Section 2(4)
|
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
|
Mrs. Nirmala Bala Dos Vs. Ganesh Chandra Dhupi |
7 BLT (AD) 358 |
Section 2(4)
|
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
|
Sayeda Khatun and another Versus Abdur Rahman and others. |
6 BLD (AD) 330 |
Sections 2(5) and 7
|
‘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
|
Md. Tabibur Rahman Mollah Vs. Md. Sayidur Rahman Being Dead his heirs and legal representatives. |
4 BLD (AD) 162 |
Section 7(5)
|
Non-Agricultural Tenancy Act, 1949
Section 7(5) r/w
Limitation Act
Section 28 r/w
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
|
Md. Jahangir and others -Vs.- Noor Mohammad and others |
10 ALR (AD) 227 |
Section 7(2)
|
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.
|
Sree Mati Gouri Das & Ors, Vs. A. B. Hasan Kabir & Ors. |
11 BLT (AD) 87 |
Section 23
|
Oral gift— Whether it attracts the provisions of Section 23 of the
Non-Agricultural Tenancy Act—If the property was non-agricultural 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 non-agricultural
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 Aklima Khatun and another. 3BLD(AD)45
|
Shah Alam and another Vs. Alhaj Aklima Khatun and another. |
3 BLD (AD) 45 |
Section 24
|
State Acquisition and Tenancy Act, 1950
Section 96
Non-Agricultural Tenancy Act, 1949
Section 24
Pre-emption– liberation war, the land in question has been converted into
non-agricultural land as it appears from the admission of both the parties.
Whereas the pre-emptor by suppressing this fact brought the present
petition– This word of admission goes to show that before execution of
such kabala, pre-emptee No.2 gifted out such land in favour of his foster
daughter. From the aforesaid observation made in the impugned judgment,
Appellate Division has no other alternative but to hold that the learned
trial Court and the learned Judge of the Single Bench of the High Court
Division has arrived at a correct decision to the effect that the instant
deed under pre-emption was created only to avoid further complication, if
any, might have arisen after the death of pre-emptee No.2 and no land has
been transferred through this impugned deed except the transfer made by the
oral gift long before from the deed in question. The pre-emptee appeared
before the Court during hearing this case. This Division has come to know
that except this .05 acre land, she had no other land. It appears to us
that the balances of convenience are very much preponderant in favour of
this lame and helpless lady. It further appears to us that soon after
liberation war, the land in question has been converted into
non-agricultural land as it appears from the admission of both the parties.
Whereas the pre-emptor by suppressing this fact brought the present
petition under section 96 of the State Acquisition and Tenancy Act, 1950
instead of presenting the application for pre-emption under section 24 of
the Non-Agricultural Tenancy Act, 1949 which is not at all maintainable.
...Alamgir(Md.) =VS= Mosammat Abeda Begum, (Civil), 2021(2) [11 LM (AD)
592]
....View Full Judgment
|
Alamgir(Md.) =VS= Mosammat Abeda Begum |
11 LM (AD) 592 |
Section 24(II) (A)
|
The Code of Civil Procedure
Section 115
Non-Agricultural Tenancy Act, 1949
Section 24(II) (A)
Pre-emption–– The positive findings of the courts below as mentioned
above was wrongly interfered by the High Court Division in its revisional
jurisdiction under Section 115 of the Code of Civil Procedure. The High
Court Division totally misdirected itself in holding that the pre-emptor
could not filed the pre-emption case within the stipulated period of time
prescribed for filing the same holding that the pre-emptor was unsuccessful
to prove this case for pre-emption within the statutory period of
limitation from the date of her knowledge about the transfer in question.
––High Court Division is hereby set aside and the judgment and decree
passed by the Courts below are restored. .....Kohinur Begum =VS= Most
Majeda Khatun, (Civil), 2023(2) [15 LM (AD) 206]
....View Full Judgment
|
Kohinur Begum =VS= Most Majeda Khatun |
15 LM (AD) 206 |
Section 24
|
We are of the view that the pre-emptor-petitioner is a co-sharer of the
case land. At the same time, no notice was issued upon him regarding the
sale of the case land and he came to know about the kabala deed for the
first time on 01.05.2005 and instituted the case on 19.05.2005, within the
time i.e. 4 (four) months from the date of knowledge stipulated in Section
24 of the Non-Agricultural Tenancy Act, 1949. The petition is disposed of.
The judgment and order of the High Court Division is hereby set aside.
...Rafiq(Md.) =VS= Abu Jafor, (Civil), 2021(1) [10 LM (AD) 328]
....View Full Judgment
|
Rafiq(Md.) =VS= Abu Jafor |
10 LM (AD) 328 |
Section 24
|
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
|
Promotto Das =VS= Sudip Kumar Ghosh |
3 LM (AD) 432 |
Section 24
|
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 partition, which has to be voluntary or by
judicial order.
Awlas Hossain Babor -Vs.- Ziaul Hasan Chowdhury and others (Civil) 13 ALR
(AD) 69-70
|
Awlas Hossain Babor -Vs.- Ziaul Hasan Chowdhury and others |
13 ALR (AD) 69 |
Section 24
|
The right of the pre-emption accured on and from the date of registering
the deed under section 60 of the Registration Act or from the date of
knowledge of such transfer till 4(four) months thereafter– In the
present case the date was admittedly executed on 4-11-2007 and was endorsed
in the volume under section 60 of the Act in 2011 and the pre-emptor having
come to know about the transfer on 20-1-2011 the pre-emption case has been
filled on 4-2-2011 which is very much within the period of limitation. In
section 24 of the Non-Agricultural Tenancy Act it is provided that if a
co-sharer tenant owns a portion of land in any plot, he is to be treated as
co-sharer in the entire plot even if the land of that plot is recorded in
more than one Khatian. Thus in spite of the fact that the khatian is
separated by mutation the pre-emptor is still a co-sharer in the case plot.
This vital aspect has not at all been considered by the courts below and
thereby both the Courts below erred in law in disallowing pre-emption. The
High Court Division having rightly considered this aspect of law made the
Rule absolute and set-aside the judgments of both the Courts below.
.....Selina Gulshan Ara Gul Hasna =VS= Mashiur Rahman, (Civil), 2022(2) [13
LM (AD) 264]
....View Full Judgment
|
Selina Gulshan Ara Gul Hasna =VS= Mashiur Rahman |
13 LM (AD) 264 |
Section 24
|
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
|
Md. Siddiqur Rahman Vs. Most. Jinnatunnessa & Anr (Civil) |
7 BLT (AD) 28 |
Section 24
|
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
|
Alhaj Md. Khalilur Rahman & Ors. Vs. Abdur Rahman Bhuiyan & Ors. |
7 BLT (AD) 268 |
Section 24
|
State Acquisition & Tenancy Act, 1950
Sections 89 and 96
Non Agricultural Tenancy Act, 1949
Section 24
Pre-emption–– The statutory deposit being a condition precedent to the
application being entertained, its non-compliance renders the application
liable to be dismissed. The direction for depositing the balance
consideration money out of time is also illegal and without
jurisdiction–– The pre-emptor filed the application in the appellate
Court for conversion of the said pre-emption application under section 24
of the Act, 1949 into an application under section 96 of the Act, 1950 and
also prayed for depositing the rest of compensation amount which obviously
in violation of statutory provisions as contemplated in section 96(3) of
the State Acquisition of Tenancy Act, after the expiry of limitation of
deposit of statutory compensation. If such deposit is allowed after expiry
of limitation violating statutory provisions then the legal proposition as
contemplated in the statute would be nugatory. ––Provisions of section
96(3) provide that an application made under sub-section (1) of the section
96 of the Act, 1950 shall be dismissed unless the applicant or applicants,
at the time of making it, deposit in the Court the amount of the
consideration money or the value of the transfer-red holding or portion or
share of the holding as stated in the notice under section 89 or in deed of
transfer, as the case may be, together with compensation at the rate of ten
percent centum of such amount, according to the above provisions,
consequence, has been provided for non-compliance of the provision of law,
in that view the provision is mandatory, the High Court Division missed the
said provision of law at the time of deciding the revisional application,
thus, committed an error of an important question of law. .....Rabiul Islam
(Md) =VS= Sultan Mahmud, (Civil), 2022(2) [13 LM (AD) 490]
....View Full Judgment
|
Rabiul Islam (Md) =VS= Sultan Mahmud |
13 LM (AD) 490 |
Section 24
|
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
|
Alfazuddin Ahmed Vs. Abdur Rahim & Ors. |
13 BLT (AD) 236 |
Section 24 read with Section 85(2)
|
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
|
Kamrun Nahar Begum. Vs Nurul Alain Chowdhury & Anr. |
13 BLT (AD) 75 |
Section 24(1)
|
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
|
Md. Shafiuddin Chowdhury Vs. Abdul Karim & Ors. |
8 BLT (AD) 165 |
Section 24
|
Conversion of application filed under section 24 of the Non-Agricultural
Tenancy Act to section 96 of the State Acquisition and Tenancy Act, 1950:
It further be noted that the application filed under section 24 of the Act,
1949 may be converted to an application under section 96 of the Act, 1950
if such application for conversion is filed within 120 days, i.e. within
period of limitation with rest of the deposit and concerned Court allowed
the such application of conversation. The application for conversation
cannot be allowed after the expiry of limitation as stipulated in the
section 96 of the State Acquisition and Tenancy Act. …Md. Rabiul Islam &
ors. Vs. Sultan Mahmud & ors., (Civil), 15 SCOB [2021] AD 95
....View Full Judgment
|
Md. Rabiul Islam & ors. Vs. Sultan Mahmud & ors. |
15 SCOB [2021] AD 95 |
Section 24
|
Pre-emption— Pre-emptee contested the case by filing written objection,
alleging, that since the impugned deed is out and out a deed of exchange;
it cannot be brought within the mischief of section 24 of the
Non-Agricultural Tenancy Act, 1949 (hereinafter to be referred as the Act,
1949) for the purpose of pre-emption.
On conclusion of the trial, the learned Assistant Judge, Shahjadpur,
Sirajgonj after hearing the parties, considering the evidences and
documents on record allowed the pre-emption case in favour of the
pre-emptor by his judgment and order dated 16-9-2007. —Feeling aggrieved,
by the judgment and order of the trial Court, the pre-emptees as appellants
preferred Miscellaneous Appeal No.43 of 2007 before the learned District
Judge, Sirajgonj who by his judgment and order dated 23-9-2008 disallowed
the appeal and thereby affirmed the judgment and order of the trial Court.
—Feeling aggrieved, by the judgment and order dated 23-9-2008 passed by
the District Judge, Sirajgonj, the pre-emptees preferred Civil Revision
No.4430 of 2008 before the High Court Division and obtained Rule. —In due
course, a single Bench of the High Court Division upon hearing the parties
made the Rule absolute by the impugned judgment and order dated 10-12-2009
and set-aside the judgments and orders of the Courts below.
This Division has consistently held that the revisional Court cannot
disturb the concurrent findings of facts unless the Courts below misread
the evidence, misconstruction of the document. In the present case, there
is no misreading of the evidence, misconstruction of the documents or law.
Therefore, interference by the Single Bench of the High Court Division was
not justified. —The appeal is allowed with condition that the pre-emptor
will pay Taka 1,00,000 (Taka one lac) only in addition to money deposit in
Court within 3(three) months from the date of receipt of the order in the
trial Court, failing which, the appeal shall stand dismiss. .....Zul Haque
Mondal (Md) =VS= Md Wahed Ali, (Civil), 2023(1) [14 LM (AD) 21]
....View Full Judgment
|
Zul Haque Mondal (Md) =VS= Md Wahed Ali |
14 LM (AD) 21 |
Section 24
|
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
|
Shafi Khan Vs. Mannujan Hussain others, |
3 BLD (AD) 303 |
Section 24
|
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
|
Sunil Krishna Banik and others Kailash Chandra Saha and others. |
4 BLD (AD) 320 |
Section 24
|
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 Quiyum and others, 22 BLD (AD) 128.
|
Hiran Chandra Dey v. Md. Abdul Quiyum and others, |
22 BLD (AD) 128 |
Section 24 and Section 85(2)
|
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.
|
Mosaddeque Hossain (Md.) Vs. Dr. Esmat Mirza and others. |
3 MLR (AD) 145 |
Section 24 and Section 85(2)
|
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.
|
Shaji uddin Chowdhury (Md.) VS. Md. Abdul Karim and others. |
5 MLR (AD) 19 |
Section 24 and Section 85(2)
|
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.
|
S.M. Bashiruddin Vs. Zahurul Islam Chowdhury and another. (1983) |
35 DLR (AD) 230 |
Section 24
|
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 Quiyum and others, 22 BLD (AD) 128.
|
Hiran Chandra Dey v. Md. Abdul Quiyum and others, |
22 BLD (AD) 128 |
Section 24
|
Conversion of Pre-emption application filed under section 96 of the State
Acquisition and Tenancy Act, 1950 to section 24 of the Non-Agricultural
Tenancy Act, 1949:
The pre-emption application filed under section 96 of the Act, 1950 may be
converted to a pre-emption case under section 24 of the Act, 1949 because
the deposit of compensation would not be a impediment in case of such
conversion allowing the amendment. …Md. Rabiul Islam & ors. Vs. Sultan
Mahmud & ors., (Civil), 15 SCOB [2021] AD 95
....View Full Judgment
|
Md. Rabiul Islam & ors. Vs. Sultan Mahmud & ors. |
15 SCOB [2021] AD 95 |
Section 24
|
The Evidence Act, 1872
Sections 91 and 92
Non-Agricultural Tenancy Act
Section 24
Pre-emption– It is a settled principle of law that in exercising
revisional jurisdiction the Court is required to identify any misreading or
no-consideration of the evidence on record, or misconstruction of
documents. The High Court Division failed to do so. Appellate Division is
of the view that the finding of the High Court Division that the exchange
is unequal, is not justified in the facts and circumstance of the case. The
pre-emptee has given up a bigger quantum of land in exchange for a smaller
quantum of land due to his necessity. Appellate Division does not find
anything untoward in the transaction of exchange between the
pre-emptee-opposite-party No. 1 and opposite-party No. 2. Moreover, in the
absence of any allegation of fraud etc, as mentioned in proviso (1) of
section 92 of the Evidence Act, the recital of the document cannot be
contradicted by oral evidence as provided by sections 91 and 92 of the
Evidence Act. In the absence of any fraud, intimidation, illegality etc.
the document will speak for itself. The contents of the document will speak
of the truth of the agreement reached by the parties thereto. The judgment
and order by the High Court Division is set-aside. .....Shahed Ali (Md)
=VS= Abdul Hafiz, (Civil), 2022(1) [12 LM (AD) 217]
....View Full Judgment
|
Shahed Ali (Md) =VS= Abdul Hafiz |
12 LM (AD) 217 |
Section 24
|
Preemption– Appellate Division has meticulously examined the finding and
decisions of the Court of appeal below as well as revisional Court along
with the facts and circumstances in the case and found that the finding of
the trial Court is much acceptable and logical than that of others. The
appeal is allowed, without any order as to costs. The impugned judgment and
order along with the judgment and order of the appellate Court below is
hereby set aside. The judgment and order of the trial Court is hereby
restored. .....Firozur Rahman(Md.) =VS= Nasima Banu(Most.) , (Civil),
2022(1) [12 LM (AD) 158]
....View Full Judgment
|
Firozur Rahman(Md.) =VS= Nasima Banu(Most.) |
12 LM (AD) 158 |
Section 24
|
State Acquisition & Tenancy Act, 1950
Section 96 r/w
The Non-Agricultural & Tenancy Act, 1949
Section 24
Pre-emption– The preemptor-petitioner while deposing before court, though
denied this alleged fact that he obtained the certified copy of the case
kabala in the year 1982 for the opposite party No.2, but he did not deny
the fact that he was the engaged lawyer of the opposite party No.2. The
opposite party No.2 filed Other Suit No.70 of 1982 challenging the
genuineness of the impugned kabala. In the circumstances it is not
believable at all that the preemptor-petitioner could not know about the
case kabala before his alleged date of knowledge. From the facts and
circumstances stated above it is rather proved beyond any doubt that the
preemptor-petitioner knew about the case transfer in the year 1982.
.....Shantipada Shil =VS= Sunil Kumar Sarker, [3 LM (AD) 459]
....View Full Judgment
|
Shantipada Shil =VS= Sunil Kumar Sarker |
3 LM (AD) 459 |
Section 24
|
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
|
Asad Ali(Md.) =VS= Golam Sarwar |
9 LM (AD) 141 |
Section 24
|
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
|
Abul Kasem Md. Kaiser =VS= Md. Ramjan Ali |
9 LM (AD) 284 |
Section 24
|
Pre-emption–– On perusal of the materials on record, it appears that in
the present case, the vendor of the opposite party No.5 was Taherunnessa.
She along with others purchased five annas eight gonads and three karas
share from the recorded tenant Behari Lal who was the owner of six annas
two gondas two kara share. She along with others on 28.12.1983 mutated
their jama by filing mutation Case No.605 PK of 1983-84. After separation
of holding the other co-sharers ceased to be co-sharers and as such, the
pre-emptors have lost their right of pre-emption. ...Khalilur Rahman
Mathbar(Md.) =VS= Jannatun Ara, (Civil), 2021(2) [11 LM (AD) 474]
....View Full Judgment
|
Khalilur Rahman Mathbar(Md.) =VS= Jannatun Ara |
11 LM (AD) 474 |
Section 26A
|
Transfer of the Property Act
Section 108(B) r/w
State Acquisition and Tenancy Act
Section 81A
Non Agricultural Tenancy Act
Section 26A
Code of Civil Procedure, 1908
Order 21 Rule 58
Lease deed–– The lessor was entitled to get back the property after
expiry of 50 years–– It appears from the lease deed that there was
clear stipulation that the lessor agreed with the lessee that lease shall
endure and subsist for a period of 50 years, from the 1st day of January,
1957 to 21st day of December, 2007. From that aforesaid condition of the
lease and pursuant to the provision of section 108(B) of the Transfer of
the Property Act, it is apparent that the lessor was entitled to get back
the property after expiry of 50 years. After expiry of that 50 years
tenure, the lease hold rights of the appellants have been extinguished.
.....Abdul Halim Gaznabi =VS= M.M. Badsha Shirazi, (Civil), 2023(2) [15 LM
(AD) 529]
....View Full Judgment
|
Abdul Halim Gaznabi =VS= M.M. Badsha Shirazi |
15 LM (AD) 529 |
Section 85
|
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
|
Narendra Basu Roy and another Vs. Municipal Committee, Mymensingh. |
6 BLD (AD) 297 |
Section 109
|
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
|
Khondker Ansar -Vs.- A.T.M. Monsur Ali Mallik |
2 ALR (AD) 209 |