land transferred by a will cannot be
attracted till the will is probated and actual transfer takes place — When the
application for probate was filed there was no existing law for forfeiture, the
same having been repealed earlier The will cannot be declared void.
Bala Mitra Vs. Jatindra Kumar Mitra, 3BLD (HCD)211
I6DLR (SC) 667; 19DLR7I I—Cited.
Transfer of land by rent receiver—
Transfer of land up to ten bighas by the rent receiver after the publication of
notice for acquisition whether valid—after the Amendment in 1961 no permission
for such trnasfer was necessary—The amendment had retrospective effect.
Haifzuddin Ahmed Vs. Mahabubul Huq and others, 4BLD (AD) 77..
Interpretation of Statute — Whether
vested right can be affected by a subsequent legislation the legislature does
not use aity word unnecessarily — In view of the express language of the
amending statute the Court cannot give a different interpretation on the ground
of equity — In view of this express provision of the amendment the transfer
under kabala Ext. A stood valid -The plaintiff by auction purchase of the same
property deri’ed no title.
Per S. Ahmed J (B.H. Chowdhury, A.T.M. Masud and S.M. Mohsen Au, JJ concurring)
1969 PLD(SC)623; I 7DLR(SC )23; I9DLR7II; (1905) A.C.369; A.IR.l927(PC)
there is any express mention in the statute that it has to come into force from
any date prior to its amendment, it comes into force from the date it received
the assent of the authority concerned. Now, whether such a clause ‘shall be
deemed always to have been so substituted inserting in the Ordinance appearing
to have given retrospective effect to a particular section of the Ordinance
will be taken to mean that the Ordinance came into force on a date earlier than
its enactment is extremely doubtful. It cannot be conceived that such words
will mean that the Ordinance as a whole came into force on a date than its
Mumrn, C.J. (Dissenting)]
Rahman Vs. Idris. Au, S BLD (AD) 206
Sections—19, 22, 23, 26 and 50
Rent of land — Whether an understanding
that rent was not payable on an entry in the khatian showing lands to be
rent-free can make it escape from payment of rent — The Government direction to
pay rent in respect of the lands acquired for and delivered to the requiring
body is in accordance with law — No declaration by the Court that the suit land
is not liable to be assessed under the State Acquisition and Tenancy Act can be
given — Government has no power to grant exemption from payment of rent in
respect of lands mentiohed in the Act and if such exemption is granted it will
be beyond its power.
Bangladesh Vs. MIS. Zennath Textile Mills
Limited and others, 8BLD(AD)189
Sections—19, 144 and 1444
Presumption of correctness in respect of
S.A. Khatian and R.S. Khatian—Every entry in a record of right prepared or
revised under section 144 shall be evidence of the matter referred to in such
entry and shall be presumed to be correct until it is proved by evidence to be
incorrect—But such presumption is not attached to an entry in a record of right
prepared or revised under Chapter IV of the SAT. Act. — To say that the entry
in a record of right has a presumption of co1Tect- ness is to read something
into the statute which is not there in it.
Meah Mistty Vs. Abdul Majid, SBLD(HCD)47
Retention of excess lands—Application
for such retention can be made by rent-receivers, cultivating raiyats or
under-raiyats— Subsequent partners though may claim interest in the property of
the firm are not entitled to claim retention of excess lands — They cannot
continue with any suit challenging the refusal to grant permission to retain
excess land held by the original partners who were rent-receivers — Partnership
Act, 1932 (IX of 1932),S. l4—P.O. 98 of 1972, Articles 3 and 4.
Farmers and Co. Vs. Sree Monotosh Bera and another, 2BLD(HCD)181
Hat and Bazar—If a hat sits once a week
regularly, then whether it will come under the mischief of the Act? If we read
the “expression” particular days” in the definition of ‘hat or bazar together
and give the necessary emphasis the word particular’ deserves, then it will be
clear that ‘days’ will also include a day as well in view of sub-section (2) of
section 13 of the General Clauses Act and in view of the history of the
legislation of the acquisition of inte’est in hats and bazars by the
Government of Bangladesh Vs. Shakhipur
Islamia High School, 12BLD(AD)170
15 DLR 37; 11 DLR (SC)3l6; 15 DLR(SC)l39: 27DLR98; 9DLR674; 16 DLR (SC)28 I;
2ODLR 18(1 968) ;25DLR476— Cited.
Fishery non—retainable—Fishery’ is a
non-retainable khas land under section 20 of the State Acquisition and Tenancy
Act and it vested absolutely in the Government.
Matsh&ibi Samabaya Samity Ltd. Vs. Bangladesh and others, 7BLD’AD) 106
Vesting of Hats and Bazar—Hats and
Bazars belonging to the rent receivers vested in the Government with effect
from the date of notification in 1956 and the Hats and Bazars belonging to the
raiyats vested in the Government after the final publication of the
compensation assessment roll.
Rahnzan Khan and others Vs. Government of Bangladesh, 3BLD(HCD) 284
25DLR 248 and 476; I6DLR(SC) 281; 25DLR284 — Cited.
No estoppel against Statute—Whether
this rule of law can be invoked by one to take advantage of his own fraud?—The
rule is attracted only when its invocation will defeat the public policy behind
statute—If, in disregard of the obligation imposed by section 75A upon the
landlord he has alienated his land he cannot subsequently raise an objection to
nullify his own auction—The plaintiff—appellant has filed the suit certainly
not for the benefit of the Government. nor can there be any reason to suppose
that the statutory provisions would be nullified if the declaration sought for
is not granted—If he is allowed to succeed it will allow him to take advantage
of his own fraud—Evidence Act, 1 872 (I of 1872), S. 115.
Sudir Chandra Saha and another Vs Matuan Bewa, being dead her heirs Nazmul Rahman
Sarker and others, 6BLD (AD)182
AIR. 1937 (PC) 114; (1903) 30 l.A. 114; (1964) I6DLR(SC)685; —Cited
person shall sub-let any land in his khas possession in the area to which a
notification under section 17(3) or 3 1(1) relates Section 75A inserted by the
East Bengal Act XII of 1954 and amendment by East Pakistan Act IV of 1956 on
13.4.1956—Notification referred to section 75A(l) stated to be one under
section 17(3) and section 31(3) and both the sections come under Chapter IV and
not under Chapter V of the Act—Kabuliat settlement of land on 12.4.56 (in the
District of Faridpur ) is within the mischief of section 75A of the Act.
Gazi Vs. Promila Promanik, 11BLD (HCD) 99
Family— What it means— The expression
‘family’ is to be understood in the height of the given enactment—In so far as
settlement of khas land is concerned the expression ‘family’ has not been used
in definite sense—The emphasis is only that the land should be cultivable by
himself or by members of the family— Evidence was led by the plaintiff to prove
that his nephew ploughed the land who resided with him—This evidence was not
rebutted—So it cannot be said that the plaintiff did not answer the description
of the persons to whom settlement could be made.
of East Pakistan (Now Bangladesh) Vs. Syeduddin Ahmed, 4 BLD (AD) 61.
Sections—76 and 148
Settlement of Government khas land—
Whether can be made to Government servants. their children of female members of
the family of a Government servant—Whether such settlement is valid by lapse of
time—No settlement of Government khas land can be made in favoui of Government
servants, their children or female members of their family— the plaintiff
respondents being sons of a Government servant were not entitled to take settlement
of Government khas land—Any settlement granted in violation of express
provisions of law and Government Circular cannot become valid by any lapse of
time—There is no provision of law to cure such illegality—In view of the fraud
subsequently revealed vitiating the transaction, delay is no bar to the
People’s Republic of Bangladesh, represented by the Deputy Commissioner,
Maymensingh and others Vs. Satyendra Kishore Roy; 6BLD(AD)169
Government’s right to deal with its
properties by granting lease or license— Lease or license granted by the
Government— Whether Government is entitled to deal with its property in any
manner it likes or award a contract to any person it chooses without any
constitutional limit upon it—Lease or licence to use Government property is
regulated by the state for the welfare of its people—Lease of fishery
exclusively owned by the Government is a new kind of wealth which the
Government distributes by way of settlement amongst the class of people who
deserves it— In doing so Government was to enter into agreement but such lease
agreement can by no stretch of imagination be termed as ordinary contract entered
into by two individuals as trading ventures—On the other hand, when the
Government deals with this new kind of wealth for the welfare of the citizens
and regulates distribution of such wealth by way of settlement or lease, the
Government acts in its sovereign capacity—When authority over- steps or commits
breach of rule or even commits breach of principle of natural justice the same
can be challenged by filing writ petition—Government Estate Manual, 1958, Rules
205 and 206.
is non-retainable khas land under section 20 of the State Acquisition and
Tenancy Act and it vested absolutely in the Government. Under section 76 of
this Act it lies at the disposal of the Government who may either manage it as
khas or make settlement thereof in accordance with rules to be made by them.
Matshajibi Shamabaya Sainity Ltd. Vs. Bangladesh and others, 7BLD(AD, 106
A.I.R. I 979(SC) 1628; 1 BLD(AD) 105 —Cited.
Sections—51 and 81A
Omission of sub-section (2) and (3) in section 81 and insertion of section 81A
in State Acquisition and Tenancy Act have not rendered section 24 of
Non-Agricultural Tenancy Act ineffective or impliedly repealed—Section 24 of
Non-Agricultural Tenancy Act and not section 96 of State Acquisition and
Tenancy Act is applicable for pre-emption of land falling within Municipal
Abdur Rouf and others Vs. Ahmuda Khatun and others, 1BLD(AD)269
Diluvion and extinguishment of tenant’s
right—When diluvion had taken place before commencement of P.O. No. 135 of
1972 and the lands reappeared before the commencement of the Order, the right,
title and interest of the tenant got extinguished with the diluvion—The lands
having reappeared before the commencement of the Order, it vested absolutely in
the Government free from all encumbrances to be at its disposal until the
tenant’s right to re-possession was finally recognised by a competent
authority—Presidents Order No. 135 of 1972, Article. 2.
Nizamuddin Mohsin being dead his heirs Vs. People’s Republic of Bangladesh and
31 DLR(AD) 195 — Cited.
Sections — 86(5) and 87(3)
Sections—86(5) and 87 (3) as amended by
P.O. Nos. 72 of 1972, 135 of 1972 and 137 of 1972
of all suits, application, appeals or other proceedings. The present suit comes
within the mischief of subsection (5) of section 86 as well as sub-section (3)
of Section 87 of the Act which provides for abatement of all such appeals and
suits. In that view of the matter the appeal is clearly liable to abate there under.
expression used in sub-section (5) of section 86 and sub-section(3) of section
87 of the Act gave rise to a great deal of controversy as to the extent of
their retrospectively at one time but the point is no longer res integra. The
suits, applications, appeals and other legal proceedings referred to in
sub-section(S) must necessarily involve claims which come within the mischief
of sub-sections (2) and (3) of section 86 and relate to lands which are lost by
diluvion after the commencement of the Order as well as lands which are lost by
diluvion before the commencement of the Order but have re-appeared after coming
into force of Part V of the Act. It is further laid down in that decision that
sub-section (3) should be read -harmoniously with sub-section (1) and (2) and
the land gained or alleged to have. been gained from the recess of a river or
the sea as have been contemplated in sub-section (3) must be such lands as are
within the purview of sub-sections (1) and (2) of sections 87 “and” it will
necessarily be those accreted lands which have appeared as hard soil only after
the coming into force of Part V of the Act and the provision as to the bar and
abatement of suits etc. as made in sub-section (3) are attracted in case of those
suits where a claim of the right IS asserted in respect of such lands.”
of Bangladesh Vs. A. Wahed Sikder and others, 10BLD (HCD)270
5 BCR(AD)29; 4BCR(AD)60: 4BLD (AD)209; 35DLR(AD) 1; 3BLD(AD)10: 2 BCR(AD)373;
31 DLR(AD) 195; — Cited.
Sections—86(3) and 146
Settlement of land vested in the Government
by Revenue Authorities—The Government was not empowered under any provision
of law to pass the impugned order of cancellation and revise the order passed
by the Revenue Officer granting settlement to the petitioner and his
146(1), therefore, shows that the general power of superintendence and control
over all Revenue Officers is vested in the Board of Land Administration and not
in the Government. Moreover, section 146(1) vests the Board of Land
Administration with administrative control over the revenue Officers and by no
means empowers it to revise the orders passed by the Revenue Officers under the
State Acquisition and Tenancy Act, 195(1. The powers of appeal, revision and
review are in sections 147 to 151 Of the State Acquisition and Tenancy Act,
1950. The power of section 146 does not, therefore, include the power to revise
the orders of a Revenue officer and this aspect of the legal provision was
candidly accepted by Mr. Ahmed while arguing for respondent No & Nothing
has been placed before us to show that the Government is empowered under any
provision of the State Acquisition and Tenancy Act, 1950, the cancel or rescind
any order passed by the revenue authorities.
Rahman Vs. Government of Bangladesh and others, 10BLD (HCD) 286
Accretion of land to the holding of a
tenant—If such accretion is by artificial or mechanical process due to
development work—Whether such increment will form part of the holding of the
tenant—As the suit was filed in 1963 and Ordinance No. VIII of 1967 was not
retrospective in nature the accretion of the land to the holding due to
development work would not deprive the plaintiff from the same—Plaintiffs suit
is not also hit by abatement clause nor his right is disturbed by the operation
of sub-section (2) because the provision is also not retrospective but
Mian and others Vs. Ali Hossain Buiyan and others, 4BLD (AD) 209
31 DLR (AD) I 95—Cited.
Abatement of suit—Whether a suit in
respect of an accreted land formed before Part V of S.A.T. Act coming into
operation will abate—Where the land in suit formed or accretion took place
before the passing of the State Acquisition and Tenancy Act application of
provision of P.O.No. 135 and P.O. 137 of 1972 is clearly misconceived—And order
of abatement of suit on. the ground that the suit is hit under the provisions,
of P.O. No. 135 and 137 of 1972 is ar apparent error of law.
Rahman Sardar and others Vs. Deputy Commissioner of Faridpur, SBLD (HCD)154
Distinction between agricultural and
non-agricultural land in making a gift by a Muslim—There is not indication
in section 129 of T.P. Act restricting its application to any particular class
of land—After the enactment of S.A.T. Act very little distinction is maintained
between incidents of agricultural land and non-agricultural land.
is no such Clause in section 89 of the S.A.T. Act or section 26C of the
B.T..Act as to exclude the operation of section 129 of the Transfer of Property
Act in case of transfer of agricultural land. If lands as provided in section
129 of T.P. Act has exempted the owner of urban property, which are generally
more valuable than agricultural lands from transferring the same by a
registered instrument, why should greater hardship be imposed on the holder of
agricultural lands by the requirement of a registered instrument for
transferring his interest therein by way of gift judged from different view
points. The effectiveness of an oral gift of immoveable, property when properly
made has not been curtailed by the language of section 26C of the Bengal
Tenancy Act or section 89 of the State Acquisition and Tenancy Act in so far as
it has been preserved by section 129 of the Transfer of Property Act.
Ali Vs. Abu Sheikh being dead his heirs Md. Naimuddin and others, 3 BLD (AD) 1.
Sections— 90 and 96(1)
Pre-emption–Fulfilment of the
conditions laid down in section 90 and proviso to section 96(1) of State
Acquisition and Tenancy Act, 1950.
is no dispute that a person seeking pre-emption u/S 96 of State Acquisition and
Tenancy Act must. show that he is a person entitled to purchase or acquire land
within the maximum ceiling as set out in section 90 of the Act. But mere
omission to make an assertion in his application or to adduce evidence to this
affect, in the absence of any. averment to the contrary will not render the
application liable to be dismissed If no objection has been . raised at any
stage of the trial the preemptor should, be given an opportunity to lead
evidence on this point when the question is raised.
Matiur Rahman Vs. Md. Iman’ All alias Md. Iman Miah and. others, JBLD (AD)280
I3DLR 338; 29DLR153; 2IDLR 599—Cited.
Sections — 90(1) and 96
Pre-emption under section 96 of State
Acquisition and Tenancy Act—Pre-emptor stated in, his application that
allowing preemption would not violate provision of section 90(1) of the
Act—Statement not controverted by pre-emptee–Court failed to find that
allowing pre-emption would not violate the said provision—Pre-emptor cannot be
denied the right of pre-emption for failure of. the Court to record the necessary
Begum Vs. Maimuiza Khatun Ghowdhury and others, 1BLD (HCD) 121.
29 DLR 153—Cited.
Admission of averments in pleadings—
Pre-emptors assertion that they own 15116 bighas of land and are competent
persons to get pre-emption when not specifically denied amounts to admission—Pre-emptors
need not lead any evidence in support of their averments that they are
competent persons to. get pre-emption under section 90 of the S.A.T. Act.-Code
of Civil Procedure, 1908 (V of 1908) Or. 8 Rules 3 and 5.
Shahidur Rahman Molla and others Vs. Abdul
Halim Molla & ors., 3BLD (HCD) 89
Sections —90 and 96
Pre-emption—Omission to record a
finding that pre-emptor is a person to whom transfer by pre-emption can be made
as envisaged under section 90 of S.A.T. Act cannot be a ground for dismissal of
Shahidur Rahman Molla and others Vs. Abdul
Halim Molla and others, 3BLD (HCD) 89
I3DLR(Dacca) 338; 2IDLR(Dacca) 599; 29DLR153; 26DLR 93; IBLDI2I; I
Evasive denial —Whether any issue is
raised by such denial—Doctrine of non- traverse—Material averment passed over
by evasive denial is taken to be admitted—There was no issue before the trial
Court and as such the High Court Division is not required to give any finding
in respect of ceiling of land in the absence of any specific averment to the
contrary—Code of Clvii Procedure,1908 (V of 1908), Or. 14, R. 1; Or. 8 Rs. 3,4
Sultan Ahmed and others Vs. Muhammad Islam
and others, 4BLD183
35DLR 79: 1 BLD (AD)280 — Cited.
Limitation —Question of limitation in a suit
seeking declaration that the proceedings u/s. 92 S.A.T. Act was void—Since no
notice was issued by the Revenue Officer under sub- Usufructuary
mortgage—Limitation for section (3) of Section 92 of the S.A.T. Act inviting
any objection against the taking over of the holding as “aboadnoned “ holding the
period of limitation prescribed in that section will not be applicable—The suit
attracts the general provisions of Limitation Act under Article 120 of the
Limitation Act—Limitation Act, 1908(IX of 1908), Art. 120.
of East Pakistan (Now Bangladesh) Vs. Sailesh Chandra Bhattacharya, 4BLD (AD)
Section — 92
Escheat —Question of onus — When the
claim is founded on escheat the onus lies on the claimant to show that the
owner of the estate died without. Heir—A child of a prostitute mother under the
Hindu Law did not escheat to the Government as the Government failed to prove
that the owner died intestate without leaving any heir. (Per B.H. Chowdhury,
There is no legal presumption as to
maternity. Section 112 of the Evidence Act has no manner of application
when the maternity of a person is questioned—The question of maternity is
purely a question of fact. Plaintiff claimed that Gouri Dasi though a
prostitute at the earlier part of her life, later on married one Kalipada Das
and that she was born of that wedlock. But the trial Court and the lower
appellate Court raised the question whether this marriage is valid. These
Courts proceeded on the erroneous view of law that to prove her maternity, the
plaintiff is also required to prove her paternity on the basis of a valid
[Per S. Ahmed (agreeing) I]
Rani Dasi alias Shamina Khatun Vs. Bangladesh, 5 BLD (AD) 13.
(1954)2 All. E.R. 246; 12 Mad. 277; 7. S.D.A. 273; (1868) 12 M.I.A. 448; AIR.
1926 (Madras) 289: 40 Cal 650 (F.B.); 40 Cal 672;—Cited.
Usufructury motagage- Limitation for
redemption—Period for which mortgage can Inviting any objection against the
taking over be entered into not to be confused with the of the holding as
abandoned’ holding, the period of limitation for redemption—Limitation period
of limitation prescribed in that section Act 1908 (IX of 1908) Article—148.
Moulvi Abu Bakkar Vs. Nazir Ahmed, 2 BLD (AD)
95A of the State Acquisition and Tenancy Act as amended by P.O. 88 of 1972,
P.O. 136 of 1972 and P.0.24 of 1973 is not discriminatory and does not violate
fundamental right relating to property.
P.ONo. 88 of 1972, P.O. No. 136 of 1972 and P.0.No. 24 of 197 the provisions of
section 95 of State Acquisition and Tenancy Act have been amended and section
95A has been inserted and amended whereby them period of complete usufructuary
mortgage has been reduced to 7 years, a summary procedure for redemption and
restoration of possession by and to mortgagor has been provided and it has been
provided that an out and out sale with agreement for reconveyance shall be
deemed to be a complete usufructuary mortgage for a period not exceeding 7
years. It was contended that S.95A as amended is violative of Articles 27 and
42 of the Constitution.
95A is not a discriminatory legislation inasmuch as indebted agricultural
tenants who constitute poorer section of the people may be regarded as a class
apart for which there appears to be a rational basis having a just and
reasonable relation to the object of the legislation. The removal of factual,
social and economic discrimination by legislation is not only sanctioned by the
Constitution, it is supported by well established canon of interpretation, viz,
the beneficial rule.
usufructuary mortgage presupposes the restoration of land to the transferor
either by redemption or by efflux of time.
Vs. HajiAbdul Gani Biswas and others, 1BLD(AD)8
50 C.W.N. 578;(1910) AC 220 (223); (1857)6 H.L. Case 61(106); 661. A. 50
Usufructuary mortgage—A transfer of a
holding by way of an out and out sale with an agreement to recovery or whether
the transferor receives from the transferee any consideration and the
transferee acquires the right to possess and enjoy the usufruct of such holding
etc. for a specified period in lieu of such consideration, shall
notwithstanding anything contained in the documents relating to the transfer,
be deemed to be a complete usufructuary mortgage for a period not exceeding 7
Asmatunnessa and others Vs. Tenu Khan and
Pre-emption–Provisions of section
96(2) regarding joinder of necessary parties is mandatory and not merely
directory—Consequence of non-joinder Of necessary parties in spite of objection
taken is the same in pre-emption proceeding as in suits.
Abdus Samad and others Vs. Md. Soharab Au
and others, 1BLD(AD) 77
28DLR(AD)5; 14DLR 847—Cited.
Pre-emption—Necessary Parties —Cosharers
and contiguous landholders—lmpleading of such persons not necessary if they
have not subsisting right of pre-emption or have waived their right of
Md. Abdul Jalil Vs. Durjan All alias
Siddique Hossain and others, 1BLD (AD) 241
28DLR (AD) 5; I4DLR 847; I BLD (AD) 77-Cited.
Burden of Proof—Onus of proof that the
left-out co-sharer has no subsisting right of pre-emption is upon the
Md. Abdul Jalil Vs. Durjan All alias
Siddique Hossain and others, 1BLD (AD)241
Omission of sub-section (2) and (3) in section 81 and insertion of section 81A
in State Acquisition and Tenancy Act have not rendered section 24 of
Non-Agricultural Tenancy Act ineffective or impliedly repealed—Section 24 – of
Non-Agricultural Tenancy Act and not section 96 of State Acquisition and
Tenancy Act is applicable for pre-emption of land fatling within the municipal
Md. Abdur Rouf and others Vs. Ahrnuda
Khatun and others 1BLD(AD)269
PLD 1967(Dac) 546; 2ODLR 562; 2IDLR 633; C.R. 639 of 1969; C.A. 47-D of
Pre-emption—A co-sharer or contiguous
land-holder applying for pre-emption under section 96(4) of the State Acquisition
and Tenancy Act need not make deposit of the consideration money and
compensation at the time of filing application—The deposit to be made within
the time allowed by the Court.
Chandra Majumder Vs. Oil Mia and another, 1BLD (HD) 328
Sections—96( 1) and 151
under section 96 of State Acquisition and Tenancy Act—Limitation— Pre-emptor
entitled to exclusion of time for proceeding bona fide in Court without
jurisdiction—Limitation Act. 1908 (IX of 1908), Ss. 14 and 29.
Md. Abdul Majid and others Vs. Serina
Beguin and others, 1BLD(HCD)350
Pre-emption — Deposit of
consideration—If application for pre-emption is made within the period of
limitation and the consideration money is also deposited in Court within the
period of limitation, it shall be deemed that the deposit has been made while
making the application for pre-emption.
Md. Mafizuddin Sarkar Vs. Md. A. Jabbar
Akhand, 1BLD (HCD) 486
Pre-emption by a Hindu Widow—Preemption—Cosharer—A
Hindu widow having life interest in a holding is a cosharer tenant of the
holding and is entitled to pre-empt transfer of land of the holding.
Rai Kishori Saha Vs. Bharat Au Sardar and
others, 2BLD (HCD)1l9
Pre-emption—Application for preemption by
contiguous landholder—Preemptor’s land contiguous to some of the plots
but the plots transferred are coii tiguous to each other and in a compact
block— Pre-emptor entitled to pre-empt all the plots transferred—Pre-emption is
allowed to help consolidation and amalgamation of holdings.
Haji Tajamal All Vs. Abdus Sattar and
others, 3BLD (AD) 6
31 DLR (AD) 88; 32DLR (AD)54– Cited.
Pre-emption—Application for pre-emption
filed before the registration of the kabala in question was complete—Application
premature—Prematurity can be cured if at the time of the trial the kabala was
registered, otherwise prematurity would remain—When the question of prematurity
was raised only at the appellate stage and registration was complete during the
pendency of the appeal, prematurity held cured at the appellate stage.
Miah Vs. Ganesh Chandra Nath and others, 3 BLD (AD)57
31 DLR(AD) 118 — Cited.
Section — 96 (10)(a)
Transfer to co-sharer by inheritance— not pre-emptible—Transfer to a
co-sharer whose interest in the tenancy accrued by inheritance cannot be
pre-empted—Even if the father of such cosharer acquired interest in the tenancy
by purchase he is a cosharer by inheritance—Transfer to such a cosharer by
inheritance is immune from pre-emption.
Abdul Haque Miah and another Vs. Abdur
Rashid and others, 3BLD(AD)103
Pre-emption—Pre-emption cannot be
refused on the ground that a sub-tenancy has been recorded in S.A. Khatian when
the document mentions the land by CS. Khatian and C.S. Plots.
Jaynal Abedin Molla Vs. A liar Rahman and
others, 3BLD (AD)105
Hindu Widow —Right to claim preemption
— During the period of her life time a Hindu widow is a complete owner and co sharer
of any property or holding in question with the right to claim partition and
consequently she has the right to claim preemption—Hindu Women’s Right to
Property Act, 1937(XVIII of 1937), S.3
Rai Kishori Saha Vs. Md. Motaleb Mi and
to record a finding that pre-emptor is a person to whom transfer by pre-emption
can be made as envisaged under section 90 S.A.T. Act cannot be a ground for
dismissal of the case.
Shahidur Rahman Molla and others Vs. Abdul Halim Molla & ors., 3 BLD
Ref. 13DLR 338; 2IDLR 599; 29DLR 153: 26DLR 93: IBLD 121; 1BLD(AD)280—
Defect of party—No
such objection specifically raised by the pre-emptee in written
objection—Defect of party disclosed in evidence —Pre-emptees not entitled to
take advantage of the same. The case cannot fail as the parties are not on
contest as to defect of party.
Skahidur Rahrnan Molki
and others Vs. Abdul Halim Molla & ors., 3 BLD (HCD) 89.
Ref. 31 DLR(AD)88— Cited.
of the land under pre-emption before filing the case if defeats right of
pre-emption–If the land in question is reconveyed to the original owner before
the starting of the proceeding for preemption, the right to pre-emption does
Ramesh chandra Barman
and others Vs. Naresh Chandra Barman and others, 3 BLD(HCD)99
Ref. 29DLR 229; IBCR. 27—Cited.
—Omission of a necessary party is fatal to pre-emption case—Respondent No. I
being a co-sharer was a necessary party in the pre-emption proceeding— Failure
to make her a party in the proceeding has vitiated it—The mere fact that her
name was not disclosed did not absolve the preemptors of their mandatory duty
to impleaci her by ascertaining necessary particulars.
Jalaluddin Fakir Vs.
Shahjahan All Molla and others, 4BLD(AD)27
Ref. 33DLR(AD)l 13—Cited.
Question of benami in a
Benami transaction—Question of benami nature of the disputed
kabala cannot be gone into and determined in a proceeding for preemption—But if
a pre-emption is sought to be resisted on the ground that no transfer took
place under the relevant kabala in that the vendor did not part with possession
but simply made a show of transfer, then such a transaction may be looked into.
Ash win Kumar Karmaker being dead his heirs Vs. Han Mohan Shil and
others, 4BLD (AD)29
Ref. 51C.W.N.644; 6DLR589; 45C.W.N. 658; 16DLR(SC) 155—Cited.
Waiver of right of
Question of waiver of right to preemption—The appellant was
impleaded both as an opposite party and as a petitioner and though these two
parties were the same persons, they were impleadèd separately—On his death
exemption from substitution was sought and granted in respect of the opposite
party, but no exemption was sought for and granted in respect of the
petitioner—In this circumstances, it is difficult to conclude that the heirs of
the appellant would not have claimed rateable pre-emption if substituted— The
provision of making parties being mandatory, waiver of right to pre-emption
cannot be presumed on a hypothetical ground that heirs of the appellant would
not have claimed preen-lption.
Abdul Hamid Bhuiyan and others Vs. Dengua Mia, 4BLD(AD)32
Right of pre-emption—Whether
such right is extinguished by subsequent reconveyance to the vendor—Since the
right of preemptibn accrues on the transfer of a holding the vendee cannot
defeat the pre—emption right by taking the plea that the land has been
reconveyed to the vendor when he is still in possession of the same—Sham
transfer or colourable agreement will not stand in the way when the case of
pre-emption is made out— Though the reconveyance had been effected but the
vendee is still in possession and therefore the right of pre-emption subsists.
Md. Sukur Au Vs. Sree Suresh Chandra Barman and others, 4BLD(AD)219
Section — 96(4)
is cosharer by purchase—Pre-emptee purchased lands of the holding by two
different kabalas both being executed on 21.1.75 and registered on 17.12.77,
registration Nos. being 24655 and 24656—Pre-emptor filed case for preemption of
the kabala with registration No. 24656—Pre-emptee claimed rateable preemption
as a co-sharer by purchase by virtue of the kabala with registration No. 24655—
Pre-emptee is a co-sharer and entitled to rateable pre-emption.
Md. Riazul Karim Vs. Mst. Shirin Begum, 4BLD(HD)135
Ref: 9DLR 258; 35DLR(AD)182—Cited.
Formal application for
rateable preemption—According to section 96(4) a cosharer tenant including
the transferee could apply to seek rateable pre-emption–No formal application
for rateable pre-emption is necessary—Prayer for rateable pre-emption in
written objection is sufficient.
Md. Riazul Karim Vs. Mst. Shirin Begum, 4BLD(HCD)135
Doctrine of us pendens
—Its applicability in a pre-emption case—The right of preemption, in a case of
the present nature, is not absolute but is subject to the agreement for
reconveyance—If the land has already been reconveyed during the pendency of the
preemption case the doctrine of lis pendens can- not come to the rescue of the
pre-emption— Transfer of Property Act, 1882 (VI of 1882)S.52.
Serajul Haque and others Vs. Ahmed Husain and others, 4BLD(HD)194
Ref: 35DLR(AD)225; I 3DLR287—Cited.
Section — 96(2)
co-sharers by inheritance, recorded or not recorded, are necessary parties in a
pre-emption case and this is mandatory—The requirement of law will be
frustrated if some co-sharers are not made parties in the case.
Zainul Abedin Vs. Syed Hashmatullah and others, 4BLD(HCD)272
Ref: 28DLR(AD)5: 33DLR(AD)l 13; 21 DLR262—Cited.
the preemptor whose land is not contiguous to the entire land of the transferred
plot is entitled to pre-empt the entire land without depositing the actual
value—He may pre-empt only that part of the land transferred to which his land
is contiguous unless the land transferred is a compact block of area—There is
no evidence regarding extent of contiguity of the preemptor’s land sought to be
pre-empted or as to which of the pre-emptors land is contiguous to the said
land and whether it is a compact block or divided into well demarcated separate
plots—For determining the extent of con-tiguity between the lands concerned and
actual value of the lands sought to be preempted the case should, be sent back
Masood (Mashood) Ali Vs. Mosaminat Samira Banit and others, 5BLD (AD)70
Ref: 31 DLR(AD)88; 32DLR(AD)54: I977BSCR397; 34DLR(AD)2
Limitation for filing
application for rateable pre-emption—Whether a transferee from contiguous
owner is to file such application within two months mentioned in section 96(4)
of S.A.T. Act, or he can file the case beyond that period—Such a transferee
must come within the period of limitation applicable to a transferee co-sharer
tenant— When the contiguous land owner is bound by the period of limitation. a
transferee from this category cannot be left free to seek ‘preemption whenever
Adeluddin Kha,z being dead his heirs: Abdur Rahinan Khan and ‘others
Vs. Md. Shahjahan Mb (Minor) and others; 5BLD (AL)82
Question of title in a
Whether the Court can enter into investigation regarding title
of the vendor in such a proceeding?—When entire consideration money has been
deposited with a prayer to pre-empt only half of the land whether it can be
said to be a case of partial pre-ernption— When the prayer in the application
for preemption is for apart only of the entire land the Court is not required
to make the deduction that prayer must be read in respect of the whole—the
Court cannot enter into investigation regarding title of thevendor in the case.
Hatem Au Mollah and others Vs. Hayet Khan and others, 5BLD(AD)183
transfer to a co-sharer by purchase is premptible by a ‘contiguous land
holder—If a land has been transferred to a co-sharer and when no other co-sharer
has claimed pre-emption, the transfer is immune, by necessary implication to
preemption, by a contiguous land holder.
Md. Azimuddin Pramanik and others Vs. Sree Satya Narayan Prainanik and
others, 6 BLD(AD)98
Ref: 6DLR 130—Cited.
Right of Pre-emption—A
mere decree in a suit for specific performance of a contract does not confer
right of pre-emption
Whether a person obtaining a decree for specific performance
of contract for sale and before execution and registration of the sale deed is
a co-sharer in the holding relating to the decretal land—Respondent is claiming
to pre-empt on the ground that he became a cosharer by virtue of a decree which
he obtained in his suit for specific performance of contract—His status , as, a
co-sharei would have been established if he obtained a registered kabala in pursuance
of the decree—Since he did not obtain the kabala as yet he is not a cosharer in
Mst. Maleka Khatun and another Vs. Abid Au and others, 6BLD(AD)137
Whether amendment of pre-emption petition making a new claim
on the basis of contiguous ownership will change the nature and character of
the case specially when it is barred by limitation—No amendment is allowed
where its effect will take away any legal right accrued to the other party by
lapse of time or if the amendment introduces a totally new and inconsistent
case—The appellant claimed pre-emption either as a co-sharer or as a tenant
holding land contiguous to the land transferred —This was necessary because the
respondent took the plea that on the basis of a mutation case a separate
khatian had already been created —In the present case no legal right has
accrued to the pre-emptee—Once an amendment is made the amendment will relate
back to the date of institution of the case.
Sree Shushil Ranjan Dutta Vs. Al-haj Moulvi Idris Mia, 6BLD(AD)221
Ref: BSCR (1979) 135; PLD1948 (P.C.) 73; 15DLR(SC) 120—Cited.
Admission in pleading—Whether
a party making such admission is bound by it—The pre-emptors in the application
for pre-emption stated that they mutated their names by separating the jama by
filing separation case — Whether the pre-emptors are bound by such
admission—Admission is no doubt a strong evidence against its maker but it is
also open to him to adduce evidence to show that it is not in fact an admission
but is the result of bonafide mistake of fact —All important questions as to
separation of jama and payment of rent separately have not been decided by the
Courts below—Determination of this question is necessary for deciding the pre-emption
Be gum Khodeza Akhter Vs. Hajera Khatun and others, 6BLD(AD)161
the Court is functus officio and cannot extend time to deposit money for
rateable pre-emption—The trial Court while allowing rateable preemption
directed that in case the appellant failed to deposit money within two months
his application for rateable pre-emption ‘shall stand dismissed—The order being
capable of automatic operation it became final when the default occurred—The
trial Court rightly refused extension of time on the ground that it became
Abdul Hadi Bepari Vs. Safaruddin Mondal and others, 6BLD(AD)332
justment of deposite—Whether the Court can direct to adjust the amount to
be deposited for rateable pre-emption in favour of the transferee from the
amount deposited by the pre-emptor in his favour—Deposit’ for rateable
pre-emption by a subsequent claimant being a transferee, the Court may in its
discretion exempt a transferee—pre-emptee from making the deposit and to adjust
the amount due from him against pre-emption money already deposited, if a
prayer is made to the Court in appropriate time.’
Abdul Hadi Bepari Vs. Safaruddin Mondal and others, 6BLD(AD)332
Withdrawal of part
deposit by some pre-emptors——Withdrawal of part deposit by some of the
pre-emptors who decided not to proceed with the case and deposit of the said
amount by the remaining pre-emptors whether can be allowed by the Court—In any
case the contesting pre-emptors cannot be non-suited for the steps taken by the
non-contesting preemptors—The contesting pre-emptors cannot be blamed and made
to suffer for withdrawal from the case by the non-testing pre-emptors —The
pre-emption case when filed was legally instituted with full deposit—The Court
is not powerless to allow intermediary steps required to be taken by any party
to maintain the pre-emption proceeding which was legal and valid when
Md. Jamiluddin and others Vs. Md. Alimuddin and others, 6BLD(HCD)32
Question of sale or
In a pre-emption proceeding the question whether the
transaction by the purported sale under pre-emption is sale or exchange can be
decided—Whether evidence can be adduced to prove that the document is not what
it purports to be?—When the disputed kabala is between stranger to the document
in question and a party thereto there is no bar in leading oral evidences to
prove that the document in question is not what it purports to be but when it is
between the parties to the document such evidences are not admissible—There is
no error of law in holding that the transaction is an exchange and not a sale
and as such exempted from pre-emption—Evidence Act, 1872 ( 1 of 1872), Ss. 91
Brindaban Das and another Vs. Ershad Au Mondal, 6BLD(HCD)85
Ref: 26DLR(SC)59; 35DLR(AD)230; I 7DLRI 5; AIR. 1958(SC)
Right of Pre-emption—Acquiescence
and estoppel—When the pre-emptor negotiates the sale under pre-emption or the
facts are such that his acquiescence can be safeI’ concluded, the doctrine of
estoppel comes into full play—His conduct will be a bar even though he files
his application for pre-emption in a statutory right.
Moulana Abdul Karim Vs. Nurjahan Begurn and others, 6BLD(HCD)125
Ref: A.i.R. 1968(SC)933; PLDI96I(SC) 436(444); 22DLR 449:
A.I.R. 1928(PC)190 AIR. 1925 (Lahore)57; A.I.R. 1947 (Oudh) 81; A.I.R. 1951
(Nagpur) 451; AIR. 1950 (Madhaya Bharat)85—Cited.
pre-emption proceeding—Whether right of pre-emption subsists even after
reconveyance of the property to the vendor after filing the case but before
final order of pre-ernption?—Pre-emption right is not a right in the property
but a right of substitution in place of the vendee—Jt is a right to he
substituted in place of the vendee— If the final order cannot be made under
sub-section (7) of section 96 of the S.A.T. Act for any reason the pre-emptor
does not acquire any interest in the property sold—The section takes for
granted that the right of pre-emption and the sale giving rise to cause of
action will subsist till the final order is made—If the preemptor’s interest in
the holding is lost or the sale is rendered non-existent the proceeding for
pre-emption becomes infructuous—There is no prohibition for reconveyance of the
property to the vendor during pendency of preemption proceeding—After such
reconveyance right of pre-ernption is lost.
Md. Abbas Ali Vs. Md.
Osinan Au and others, 6BLD(HCD)130
Ref: 29DLR 153; 1 B.C.R.(AD)l70; 35 DLR 79; 29 DLR 229: 1
B.C.R. 27; 35 DLR (AD) 225: AIR. 1958 (SC) 838; l.L.R. 7 All 665; ISDLR
Sub division of holding—After
accrual of pre-eniption right sub-division of holding does not nullify the
right of Pre-emption— Separate holding has been created in the name Qf the
stranger—purchaser by way of mutation ?—Whether sub-division of the parent
holding by mutation will create a bar for the exercise of right of pre-emption
by the cosharer of the parent holding—For determining the rights of parties in
a pre-emption case the original holding is to be conceived of as an unbroken
unit, including the transferred portion despite its sub-division made after the
transfer in question— Once the right of preemption has accrued to a co-sharer
in a holding it cannot he defeated by subsequent sub-division of the holding,
unless the transfer itself is nullified or the interest of the preemptor in the
parent holding is extinguished before the final order is made on the
Raisuddiiz Molla and others Vs. Md. Golam Wahed and others,
Ref: I B.C.R. (AD)194; 33DLR(AD)323; 26DLR(SC) 58: AIR.
1958(SC)838: I.L.R. 7 (All) 775—Cited.
money—Coappli-cants obligation to make deposit of money when arises?—He is
not required suo motu to deposit the money on his own computation— Until an
order is made by the Court determining the amount to be paid by the
coapplicants the consequences provided will not come into play.
Himaizghsu Bikash Singha Vs. Mvi. Sirajul islam and others,
Single application for
more than one transfers—Whether one app licati on for preemption of land
transferred by two kabalas is maintainable—li is not the requirement of law that
a pre-emptor is to file separate application for each transfer—The lower appellate
Court committed an error of law in hol-ding that a single application was not
main-tamable n view of the provisions of the Code of Civil Procedure—Code of
Civil Procedure, 1908 (V of 1908), Or. 2 Rs. 2 and 3.
Sree Jitendra Nath Howlader Vs. Sree Bi,cweswar Howlader and others,
Ref: 23 DLR 68—Cited.
for knowledge to take a pre-emption proceeding—The pre-emptors initial
knowledge that the plot in question was sold would not help him in a bid to
file a pre-emption case—Knowledge as referred to in the Act means and includes
a definite and complete knowledge in order to file a petition for pre-emption.
Abdul Sattar and another Vs. Osimuddin and others, 8BLD(HCD)197
Ref: 29DLR 178—Cited.
Section — 96(7)(6)
right to deposited money
Deposit made with
pre-emption petition—Subsequent transferees’ entitlement to the money in
deposit—After the application for pre-emption, the property was again
transferred and the petitioners having stepped therebyinto the shoes of the
pre-emptee, they are permitted to withdraw the consideration and statutory
money compensation deposited in the case,
Abdul Sattar and
another Vs. Osimuddin and others, 8BLD(HCD)197
Ref: 35 DLR(HC)238.
Defect of party—Consequence
of failure to implead a co-sharer in a pre-emption proceeding—Nurul Islam being
a co-sharer in one of the plots of the khatian was certainly a cosharer in the
holding in question—Failure of the pre-emptors to implead him in the
application for pre-emption is a serious defect of party since impleading of a
co-sharer, whether by inheritance or by purchase, is arnandatory provision of
the law—The omission pointed out at the earliest point of time having not been
supplied, the order of the High Court Division restoring the trial Courts order
allowing pre-emption is not sustainable in law.
Sultan Ahmed and others Vs. Akhtaruzzaman and others, 10BLD(AD)23
balance consideration money —Question of making deposit with statutory
compensation within the specified period and after enquiry by the Court as to
the amount to be deposited—When the pre-emptor prayed leave to deposit the
balance consideration money with the statutory compensation the pre-emptees
opposed the prayer—This showed they were trying tO frustrate the very
pre-emption proceeding— The trial Court rightly granted the prayer; because the
pre-emptor and the Court accepted the proportionate valuation of the land as
pointed out by the pre-emptees themselves.
Selina Begum and another Vs. Mofizul islam and others, 10BLD(AD127
Right of pre-emption
accrues on completion registration—When registration is compulsory, the
date of accrual of right df pre-emption is not the date of execution of the
deed of sale or any earlier date or the date of presentation for registration
but the date on which the deed of sale is registered and the title effectively
passes—Cause of action for pre-emption accrues on the date of registration of
kabala where registration is compulsory.
Abdul Motalib Vs. Imam Au Mollah and other BLD(AD)160
Ref: 13DLR889: 17 DLR 365; 17 DLR 231; 20 DLR 355; 21 DLR 599;
31 DLg(AD) 118; 34 DLR (AD)220; BCR 1982 (AD) 87; 9DLR 258; 40 DLR
seek-ing pre-emption of case land—Trial Court refused pre-emption on the ground
of lirnitation—.Appellate Court reversed the finding of the trial Court—In
revision High Court DiviSiOn declined to interfere with the question on finding
of fact—Appellate Division approving the stand of High Court Division dismissed
the appeal holding that this being a finding purely of facts does not warrant
interference in revision. The High Court Division rightly refused interference.
Sona Mia Vs. Abdul
Khaleque, 10BLD (AD)209
topre-emption Limitation for—In case of pre-emption the date of
registration of the document by which transfer of the property takes effect
gives rise to accrual of the right of pre-emption— The sale deed in the present
case was presented for registration on 2.12.75, but in fact it was registered
on 24.10.79 and the pre-emption case was filed on 13.2.80—So finding by the
appellate Court that the case was barred by limitation cannot be sustained.
Md. Golarn Mostafa Mridha Vs. An jut Ali Molla and others,
Ref: 33 DLR 254; I7DLR (Dac)365; 21 DLR(Dac) 588; 3:1 DLR(AD)1
Application of section
14 of Limitation Act in pre-emption case.—Pre-emption petition filed two
years prior to the date of registration of the deed under
pre-emption–.Dismissed on the ground of immaturity—delay of long 13 months
caused in filing second petition for pre-emption—Petitioners prosecuting
previous proceeding diligently and in good faith—wrong advice of
lawyer—Petitioners are entitled to claim the benefit of section 14(2) of the
Limitation Act in computing the period of limitation— Limitation Act, 1908 (IX
of 19081, S. 14(2).
Faizer Rahinan and others
Vs. Atiar Miah,nud Shaikh and others, IOBLD (HCD) 401
clear intention of the legislature was to confer a right of preemption
holding-wise. A distinct right has been conferred in respect of a distinct
Chakraborty Vs. Subal Chandra Biswas and others, 108LD(HCD) 424.
Ref: 26 DLR93; I9DLR 659: I4DLR 796 (Dacca); 103DLR 283—Cited.
Sections—116 and 117
Sub-division of a joint
tenancy—Subdivision is permissible only on the application of one or more co-sharer
tenants— Notice is a must to the parties concerned in cases–of amalgamation,
consolidation and sub-division—No proceeding for sub-division of -a joint
tenancy can be taken without any application by a tenant and notice to all the
Md. Khairullah Bhuiyan Vs. A,nena Khatun and others, 2BLD(HCD) 72
Ref: 17 DLR384; 16DLR77—Cited.
Sections—116 and 117
consolidation of holdings—Revenue Officer competent to pass such order suo
motu—Payment of rent at the old rate even after amalgamation and consolidation
cannot set at naught the process which was duly made and acted upon—Wheli order
of amalgamation has been passed by the competent authority and in accordance
with law its validity cannot be challenged in the preemption proceeding—Prima
facie the order was a valid one, its validity cannot be chalenged- for a
collateral purpose—The civil Court while dealing with an altogether different
matter cannot ignore the order passed by a competent Revenue Officer.
Md. Khairuilah Bhuivan Vs. Haji Nurul Alam Chowdhury, 3BLD (AD)179
Ref. 33DLR(AD) 309: 33DLK(AD)323; 51 C.W.N. 644—Cited.
Lis pendens— The
expression ‘otherwise dealt with in section 52 of T.P. Act covers sub-division
of holding—Mutation of holding during the pendency of pre-emption proceeding
comes within the mischief of doctrine of us pendens—Such mutation will not bar
the right of pre-emption—Transfer of Property Act, 1882 (IV of 1882), S. 52:
Non Agricultural Tenancy Act, 1949 (XXIII of 1949), S.24.
Md. Abdur Rouf and
others Vs. Ahmuda Khatun and others, 1BLD (AD)269
Mutation without notice
to cosharers—Statutory requirement of notice upon co-sharers before
effecting mutation of holding is mandatory and mutation of holding without
notice to a co-sharer isnot binding on the co-sharer.
Md. Abdur Rouf and others Vs. Ahmuda Khatun and others, 1BLD (AD)269
Ref: (1967) I9DLR(SC)36;—Cited.
Revenue Officer-not a
Court— Whether a Revenue Officer dealing with mutation proceedings is a
Court— Whether cognizance of an offence by a Magistrate without a complaint in
writing by the Revenue Officer for committing forgery in respect of a document
produced before- him legal—The Revenue Officer holding mutation proceeding does
not act as a Court within the meaning of section 195(1) Cr. P.C—There is no bar
for the Magistrate in taking cognizance of the case in the absence of any
complaint from him—State Acquisition and Tenancy Rule, 1955, Rules 22-25; Code
of Criminal Procedure, 1898 (V of 1898) S. 195 (1)(C).
Idris Ali and others Vs. The state, 6BLD (HCD) 7
Ref. AIR. 1950 (SC)188; 8 CLR 330 at page 357: 1931 AC. 276;
PLD 1956 SC (md) 65; PLD (1957) (SC) (Pak)91; 26 DLR 157; 27 DLR 388: 20 DLR
(Dhaka) 1019; A.I.R. 1926(PC)lO0; 9DLR(WP) (Lahore) 40; PLD I 973(SC)6
Record of rights
—rectification of—Material question in deciding such a case—An application
under section 143A is not a suit for declaration of title but is a proceeding
for rectification of mistakes in the record of rights prepared on the basis of
possession in the land in question—The scheme of the section shows that
possession is the material question.
The Assistant Custodian, Enemy Property (L & B) Tangail, Vs.
Bholanath Guha and others, 4BLD (AD) 159
Section — 146
Board of Land
Administration—Section 146(1) shows that the general power of
superintendence and control over all Revenue Officers is vested in the Board of
Land Administration and not in the Government. Moreover, section 146(1) vests
the Board of Land Administration with Administrative control over the Revenue
Officers and by no means empowers it to revise the order passed by the Revenue
Officers under the State Acquisition and Tenancy Act, 1950.
Saifur Rahman Vs. Govt. of Bangladesh and others, 10 BLD (AD) 286.
Sections—147, 148, 149
Appeal, Revision and
Review—The powers of appeal, revision and review are in sections 147 to 150
of the State Acquisition and Tenancy Act, 1950.
Section 147 of the Act provides for preferring appeal against
the orders of the Revenue Officer and this section shows that the appellate
authority is the Collector, when the order is made by a Revenue Officer
subordinate to the Collector, Commissioner of the Division, when the order is
made by the Collector of a District within the division and the Board of Land
Administration, when the or- der is made by the Commissioner of a division.
There is no other authority under section 147 to whom an appeal can be
Section 148 of the Act provides for the period of limitation
for an appeal under section 147 of the Act.
Section 149 provides for revision of an order passed by a Revenue
Officer. Under this section similar to an appeal, the Collector, the
Commissioner and the Board of Land Administration have been vested with the
power of revision against the orders of the Revenue Officers. Section 149 does
not empower the Government to revise, rescind or cancel any order passed by a
Section 150 of the Act provides for review of an order by the
Officer himself who passed the order.
Saiftir Rahman Vs. Govt. of Bangladesh and others, 10BLD (HCD) 286
under section 96 of State Acquisition and Tenancy Act— Limitation—Pre-emptor
entitled to exclusion of ttrne of proceeding bonafide prosecuted in a Court
without jurisdiction—Limitation Act, 1908 (IX of 1908), Ss. 14 and 29.
Md. Abdul Majid and others Vs. Serina Begum and others, 1BLD (HCD) 350.