State Acquisition and Tenancy Act, 1951
S. 96(I)—Time
for application by co-sharer.
Sub-section
(1) of section 96 of the Act requires an application for pre-emption to be made
by a co sharer within four months from the date of knowledge of the sale when
no such notice was issued.
Nekjan Bibi
Vs. Sarojan Bibi (1967) 19 DLR 655.
—Right of
pre-emption when accrues.
Right of pre-emption
does not accrue on the date of knowledge but on and from the date of the
transfer. The period of 4 months referred to in section 96(1) of the State
Acquisition and Tenancy Act is the limitation prescribed for exercising the
right by a tenant holding land contiguous to the land transferred from the date
of the knowledge of such transfer.
Habibur
Rahman Vs. Satish Ch. (1977) 29 DLR 178.
—Petitioner
seeking pre-emption is to prove the date of his knowledge of transfer that his
petition is within time. Ibid.
—Right of
pre-emption accrues not on the date of execution of the deed but on the date of
its registration.
A sale-deed
in respect of a portion of a holding in favour of A was executed on 20.2.59 but
it was registered on 2.8.65.
Another
sale-deed in respect of another portion of the same holding was executed in
favour of B on 10.3.61 and registered on 28.3.61. In a contest over the claim
of pre-emption between A and B, question arose who is the earlier purchaser of
a portion of holding so as to entitle him to maintain an application for
pre-emption under section 96 of the Act.
Held: Right of
pre-emption accrues not on the date of execution but on the date of
registration of the document and hence in the present case B acquired the right
of pre-emption of the land sold to A inasmuch as B’s document was registered in
1965 though the execution of A’s deed as in 1959 and that of B’s deed was in
1961.
Abdur Rahman
Vs. Baser Ali (1969) 21 DLR 599.
—Pre-emption—Holding
consists of several plots—One co-sharer transfers his share in all plots—Other
co-sharer must apply for pre-emption in respect of all plots.
If a
particular holding comprises several plots, belonging to two-or more
co-sharers, and if one of the co-sharers transfers his share in all the plots
of the holding to a stranger purchaser, the remaining co-sharers in that case,
shall have to apply for preemption with respect to all the plots otherwise it
will amount to partial pre-emption.
Janab Ali
Sardar Vs. The Controlling Authority (1972) 24 DLR 186.
—In several
districts (see the body of the judgment) by virtue of government notification
section 96 becomes operative with effect from 1.8.63—All transfers before this
date, in respect of pre-emption rights in these districts, will be governed by
section 26F, Bengal Tenancy Act.
Tamoshi Bewa
Vs. Janu Shah (1973) 25 DLR 397.
—Application
for rateable pre-emption u/s. 96(4) not possible unless application u/s. 96(1)
was first made.
Haji Wahab
Ali Vs. Kadam Ali (1962) 14 DLR 204.
S.
96(1)—Preemption coming under first part and that coming under 2nd part of s.
96(1)-Requirement that has to be met in each case of pre-emption.
In a case of
pre-emption coming under the first part the pre-emptor is required to establish
his locus standi by showing that he is a co-sharer tenant of the holding. In
such a case rule of partial preemption has been applied. In a case of
pre-emption coming under the second part of sub-section (1) of section 96 the
tenant is not required to meet the same test. In case of tenant’s right of
pre-emption falling under the second part, the pre-emptor is required to
establish that he has land contiguous to the land transferred. The expression
holding land contiguous to the land transferred cannot be suetched to support
the view that even in such a case the preemptor is required to include in the
application for pre-emption also the lands to which he does not hold contiguous
land and implead all the tenants holding contiguous lands to non-contiguous
lands.
Akhtarun
Nessa Vs. Habibullah (1979) 31 DLR (AD) 88.
—Preemption
falling under 2nd part of sub-section (1), Test—Contiguity of the land sought
to be pre-empted.
A pre-emptor
coming under the second part of sub-section (I) of section 96 cannot maintain
his application for pre-emption for the land transferred to which he has no
contiguity. According to subsection (5) (b), in such an application only those
tenants holding lands contiguous to the land sought to be pre-empted are to be
impleaded; and tenants holding lands contiguous to other lands transferred
under the kabala but not subject to pre-emption, are not required to be
impleaded. Sub-section (5) (b) removes any doubt that there might be.
Akhtarun
Nessa Vs. Habibullah (l979) 31 DLR (AD) 88.
Non-agricultural
land and pre-emption.
—Pre-emption
in respect of non-agricultural land is only possible under section 24 of the
E.B. Non-Agricultural Tenancy Act. Provision of section 96 of the EBSAT Act not
applicable to such case.
Forman Ali
Howlader Vs. Helaluddin Pashari (1968) 20 DLR 1197.
—The
petitioners were allowed to exercise their right of pre-emption in respect of
certain nonagricultural lands sold away by their co-sharers to a third party
but the first appellate Court disallowed it, on the ground that the land had
been acquired by the Provincial Government and the mere deposit of money would
not be enough to cover the requirement of section 96.
Held: As the
land is not used for cultivation, the petitioners do not come within the
definition of ‘raiyat’ within the meaning of section 96 of the EBSAT Act, 1950.
10 PLD (Dac) 1018.
—Homestead
within a municipality or nonagricultural land cannot be pre-empted under
section 96 of the Act by a contiguous owner of the land— Purpose for which the
land was leased out is the determining factor whether it is agricultural or
nonagricultural land.
The tenancy
in the present case as created comes within the meaning of “homestead” as
defined in section 2(14) of the Act.
A homestead
land cannot be a raiyati land (agricultural land), even if some part of it is
used for purpose connected with agriculture.”
Contiguous
owner cannot claim right of pre-emption. Section 96 of the Act is confirmed 10
agricultural land and therefore a right of pre-emption under this section
cannot be claimed in respect of homestead land within a Municipality.
Mst. Lutfun Nahar
Vs. Syeeda Hashmat Are Begum (1969) 21 DLR 633.
—Pre-emption
cannot be claimed under section 96 in respect of homestead land (Chandina)
within a Municipality. Abdul Khaleq Vs. Jadav Chandra Mali (1968) 20 DLR
562. (Reversed by 27 DLR (AD) 114.
—Several
holdings—If by one document lands of several holdings to which the applicant is
a co sharer-tenant are sold—one application for preempting the lands of all the
holdings is maintainable if the applicant’s claim is not barred otherwise.
Hajee
Majardullah Sowdagar Vs. Nurul Hague (1971) 23 DLR 68.
—One
application for pre-emption was filed with regard to three independent sales of
several holdings to which the applicant was a co-sharer tenant.
Held: The application
is maintainable if it is not barred by limitation and not also barred
otherwise. Ibid.
—Partial pre-emption
The right of
pre-emption is given to the co sharer under section 26F of the Bengal Tenancy
Act with reference to ‘the holding,” that is to say, that the right accrues
holding-wise. It must necessarily follow that even if there has been a sale of
several holdings by one transaction and by a single document, a co-sharer has a
right under the aforesaid section, in respect of a particular holding covered
by the same document and of which he is to be a co-sharer. It would be a
misnomer to describe it as a partial transaction.
The right
conferred upon a co-sharer under the provisions of section 26F of the Bengal
Tenancy Act is a distinct holding. A prayer may be made in one application
relating to two distinct holdings. Conversely, two distinct applications may be
made in two different periods.
Mosammat
Asimon Nessa Vs. Md. Akbar Ali Sheikh (1967) 19 DLR 659.
The
expression ‘partial pre-emption’ is to be understood with reference to the
definition of ‘holding’ read with the provisions of section 96 of the Act and not
with reference to the number of properties transferred by a particular deed.
If a
particular holding comprises several plots, for example, belonging to two or
more co-sharers, and if one of the co-sharers transfers his share in all the
plots of the holding to a stranger-purchaser, the remaining co-sharer or
co-sharers, in that case, shall have to apply for pre-emption with respect to all
the plots; otherwise, it will amount to partial preemption and such partial
pre-emption cannot be allowed because a co-sharer cannot be allowed to pick and
choose arbitrarily.
Tamizuddin
Vs. Guljan Bibi (1974) 26 DLR 95.
Contiguous
land owner applied for pre-empting one piece adjacent to it.
Three
separate plots of land were transferred by a deed of sale. A tenant holding
land contiguous to the land transferred applied u/s 96 for two out of three
plots averring that these two plots are contiguous to his land. The court on
evidence found that only one plot was contiguous to the applicant’s land and
allowed pre-emption of the plot only. The High Court upheld this decision
over-ruling the contention that this will lead to partial pre-emption.
Sreemati
Monkhushi Vs. Abdus Sobhan (1977) 29 DLR 195.
—Pre-emption
of a part or share of holding when its price is mentioned separately in the
kabala— allowable.
Diam Hossain
Vs. Haran Das (1961) 13 DLR 283.
—Application
for pre-emption shall have to be filed within four months of the date of
knowledge. Provisions of section 96 are procedural laws.
Application
by a non-notified co-sharer for prescription in respect of a transfer, which
took place before section 96 of the Act came into force but filed after the
said date.
Held: The right
of pre-emption of the co sharers has been re-enacted in s. 96 of the Act and a
person having no notice of the transfer has to apply within 4 months from the
date of his knowledge. This is a procedural law and this being so the provisions
of s.96 will apply to the case of a co-sharer not served with notice and if he
does not come to the court within four months of the date of knowledge his
application will be dismissed.
Hazzat Ali
Vs. Imamuddin Bapari (1961)13 DLR 819.
—Expiry of
the time limit dates from the time of knowledge. Impleading one as a party when
time is expired does not extend the time limit.
Syed Abdul
Karim Vs. Harendra Chandra Dhupi (1962) 14 DLR 847.
—If a party
does not apply for pre-emption within the prescribed period he loses his right
to preemption. A case of pre-emption does not abate if such a person is not
impleaded.
If the right
of parties seeking pre-emption u/s 96(1) becomes unenforceable by the date of
presentation of the application for pre-emption on account of the lapse of the
period of limitation the suit for preemption does not abate if they are not
made parties to the suit.
Benodoni Das
Vs. Matilal Sikder (1969) 21 DLR 262. (Reversed by 28 DLR (AD) 5 which was
overruled by 33 DLR (AD) 113).
—When the
original pre-emption fails on the ground of limitation the co-applicant’s fails
for pre-emption (according to their share) under section 96(4) though made in
rime, not sustainable.
If the first
application for pre-emption by a co. sharer tenant is made after the expiration
of the periods of limitation it will not be a vali4 application within the
meaning of opening words of subsection(4).
A
co-applicant is entitled to pre-emption only when the first co-sharer
petitioner has applied with the periods of limitation u/s 96(1).
Although the
two co-applicants in the r’ case applied within the two months of the date if
the service of notice of the application u/s 96(4) they are not entitled to the
benefit of proportionate pre-emption.
Bijan Bala
Chowdhury Vs. Maniruddia Biswas (1972) 24 DLR 170.
General
By
consenting to a transfer made in pursuance of a compromise decree a person
loses his right 01 pre-emption altogether.
In pursuance
of a compromise decree passed 11, suit for specific performance of contract, X
transferred certain land to A and B (the co-sharer tena by purchase in the
disputed plot) by a resisted deed Ext.
Thereupon, A filed an application for preempting B’s share of land in
his favour.
Held: By
consenting to the transfer the purchaser of the land has lost his right of
pre-emption in respect of the suit land. A is, therefore, estopped not only
against the vendor and the vendee but also against a rival pre-emptor.
Md. Ali
Khandakar Vs. Haji Morshed Ali Khan (1970) 22 DLR 449.
—The
statutory right of pre-emption if otherwise available to opposite party No. 1,
is not liable to be defeated by reason of an erroneous decision given by the
Court on the question of jurisdiction. For, it is an universal recognized
principle that the Court will not permit an injustice being done to any person
by reason of an erroneous order made by it, and when the erroneous order is
reversed, the Court will restore the parties to the position which they would
have otherwise occupied but for the erroneous order.
Abul Hussain
Howladar Vs. Pulin Behari Sikdar (1970) 22 DLR 535.
—Right
accrued under section 26F B.T. Act not destroyed by section 96.
Begum Asia
Rahman Vs. Abdul Basir Bhuiyan (1974) 26 DLR (SC) 58.
General—Court’s
pecuniary jurisdiction.
Amount of
consideration money or the value of the transferred holding as stated in the
deed of transfer determines the valuation of the application for pre-emption
and its forum.
Abul Hussain
Howladar Vs. Pulin Behari Sikdar (1970) 22 DLR 535.
Land sold in
execution of a certificate—Co-Sharer is entitled to preemption. Petitioner
purchased the disputed property in sale held in executiOfl of a certificate.
The opposite party claiming to be the co-sharer tenant of the holding by
inheritance filed an application for pre-emption of the disputed property.
Held: The
opposite party is entitled to preempt the land under section 96 of the EB State
Acquisition and Tenancy Act.
Md. Amjad
Talukder Vs. Basirunflessa Bibi (1970)22 DLR 489.
—Change of
law pendente lite Court to give effect to it.
Even though
the sale-deed was not legally valid when it was executed as well as when suit
in relation to the sale was filed, it would be treated as valid if during, the
pendency of the suit a new law (in the present case EBSAT 4th Amendment Ordinance
of 1961 permitting such transfer) comes into existence, since the Court is
bound to apply the current law to its decision.
Rais Ali Vs.
Jabed Ali (1967) 19 DLR 510.
Title Suit,
when the pre-emptor not a party to it.
A decree in
a title suit can not affect the right of a pre-emptor when the suit was brought
without impleading the pre-emptor. Pre-emptor is entitled to get the
transferred right of the vendor.
Meher Abjan
Vs. Jalal Ahmed Howlader (1961)13 DLR 642.
—A
Nadabi-PatIa being merely a deed of disclaimer disclaiming any interest in the
properties transferred by an earlier sale-deed is not itself a deed of transfer
and, therefore, no right of pre-emption can be claimed upon the registration of
such a deed of Nadàbi Patra. Simply the fact that the document was registered
and ad-valorem stamp fee was paid on the document by itself can not turn a deed
of disclaimer into deed of transfer.
Muhammad
Arabullah Vs. Durgaprasad Tribedi (1959)11 DLR 539.
—Division of
a holding u/s 88 BT Act leaving out some co sharers—Their right not affected.
A division
of a holding effected u/S. 88 BT Act leaving out some of the co-sharers not a
valid division. Pre-emtion application by co-sharers who had been left out in
s. 88, division cannot be defeated—No presumption against them that they produced
no rent-receipt in respect of the holding.
Abdus Salam
Vs. Md. Nurul Islam (1975) 27 DLR 27.
—Sale of the
land in dispute took place on 7.4.67.
On 1.8.69 a
co-sharer applied for pre-emption in respect of the land sold. The vendor
thereupon produced a reconveyance deed executed on 26.7.69 selling the same
land back to him on the basis of oral agreement which was however registered on
5.8.69.
Held: The
application for prc-emption must fail as the land had already been reconveyed
to the original vendor.
Upendra
Chandra Vs. Janab Ali (1977) 29DLR 229
—Right of
pre-emption—Joint deposit of consideration money Homestead when part of
holding— Improvement effected on that land.
The right of
pre-emption shall not be forfeited if a disqualified person is joined in a
pre-emption application for pre-emption.
A joint
deposit of consideration money does not frustrate a right of pre-emption.
Homestead
being a part of the holding of a raiyat is not excluded from the operation of
section 96 of the Act.
Aseruddin Sk.
Vs. Serajuddin (1978) 30 DLR 75.
—Extent of
contiguity of land is the only test for determining order of priority—Right in
respect of contiguous plots as envisaged u/s. 96(5)(b).
“Extent of
contiguity of land” is the only test for determining the order of priority as
among tenants claiming pre-emption on the ground of holding land, contiguous to
the land transferred. If land transferred consists of one plot, all the tenants
having land contiguous to the land under pre-emption are to be impleaded. Their
right is to be determined in the manner as provided in sub-section (5)(b). In a
case where land transferred consists of more than one plot, a tenant or tenants
having land contiguous to the plot or plots may apply for pre-emption but in
such a case, a tenant having land contiguous only to one of the plots, cannot
claim pre-emption of other lands.
In an
application by a tenant claiming preemption on the ground of contiguity of
land, such tenant may apply to the court for the holding or portion or share to
be transferred to himself or themselves.
Akhtarun
Nessa Vs. Habibullah (1979) 31 DLR (AD) 89.
—Deposit of
consideration money if does not accompany the application for pre-emption but
made later on—if the deposit is within 4 months from the date of registration
of the deed or 4 months from the knowledge of transfer, is a sufficient
compliance with law and is a valid deposit under the law.
Md.
Mafizuddin Sarder Vs. Md. Abdul Jabbar (1982) 34 DLR 272.
—A Hindu
widow having life-interest in the property is entitled to pre-emption u/s.
96(1) of the SAT Act.
Notwithstanding
the fact that a Hindu widow has life interest in the property in question
during her life-time, she remains a full owner thereof with complete right of
acquisition and dispensation subject to law. Such a widow can be safely said Lo
be a co-sharer of any holding or of any property as contemplated u/s. 96 of the
State Acquisition and Tenancy Act.
Rai Krishna
Shaha
Vs. Md. Matleb Ali Pramanik (1982) 34 DLR 178.
—Proviso: Prior to
allowing a pre-emption application, Court not obliged to record a finding that
the applicant is a cultivator and land in his possession does not exceed the
prescribed limit if the application is allowed as required u/s 90.
Chandu Mia
Mestry Vs. AKM Wajih Ullah & ors. (1981) 33 DLR 134.
—Proviso: Omission to
state that the petitioner is a bonafide cultivator, but the statement that he
is in possession of the land through bargadar is enough. Ibid.
S. 96(1)
Read with S. 90—A person seeking pre-emption u/s 96(1), if fails to state in his
application what is required of u/S 90, his application must fail.
In the
instant case, the pre-emptor opposite party no. I did not make any averment on
section 90 of the State Acquisition Act at all. He has, therefore, failed to
show that he is a person to whom the transfer may be made under section 90.
Since he has failed to meet one of the basic requirements of section 96(1) his
application for pre-emption is not maintainable.
Md. Rais Ali
Vs. Imam Hussain and Ors (1981) 33 DLR 318.
—From
judgment of the Munsif, in a pre-emption case, appeal will lie to the District
Judge.
Md. Eshaq Vs. Ruhul Amin (1982) 34 DLR 342.
—Co-sharer by inheritance shall have the highest priority followed
by a co-sharer by purchase and thereafter a contiguous owner. Co-sharer comes
first in priority over a contiguous owner.
Dhirendra
Narayan Das Vs. Gouranga Mohon Das (1982) 34 DLR 177.
—Co-sharer
by inheritance has the highest priority to claim of pre-emption in any holding.
Rafiqul Alam
Vs. Rahimuddin Sarkar (1982) 34 DLR 180.
S.
96(1)(2)—Sub-sections (1) and (2) explained.
From a plain
reading of sub-section (I) of section 96 of the Act, it appears that it
consists of two parts : the first part giving right of pre-emption to one or
more co-sharer tenants and the second part giving right of pre-emption to a
tenant or tenants holding land contiguous to the land transferred.
Sub-section
(2) also consists of two parts. The first part deals with an application for
pre-emption by a co-sharer tenant or tenants. The second part deals with an
application for pre-emption by a tenant or tenants holding land contiguous to
the land transferred. In the former case all other co-sharer tenants of the
holding and the transferees are to be impleaded and in the latter case all the
co-sharer tenants and all the tenants holding lands contiguous to the land
transferred and the transferee to be made parties.
Akhtarun
Nessa Vs. Habibullah (1979) 31 DLR (AD) 88.
—Pre-emption
right accrues on transfer of the land—All the necessary parties to the
pre-emption application must be impleaded.
The right of
pre-emption as provided under subsection (1) of section 96 is a statutory
right. The cause of action for pre-emption of any transfer accrues to the
co-sharer tenants and contiguous land owners. The right of the applicant or
applicants claiming to be co-sharer tenants or owner of contiguous land, is not
absolute but subject to the right of other co-sharers and other holders of land
contiguous to the land transferred as the case may be for proper adjudication.
To give full effect to the statutory provision, all the necessary parties must
be impleaded, because relief cannot be given in the absence of such party.
Abdus Samad
Vs. Md. Sohrab Ali (1981) 33 DLR (AD) 113.
Pre-emption
under section 96 relates to raiyati holding.
As all the
co-sharer tenants of the raiyati holding concerned arc required to be impleaded
in an application for pre-emption under section 96(I) by a contiguous owner,
inference is that the land liable to be pre-empted by the contiguous owner must
be the land pertaining to a raiyati holding.
Forman Ali
Howladar Vs. Helaluddin Pashari (1968) 20 DLR 1197.
—Owner of
contiguous land whom to be impleaded—Sub-section (2) has two parts—Co-sharer
applying for pre-emption need not implead contiguous land holders as parties,
but a contiguous land owner applying for pre-emption must implead other
contiguous land holders as well.
Raji Wahab
Ali Vs. Kadam Ali (1962) 14 DLR 204.
Necessary
parties—not
impleaded. Suit for pre-emption abates, if necessary parties are not
substituted.
After the
filing of the application for preemption and lapse of statutory period of
limitation to pay for rateable pre-emption the co-sharer tenants and other
parties concerned become un-necessary parties and as such Rule cannot be
affected for not substituting their heirs.
Binodini
Dasi Vs. Mail Lal Sikdar (1969) 21 DLR 262. [Reversed by 28 DLR (AD) 5].
—One
contiguous holder should not necessarily be contiguous holder in respect of all
lands transferred—All contiguous holders of land should be impleaded as
parties.
Syed Abdul
Karim Vs. Harendra Chandra Dhupi (1962) 14 DLR 847.
Parties
impleaded after the limitation period—Application for pre-emption cannot be said to
be not maintainable because necessary parties were impleaded by subsequent
amendment after the expiry of the period of limitation, when the application
for pre-emption itself was made in time.
Nekjan Bibi
Vs. Sarojan Bibi (1967) 19 DLR 655.
S.
96(1)(2)(3)—Limitation of four months in sub-section (1)—Parties subsequently
added—Effect.
Limitation
of 4 months in sub-section (1) lays down the time within which pre-emption
application must be made—Mere addition of parties without claiming any relief
against them under sub-section (2) does not attract rule of sub-section (1) but
if relief is claimed—question of limitation would be involved.
Nekjan Bibi
Vs. Sarojan Bibi (1967) 19 DLR 655.
Sec. 96(1)
and 3(b)—Tahurul
Karim made an application for pre-emption u/s. 96 on the ground of his holding
land contiguous to the land transferred—while this application was pending in
court, Abdul Hashim, a co-sharer of the land, filed an independent application
u/S. 96(1) within 4 months of the date of transfer. Hashim’s application not
covered by s. 96(3)(b).
“Since Abdul
Hashim has an earlier and independent knowledge of the transfer,” he need not
apply under sub-section (4); his application u/s. 96(1) competent.
Tahurul
Karim Vs. Abdul Hashem (1978) 30 DLR 8.
S. 96(1)(4)—Right of pre-emption
can be exercised under sub-section (I) as well as under subsection (4) of s. 96
which thus provide a twofold period of limitation.
Section
96(1) provides for a period of limitation of 4 months from the date of service
of notice under section 89 or within 4 months from the knowledge of the
transfer in respect of a person who claims to be a co-sharer; for a person
claiming pre-emption as a tenant holding land contiguous to the land
transferred, the period of limitation is 4 months from the date of the
knowledge of such transfer.
Tahurul
Karim Vs. Abdul Hashem (1978) 30 DLR 8.
—Sub-section
(4) of section 96 provides that the remaining co-sharers including transferee
may join in a pending application.
The two-fold
remedy refers to the two different sources of the knowledge of the transfer and
the consequently two different periods of limitation, otherwise the expression
“whichever is earlier” becomes superfluous.
It is,
therefore evident that this is an enabling provision and does not operate as a
bar to an independent proceeding under section 96(1) of the Act.
Tahurul
Karim Vs. Abdul Hashem (1978) 30 DLR 8.
—When the
original pre-emption application for pre-emption under section 96(1) fails on
the ground of limitation the co-applicants’ prayer for pre-emption (according
to their share) under section 96(4) though made in time, not sustainable.
The words,
“when the application has been made under sub-section (1)” of section 96. If
the first application for pre-emption by a co-sharer tenant is made after the
expiration of the periods of limitation as stipulated in sub-section (1), it
will not be a valid application within the meaning of the opening words of
sub-section (4).
Therefore,
it necessarily follows that a Co. applicant is entitled to pre-emption
according to his share only when the first co—share petitioner has applied
within the periods of limitation as prescribed in sub-section (1) of section
96.
Since in the
present case the petitioner’s application for pre-emption was filed beyond the
period limitation as prescribed in
sub-section (I) of section 96 it was not an application within the meaning of
sub-section (4) of section 96; so, although the two co-applicants in the
present case applied within the two months of the date of the service of notice
of the application, they are not entitled to the benefit of proportionate
pre-emption.
Bijan Bala
Chowdhury Vs. Maniruddin Biswas (1972) 24 DLR 170.
—The
expression partial pe-emption is 10 be understood with reference to the
definition of ‘holding ‘read with the provisions of section 96 of the Act and
not with reference to the number of properties transferred by a particular
deed.
If a
particular holding comprises several plots. for example, belonging to two or
more co-sharers, and if one of the co-sharers transfers his share in all the
plots of the holding to a stranger-purchaser, the remaining co-sharer or
co-sharers in that case, shall have to apply for pre-emption with respect to
all the plots; otherwise, it will amount to partial preemption and such partial
pre-emption cannot be allowed because a co-sharer cannot be allowed to pick and
choose arbitrarily.
Tamizuddin
Vs. Guljan Bibi (1974) 26 DLR 95.
—Contiguous
land owner applied for pre-empting one piece adjacent to it. Three separate
plots of land were transferred by a deed of sale. A tenant holding land
contiguous to the land transferred applied u/s. 96 for two out of three plots
averring that these two plots are contiguous to his land. The court on evidence
found that only one plot was contiguous L the applicant’s land and allowed
pre-emption of the plot only. The High Court upheld this decision over-ruling
the contention that this will lead to partial pre-emption.
Sreemati
Monkhushi Vs. Abdus Sobhan (1977) 29 DLR 195
—Pre-emption
of a part or share of holding when its price is mentioned separately in the
kabala— allowable.
Diam Hossain
Vs. Haran Das (1961) 13 DLR 283.
S. 96(1)(5)(b)—No
contiguity with the land transferred, no pre-emptive right—Parties to be
impleaded in cases arising out of contiguity.
Akhtarun Nessa Vs. Habibullah (1979) 31 DLR (AD) 90.
—If the land forms a share of a holding the
preemptor is required to apply for the share only. Determination of the claim
of the pre-emptor in such a case would be only on the basis of the contiguity
of land and not on the basis of holding or portion or share thereof. Ibid.
—Pre-emption
may not be refused on the analogy of non-joinder of all co-sharers in a
partition suit. Ibid.
—Objection
as to omission of necessary party if not taken will be treated as being waived
by the party. Ibid.
—‘Contiguous’,
means ‘touching’. If the Government is the owner of the contiguous land,
contiguity in respect of land touching the Government’s land is broken.
Ahmed
Hossain Vs. Basharat Ali (1980) 32 DLR (AD) 55.