It is true that at present the suit land is situated within Gopalgonj municipality and it is the case of the plaintiff that she along with her husband and other family members has been residing there by erecting huts and that she has also let out some portion of the hut to P.W. 3. The trial court believed the plaintiffs settlement and dakhilas Ext. 1 series upon assigning proper reasons. Plaintiff got the settlement as far back as on 15 Chaitra 1355 B.S. which corresponds to March, 1948 but the Non-Agricultural Tenancy Act, 1949 came into force on 20th October, 1949. As such its application in respect of the suit property does not arise at all. [Para-12] Mrs. Nirmala Bala Dos Vs. Ganesh Chandra Dhupi 7 BLT (AD)-358 ....View Full Judgment

Whether “Tilla Ban” or elevated homestead Is non-agricultural land— Whether a holder of a contiguous land can preempt the same—Whether a particular land is non-agricultural land is to be determined with reference to the user thereof and if it is held on lease with reference to the purpose of the said lease—it is to be determined upon evidence and there is no material on record to hold the same a non-agricultural land— There seems to be no reason at all for holding that the case land is non-agricultural land— The wide definition of land is capable of taking in even a Tilla Ban (elevated homestead land) unless it can be shown that it is non-agricultural land—State Acquisition and Tenancy Act (xxxviii of 1951) Ss.2( 16) &96. Sayeda Khatun and another Versus Abdur Rahman and others. 6BLD(AD)330 ....View Full Judgment

‘Non-agricultural Tenant’‘—Meaning of such a tenant—Non-agricultural tenant does not include any person who holds any land on which any premises occupied by such person are situated, if such premises have been erected or are owned by the person to whom such occupier is liable to pay rent for such occupation—Mere using of his own materials’ does not make the tenant owner of the land as well as of the structures—The landlords gave permission for using these materials on condition that the tenant would remove his materials whenever the landlords require the land—When land was not leased out but premises thereupon was leased out— Continuous occupation of the premises for over 12 years by the tenant did not bring him within the category of ‘Non-agricultural tenant’ and as such protection under section 7 was not available to him. Md. Tabibur Rahman Mollah Vs. Md. Sayidur Rahman Being Dead his heirs and legal representatives. 4BLD (AD) 162 ....View Full Judgment

read with
Limitation Act
Section 28 read with
Transfer of Property Act [IV of 1882]
Section 54 —Whether a tenant shall be evicted wherein the plaintiffs possess the suit land after constructing structures thereon.
The existence of a kabuliyat specifically for a term of 11 years does not create any title in the suit land. The Appellate Division held that the basis of the claim of the plaintiffs was a kabuliyat, which was for a fixed term of 11 years. The document itself clearly provided that at the end of the term of 11 years the land would be handed over to the owner by the tenant after removing all the structures therefrom. In addition, Appellate Division finds that there was nothing on record to suggest as to whether any step was taken after the expiry of the 11 years’ term to extend the tenancy or to acquire title to the property in any other way. Appellate Division is, therefore, of the view that the trial Court and the appellate Court rightly dis-missed the suit for declaration of title.
Md. Jahangir and others -Vs.- Noor Mohammad and others (Civil) 10 ALR (AD) 227-229 ....View Full Judgment

Adverse Possession
Under the section a tenant must show that the had been holding the property in question for a period of not less than twelve years without any lease, Mere suggestion of uninterrupted possession for “12 years” or that the plaintiff had acquired “an absolute title” is not enough to raise such a plea. (1) claim adverse possession it must be specifically pleaded in the plaint. (2) hostile must be asserted, (3) adverse possession must be adequate in continuity (4) Evidence must be adduced to show when possession became adverse so that the starting point of limitation against the party there was no attempt to prove since when the adverse possession has started. Sree Mati Gouri Das & Ors, Vs. A. B. Hasan Kabir & Ors. 11 BLT (AD)-87. ....View Full Judgment

Oral gift— Whether it attracts the provisions of Section 23 of the Non-Agricultural Tenancy Act—If the property was nonagricultural tenancy it would be hit by section 23 of the Non-Agricultural Tenancy Act— The provisions of Non-Agricultural Tenancy Act do not apply as the suit properly was not non-agricultural land held by a nonagricultural tenant—Section 23 of the Non Agricultural Tenancy Act (XXIII of 1949) is not attracted to oral gift of non-agricultural land held by a tenant directly under the Government long before the coming into force of the said Act. Shah Alam and another Vs. Alhaj Ak- jima Khatun and another. 3BLD(AD)45 ....View Full Judgment

Pre-emption–
The trial Court dismissed the pre-emption case mainly on the ground that the preemptor could not prove his date of knowledge about the disputed deed of transfer of the case land and found that the case was barred by limitation. The appellate Court, on the other hand, noted that the pre-emptees were in possession of the case property as tenant and, therefore, it was natural that the pre-emptor would not know about the sale of the property. The appellate Court accepted the explanation given by the pre-emptor about his knowledge regarding the sale and transfer of the case property. The High Court Division faced with judgement of reversal of the appellate Court considered the evidence on record and noted that the pre-emptor did not name the person from whom he came to know about the case kabala either in the application for pre-emption or in his evidence. We do not find any illegality or impropriety in the impugned judgement, which in our opinion does not call for any interference. Petitioner for leave to appeal is dismissed. .....Promotto Das =VS= Sudip Kumar Ghosh, (Civil), 2017 (2)– [3 LM (AD) 432] ....View Full Judgment

Whether because of the Pourashava road, the land stands partitioned by the act of a statutory body, and thus the pre-emptor is not a co-sharer.
The Appellate Division held that on the petitioner’s plea that the pre-emptor was present, but expressed unwillingness to buy the land, the trial Court made a factual finding that the same could not be proved. In any event the law is that right to pre-empt accrues only after transfer, not before. The Appellate Division is unable to accept the contention that the Pourashava road caused the land to be partitioned, because that cannot be drawn to the concept of par-tition, which has to be voluntary or by judicial order.
Awlas Hossain Babor -Vs.- Ziaul Hasan Chowdhury and others (Civil) 13 ALR (AD) 69-70 ....View Full Judgment

Principle of waiver and estoppel
Respondent No. 2 the alleged vendor of the petitioner having acquired right, title and interest in the case land by virtue of the solenama, where the pre-emptor-respondent was a defendant—Held The compromise decree having not been passed against the pre-emptor the same did not affect her right of preemption. [Para-5] Md. Siddiqur Rahman Vs. Most. Jinnatunnessa & Anr (Civil) 7BLT (AD)-28 ....View Full Judgment

and
Code of Civil Procedure, 1908
Section-99
Whether pre-emption in one single application for separate purchases by different sellers and purchasers be maintainable.
Both the trial court and the High Court Division on appeal allowed the respondents application for preemption—Held : We think the better view is that the principle as section 99 of the Code of Civil Procedure will come to the aid of respondent No. 1. Alhaj Md. Khalilur Rahman & Ors. Vs. Abdur Rahman Bhuiyan & Ors. 7 BLT (AD)-268 ....View Full Judgment

Because of the decree in the partition suit as there has been ceasing of co-sharership between the plaintiff and the defendant of the partition suit that ended in final decree upon allotment of separate saham to respective parties and that as the preemptors got the jama of khatian No.3232/1 (Ext.3) split up in respect of their land purchased from the heirs of Hannan, son of Abdur Razzaque and got a separate khatian opened in their names before the transfer to the pre-emptee and consequent thereupon as they ceased to be the co- sharers of khatian No.3232/I or in other words land of the said khatian pre-emption sought for on the basis of purchase of land made from the heirs of Abdul Hannan, son of Abdur Razzaque against the preemptee who purchased the land sought to be pre-empted from heirs of Abdur Razzaque was not available. The High Court Division as well as the appellate Court in the materials on record as discussed above assumed that khatian No.3232/I/I (Ext.A) was started in the name of preemptors in respect of the land Abdul Gafur got in pursuant to the decree in partition suit and thereupon erroneously -allowed preemption. Alfazuddin Ahmed Vs. Abdur Rahim & Ors. 13 BLT (AD)236 ....View Full Judgment

The application of section 24 NAT Act has been excluded by the provision of section 85(2) of NAT Act in respect of the land mentioned in section 85(1) (a.b.c.d.e) and land of Dhanmondi R.A being the land of one of the category of lands as in section 85(1) (a.b.c.d.e.) application of provision of section 24 NAT Act has been excluded by section 85(2) NAT Act. Kamrun Nahar Begum. Vs Nurul Alain Chowdhury & Anr. 13 BLT (AD)75 ....View Full Judgment

read with Code of Civil Procedure, 1908 Section-2(2)
A reference to Section 2(2) of the Code of Civil Procedure shows that a decree may be either preliminary or final. Explanation to Section 2(2) provides that “a decree is preliminary when further proceedings have to be taken before the suit can he completely dispose of. It is final when such adjudication completely disposes of the suit”. In a suit for partition, after filing of the report along with the case map, field book, saham list by the Advocate Commissioner final decree takes effect and thereafter remains nothing to be done. In a pre-emption proceeding under Section 96 of the State Acquisition and Tenancy Act, the question of co-sharership in the tenancy is relevant, but the Section 24(1) of Non-Agricultural Tenancy Act the co-shareship in the land is maternal. In that view of the matter, the passing of the final decree in a partition suit finally determines the rights of the co-sharers in the land. Hence, the application for the pre-emptor respondents on the basis of co-shareship is not maintainable. Md. Shafiuddin Chowdhury Vs. Abdul Karim & Ors. 8BLT(AD)-165 ....View Full Judgment

Pre-emption-Whether the right of emption is available when the land sought 1 be pre-empted has already been recovery a the vendor—The main question for exemption will be whether he actually got back land—If the answer is the affirmative. The position will be as if no transfer was at made by him—If it is found that the resale mere paper transaction then the resale may ignored and preemption may be allowed. Shafi Khan Vs. Mannujan Hussain others, 3 BLD (AD) 303 ....View Full Judgment

Pre-emption—Co-Sharer’s right when ceases—A co-sharer seeking preempting must have a subsisting interest in the holding at the time when he files an application f pre-emption. Sunil Krishna Banik and others Kailash Chandra Saha and others. 4 BLD (AD) 320 ....View Full Judgment

Pre-emptors are required to establish a definite and distinct case, and not a ‘prima facie’ case of being co-sharers of the land sought to be pre-empted. Hiran Chandra Dey v. Md. Abdul Qu. yum and others, 22 BLD (AD) 128. ....View Full Judgment

Right of pre-emption- Whether available in respect of land held by tenant under Government for 99 years lease. The State Acquisition and Tenancy Act, 1950— Section 81A(2)—
The land held by tenant under 99 years lease under the Government, is not subject to pre-emption as contemplated under section 85(2) of the Non-Agricultural Tenancy Act, 1949. Therefore the lands of the Dhanmondi Residential area are not subject to pre-emption. Mosaddeque Hossain (Md.) Vs. Dr. Esmat Mirza and others. 3, MLR (1998) (AD) 145. ....View Full Judgment

Right of pre-emption of cosharer of land-After partition—
Right of pre-emption under section 24 of the Non-Agricultural Tenancy Act, 1949 is available to the co-sharer of the land while such right unde'r section 96 of the State Acquisition and Tenancy Act, 1950 is available to cosharer of the tenancy. After the final decree in partition suit finally determining the right of the cosharers in the land, the right of preemption under section 24 of the Non-Agricultural Tenancy Act is not available to the cosharer. The plea of execution of the final decree is immaterial. Shaji uddin Chowdhury (Md.) VS. Md. Abdul Karim and others. 5 MLR (2000) (AD) 19. ....View Full Judgment

Right of preemption— Partial pre-emption not permissible—
The provisions of pre-emption in section 24 of the Non-Agricultural Tenancy Act, 1949 shall not apply to transfer to a cosharer in the tenancy whose existing interest has accrued otherwise than by purchase. Partial pre-emption is not permissible under section 24 of the non-Agricultural Tenancy Act, 1949. Transfer of portion or share of non-agricultural land to a stranger opens right of pre-emption to the cosharer. But no such right is available where land is transferred to a cosharer in the tenancy. S.M. Bashiruddin Vs. Zahurul Islam Chowdhury and another. (1983) 35 DLR (AD) 230. ....View Full Judgment

Pre-emptors are required to establish a definite and distinct case, and not a ‘prima facie’ case of being co-sharers of the land sought to be pre-empted. Hiran Chandra Dey v. Md. Abdul Qu. yum and others, 22 BLD (AD) 128. ....View Full Judgment

Pre-emption– In a proceeding under section 24 of the Non-Agricultural Tenancy Act the question of co-sharership in the holding or tenancy is immaterial, the question of co-sharership in the ‘land’ is material. After partition by metes and bounds of the land of a holding or even of a plot or plots among its co-sharers each of such co-sharers loses their co-sharership in all other land of the holding or the plot or plots excepting his own share only even if the holding or tenancy remains in tact and he, therefore, cannot claim pre-emption under section 24 of the Non-Agricultural Tenancy Act if any share or portion thereof of any other owner of this holding or plot is transferred.
The High Court Division has committed wrong in allowing the case for pre-emption under section 24 of the Non-Agricultural Tenancy Act holding that inspite of partition the pre-emptors are still co-sharers of the land transferred since the original holding was not divided and the original tenancy also was not separated. These findings and decision of the High Court Division require to be set aside. ...Asad Ali(Md.) =VS= Golam Sarwar, (Civil), 2020 [9 LM (AD) 141] ....View Full Judgment

The Non-Agricultural Tenancy Act, 1949
Section 24(11)(a)
State Acquisition and Tenancy Act, 1950
Section 2(13), 117(1)(c)
Pre-emption– Only separation of Jama/Khatian by a party will cause him to cease to be a co-sharer in the jama but co-sharership will also be ceased by a final decree in a partition suit or by a registered deed of partition– 55 DLR (AD) 108 (Alfazuddin Ahmed Vs. Abdur Rahman), 1 ADC (Abdul Munim alias Tanu Miah Vs. Mahfuzur Rahman and others (1 ADC 515), 54 DLR (AD)126 (Hiran Chandra Dey and others Vs. Md. Abdul Quyum and another) and 62 DLR(AD)250 cases, it appears that this Division held that not only separation of Jama/Khatian by a party will cause him to cease to be a co-sharer in the jama but co-sharership will also be ceased by a final decree in a partition suit or by a registered deed of partition. That means either of the two will cause a person to cease his co-sharership in the case jote. Thus, the 62 DLR case has not overruled the contention that ‘only by a partition suit or partition deed the co-sharership is extinguished’. So in this case by separating the Jama the pre-emptor and/or his predecessor having already lost her/his character of co-sharership in the case jote so the pre-emptor is no more a co-sharer and as such his right to pre-empt as a co-sharer does not exist anymore.
Thus the finding and decision arrived at by the High Court Division being based on proper appreciation of fact and law the same does not call for any interference by this Division. This civil appeal is dismissed without any order as to costs. ...Abul Kasem Md. Kaiser =VS= Md. Ramjan Ali, (Civil), 2020 [9 LM (AD) 284] ....View Full Judgment

Tenancy right under Government— Whether after the acquisition of rent receiving interest a leasee under the Municipality has become a tenant under the. Government— Whether he can be evicted from the land by the Municipality—Whether Municipality is a local authority—Whether the land belonging to the Municipality is exempt from acquisition—Local authority is understood to mean an authority entrusted with the administration of a local fund— The Municipality is a local authority—The property had vested in the Municipality which is not a rent receiver and therefore exempt from acquisition of the property—The defendant did not acquire tenancy right under the Government—Defendant also did not acquire tenancy right under the Non-Agricultural Tenancy Act since land belonging to the Municipality is exempt from its provisions. Narendra Basu Roy and another Vs. Municipal Committee, Mymensingh. 6BLD (AD) 297 ....View Full Judgment

Settlement of Non- Agricultural land within a municipality must be effected by registered document.
Rights of lessor's transferee.
The settled principle of law is that settlement of non-agricultural land within a municipality can not be effected by unregistered document. The same must be affected by a bilateral registered document executed by both the lessor and the lessee. Settlement of by unregistered amolnama is hit by section 107 of the Transfer of Property Act.
Khondker Ansar -Vs.- A.T.M. Monsur Ali Mallik 2 ALR (2013)(AD) 209 ....View Full Judgment