State Acquisition And Tenancy Act, 1950


Acquisition And Tenancy Act, 1950


Order No. 135 of 1972

provisions of P.O. 135 of 1972 take effect only with respect to the lands which
reappeared after Part-V of the S.A. and T. Act, 1950, came into force in the
locality. The suit land alleged to have accreted prior to the date when the
provisions P.O. 135 of 1972 became operative in the locality, the trial Court
ought to have decided this question on evidence. The case is sent back to the
trial Court for fresh hearing after taking evidence

Abdul Aziz
Bepari and Others Vs. Govt of Bangladesh and others, 14 BLD (HCD)225

31 D.L.R. (AD) 195-Cited.



State Acquisition and Tenancy Act came in 1950 the owners and possessors of all
kinds of lands have become direct tenants under the Government. The pre-emptor
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 part of an
agricultural holding according to section 96(1) and section 2(13) of the State
Acquisition and Tenancy Act and as such the pre-emption in the instant case is
to be allowed.

Abdul Jabbar
and others Vs Mohammad Sekandar and others, 19 BLD (HCD) 83.


and 72

notification under sub-section (2) of section 43 of the Act is published in the
official gazette, such notification is conclusive proof of such publication and
of the date thereof and section 72 of the Act bars a civil Court from
entertaining any suit in respect of the preparation, signing and publication of
a Compensation Assessment Roll or any Part thereof under Chapter V or Chapter
VA of the Act.

represented by the Secretary Ministry of L.A. and LR Vs Chowdhury Tanbir Ahmed
Siddiky, 17 BLD (AD) 131.

(1959)11 DLR (SC) 318; (1968) 20 DLR(SC) 144; 33 DLR (AD)13-Cited.



Tenancy Act, 1949, Sections—85(2) and 24

object of section 85(2) of the Non Agricultural Tenancy Act was to retain
control over non-agricultural land held by a tenant under the Government
unencumbered by the provisions of the Non-Agricultural Tenancy Act. Section 8
1A(2) of the State Acquisition and Tenancy Act determines the rights and
liabilities of non-agricultural tenants other than those who have become
tenants under the Government by virtue of compulsory acquisition of land . The
Non-Agricultural Tenancy Act has not been mentioned to be a governing law in
respect of such tenants of nonagricultural land under the Government. Hence, on
both accounts, under section 85(2) of the Non-Agricultural Tenancy Act and
section 81A(2) of the State Acquisition and Tenancy Act, the ouster of the
Non-Agricultural Tenancy Act from the categories mentioned therein is complete.
Section 24 of the Nonagricultural and Tenancy Act has no manner of application
to lands of Dhanmondi Residential Area.

Mosaddeque Hossain Vs. Dr. Esmat Mirza and others, 18 BLD (AD) 57.

17 DLR384; 7 DLR 116; 33DLR 10—Cited.


and 87

the reformation of a diluviated land was complete before the date of coming
into force of Part V of the Act, provisions of amended sub-section (3) of
section 86 will not be applicable in respect of the said land. In such a case,
the right of the tenant will not be extinguished or destroyed for the suit land
going under water for some time before the coming into operation of this
amended provision of law. Similarly, accretion which took place before coming
into force of Part V of the Act shall be beyond the scope of subsections (1)
(2) of Section 87 of the Act and the rights of the owner shall remain

Hajee Fayez
Ahmed Vs. Shafiul Alam and another, 15 BLD (HCD) 524.

Abdul Mannan and ors. Vs. Kulada Ranjan Mowali and ors, 31 DLR(AD)195;
Padmabati Biswas Vs. Bangladesh and others, 44 DLR 465; Lopez Vs. Muddun Mohan
Thakur, 13 MI. A. 467 (PC); Rai Kiran Chandra Roy Bahadur and ors. Vs. Tarak
Nath Gango Padhyay and others, 40C.W.N page 22 and 566—Cited.


and 51A

Order Nos 88 and 136 of 1972

Order No. 24 of 1973

Code of
Civil Procedure, 1908(V of 1908), Order 34

88 of 1972 created special forum for restoration of mortgaged property. But it
did not take away right of redemption available to a mortgagor by filing a
mortgage suit under Order 34 of the Code of Civil Procedure.

that view of the matter High Court Division was totally wrong to held that the
suit was not maintainable as the transaction was past and closed. [Per Latifur
Rahman, C.J; (delivering the majority judgment].

Asmat Ali Vs
Abdur Rafique Mridha and others, 20 BLD (AD) 197.

Bangladesh Vs. Haji Abdul Gani Biswas and ors, 32 DLR(AD)233—Cited


and 95A

plaintiff himself admitted the existence of a separate deed of reconveyance
which was not been produced before any of the courts below which escaped the
notice of the trial court as well as of the appellate court and there is also
no consideration of the circumstances as regards the prevalent price of such
lands at the relevant time which would have indicated the nature of the
questioned document. The trial court as well as the appellate court has
therefore wrongly decreed the suit. [Per Mahmudul Amin Choudhury, J

Asmat Ali Vs
Abdur Rafique Mridha and others, 20 BLD (AD) 197.


Section—95 A

Treatment of
certain transaction as Usufructuary Mortgage

attract the application of Section 95A of the Act the transaction in question
must be a subsisting one on the date of promulgation of President’s Order No.
88 of 1972 on 3.8. 1972. Transactions which were not alive on that date are to
be treated as transactions past and closed.

the present case, admittedly the mortgage was for 4 years which expired long
before 3.8.1972 and as such Section 95A of the Act will have no application to
such a transaction which was past and closed.

Khaleque Sarnamat Vs. Abdul Khaleque Sarnamat 16 BLD (AD) 210.

Bangladesh Vs. Haji Abdul Gani Biswas, 32 BLD(AD)233; Abu Bakkar Vs. Nazir
Ahmed, 34DLR(AD)237 — Cited



clear legislative intent of section 95A is that cases of sale attended with
agreement for reconveyance whether registered or unregistered would come within
the ambit of complete Usufructuary mortgage for a period of 7 years and
provisions of section 95(4) (5) would apply to such transfer. A contrary view
would clearly make the provisions of section 95A nugatory and frustrate its

view taken by the High Court Division that an agreement for reconveyance with a
deed of sale as contemplated under section 95A of the Act is not required to be
compulsorily registered as required under section 95(2) of the Act has been
affirmed by the Appellate Division.

Abdus Salam
Sheikh Vs. Puspa Rani Shil, 16 BLD (AD) 299.

Bangladesh Vs. Abdul Gani, 32 DLR(AD)233—Cited.



transfer of a holding by way of out and out sale, followed by a simultaneous
agreement to recovery the land to the vendor, is to be deemed to be a complete
Usufructuary mortgage under the provision of Section 95A of the Act.

Sree Kamada
Ranjan Bhattachargee Vs Kohinur Chowdhury and others, 17 BLD (HCD)460



plaintiff transferred .54 acre of agricultural land to the defendant by a
kabala executed on 10.7.1949 and the transferee executed an Ekramama on
13.7.1949 and both the documents were registered on 7.11.1949. In terms of the
Ekrarnama the transferee agreed to reconvey the land to the transferor if
consideration money was paid back within 6 years. In such circumstances, the
transfer in question must be held to be a complete usufructuary mortgage
although the transaction took place before the commencement of the Second
Amendment of the Act.

Rajiuddin Chowdhury Vs. Suruj Au, 16 BLD (HCD) 96.


Section— 95A

expression “either by way of an out and out sale with an agreement to reconvy”
as used in Section 95A of the S.A.T. Act indicates that the deed of
reconveyance is required to be registered and it must be a contemporaneous
document along with the document of transfer of land by way of out and out
sale. In order to obtain the benefit under this beneficial legislation the
party who seeks to obtain the benefit must strictly satisfy the authority that
he has complied with the requirements of law.

Rup Charan
Das Vs. Government of the People’s Republic of Bangladesh. 16 BLD (HCD)419

8BLD(AD)84 — Cited.



95A of the S.A.T. Act is in Part V of the Act and it came into operation in the
District of Chittagong on 1st August, 1963 and as such the provisions of
section 95A of the Act cannot be pushed beyond 1.8.1963 as no retrospectivity
was given to it . The disputed transaction is dated 13.12.1949 and even if it
is taken to be a complete Usufructuary mortgage, still then it cannot be
redeemed under section 95A of the State Acquisition and Tenancy Act, the
transaction being a past and closed one after the lapse of 7 years.

Nurul Islam
Chowdhury and another Vs. Upazila Revenue Officer, Patia, Chittagong and
others, 16 BLD (HCD) 31.

31 DLR (AD) 195; 34DLR (AD) 237—Cited.



unregistered agreement for reconveyance is enforceable in law and the provision
for registration of such an agreement as required under Section 95 (2)(3) of
the Act does not bar the enforcement of such an agreement.

Osman Gani
Talukder alias Sujat Au Talukder Vs. Md. Osman All Mondal, 16 BLD (HCD) 165

47 DLR 67; 28 DLR221; 24 DLR 42.



Waiver and
acquiescence defeat the right of pre-emption

the pre-emptor took a leading part in bringing about the transaction by
assisting the sellers in selling the land and encouraged the buyers in
purchasing it and himself negotiated the price, the conduct of the pre-emptor
is sufficient to give rise to waiver and acquiescence and as such estoppel
operates against him.

Rahman & ors. Vs. Safurullah and others, 14 BLD (AD) 20.

42 IA 10(18), (1955) ISCR 70; 38 DLR (1986) 361; 22 DLR(1970) 449; 18 DLR(SC)(



when arises

of Pre-emption accrues after the transfer of the land and this statutory right
cannot be taken away by mere verbal assurance of the person having such right
unless a clear case of waiver and acquiescence is made out on evidence.

Vs. Maijuddin and others, 14 BLD(AD) 29.



about defect of parties must be taken at the earliest stage and it cannot be
entertained at the Appellate stage.

Saleha Bibi Vs. Taib Ali Mollah and others, 13 BLD (HCD) 677.

41 DLR(AD)124; 41DLR, 336; 31 DLR(AD)88; 1983 BLD(AD), 105; 21 DLR (SC)



finding of fact in respect of the preemptors date of knowledge about the
impugned transfer arrived at by the lower Appellate Court on assessment of
evidence and the same having been affirmed by the High Court Division, the
Appellate Division found no justification for interference.

Amena Khatun
Vs. Abdul Motaleb and Others, 14 BLD (AD) 68.



the application for pre-emption was made in time subsequent amendment for
impleading necessary parties after the expiry of the period of limitation is
permissible in law. Besides making all the co-sharers of the transferred
holding as parties, the petitioner claiming pre-emption as a contiguous
land-holder is required to make all the tenants holding lands contiguous to the
case land parties in the case

Khodeza Begum Vs. Md. Illias Mia and others, 14 BLD (HCD) 388.



the result of the Title Suit shall govern the result of the Preemption Case it
is expedient that the suit and the Pre-emption Case be heard simultaneously

Ranjan Baroi and another Vs. Sri Jogesh Baroi and another, 14 BLD (HCD) 121.

M/S Ayet Ali Bhuiyan and Company Ltd. Vs. Janata Bank, 40 DLR 56 and Bangladesh
Shilpa Bank Vs. Bangladesh Hotels Ltd, 38 DLR (AD)70-Cited.



96 of the State Acquisition and Tenancy Act is a beneficial legislation,
intended for the convenience of the co-sharers of a holding land contiguous to
the land transferred. But it is also cloglon transfer of property.

provision of law barring claim of pre-emption must be strictly construed.

Khatun being dead her heirs: Akhtar Hossain and others Vs. Musammat Sayera
Khatun, 13 BLD (AD) 41.



re-conveyance not to defeat pre-emption

of title takes effect from the date of execution of the sale deed and not from
the date of its registration. With the sale the vendor loses all his interests
in the property and he is left with no interest therein to encumber the sale by
a subsequent agreement for re-conveyance. A colourable reconveyance cannot
defeat the right of pre-emption.

Captain Mohd
Lutfar Rahman Vs Mohd Abu Taher and others, 21 BLD (HCD) 334.

Abul Hossain and ors. Vs. Md. Nasim Ali and ors, 19DLR677; Md. Sukur Ali Vs.
Sree Suresh Chandra Barmon and Ors, 4BLD219; Khorshed Ali and ano. Vs.
Aftauddin and ors. 47DLR607; Shafi Khan Vs.Mannujan Hossain and ors., 35 DLR
(AD) 225—Cited.


10(C) of Section 96

10(c) of Section 96 of the S.A.T. Act restricts the right of pre-emption by
providing that when a portion or share of a holding is transferred by gift by
the husband to the wife and vice versa or if the donee is a relation of the
donor by consanguinity within three degrees, such a transfer is not pre
emptible. Sub-section 10(c) of Section 96 clearly indicates that it has not
been designed to help the donor or donee to curtail the right of pre-emption of
a co-sharer of a holding where his right of pre-emption has already arisen
prior to such gift. In the instant case, the vendor of the case land did not
transfer his land by way of gift to his wife but he transferred the case land
to opposite part No.1 by a registered kabala. Opposite party No. 1, intern,
gifted the case land to opposite party No. 85. Under such circumstances, the
preemption case against opposite party No. 1 is quite maintainable in law as
the latter could not pass a better title to opposite party No. 85 than what he
had acquired by kabala from his vendor. Opposite party No. 85 acquired title in
the case land subject to the pre-emptors already accrued right of pre-emption.

Tayeb Vs. Haji Najir Ahmed and others, 16 BLD (HCD) 173.

35 DLR (1983)238—Cited



made during the pendency of pre-emption proceeding cannot take away the right
of a pre-emption of the co-sharer.

Khorshed Ali
and another Vs. Aftabuddin and others, 16 BLD (HCD) 1.



the pre-emptor took a leading part in bringing about the transaction by
assisting the sellers in selling the land and encouraged the buyers in
purchasing it and himself negotiated the price, the conduct of the pre-emptor
is sufficient to give rise to waiver and acquiescence and as such estoppel
operates against him. (Per A.M. Mahmudur Rahman, I, delivering the majority

Most Rokeya
Begum Vs Md Abu Zaher and others, 20 BLD(AD) 90

Akhlasur Rahman and ors Vs. Safurullah and ors, I4BLD(1994)(AD)20—relied.



is absolutely no evidence from the side of the preemptee that there was an offer
to the preemptor and refusal of the same by him or that he himself negotiated
the transaction. The High Court Division without considering the facts and
circumstances relying up-on I4BLD(AD)20 and 44DLR(AD)62 wrongly applied the
principle in the instant case. [Per Mahmudul Amin Chowdhury, (dissenting)]

Most Rokeya
Begum Vs Md Abu Zaher and others, 20 BLD (AD) 90.



knowledge or proposal for transfer is not sufficient to defeat the right of the
preemptor which accrues after the sale is affected. [Per Mahmudul Amin
Chowdhury, J. (dissenting)1

Most Rokeya
Begum Vs Md Abu Zaher and others, 20 BLD(AD) 90



Code of
Civil Procedure, 1908 (V of 1908), Order I Rule 10

Proceeding—Necessary parties

a pre-emption proceeding the necessary parties may be added at any point of
time after institution of the suit but before hearing of the same.

Nizam Sheikh
and others Vs Alauddin Sheikh and others, 19 BLD(HCD)197

14 DLR2O4, 33 DLR(AD)1 13, 1986 BLD (AD)22 1—Cited.



Tenancy Act, 1924, Section—24

words non-agricultural land means a piece of land in joint possession and
enjoyment without partition which may form the tenancy or a portion of tenancy.
This interpretation will not throw the land open to the unlimited number of
persons but to persons who are co-sharer tenants under the same landlord in
respect of undivided land though such co-sharer tenants may be co sharer
tenants of the tenancy.

Syed Sad Ali
Vs Bidhan Chandra Dev and ors., 20 BLD (HCD) 343.

S M Basiruddin Vs Zahurul Islam Chowdhury, 35 DLR(AD) 230; Moniudra Chandra
Ghose Vs. Mujibul Islam, 12 DLR page 185—discussed



Right of

and every act touching the transaction in which the pre-emptor may have taken
part or the mere fact of knowledge about the transfer or temporary
unwillingness on his part to buy cannot debar him from claiming his right at
the proper time. Therefore, when the pre-emptor’s inability to purchase the
land on the ground of financial inability which was a temporary one will not
operate as estoppel from purchasing the land and exercise his right of

Khaleque Vs Mosammat Kohinor Hamid, 20 BLD (HCD) 405.

44DLR(AD)62; Akhlasur Rabman and ors Vs. Satarullah and ors, 42 DLR (AD)189;
Ocean Industries Ltd. Vs. Industrial Development Bank, I 8DLR(SC)364—Cited



and partial pre-emption

one of the pre-emptees was not impleaded in the preemption case within the
statutory period of limitation, the case is barred by limitation at least as
against him. In such a case, even if the pre-emption case is found to be
maintainable against other preemptees, who were brought on record  within time, the case must fail as a whole as
partial pre-emption is not permissible under section 96 of the SAT Act.

Arifan Nessa Vs Haroonor-Rashid and others, 17 BLD (HCD) 86.

32 DLR 68; 38 C,W.N. 654; 49 C.W.N. 242; 19 DLR 659; 13 DLR 323, 14 DLR 847; 28
DLR 400; 42 DLR (AD) 110; 42 DLR(AD) 1 ;—Cited.


Section —96


is a kind of purchase in preference according to category. When the question of
purchase comes, the seller or transferee must have some right or saleable
interest in the holding without that what the buyer will get by pre-emption,
whatever may be the nature of transfer, So, against fictitious transfer
pre-emption cannot be allowed. If preemption is allowed in respect of
fictitious transfer, it will illegally affect the share and interest of the
real co-sharers, which cannot be allowed by a Court of law.

Md. Solaiman
Au Sheikh and others Vs Abu Bakar .Siddique and others, 17 BLD (HCD)444



outside Municipal area comes within its ambit

of a homestead land by a raiyat beyond the Municipal area is pre-emptible under
section 96 of the S.A.T. Act and not under section 24 of the N.A.T Act.
Homestead is a part of the holding of a raiyat and is not excluded from the
operation of section 96 of the Act, homestead situated in the rural area being
regarded as an agricultural land.

Mantu Faraji
alias Jamal Faraji and others Vs. Mahiuddin Khan, 17 BLD (HCD) 600.

20 DLR562; 21 DLR633; Civil Appeal No. 47-D of 1963; (Civil Revision No. 639 of
1969); 33DLR (AD)323; 30 DLR75;— Cited.



view that whenever there is a reconveyance of the case land by the vendee to
the vendor, by any means whatsoever, the right of preemption is lost is too
radical a view it is contrary to the underlying principle regulating
pre-emption. Only a bonafide reconveyance by which the case land has actually
gone back to the original vendor may stand as a bar against pre-emption. In
view of the fact that the Appellate Division has already settle the law on the
subject in the case of Shaft Khan Vs. Monnuzan Hossain and others reported in
35DLR(AD) 225, the view of the taken by a single Bench of the High Court
Division in the case of Abbas Au Khan vs Osman Gani, reported in 37 DLR 25 is
evidently erroneous and unacceptable.

Abdul Mannan
Mollah and others Vs Md. Abid Ali Patwari and others, 18 BLD (HCD) 397.

37DLR 25—Not approved.



a pre-emptor comes to the Court to exercise his right of pre-emption, which is
essentially a predatory right, after a long lapse of time a heavy duty is cast
upon him to prove his alleged knowledge about the impugned transfer by most
convincing evidence so as to circumvent the apparent bar of limitation.

Rahman alias Md. Habibur Rahman and another, Vs Mobarak Au Ran and others, 17
BLD (HCD) 637.

Anil Kumar and others Vs. Syed Hafeez Moinuddin & ors,35 DLR 39—Cited.



of a co-sharer and witnesses as to the date of the knowledge of the transfer of
a portion or share of a holding of a raiyat should be considered in determining
whether the an application for pre-emption under section 96(1) had been filed
within four months of the date of the knowledge of the ask the transferor if he
had transferred the case land or other lands.

Barman alias Kakaru Barman ‘. Sree Naresh Chandra Barman and others, 21 BLD (HCD)




Section 96(3) of the Act the preemptor has to make the statutory deposit of the
consideration money with compensation at the time of filing the application for
preemption. The trial Court was thus wrong in accepting a short deposit. But in
view of the indolence and repeated laches of the petitioner enabling him to
remain in possession of the case land for over a decade and in view of the
farther fact that the pre-emptee is a co-sharer to the case of the Appellate
Division declined to interfere.

Md. Mojibar
Rahim Mondal Vs. Khoteza Khatoon, 16 BLD (AD) 281.



preemptor may be held to be estopped from enforcing his right of preemption if
he abandons such right either expressly or by implied conduct. Acquiescence
implies that if a person abstained from interfering while a violation of his
legal right is in progress it operates by way of estoppel. In the instant case,
there are adequate evidence on record to prove that the petitioner had knowledge
of the sale made by his brother and he gave consent to the sale in question
waiving his preferential right of purchase.

Aumullaya Chandra Halter v. Md. Mohsin Au Mondal & others, 22 BLD (HCD) 572

Akhlasur Rahman and others Vs. Serazuddin and others, 42 DLR (AD)189.


(a) of sub-section 10 of section 96 of the State Acquisition and Tenancy Act
stands as a bar against the pre-emptor to maintain his application against the
preemptee, who acquired the status of a co-sharer by way of inheritance before
the deed of transfer under pre-emption was registered under section 60 of the
Registration Act.

Abdul Malek
Majhee Vs. Apser All Howlader, 17 BLD (HCD) 522.



captioned as sale deeds-Can these be held to be deeds of exchange and not pre

deeds were executed in the same sitting and registered on the same day bearing
consecutive numbers 12006, 12007 and 12008-The transferees of deed no 12006
except Ahmed Au-are the recipients (transferees) of deed no. 12007 (recipients
being Belaiyat Au, Arab Ali and Rajah Ali), The recipients (transferees of deed
no. 12008 is Ahmed Ali alone, who is of the transferees of deed no. 12006-The
transferees of deed no. 12006 are together the recipients of deed nos 12007 and
12008 and the transferees of deed nos. 12006 are the transferees of deed nos.
12007 and 12008-Facts and circumstances of the case lead to the conclusion that
these are deeds of exchange and not of sale and as such not pre-emptible u/s 96(10)(b)
of the S.A.T. Act.

Patan Khan
and others Vs. Amud Ali Sheikh and others, 14 BLD (HCD) 461.



of correctness of R.S. Khatian A record of rights finally published and revised
under section 144A of the S.A.T. Act has a presumption of correctness and that
presumption continues till it is rebutted by reliable evidence. 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.

Chandra Mondal and others vs. The Assistant Custodian of Vested and NonResident
Properties (L & B) and Additional Deputy Commissioner (Revenue), Dhaka and
others, 18 BLD (HCD) 22.



the event of a conflict between the old Record of right and the recent record
of right, recent record of right would prevail in as much as presumption of the
record of right loses its weight with the passage of time and entry in the
subsequent khatian.

Khatun Vs. Fazil Mia, 21 BLD (HCD) 14.

Abdul Hamid and ors Vs. Abul Hossain Mir being dead his heirs Abdus Sobhan Mir
and ors, 35 DLR HCD295—relied



appeal, whether from original order or from an appellate order made under any
provision of Part V of the Act by a Revenue Officer subordinate to Collector,
shall lie to the Collector and for such appeal, the period of limitation is
thirty days.

Abdur Rahman
and others Vs. The Government of the People’s Republic of Bangladesh, 13 BLD (HCD)

Jafar Ali Vs. Khagendra Chandra Dutta, 1983 BLD 32-Cited.


State Acquisition and Tenancy Act, 1950

State Acquisition and Tenancy Act, 1950


Section 143 and 144 – These two sections operate in different
perspectives so far whether revenue officer is a court or not-

Revenue officer while acting as Settlement officer in preparing
the record of rights under section 144 of the State Acquisition and Tenancy
Act, 1950 is held to be a revenue court. But the apex court held the revenue
officer while effecting mutation under section 143 of the Act 1950, not a
revenue court and as such private complaint regarding forged document and its
use in the mutation proceeding is not barred under section 476 and 195(1)(c) of
the Code of Criminal Procedure, 1898.

Sahera Khatun (Most.) Vs. Abdur Rahim Sk and another 12 MLR (2007)
(AD) 377.





(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..

I9DLR(Dacca)71 1—Cited.



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
enactment –

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

I9DLR 9—Cited.


Section—20( 4)

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


Section—44( 3)

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



Sub-letting prohibited

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

Pre-emption—Non-agricultural land
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
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
others, 9BLD(AD)116

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
—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

1.BSCR 201—Cited.


Section—89 .

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
the case.

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
and 5.

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
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
marriage. –

[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


Section— 95A

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
another, 12BLD(AD)216

32DLR(AD)233— Cited.



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


Pre-emption—Non-agricultural land
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


Section—96 (3)(a)

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.


Section —96

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 inheritancenot 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
others, 3BLD(HCD)



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
(HCD) 89.

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
not exist.

Ramesh chandra Barman
and others Vs. Naresh Chandra Barman and others, 3 BLD(HCD)99

Ref. 29DLR 229; IBCR. 27—Cited.



Pre-emption case
—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.


Section— 96

Question of benami in a
pre-emption case

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


Section— 96

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)

Rateable Pre-emption—Pre-emptor
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.


Section— 96(4)

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

Ref. 5DLR254—Cited.


Section— 96

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)

Necessary parties—All
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.



Partial preemption—Whether
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
on remand.

Masood (Mashood) Ali Vs. Mosaminat Samira Banit and others, 5BLD (AD)70

Ref: 31 DLR(AD)88; 32DLR(AD)54: I977BSCR397; 34DLR(AD)2


Section— 96(4)

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
he likes.

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
pre-emption case

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.


Section— 96

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
the holding.

Mst. Maleka Khatun and another Vs. Abid Au and others, 6BLD(AD)137



Amendment of
pre-emption application

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



Functus officio—Whether
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
functus officio.

Abdul Hadi Bepari Vs. Safaruddin Mondal and others, 6BLD(AD)332



Rateable pre-emptionad
justment of deposit
e—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
and 92.

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.



Reconveyance during
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
preernption petition.

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.


Section—96 (b)

Pre-emption—Deposit of
—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,


Section— 96

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,
8BLD (HCD)421

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)

Subsequent transferees’
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.


Section— 96

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


Section— 96(3)(b)

Pre-emption—Deposit of
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


Section— 96

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


Section— 96

Accrual-of right
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
I I;—Cited.


Section— 96

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


Section— 96

Legislative intent—The
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

Birendra Nath
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
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
parties concerned.

Md. Khairullah Bhuiyan Vs. A,nena Khatun and others, 2BLD(HCD) 72

Ref: 17 DLR384; 16DLR77—Cited.


Sections—116 and 117

Amalgamation and
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
— 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


Section—143 A

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
—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
and 150

Appeal, Revision and
—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
Revenue Officer.

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.