Interest of any 'local authority' is exempt from acquisition under the SAT Act. The Municipality is a local authority. Narendar Nath vs Municipal Committee 39 DLR (AD) 16.

"Hat" or "Bazar" definition of—A hat or bazar sitting once in a week is not uncommon in this country. If a hat sits once a week regularly then it will come under mischief of the SAT Act. The expression "particular days" in the definition of 'hat or bazar' if read together with necessary emphasis that the word 'particular' deserves, then it will be clear that the word 'days' will also include a day as well in view of the provision of the General Clauses Act and the history of relevant legislation. Bangladesh vs Shakhipur lslamia High School 45 DLR (AD) 23.

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. Mohammad Doser Ali Vs. Bangladesh and others, .1BLD (AD) 423

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. Narendra Basu Roy and another Vs. Municipal Committee, Mymensingh, 6BLD (AD) 297

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, [9 LM (AD) 284] ....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

If there is no service for acquisition under section 3 the presumption is, there has been no acquisition under the State Acquisition & Tenancy Act. Narendar Nath vs Municipal Committee 39 DLR (AD) 16.

After the abolition of all rent receiving interests in the country there is only one class of tenancy under the Government whose rights and liabilities are governed by a uniform law. Government of Bangladesh vs Abani Kanta Chakrobory 38 DLR (AD) 93.

State Acquisition and Tenancy Act Sections 3, 20(2), (2a) (iii) and (6)
Forest Act, 1927
Declaration of a particular land as forest under the Forest Act when not necessary:
If a forest belonged to any Jaminder is acquired by the Government under the State Acquisition and Tenancy Act, declaration of the said land as forest under the Forest Act is not necessary. The procedures to be followed under the two Acts are quite different and they are independent of each other, so far it relates to acquisition and declaration of forest. ...Tapan Chowdhury & ors Vs. Bangladesh & ors, (Civil), 18 SCOB [2023] HCD 49 ....View Full Judgment

Gazette Notification mentioning a particular land as forest would be sufficient to determine the character of the land:
It thus appears that the Department of Forest under wrong notion proceeded for further declaration of the same land as forest, which was already a forest under the Jaminder and subsequently acquired as forest by the Government and notified in the Gazette as forest under the State Acquisition and Tenancy Act. The subsequent proceedings of the Forest Department under whatever notion, or for whatever reasons will not invalidate the earlier Gazette, nor will it create any right in favour of any new claimant who did not challenge the earlier Gazette of 1952. If any Gazette Notification mentioning a particular land as forest is published under Section 3 (2) of the State Acquisition and Tenancy Act, that would be sufficient to determine the character of the land, unless the Gazette notification is challenged and its correctness is rebutted. ...Tapan Chowdhury & ors Vs. Bangladesh & ors, (Civil), 18 SCOB [2023] HCD 49 ....View Full Judgment

Considering the facts and circumstances of the case and the submissions of the learned Advocates of the respective parties and on perusal of the Rule 42A of the State Acquisi­tion Rules, 1955 as well as the application filed by the leave petitioner Bhawal Raj Court of Wards Estate dated 14-7-2002 and the gazette notifications dated 24-3-1952 and 29-2-1956 as well as ground rent payment receipts issued by the Government revenue office and earlier by the Bhawal Raj Court of Wards Estate and also the transfer made through registered deed of gift and having regard to the fact that the SA record of right and RS record of right were correctly prepared in the names of the writ petitioners and or their predecessors-in-interest in respect of their respective lands arid also the fact of admission, as to the possession of the writ petitioners in their respective case lands in the draft Mahanagar record of right, there is no reason to interfere with the judgment and order passed by the High Court Division. The learned Advocate appearing for the leave petitioner, when confronted with the aforesaid gazette notifications dated 24-3-1952 and 29-2-1956, as to acquisition of rent receiving interest and the vesting of lands of the leave petitioners, including the case lands, found it difficult to substantiate the locus standi of the leave petitioner in challen­ging the draft records of right prepared in the names of the respective writ petitioners in respect of their respective case lands prepared during the Mohanagar Survey. Further, with the publication of the gazette notifications dated 24-3-1952 and 29-2-1956 the leave petitioner ceased to have any right, title and interest and possession in the case lands, because of acquisition, and vesting of said lands in the Government. Bhawal Raj Court of Wards Estate vs Rasheda Begum 15 BLC (AD) 115

Subsection (3) of Section 92 of the State Acquisition and Tenancy Act, 1950 read with
rule 6, Subrules (2) and (3) of the Tenancy Rules, 1954 and
article 143 (1) (c) of the Constitution:
It prima-facie appears that the rightful owner of the suit property is unavailable for a long period. Under the circumstances, the Deputy Commissioner of Rajshahi is to commence an inquiry into whether any rightful owner of the suit property is available or not. The Deputy Commissioner will also follow the procedure as laid down in Subsection (3) of Section 92 of the State Acquisition and Tenancy Act, 1950 read with rule 6, Subrules (2) and (3) of the Tenancy Rules, 1954. If no rightful owner is available, the suit land except the share of defendant number 6 (Haripada Mahato) to the extent of 10 kathas in plot number 133 would vest in the Government under Article 143 (1) (c) of the Constitution read with Section 92 (3) of the State Acquisition and Tenancy Act. .....Sufia Bewa and ors Vs. Md. Aminul Islam and ors, (Civil), 19 SCOB [2024] HCD 85 ....View Full Judgment

Subsection (3) of Section 92 of the State Acquisition and Tenancy Act, 1950 read with
rule 6, Subrules (2) and (3) of the Tenancy Rules, 1954 and
article 143 (1) (c) of the Constitution:
It prima-facie appears that the rightful owner of the suit property is unavailable for a long period. Under the circumstances, the Deputy Commissioner of Rajshahi is to commence an inquiry into whether any rightful owner of the suit property is available or not. The Deputy Commissioner will also follow the procedure as laid down in Subsection (3) of Section 92 of the State Acquisition and Tenancy Act, 1950 read with rule 6, Subrules (2) and (3) of the Tenancy Rules, 1954. If no rightful owner is available, the suit land except the share of defendant number 6 (Haripada Mahato) to the extent of 10 kathas in plot number 133 would vest in the Government under Article 143 (1) (c) of the Constitution read with Section 92 (3) of the State Acquisition and Tenancy Act. .....Sufia Bewa and ors Vs. Md. Aminul Islam and ors, (Civil), 19 SCOB [2024] HCD 85 ....View Full Judgment

Fourth Amendment of the section in 1951 provided that the amendment made shall have retrospective effect with effect from the very beginning. Shafiqur Rahman vs Idris Ali 37 DLR (AD) 71.

The appellants need not have joined the pre—emptor respondent because to join in the application for pre-emption filed by contiguous land—holder is unnecessary—Section 26F of Bengal Tenancy Act limited pre-emption to co—sharers only, either by purchase or by inheritance; it did not extend the right of pre­emption to a tenant having land contiguous to the land transferred. Shafiqur Rahman vs Idris Ali 37 DLR (AD) 71.

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. Mvi Haifzuddin Ahmed Vs. Mahabubul Huq and others, 4BLD (AD) 77.

A co-sharer by inheritance gets the first priority and he claims pre-emption he will excluded all other claimants. The High Court Division held that since the pre-emtor is a co-sharer by inheritance in the suit land and pre-emtee was a stranger at the time of transfer the case jote, there is no impediment under Section 96 to file the pre-emtion case. Be that as it may, the intention of the legislature accordingly to provisions of section 9 of the State Acquisition and Tenancy Act, 1950 is very clear that to shut the door against all stranger, who shall eneroch upon the ownership and possession of the real co-sharers and where upon the real co-sharers can remain in enjoyment of their property and others cannot interfere with their right and possession. In the instant case admittedly the pre-emtee–petitioner was a stranger to the case jote. Fazilatun Nessa Begum-Vs.-Dibdas Baidda alias Bairagi and others (Civil) 2019 ALR (HCD) Online 357 ....View Full Judgment

Title Suit– Chakran tenant– Question of limitation the appellate Court, being the last Court of fact observed that the cause of action arose on 14.11.1999 when the defendants challenged the plaintiffs title, and the defendants did not claim to have denied the plaintiffs title earlier.
The judgements of the trial Court, appellate Court and the High Court Division, we are of the view that the appellate Court correctly and properly reversed the judgement and decree of the trial Court giving cogent reasons. We are in respectful agreement that when land is given to a family on account of service rendered, i.e. as chakran tenants, a part of that family does not lose their right of tenancy simply on the ground that part of the family ceased to render the service. If in fact the service to the landlord had ceased, it was up to the landlord to take action for his eviction. The tenancy of a particular member of the chakran tenant family cannot cease automatically. Moreover, the evidence of the P.Ws, which was accepted by the appellate Court being the last Court of fact shows that the plaintiffs were in ejmali possession of the suit land. The trial Court fell into error in discarding the evidence of the P.Ws. simply for the reason that the plaintiffs paid for cost of their conveyance to the Court. ...Amal Chandra Dhupi alias Das =VS= Lakshan Chandra Das, (Civil), 2021(1) [10 LM (AD) 5] ....View Full Judgment

High Court Division's failure to appreciate the approach and findings of the lower appellate Court. A large part of the judgment is devoted to defendant's weakness in the case including rejection of objection under section 19(1) of State Acquisition and Tenancy Act which was wholly unnecessary as it did not prove or strengthen the plaintiffs case.
The learned Judge found fault with the subordinate judge for not considering the weakness of the defendant's case and particularly the rent—receipts produced by him and thus considered himself justified to interfere in second appeal. It must be said that the learned Judge made a fundamental mistake in ignoring altogether that the defendant's case was disbelieved by the lower appellate Court but even then the plaintiff was held not to be entitled to a decree as he could not establish his own case.
Naim-uddin Sardar vs Md Abdul Kalam 39 DLR (AD)237.

Leave was granted to consider whether, in view of the provision of section 22 of the State Acquisition and Tenancy Act, 1950 the learned judges of the High Court Division were wrong in holding that the lands in question were not liable to assessment of rent. In view of the provisions of section 22 of the Act all lands are subject to assessment and payment of rent. Bangladesh vs Zeenat Taxile Mills 40 DLR (AD) 189.

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

Whether the High Court Division committed error of law in interfering with the concurrent findings of fact of the Courts below in the absence of any legal infirmity in such findings ?
The Appellate Division observed that according to the facts of the case Appellate Division finds that the High Court Division has reversed the concurrent finding of facts of the Courts below without specifically identifying any evidence which was misread or not considered by the trial Court or the appellate Court. The decision of the High Court Division is not in accordance with the law and accordingly, the appeal is allowed and the judgement and order of the High Court Division is set aside. Md. Younus Mia being dead his heirs:
Sohel Ahmed and others -Vs.- Illias Ali Chowdhury being dead his heirs: Mubin Chowdhury. (Civil) 9 ALR (AD) 44-49

State Acquisition and Tenancy Act, 1950
Section 19A
The Specific Relief Act, 1877
Section 42
Declaration of title and recovery of khas possession–– The defendants names were also admittedly recorded in the S.A. Khatian in respect of the suit property and the plaintiffs' objection under section 19A of the SAT Act, 1950 was rejected finding it to be in the possession of the defendants. Rather it is well settled principle of law that the plaintiff had to prove his case in order to get the decree prayed for, in no way the burden can be shifted over the defendants to do so. ––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. .....Sarhab Ali Molla(Md.) =VS= Md. Farid Master, (Civil), 2023(1) [14 LM (AD) 338] ....View Full Judgment

Bangladesh Land Holding (Limitation) Order, 1972 (P.O.98 of 1972)
Sections 3, 4(d)
Private Residential Project Land Development Rules, 2004
Rule 8(1)
State Acquisition and Tenancy Act, 1950
Section 20 r/w 90(3)
Code of Civil Procedure, 1908
Section 114 & Order XLVII rule 1 r/w
Town Improvement Act, 1953;
Environment Conservation Act, 1995;
Environment Conservation Rules 1997;
মহানগরী, বিভাগীয় শহর ও জেলা শহরের পৌর এলাকাসহ দেশের সকল পৌর এলাকার খেলার মাঠ, উন্মুক্ত স্থান, উদ্যান এবং প্রাকৃতিক জলাধার সংরক্ষণের জন্য প্রণীত আইন, ২০০০
Project: Ashiyan City Prokalpo–– It transpires that from the record that the Deputy Commission earlier gave ‘No-objection’ in respect of 55.6 acres of land in favour of the review petitioner-respondent No.1 for its project but it was entitled to retain only 33 acres of land as per Bangladesh Land Holding (Limitation) Order 1972 (P.O. 98 of 1972) and বেসরকারি আবাসিক ভূমি উন্নয়ন বিধিমালা, ২০০৪ at the relevant time. It is evidenced from the record that respondent No.1 got approval of other authorities, including utilities such as Dhaka Electric Supply Company, Dhaka Water Supply and Sewerage Authority, Bangladesh Telegraph and Telephone Board and Titas Gas as well as the Fire Service and Civil Defence, Dhaka Transport Coordination Board, Dhaka Metropolitan Police and Water Development Board. ––Appellate Division is of the view that review petitioner-respondent No.1 is entitled to proceed his project in respect of 33 acres of land pursuant to the permission dated 25.09.2012 and annexures ‘C’, ‘K’ and ‘M’ will be applicable only in respect of the said quantum of land and permission of respective organizations. .....Bangladesh =VS= Ashiyan City Development Ltd. , (Civil), 2024(1) [16 LM (AD) 486] ....View Full Judgment

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 interest in hats and bazars by the Government. Government of Bangladesh Vs. Shakhipur Islamia High School, 12BLD(AD)170

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. Sharping Matsh&ibi Samabaya Samity Ltd. Vs. Bangladesh and others, 7BLD(AD) 106

Land or building in hat or Bazar are non-retainable which vest in Government—
Assessment of compensation prior to acquisition are formalities which cannot be decided by invoking writ jurisdiction. Under article 102 of the Constitution writ jurisdiction cannot be invoked to decide contentious matter or where title is disputed. Bangladesh and another Vs. Money' Kumar Roy Chowdhury 1. MLR (1996) (AD) 165

The High Court Division took correct view that the plaintiff could not prove that the ex-landlord auction purchased he suit land and made the same khas and thereafter, the same vested in the Govern­ment as excess non-retainable khas land of the ex-landlord. But no paper has been produced by the plaintiff in that respect to show that the Provisions of section 20 of the State Acquisition and Tenancy Act, 1950 were duly complied with in the matter of acquisition of khas lands in excess of the limit imposed by law. Bangladesh vs Md Ali Khondker 12 BLC (AD) 160.

The submission of the learned Counsel is of no merit since prepa ration of the compensation assessment roll and the publication thereof has the legal presumption that the land claimed by the plaintiffs is of non-retainable class of land and that as on the publication of the compen­sation assessment roll in the gazette, the land has vested in the Government the plaintiffs are not entitled to raise any claim in the land and, as such, relief sought in the suit was not available to them. Gopal Das Soni vs Bangladeshi BLC (AD) 69.

Appellate Division sum up as under:
(i) Land of a holding or a portion thereof is lost by diluvion prior to 4th November, 1972, the rent of the holding shall on application by the tenant would abate by such amount as would be considered by the Revenue Officer to be fair and equitable.
(ii) The right, title and interest of the tenant shall be extinguished if such land were lost by diluvion or the process of diluvion takes place before or after the date of coming into force of section 86 substituted by P.O.135 of 1972.
(iii) If the diluvited land or a portion thereof re-appeared after the commencement of P.O.135 of 1972 but in respect of which the right of the original tenant or his successor-in-interest whose land was so lost, to re-possession was not recognized or declared by the competent authority or the court, all land so lost, which may reappear on or after 4th November, 1972, shall vest absolutely in the Government.
(iv) In making settlement of the said land, notwithstanding anything provided in paragraphs (ii) and (iii) above, the preference shall be given to the tenant or his successor-in-interest whose interest was lost by diluvion subject to the condition that such land or a portion thereof re-appeared within twenty years of such loss subject to the condition that the total area of land possessed by the tenant or his family does not exceed the ceiling prescribed by sections 20 or 90 of the Act of 1950. v (v) The rights which had already accrued to the tenant or his successor-in-interest on the day of coming into force of section 86 by P.O.135 of 1972 had not been affected but such rights were affected only prospectively.
(vi) If the land or a portion thereof is diluviated after 13th July, 1994, the rent or the land development tax of the holding of the tenant or his successor-in-interest be abated on his application, such amount as may be considered by the Revenue Officer and the act of such loss by diluvion shall be recorded by such Revenue Officer.
(vii) The right, title and interest of the tenant or his successor-in-interest shall subsist of a holding or a portion thereof during the period of loss by diluvion from 15th July, 1994, if such land re-appear in situ within thirty years of loss.
(viii) The Collector, either on his own motion or on the basis of application of the tenant or his successor-in-interest shall exercise the right of immediate possession of the land so re-appeared and shall give public notice of the said fact, prepare a map, make survey of the land and after forty five days of completion of survey, allot the land to the tenant or his successor-in-interest such quantity of land which together with the land already held by him shall not exceed sixty standard bighas.
(ix) Section 86 substituted by the State Acquisition and Tenancy (Amendment) Act, 1994 (Act XV of 1994) shall have prospective operation. .....Bangladesh =VS= Md. Kazemuddin Miah, (Civil), 2017 (2)– [3 LM (AD) 74] ....View Full Judgment

Tarapur Tea Estate– The transfer of the tea estate was made by resorting forgery, inasmuch as, the writ petitioners procured a forged permission. Secondly, it is reported that after taking possession, the writ petitioners set up a medical college and established a housing estate and a market. Naturally they demolished the tea plantations and used the land for commercial purpose which is not permissible under any law of the land.
The High Court Division was totally unmindful to the laws applicable in this case or in the alternative, it was totally confused as to the application of law in the matter and delivered a judgment which has no sanction of law. The judgment of the High Court Division is, therefore, liable to be interfered with and accordingly it is done. Accordingly, we sum up our opinion as under:
(a) a religious and charitable trust by way of debutter is created only when a property is dedicated for the worship or service of the idol;
(b) a Hindu idol is founded upon the religious customs of the Hindus;
(c) a Shebait, cannot delegate his duties to another, no matter whether such other is a stranger or a co-trustee on the principle of the maxim ‘Delegatus non potest delegare’;
(d) an idol is a juristic person in whom the title of the property of the endowment vests; but it is only in an ideal sense that the idol is the owner;
(e) the office of the Shebait being used for religious purposes under the Hindu Law, apostasy is a disqualification in the heir and execution of his inheritance as well as for holding the office of Shebaitship;
(f) when a pious Hindu establishes a Deity cannot conceive of its ‘seba’ and ‘puja’ being carried on under the supervision of a non-Hindu religion believer;
(g) the founder of an endowment can confer upon a Shebait appointed by him the right of nominating his successor subject to the limitation that the nominee cannot be a believer of any religion other than a Hindu religion;
(h) the deed of endowment does not permit the alienation of the debuttor property i.e. Tarapur Tea Estate by the Shebait or his nominee;
(i) the transfer of the Tarapur Tea Estate for 99 years by the alleged Shebait is void ab initio.
(j) the writ petitioners are directed to Shift Ragib Ali Medical College and Hospital at a suitable place within six months from the date of the judgment so that the academic education of the students is not hampered;
(k) The conversion of a portion of the tea estate into a medical college, a housing estate and use of the same for other purposes is totally illegal, and therefore, Tarapur Tea Estate should be restored to its original position;
(l) the Deity installed by the founder should be installed at its original place, if it is removed from its original site in the meantime;
(m) the withdrawal of Tk.30,76,189.20 as compensation money from the government by Ragib Ali was illegal and without jurisdiction. Ragib Ali is directed to refund the said amount within 7(seven) days from the date of receipt of the judgment to the legal Shebait of the Deity and in the absence of the legal Shebait, in the account of the Deity;
(n) the writ petitioners Abdul Hai and Ragib Ali are directed to hand over vacant possession of Tarapur Tea Estate in favour of the Shebait of the Deity within 1(one) month from the date receipt of the judgment;
(o) the constructions made on a portion of the Tarapur Tea Estate should be dismantled within six months and the writ petitioners are directed to transplant tea plantations thereon. If they fail to dismantle them, the Shebait shall dismantle them with the help of police and the city corporation, and the costs be recovered from the writ petitioners by the Deputy Commissioner;
(p) In the absence of a legal Shebait of the Deity, the Deputy Commissioner is directed to appoint a Shebait of the Deity in consultation with the ten leading Shebaits or priests of the temples of Sylhet town;
(q) The writ petitioners are directed to refund Tk.5,00,00,000/- (five crore) which they admittedly earned by exporting tea to the Shebait (Para 10 of the writ petition).
The Deputy Commissioner, Sylhet shall monitor the implementation of the directions given above. If the writ petitioners fail to comply with the direction, he shall take legal action against them and shift the medical college to a suitable place by freezing the bank accounts of the writ petitioners and withdrawing money from those accounts for the purpose of taking temporary lease of a house suitable for the medical college.
If the writ petitioners fail to make tea plantations, the Deputy Commissioner shall make plantations by constituting a committee at the cost of the writ petitioners and the amount be realized from their moveable and immovable properties. The Kotwali P.S. Case Nos.117 dated 27.9.2005 and 12 dated 2.11.2005 shall proceed forthwith. The Chief Judicial Magistrate or the Chief Metropolitan Magistrate, as the case may be, is directed to proceed with the cases expeditiously. The appeal is allowed with cost of Tk.5,00,000/- in the above terms. ...Ministry of land, Bangladesh =VS= Abdul Hye, (Civil), 2020 [9 LM (AD) 230] ....View Full Judgment

In view of the express provisions of section 22 even the Government cannot, by an order or agreement, exempt any land from assessment of rent, for the words used in the section are mandatory, namely, "all lands shall be subject to the payment of fair and equitable rents. Bangladesh vs Zeenat Taxtitle Mills 40 DLR (AD) 189.

Provisions made in the sections 42, 43 and 44 of the Act point to inevitable conclusions that every interest which is liable to be acquired under the Act has to be paid for and that except in the cases of acquisition under Chapter-II of the Act the Interests which are acquirable vest in the Government only if assessment of compen­sation in regard to the same has been made and published as provided in the Act. Government of Bangladesh vs Abdul MotalebU BLC (AD) 50.

Publication of a notification in the official Gazette declaring that a compensation assessment-roll has been finally published for a village specifying in such notification the date of the final publication of the compensation assessment-roll is a conclusive proof of such publication and of the date thereof. After the said notification all interests of tenants in respect of their non-retainable property would vest in the Government with effect from the first day of the agricultural year next following the date of publication. Even if there be any defect in the preparation and publication of the compensation assessment-roll that by itself shall not stand in the way of the vesting. Ali Akbar (Md) vs Government of Bangladesh 50 DLR (AD) 143.

Publication of a notification in the official gazette declaring .that a compensation assessment-roll has been finally published for a village or group of villages or local area as the case may be, speci1ring in such notification the date of the final publication of the compensation assessment-roll, as required under section 43 (2) is a conclusive proof of such publication and of the date thereof. After the said notification all interests of tenants in respect of their non-returnable property would vest in the Government under section 44 (3) of the said Act with effect from the first day of the agricultural year next following the date of publication of such notification in the official gazette. Even if there be any defect in the preparation and publication of the compensation assessment-roll that by itself shall not stand in the way of the vesting. [Para-9] Md. Ali Akbar Vs. Govt. of Bangladesh & Ors. 5 BLT (AD)-145

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

Since the Special Judge is a 'Court' such Court is sub­ordinate to the High Court Division. Any order passed by a Special Judge is amenable to the High Court Division under section 115 of the Code of Civil Procedure. Government of Bangladesh vs Abdul MotalebU BLC (AD) 50.

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 area. Md. Abdur Rouf and others Vs. Ahmuda Khatun and others, 1BLD(AD)269

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. Sree Sudir Chandra Saha and another Vs Matuan Bewa, being dead her heirs Nazmul Rahman Sarker and others, 6BLD (AD)182

SAT Act
Section 75, 146
State Acquisition Rules, 1951
Rules 17, 39
State Tenancy Rules, 1955
Rules 14 & 36
The Revenue Officers are not performing any judicial function under the provisions of the SAT Act:
Provisions of Section 75 of the SAT Act and rule 39 of the State Acquisition Rules, 1951 and rules 14 & 36 of the State Tenancy Rules, 1955 give the Revenue Officers the powers of a civil Court merely to the extent of enforcing attendance of witnesses or of any person, having interest in the estate, and production of documents for the purpose of conducting any enquiry and, thus, not for adjudication upon a lis between the parties.
Our above view is reinforced by the provision of Section 146 of the SAT Act and rule 17 of the State Acquisition Rules, 1951 inasmuch as from a plain reading of the said Section 146 of the SAT Act and rule 17 of the State Acquisition Rules, 1951, we find that the functions of the Revenue Officers under Section 75 of the SAT Act and rule 39 of the State Acquisition Rules, 1951 and rules 14 & 36 of the State Tenancy Rules, 1955 are not sufficient to brand them within the category of Court. ...Md. Safiqul Islam Vs. Bangladesh & Ors., (Civil), 1 SCOB [2015] HCD 99 ....View Full Judgment

In respect of fisheries which are governed by section 76 of the State Acquisition and Tenancy Act, in the absence of rules framed thereof the Government must follow some standards or guidelines, and must not act arbitrarily. SMS Samity vs Bangladesh 39 DLR (AD) 85.

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. Province of East Pakistan (Now Bangladesh) Vs. Syeduddin Ahmed, 4 BLD (AD) 61.

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 cancellation. 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.
Fishery 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. Sharping Matshajibi Shamabaya Sainity Ltd. Vs. Bangladesh and others, 7BLD(AD, 106

Non-Agricultural Tenancy Act, 1949, Sections—85(2) and 24
The 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. Md. Mosaddeque Hossain Vs. Dr. Esmat Mirza and others, 18 BLD (AD) 57.

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

Section 81 of the Tenancy Act authorised the Government to lease out khas land to a leasee for any particular period and the rights and liabilities of the lease shall be governed by the terms and conditions as may be set forth in the lease
The Appellate Division observed that the High Court Division found that by Ext. 4 the Government earlier settled the suit land to Jasahimuddin but subsequently it was cancelled and the possession of the land was restored to the Tahasilder, Godagari and further no registered instrument having been executed in support of settlement in favour of Jashimuddin, because of the cancellation of the above settlement the subsequent transfers by Jashimuddin did not confer any title to the defendants and further after execution and registration of the lease deed (kabuliyat) on 4.3.1982 in favour of the plaintiffs 15 years having already elapsed and in the meantime no allegation of violation of the terms and conditions of the lease deed having been brought by the Government the lease (kabuliyat) became permanent lease and so the plaintiff-respondents the heirs of Sujauddin, having acquired lease hold right in the suit land are entitled to get a decree for a declaration of their lease hold right in the suit land.
Most. Sharbanu Khatun -Vs.- Md. Nahurul Islam and others. (Civil) 8 ALR (AD) 197-199

Section 86(1)(2)(3) as amended by State Acquisition and Tenancy (Fourth Amendment) Order, 1972. (President's Order No. 135 of 1972) dated 4-11-1972.
Second diluvion of the suit land took place in 1362-63 BS and re-appeared in 1374 BS ­Clauses (2) and (3) attracted because diluvion took place before 'the commencement of PO No. 135 of 1972—Plaintiffs tight was never recognised under clause (3) of section 86—The view taken by the lower court and upheld by High Court Division is correct.
It appears from the footnote under section 79 of the Act (published by the Government) that Notification in respect of entire areas under the Police Stations of Muladi, Mehendiganj was published in the Gazette on 13 May 1958, that is long before 1967. Syed Nizamuddin Mohsin vs Bangladesh 41 DLR (AD) 141.

Section 86 of the Act, 1950 clearly provides that a land that has diluvated before the of P.O No. 135 of 1972 (i.e. after April 1956) or that will diluvate in future shall vest in the Government. It follows that irrespective of what ever title or right was acquired by Oli Ullah from the D.S. recorded tenant Zinnat Ali by virtue of the unregistered patta dated 28.1.1931 (Exhibit-ka) and the three rent receipts for the years 1341 to 1362 D.S (Exhibit-Ga-series) it had extinguished as a result of diluvion that took place some time before 1965 i.e. before the Diara Map. It follows that the Government has acquired lawful right to lease out the land that was earlier recorded as D.S. plot No.1657 and 1658. ...Md. Shajahan Bhuiyan & ors Vs. Md. Nurul Alam & ors, (Civil), 4 SCOB [2015] HCD 52 ....View Full Judgment

Diluvion and extinguishment of tenant’s right—When diluvion had taken place before commencement of P.O. No. 135 of 1972 and the lands reappeared before the commencement of the Order, the right, title and interest of the tenant got extinguished with the diluvion—The lands having reappeared before the commencement of the Order, it vested absolutely in the Government free from all encumbrances to be at its disposal until the tenant’s right to re-possession was finally recognised by a competent authority—Presidents Order No. 135 of 1972, Article. 2. Syed Nizamuddin Mohsin being dead his heirs Vs. People’s Republic of Bangladesh and others, 9BLD(AD)116

STATE ACQUISITION AND TENANCY (4TH AMENDMENT) ORDER, 1972
Section—86(2) (3)
If a diluviated land re-appeared prior to the date of coming into force of Part V of the S.A.T. Act, such land would not vest in the Government but if the land re-appeared thereafter, it would vest absolutely in the Government and the right, title and interest of the tenant shall be extinguished. Ganaprajatantri Bangladesh Sarker Vs. Joinal Abedin Dewan and others, 15 BLD (AD)234

The right, title and interest of the original tenant or his successor-in-interest shall subsist in the land during period of loss by diluvion if such lands re-appear in situ within 30 years of their loss. Under Section 86(3) the collector is to take immediate possession of the land and under section 86(5) the collector would allot the land to the tenant whose land was diluviated. .....Nurul Anwar Chowdhury =VS= DC, Cox’s Bazar, (Civil), 2023(2) [15 LM (AD) 30] ....View Full Judgment

Deputy Commissioner, Cox's Bazar was the only writ-respondent and he not being the original owner of the suit land, his admission, denial or silence has no bearing upon the original title-holders–– The observation made by Appellate Division holding that "there is no denial that the writ petitioner was the successor-in- interest of the land in question by purchase" which is an error apparent on the face of the record, because the Deputy Commissioner, Cox's Bazar was the only writ-respondent and he not being the original owner of the suit land, his admission, denial or silence has no bearing upon the original title-holders which would only be decided in the other Class suit No. 42 of 2012. ––This Civil Appeal is disposed of. The Parties are directed to maintain status-quo in respect of possession and position of the disputed land. The Joint District Judge, 1st Court, Cox’s Bazar is directed to hear and dispose of the Title Suit No. 42 of 2012 within 1(one) year from date. The Judgment and order passed in writ petition No. 98 of 2010, C.P No. 2120 of 2011 and the present civil Appeal being No. 344 of 2019 will have no bearing effect to decide the said suit. .....Nurul Anwar Chowdhury =VS= DC, Cox’s Bazar, (Civil), 2023(2) [15 LM (AD) 30] ....View Full Judgment

Section 86 by Act XV of 1994 would be prospective in operation and that the new provision would not be applicable in respect of those land which were diluviated and alluviated prior to that date, that is to say, the said land would be treated as khas land of the Government in accordance with the old provision. .....Bangladesh =VS= Md. Kazemuddin Miah, (Civil), 2017 (2)– [3 LM (AD) 74] ....View Full Judgment

The amendment is prospective in operation and the High Court Division is not correct in giving retrospective operation of the substituted provision of sub-section (2) of section 86 of the Act of 1950. .....Bangladesh =VS= Md. Kazemuddin Miah, (Civil), 2017 (2)– [3 LM (AD) 74] ....View Full Judgment

Accretion of land to the holding of a tenant—If such accretion is by artificial or mechanical process due to development work—Whether such increment will form part of the holding of the tenant—As the suit was filed in 1963 and Ordinance No. VIII of 1967 was not retrospective in nature the accretion of the land to the holding due to development work would not deprive the plaintiff from the same—Plaintiffs suit is not also hit by abatement clause nor his right is disturbed by the operation of sub-section (2) because the provision is also not retrospective but prospective. Makku Mian and others Vs. Ali Hossain Buiyan and others, 4BLD (AD) 209

The High Court Division correctly concurred with the findings of the appellate Court that the land in question was accreted land and the plaintiffs took lease from the Government in the year 1970 under Section 87 of the State Acquisition and Tenancy Act and they have been in posses­sion for long 32 years and correctly decreed the suit. Zahur Ali Sk vs Jogendra Nath Samaddar 16 BLC (AD) 35.

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.
There 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. Jobed Ali Vs. Abu Sheikh being dead his heirs Md. Naimuddin and others, 3 BLD (AD) 1.

In pre-emption case knowledge is of two kinds one is an initial knowledge which is derived from some person or some individual person specifically named in the pre-emption application and another knowledge is the confirmed knowledge as derived from getting the certified copy of the disputed deed.
The High Court Division held that in the instant case the case land was transferred on 13.10.1994, the pre-emptor got the initial knowledge about the disputed transfer on 20.12.1994 and got the confirmed knowledge on getting the certified copy of the disputed transfer and then filed the instant case within the period of limitation. It is deemed prudent that in pre-emption case where notice under Section 89 has not been served the period of limitation would be counted only from the date of the know-ledge as derived on getting the certified copy of the disputed transfer deed. Fazilatun Nessa Begum-Vs.-Dibdas Baidda alias Bairagi and others (Civil) 2019 ALR (HCD) Online 357 ....View Full Judgment

Where notice Section 89 of State Acquisition and Tenancy Act has not been served the period of limitation for filing a pre-emption case will be counted not from the initial knowledge, but from the confirmed knowledge as is obtained only on getting the certified copy of the disputed deed.
The High Court Division held that In the present case the petitioner having stated that he got the confirmed knowledge on getting certified copy of the deed and in my opinion, when the certified copy of the disputed deed was obtained he filed the case on 22.12.1994, the case has been filed well within time and as such the case is not barred by limitation. Fazilatun Nessa Begum-Vs.-Dibdas Baidda alias Bairagi and others (Civil) 2019 ALR (HCD) Online 357 ....View Full Judgment

No sale of a property, in which existence of co-sharers would be apparent from the records, can be completed without serving notice upon the co-sharers inasmuch as the law forbids the Registering Officer to register a sale-deed without obtaining the notice together with the process-fees from the seller and, thereafter, the Registering Officer is duty bound to transmit the notice to the Revenue Officer who shall, then, serve the said notice by registered post. And, in the light of use of the word ‘shall’ by the Legislature in each of the steps mentioned in Section 89 of the SAT Act, the legal presumption is that all the State/Government functionaries have performed their duties assigned under Section 89 of the SAT Act. If any preemptor claims that s/he was never served with the notice under Section 89 of the SAT Act, then, in turn, the preemptee shall have to prove its service. However, for an effective adjudication of a preemption case, the preemptor may either apply to the trial Court for production of the ‘dispatch book/register’ of the Registering Office and that of the Revenue Office of the relevant dates or may apply to the Court for examining the process-server of the Revenue Office to prove contrary to the legal presumption. If the office/person responsible for serving notice under Section 89 of the SAT Act proves before the Court the fact of serving the said notice upon the preemptor, then, it would be for the notice receiver, being a preemptor in a preemption case, to rebut before the trial Court by any other ocular evidence with corroboration that he has never received the notice under Section 89 of the SAT Act. .....Shaikh Ali Iman Vs. Subodh Kumar Mondol & ors, (Civil), 19 SCOB [2024] HCD 116 ....View Full Judgment

It is mandatory for the preemptor to satisfy the Court by adducing ocular evidence that the preemptor has never received the notice under Section 89 of the SAT Act, against the legal presumption of due accomplishment/performance by the Government officials; without first proving as above, Section 96 of the SAT Act does not directly/automatically entitle a preemptor to avail the second limitation of time i.e. ‘within four months (currently two months) from the date of knowledge of transfer’. .....Shaikh Ali Iman Vs. Subodh Kumar Mondol & ors, (Civil), 19 SCOB [2024] HCD 116 ....View Full Judgment

The preemptor is at liberty to claim damage/compensation from the learned Advocates whom he had engaged at the trial Court and the appellate Court:
The above ground of the lawyer’s mistake apparently sounds logical inasmuch as it is a pertinent issue for consideration of this Court that when a litigant, being not conversant with the legal provisions, engages a lawyer and if because of the latter’s incompetency or negligence, the litigant loses a legal right, whether this Court should interfere with the impugned Judgment. Since it was the professional duty of the learned Advocates for the preemptor at the trial Court and at the appellate Court to apply for production of the ‘dispatch book’ of the Sub-Registry Office as well as that of the Revenue Office, and because of not performing their professional duty diligently, the preemptor has been deprived of contesting and establishing a legal right, this Court is of the view that the preemptor shall be at liberty to claim damage/compensation from the learned Advocates whom he had engaged at the trial Court and the appellate Court. .....Shaikh Ali Iman Vs. Subodh Kumar Mondol & ors, (Civil), 19 SCOB [2024] HCD 116 ....View Full Judgment

Guidelines for the learned Judges of the sub-ordinate judiciary for dealing with the preemption cases under Section 96 of the SAT Act:
I find it to be the Constitutional as well as statutory duty of this Court, to lay down some guidelines for the learned Judges of the sub-ordinate judiciary for dealing with the preemption cases under Section 96 of the SAT Act and, also, the necessary directions for the relevant State-functionaries:
(1) In all the preemption cases under Section 96 of the SAT Act, if the preemptor denies the fact of receiving notice under Section 89 of the SAT Act, the learned Judges of the trial Court must frame an issue as to whether or not notice under Section 89 of the SAT Act was served upon the preemptor by the concerned Registering Officer and the Revenue Officer.
(2) The Registrar of the High Court Division of the Supreme Court of Bangladesh is directed to circulate this Judgment to all the learned District Judges of the country with a direction upon them to arrange an in-house meeting/workshop for 2(two) hours in order to apprise and enlighten all the learned Judges about the guidelines set out hereinbefore in this Judgment.
(3) The Secretary, Ministry of Land is directed to prepare a Form/format of the Notice under sub-Sections (4) & (5) of Section 89 of the SAT Act to be used by the Revenue Officers of Bangladesh as compliance with the abovementioned provisions of Section 89 of the SAT Act. He is further directed to disseminate the said notice to all the Upazillas of the country with an Office Order that the Revenue Officers must serve notice under Section 89 of the SAT Act immediately after being informed about the transfer of a land by the Registering Officers, failure of which negative remarks shall be recorded in their respective service books.
(4) The Inspector General of Registration under the Ministry of Law is directed to circulate a gazetted notice to all the Registering Officers of the country directing that they must comply with the provisions of Sub-Sections (4) & (5) of Section 89 of the SAT Act without fail with a consequential order that in case of failure to serve notice under the provision of Section 89, they shall face disciplinary action for gross negligence in performing their duties.
(5) The Secretary, Ministry of Land, the Registrar of the High Court Division of the Supreme Court of Bangladesh and the Inspector General of Registration are directed to file affidavits of compliance on or before 05/05/2021. .....Shaikh Ali Iman Vs. Subodh Kumar Mondol & ors, (Civil), 19 SCOB [2024] HCD 116 ....View Full Judgment

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

Evidence Act, 1872
Sections 101 & 103
State Acquisition and Tenancy Act, 1950
Sections 89, 96
The High Court Division while exercising its revisional jurisdiction is competent to reverse the judgement of the courts below when the same has been made either upon mis-reading or non- consideration of the material evidence–– The High Court Division accepted the evidence of OPWs regarding the point thatthe transfer was within the knowledge of the petitioner since OPW-1, Ekram Hossain, who is also full brother of pre-emptor Motiar Rahman and OPW-2, Atiar Rahman, who is also full brother of pre-emptor Matiar Rahman and OPW-3, Karim Sheikh, Sister’s husband of the pre-emptor, all these OPWs testified in one voice that their father late Afsaruddin transferred the case land to the pre-emptee opposite party by a registered kabala dated 14/12/1995 within full knowledge of all his sons and daughters including the pre-emptor. The High Court Division while exercising its revisional jurisdiction is competent to reverse the judgement of the courts below when the same has been made either upon mis-reading or non- consideration of the material evidence and the said mis-reading and non-consideration of the evidence caused failure of justice [Habibullah (Md)-Vs-Sher Ali Khan and others, 57 DLR (AD) 55]. The High Court Division is empowered to interfere with the findings of fact if the findings are perverse or there has been a non-appreciation or non-consideration of the material evidence on record by the Courts below [Masjid kacha Tank, Nahan-Vs-Tuffail Mohammed, AIR 1991 SC 455]. .....Matiar Rahman Bhuiyan =VS= Md. Ekram Hossain Bhuiyan, (Civil), 2024(1) [16 LM (AD) 1] ....View Full Judgment

State Acquisition and Tenancy Act, 1950
Sections 89 and 96
Evidence Act (1 of 1872)
Sections 101, 102, 103, and 104.
It is the settled principle of law that the testimony of a witness cannot be disbelieved only on the ground of relationship if his evidence is otherwise found to be true and withstands the test of cross-examination. The pre-empees shall be entitled to get development cost till getting notice of the pre-emption application.
Md. Habibur Rahman Bhuiyan and others -Vs- Mosammat Galman Begum and others 1 ALR (AD) 133

Pre-emption under section 26F of the Bengal Tenancy Act (VIII of 1885)—Whether the same can be allowed in favour of the pre-emptor applicant who admitedly owns more than 100 bighas of land exceeding the land ceiling prescribed by PO No. 98 of 1972— The question of land holding limitation upto 100 bighas of land does not arise as the Munsifs order was passed in 1967 when there was no law limiting and holding to 100 bighas. Appeal dismissed. Azizur Rahman vs Bhayetullah 40 DLR (AD) 224.

The suit land compromises 99 acres which is located in the coastal area. There is no doubt that the suit land is the government khas land. Therefore, the lease was made in violation of section 90 of the State Acquisition of Tenancy Act. We would like to observe here that the government cannot lease out any khas land to any person in violation of law. If the government wants to lease out the suit land such lease should be granted in due process of law keeping in mind the prevailing law of the land. .....Government of Bangladesh =VS= Messers Friends Industries Corporation, (Civil), 2018 (1) [4 LM (AD) 202] ....View Full Judgment

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. Province of East Pakistan (Now Bangladesh) Vs. Sailesh Chandra Bhattacharya, 4BLD (AD) 295

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, J).
There is no legal presumption as to maternity. Section 112 of the Evidence Act has no manner of application when the maternity of a person is questioned—The question of maternity is purely a question of fact. Plaintiff claimed that Gouri Dasi though a prostitute at the earlier part of her life, later on married one Kalipada Das and that she was born of that wedlock. But the trial Court and the lower appellate Court raised the question whether this marriage is valid. These Courts proceeded on the erroneous view of law that to prove her maternity, the plaintiff is also required to prove her paternity on the basis of a valid marriage. -
[Per S. Ahmed (agreeing) I]
Geeta Rani Dasi alias Shamina Khatun Vs. Bangladesh, 5 BLD (AD) 13.

The Constitution of Bangladesh, 1972
Article 102 r/w
State Acquisition and Tenancy Act, 1950
Section 92
We maintain the judgment and order passed by the High Court Division so far as it relates to the nature of the land in question and we further hold that the nature of the land in question shall have nothing to do with the title of the parties therein. .....Government of Bangladesh =VS= Md. Abdul Malek, [4 LM (AD) 216] ....View Full Judgment

The legislative intent of section 95A is that cases of sale attended with agreement for recoveyance whether or not registered would be within the ambit of complete usufructuary mortgage for a period of 7 years and provisions of section 95(4)(5) would apply to such transfers. A contrary view would make the provision of section 95A nugatory and frustrate its purpose. Abdus Salam Sheikh and others vs Puspa Rani Shil and others 49 DLR (AD) 71.

President's Order No. 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. Asmat Ali vs Abdur Rafique Mridha and others 52 DLR (AD) 132.

Redemption suit–
Legal aspect of the case, the plaintiffs also failed to prove their case factually. In the plaint, it was asserted that their predecessor-in-interest, Momtaz Miah, paid back the kabala money to the defendants' predecessor-in-interest, Moniruddin as per terms of the agreement and then he got back possession of the suit land and thereafter, he was dispossessed. The trial Court gave clear finding that the plaintiffs failed to prove that their predecessor-in-interest paid back the kabala money to Moniruddin and that he got back possession of the suit land.
The trial Court also held that as per the own case of the plaintiffs, the mortgage was redeemed with the return of the kabala money followed by delivery of possession of the suit land, but subsequently, Moniruddin did not execute and register the deed of reconveyance, if that be so, the plaintiffs could not have any cause of action to main the suit for redemption of the suit land and that they ought to have filed a suit for specific performance of contract. We have considered the evidence. The trial Court was perfectly correct in taking the said factual and legal view. But neither the Appellate Court nor the High Court Division adverted the above findings of the trial Court in decreeing the suit.
We find merit in the appeal and the same is allowed. The impugned judgment and order affirming those of the Appellate Court is set aside and those of the trial Court are restored. …Belayeth Hossain =VS= Nasrin Akhter, (Civil), 2019 (2) [7 LM (AD) 40] ....View Full Judgment

The appellant sold the land to respondent No. 1 by Kabala dated 24.6.1967 and the agreement for reconveyance of the said land executed on the same day stipulated a period of 4 (four) years from the said date. The time for reconveyance expired on 23.6.1971 — so the transaction cannot be said to be alive and subsisting on the date of promulgation of P.O. No. 88 of 1972, i.e. on 3.8.1972, section 95A will have no application to the transaction which was past and closed — appeal dismissed with cost. [Paras-7 & 10] Abdul Kaleque Samarnath Vs Abdul Kaleque Samarnath & Ors. 3BLT (AD)-140.

Cases of sale attended with agreement for reconveyance whether or not registered would be Within the ambit of complete usufructuary mortgage for a period of 7 years and provisions of Section 95 (4) (5) would apply to such transfers. A contrary view would clearly make the provision of Section 95A nugatory and frustrate its purpose. [Para-6] Abdus Salam Sheikh & Ors Vs. Pusspa Rani Shil & Ors. 5 BLT (AD)-58

Respondent No. 4 sold .87 acres of land to the appellant by a registered kabala dated 11.1.1965 corresponding to 27th Poush 1371 B.S and handed over the possession of the said land to the appellant. On the same date a contemporaneous agreement was made between the appellant and respondent No. 4 to the effect that the appellant would enjoy the usufruct of the land for 5 years with effect from first Ashar 1371 B.S. toAgrahayan 1376 B.S. and if the respondent could return the entire consideration money to the appellant within the next 2 years starting from the month of Poush 1376 B.S. then the respondent would get back the land and in case of failure of the respondent to repay the consideration money within the stipulated period he would have no right to claim the land or anything from the appellant — In order to recover the disputed land under the agreement which expired on 10.1.72 long before the promulgation of P.O. No. 88 of 1972 on 3,8.72, respondent No. 4 filed R.P. Case No. 67 of 1973 on 25.6.1973 against the appellant for redemption of the land which was allowed — Held : It was a case of an out and out sale with a contemporaneous agreement for reconveyance — relied on 32 DLR (AD) 233 — the appeal is allowed. [Para- 15] Anwaruddin Bepari Vs. The Asst. Comm. (Land) & Ors. 4 BLT (AD)-52

Doctrine of past and closed transaction read with Sections 95 & 95A of the State Acquisition & Tenancy Act, 1950; In the present case the Plaintiffs grandfather sold the suit property by registered safkabala deed dated 11.10.1963 and executed a deed of re-conveyance on that date with a condition of repurchase of the same within eight years period that is till 10.10.1971.The President’s Order No.88 of 1972 came into effect on 03.08.1972 and following certain amendments therein by P.O No. 136 of 1972 and the condition giving right of repurchase having expired. The sale/transaction became past and closed transaction and the plaintiff was not entitled to get relief on the ground that the property was a mortgaged property. ...Feroza Begum & ors. Vs. Md. Nannu Mollah & ors., (Civil), 14 SCOB [2020] HCD 47 ....View Full Judgment

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) 151.

Section 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.
By 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.
S. 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.
Complete usufructuary mortgage presupposes the restoration of land to the transferor either by redemption or by efflux of time.
Bangladesh Vs. Haji Abdul Gani Biswas and others, 1 BLD (AD) 8

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 years. Asmatunnessa and others Vs. Tenu Khan and another, 12BLD(AD)216

The kabala under pre-emption was not an out and out sale deed but a kot kabala and as such, the same was not pre-emptable–
The Appellate Division observed that the High Court Division held that in a case with 'an agreement for re-conveyance with a deed of out sale as contemplated under section 95A of the State Acquisition and Tenancy Act is not required to be compulsorily registered as is required under section 95(2) of the Act. .....Dadan Biswas =VS= Abdul Barek Bepari, (Civil), 2016-[1 LM (AD) 203] ....View Full Judgment

State Acquisition and Tenancy Act, 1950
Section 95A
P.O. 88 of 1972
Usufructuary mortgage– The facts of the case of Abdul Khaleque Sarnamat (Supra) are the same and similar of the instant case. In the instant case, the parties agreed to create the mortgage for a period of 2(two) years and the period of re-conveyance expired on the 31st Chaitra, 1376 B.S. corresponding to 18.04.1970, whereas President’s Order No.88 of 1972 came into force on 03.08.1972 and thus the transaction became a past and closed one, so the plaintiff was not entitled to get redemption of the mortgage created by the kabala dated 18.12.1969. But the High Court Division totally misconceived the facts of the case and failed to appreciate the purport and scope of section 95A of the Act, 1950 vis-a-vis the principle of law enunciated in the case of Abdul Khaleque Sarnamat (supra). ...Abdul Hamid Gayeen(Md.) =VS= Abdul Karim Khan, (Civil), 2021(2) [11 LM (AD) 629] ....View Full Judgment

Consideration of the documents as to the devolution of the vendor's interest on the pre—emptor did not materially affect the decision. Bhupati Ranjan Shame & others vs Afizuddin Sheikh 40 DLR (AD) 264.

Pre-emption—Co-sharer in one of the plots of the holding is a co-sharer in the holding—Impleading of a co-sharer, whether by inheritance or by purchase, in an application for pre-emption under section 96 of the Act is mandatory—Omission to implead a co-sharer in the application renders the pre-emption application liable to be dismissed for defect of party. Sultan Ahmed vs Akhtaruzzaman 42 DLR (AD) 1.

The omission to implead a co-­sharer was pointed out at the earlier point of time, but the same was not rectified—In the circumstances, the order of the trial Court which was restored by the High Court was not sustainable. Sultan Ahmed vs Akhtaruzzaman 42 DLR (AD) 1.

Long line of decisions of the erstwhile Dhaka High Court has followed the principle that the date of accrual of the right of pre-emption is not the date of execution of the same deed· but the date of registration under section 60 of the Registration Act. Abdul Motalib vs Iman Ali Mollah 42 DLR (AD) 123.

As a rule no amendment is allowed where its effect will take away any legal right, which might have accrued by lapse of time. Here the transferee has failed to show what legal right had accrued to him which will be washed away by allowing the amendment—Then again as a rule the Court refused an amendment if the amendment introduces a totally new and inconsistent case which may require further evidence to be adduced by the opponent—In this case no legal right accrued to the respondent except the right of rateable pre-emption—The amendment is allowed and it will relate back to the date of the institution of the pre-emption case.
Amendment of pleadings under Order VI, rule 17 CPC—Special limitation prescribed under section 96 of the State Acquisition and Tenancy Act—The question of limitation may arise in two cases (i) whether the claim to be included was barred on the date of the institution of the suit, (ii) whether the claim is barred on the date of the prayer for amendment—In this case the amendment will relate back to the date of the institution of the case. Shushil Ranjan Dutta vs Al­-Haj Moulvi Idris Mia 42 DLR (AD) 110.

Right of pre-emption—Waiver and acquiescence in pre-emption: Facts proved in a particular case may give rise to waiver and acquiescence and a pre-emptor may be held to be estopped from enforcing his right of pre-emption. It will be a question of proper inference from the facts provided in each particular case as to whether the plea of waiver and acquiescence exists or not. Akhlasur Rahman vs Safarullah 42 DLR (AD) 189.

Right of pre-emption—Nature of the right—The foundation of the right is avoidance of inconvenience and disturbance which would arise from the introduction of a stranger into the land. Law of pre-emption imposes a limitation or disability upon ownership of a property to the extent that it restricts the owner's unfettered right of sale and compels him to sell the property to his co­sharer or neighbour. The benefit and the burden of the right of pre-emption run with the land and can be enforced by and against the owner of the land for the time being. The right can be waived or relinquished at an earlier date than on the date of actual completion of sale under the law or thereafter. Akhlasur Rahman vs Safarullah 42 DLR (AD) 189.

When a valid order under section 117 of State Acquisition and Tenancy Act is given, the court is not competent to ignore the said order when disposing of a case under section 96 of the said Act. M Banik vs Nitya Ranjan 39 DLR (AD) 75.

Pre-emption—Cause of action —Cause of action for pre-emption accrues on the date of registration of a sale deed when registration is compulsory, because the right to pre-emption arises on completion of a transfer. If a pre-emption application is filed before registration of the sale deed, it is not to be dismissed on the ground of pre—maturity if the same is registered during the pendency of pre­emption proceeding. Ayesha Khatun vs Jahanara Begum 43 DLR (AD) 9.

Pre-emption–
Since the pre-emptees are still co-sharers of holding by inheritance, we are of the view that the High Court Division committed error of law in allowing the prayer for pre-emption against them upon setting aside the concurrent findings of facts inasmuch as such application was barred against the co-shares. The appeal is allowed. The judgment and order of the High Court Division is hereby set aside. …Anwar Hossain @ Babul Miah (Md) =VS= Hakimuddin, (Civil), 2019 (2) [7 LM (AD) 45] ....View Full Judgment

Muktipatra—Its real import­ The pre-emptee failed to prove his motive for acquisition of the case land in the benami of Swapan Kumar—the question of deed of release by him in favour of pre-emptor Momtaz Ali does not arise and so the impugned deed is a transfer deed. The judgment of the High Court Division is liable to be set aside and the pre-emptor is entitled to the pre-emption. Abdur Rashid vs Momtaz Ali Karikar 44 DLR (AD) 270.

Right of pre-emption— Waiver and acquiescence—Statutory right of pre-emption cannot be taken away by mere verbal assurance of the person having such right, unless other facts and circumstances clearly make out a case of acquiescence or waiver. Fazaruddin vs Maijuddin 44 DLR (AD) 62.

The right of pre-emption accrued to the pre-emptor is not affected by the subsequent acquisition of co-shareship by the pre-­emptee. Abdul Baten vs Abdul Latif Sheikh 45 DLR (AD) 26.

Right of pre-emption is a heritable right—In a pending proceeding the heirs are entitled to be substituted in the place of the deceased pre-emptor so as to proceed with the case. Inu Mia and others vs Mokhlesur Rahman & others 45 DLR (AD) 171.

Principle of contiguity— Pre­emption in respect of two plots transferred when cannot be allowed—Admittedly the pre-emptor 's land, plot No. 2575, is contiguous to plot No. 2574, but it is not contiguous to plot No. 2573. If both these plots were closely contiguous to each other and formed a compact block of land, then only the principle could be applied. Jahiruddin Mollah vs Hosne Ara Begum 45 DLR (AD) 118.

Since the Khatians are different the pre-emptor cannot be held to be a co-sharer in the case holding and as such she is not entitled to pre-emption. Fatema Bibi vs Sree Manik Lal Somaddar & others 50 DLR (AD) 97.

Subsequent becoming of co­-sharers by inheritance during pendency of the case cannot alter the character and status of the original pre-emptor. Momtazuddin Sarker and others vs Abdur Rob and others 53 DLR (AD) 67.

There being no evidence of record by the pre-emptee challenging the date of knowledge of the pre-emptor about the transfer of the land, the contention that the application for pre-emption is barred by limitation is untenable in law. Jafar Ali vs Hushiar Ali 46 DLR (AD) 187.

Court's direction to make deposit in case of rateable pre-emption.
Where the transferee is also an applicant for rateable pre-emption despite the fact that he is entitled to receive back the money he has paid he must make the deposit proportional to the ratable pre-emption, but the court may grant an exemption regarding his deposit in his case. Abdul Hadi Bepari vs Safaruddin Mondal 38 DLR (AD) 265.

The learned Counsel appearing for the appellants canvassed that it was statutory obligation on the part of the pre-emptor to deposit the balance consideration within the period and since he failed to do so the prayer was illegally granted. This point has no substance.
By opposing respondent's prayer for deposit of the balance consideration the appellants were trying to achieve something indirectly namely, frustrating the very pre-emption proceeding—The payer was rightly granted—High Court Division was correct in taking the view. Serina Begum vs Mafizul Islam 42 DLR (AD) 77.

Transferee—co-sharer—His right to purchase when lost— The pre-emptee tried to resist the claim of the pre-emptor but did not join in the application for pre-emption. Such pre-emptee cannot be granted relief in the name of even—handed justice on the ground that the parties being co—sharers by purchase stood on equal footing. Golchera Khatun vs Sayera Khatoon 45 DLR (AD) 133.

A cousin sister's son is within three degrees of consanguinity from the donor. Shamsul Islam and others vs Badiar Zaman alias Bablu and another 48 DLR (AD) 88.

Defect of parties—As a matter of fact, some of the S.A. recorded tenants as appeared from the khatian filed in this case have been omitted. In view of the legal position the application for pre-emption was not legally maintainable for non-impleading necessary parties in the pre-emption proceeding. [Para- 12] Indrojit Kundu & Ors Vs. Biswajit Kundu & Ors 7 BLT (AD)-386

The land in question was transferred by a kabala dated 18-1-78 and registered on 22-1-81 the respondents knew of the transfer long before the date of registration and as such limitation will start from the date of this knowledge as contended by the petitioners Advocate.
Held : The right to pre-emption accrues on the date the kabala is registered and from this date, the application for pre-emption in this case was filed within the prescribed time. [Para-3] Md. Moslem Uddin & Anr Vs Md. Abdul Hakim & Ors. 3 BLT (AD)-134

In the present case admittedly the application for pre-emption was filed after 7 years of transfer and a heavy burden lies on the pre-emptor to discharge the onus of proof that he filed the case within four months from the date of his knowledge. The pre-emptor having failed to discharge the initial onus by adducing cogent and reliable evidence the learned Single Judge ought to have held that the application for pre-emption is barred by limitation. [Para- 13] Abdul Mazid Howlader & Anr Vs. Lahajuddin Howlader & Ors. 4 BLT (AD)-275

Read with Section-23 of Succession Act, 1925
The learned Judge of the High Court Division erred in law in holding that cousin sisters son is a relation by consanguinity within three degrees from the donor and the transaction in question is covered by Sub-Section 10(c) of the State Acquisition and Tenancy Act, 1950 as contended by the petitioners Counsel.
Held In the instant case the parties are Muslims and the Principle of Succession Act, 1925 is not applicable — The learned Judge of the High Court Division applied the principle enunciated in the case reported in 20 DLR 376 and rightly held that a cousin sister’s son is within three degrees of consanguinity from the donor. [Para-5] Shamsul Islam & Ors. Vs. Badiar Zarnan & Anr 4 BLT (AD)-12

The State Acquisition and Tenancy Act, 1950
Section 96(3), 96(4)
The Code of Civil Procedure
Order VII, rule 11
Pre-emption– Section 96(3) before it was amended that there was provision even after filing the application for pre-emption for the Court “…after holding an inquiry as to the actual amounts of the consideration money and rent paid and the expenses incurred by the transferee...” to direct “the applicant or applicants to deposit a further sum, if necessary, within such period as it thinks reasonable...”
There was power given to the Court to hold an inquiry regarding actual amounts of consideration money etc. and to allow further amounts to be deposited within a certain period after filing the application. After the amendment of the law there is no such power given to the Court to hold any inquiry regarding consideration money or allow time or opportunity to deposit in Court any amount in respect of shortfall of consideration, compensation, and interest.
The court cannot inquire into what consideration was paid and there is no provision to allow the pre-emptor to deposit any shortfall in consideration money, compensation, or interest. The purchaser is required only to give details of payments since the date of sale, i.e. in respect of rent, annulling encumbrances or making improvement.
The impugned judgement and order passed by the High Court Division is set aside and the order of the District Judge, Kushtia dated 29.02.2012 is hereby upheld and the application filed by the pre-emptee under Order VII, rule 11 is allowed. The application under section 96 of the State Acquisition and Tenancy Act for pre-emption is rejected. ...Mosharaf Hossain(Md.) =VS= Mst. Rekha Khatun, (Civil), 2021(1) [10 LM (AD) 91] ....View Full Judgment

The right of pre-emption is not a right to the land sold but a right to the offer of the land about to be sold. If a pre-emptor waives or gives up his right without raising any objection to the sale in favour of third party, the Court may hold that pre-emptor has already given up his right. From the pleadings and evidence adduced by the pre-emptees it appears that the pre-emptors had voluntarily abandoned their known right. There are cogent evidence reflecting the pre-emptors conduct which clearly established the abandonment of such right. It was argued by the pre-emptor respondents that the right of pre-emption could accrue to the pre-emptors only after sale of the land by the vendor, and thus they could not be said to have waived it by their refusal to purchase the case land before its actual sale to the pre-emptors . The right of pre-emption can be waived even before sale, by express refusal to purchase the case land or by conduct reflecting clearly that the pre-emptors were not interested in its purchase. ...Iqbal Hossain Talukder(Md.) =VS= Most. Siddika Begum, (Civil), 2021(1) [10 LM (AD) 143] ....View Full Judgment

Pre-emption– The appellate Court set aside the order of the trial Court upon holding that the right to preemption must subsist till the conclusion of the pre-emption case. When the case was decided by the trial Court on 13.05.1992 Chandra Kumar and Bashanta Kumar no longer owned any land in the case jote and therefore they had no subsisting right to pre-empt the case land.
The Appellate Division finds that the appellate Court has properly set aside the order of the trial Court and the High Court Division correctly affirmed the judgement and order of the appellate Court. The civil petition for leave to appeal is dismissed. ...Kamrun Nahar =VS= Mariam Begum, (Civil), 2021(1) [10 LM (AD) 306] ....View Full Judgment

Pre-emption– The lower appellate Court did not properly assess the evidence on record and the reversal of the findings of the trial Court was not based on correct appreciation of the deposition of the witnesses– We are of the view that the appellate Court came to a finding without properly assessing the evidence of the witnesses. The pre-emptor’s claim of knowledge 15 years after the pre-emptee’s purchase of the case land is not supported by any witness. In our view the trial Court correctly dismissed the case for pre-emption upon finding that the application is barred by limitation. Hence, we are of the view that the reversal of the order of the trial Court by the appellate Court was not in accordance with law and the High Court Division erred in upholding the erroneous judgement and order of the appellate Court. We find merit in the appeal, which is allowed. The judgement and order of the High Court Division as well as those of the appellate Court are hereby set aside and the judgement of the trial Court is restored. ...Sree Probitra Mohan Sutradhar =VS= Md. Asgar Miah, (Civil), 2021(1) [10 LM (AD) 600] ....View Full Judgment

The pre-emption application filed within time and no defect of parties in the case and admittedly the pre-emptor is a co-sharer by purchase and it is also found that the pre-empteepetitioners are also co-sharers by purchase. But on perusal of the record it is found that none of the pre-emptee-petitioners claimed pre-emption after receiving the summons within 2 months of the statutory period as mentioned in sub-section 4 of section 96 of Estate Acquisition and Tenancy Act. When an application has been made under sub-section (1) any of the remaining co-sharer tenants including the transferee, if one of them, and the tenants holding lands contiguous to the land transferred may within the period referred to in sub-section (1) or within two months of the date of service of notice of the application under clause (b) of sub-section (3) which ever be earlier apply to joint in the said application; any co-sharer tenant or tenant holding land contiguous to the land transferred, who has not applied either sub-section (1) or under this sub-section, shall not have any further right to get pre-emption under this section. ...Abdur Rashid and ors Vs. Md. Babul Mia & ors, (Civil), 2 SCOB [2015] HCD 41 ....View Full Judgment

State Acquisition and Tenancy Act, 1950
Sub-section 10 of section 96 And
Succession Act, 1925
Section 28:
Section 28 of the Indian Succession Act, 1925, provides mode of computing of degrees of kindred in the manner set forth in the table of kindred set out in schedule 1. From the table of schedule 1, annexed with the counter affidavit, it is evident that brother-in-law is not a relation within three degrees by consanguinity. Pre-emptee opposite party no.1 being not a relation within three degrees by consanguinity of the donor is not entitled to get protection of Sub-section 10 of section 96 of the State Acquisition and Tenancy Act. ...Sree Paresh Chandra Pramanik vs Md. Mokbul Hossain & ors, (Civil), 7 SCOB [2016] HCD 64 ....View Full Judgment

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

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 pre-emption. Md. Abdul Jalil Vs. Durjan All alias Siddique Hossain and others, 1BLD (AD) 241

Burden of Proof—Onus of proof that the left-out co-sharer has no subsisting right of pre-emption is upon the pre-emptor. Md. Abdul Jalil Vs. Durjan All alias Siddique Hossain and others, 1BLD (AD)241

Pre-emption—Application for preemption by contiguous landholder—Preemptor’s land contiguous to some of the plots transferred, but the plots transferred are contiguous 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

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. Lebu Miah Vs. Ganesh Chandra Nath and others, 3 BLD (AD)57

Transfer to co-sharer by inheritance— not pre-emptible—Transfer to a co-sharer whose interest in the tenancy accrued by inheritance cannot be pre-empted—Even if the father of such cosharer acquired interest in the tenancy by purchase he is a cosharer by inheritance—Transfer to such a cosharer by inheritance is immune from pre-emption. Abdul Haque Miah and another Vs. Abdur Rashid and others, 3BLD(AD)103

Pre-emption 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

Waiver of right of preemption
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

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 deposite—Whether the Court can direct to adjust the amount to be deposited for rateable pre-emption in favour of the transferee from the amount deposited by the pre-emptor in his favour—Deposit’ for rateable pre-emption by a subsequent claimant being a transferee, the Court may in its discretion exempt a transferee—pre-emptee from making the deposit and to adjust the amount due from him against pre-emption money already deposited, if a prayer is made to the Court in appropriate time.’ Abdul Hadi Bepari Vs. Safaruddin Mondal and others, 6BLD(AD)332

Registration Act, 1908
Section 60
State Acquisition and Tenancy Act, 1950
Section 96
Non-Agricultural Tenancy Act, 1949
Section 24
If the right of pre-emption is waived by the conduct of the pre-emptors before and after purchase, the pre-emption case may be dismissed:
The conduct of the pre-emptors before and after purchase amply proved that the preemptor- petitioners waived their right of pre-emption and as such, the pre-emption case was rightly dismissed by the trial Court. The petitioners intentionally relinquished of their statutory right and thereby waived the right of pre-emption. The Appellate Court assigning cogent reason concurred with the finding of the trial Court; therefore, it does not warrant for any interference by this Court. It is true that the right of pre-emption accrues after the deed entered in the volume as per section 60 of the Registration Act, 1908, but if the right of pre-emption is waived before and after registration, obviously the Court may turn down the prayer of pre-emption; otherwise, the equitable principle of waiver, acquiescence which operate as estoppels will be meaningless. Nothing is absolute in law; therefore, it cannot be held absolutely that the pre-emption right shall accrue only after registration of the deed and if it so, the equitable principles of waiver and acquiescence shall be futile and fruitless. ...Most. Shamima Begum & anr Vs. Most. Rezuana Sultana & ors, (Civil), 18 SCOB [2023] HCD 284 ....View Full Judgment

State Acquisition and Tenancy Act, 1950
Section 96
Non-Agricultural Tenancy Act, 1949
Section 24
Registration Act, 1908
Section 60
It is expected that the Government shall take necessary step to amend the provision of section 24 in line with the latest amendment of section 96 of the SAT Act, 1950 for the greater interest of the people of the country. The following points may be considered by legislators:
(i) Only the co-sharer tenant by inheritance can file pre-emption case under section 24 of the NAT Act.
(ii) Transfer by way of sale only be pre-emptible and the pre-emption case has to file within two months from the date of registration as per section 60 of the Registration Act or if no notice is given under section 23 of the NAT Act within two months from the date of knowledge.
(iii) The maximum period of filing pre-emption case shall not be more than two years from the date of expiry of the registration of the sale deed.
(iv) The pre-emptor has to deposit consideration money along with 35% of the compensation of consideration money and an amount of 10% annual interest upon the amount of consideration money for the period from the date of execution deed of sale and to the date of filing the application for pre-emption.
(v) The remaining co-sharer tenants by inheritance may join in the original application within two months from the date of service notice or within two months from the date of knowledge of registration of the deed.
(vi) If pre-emption case is allowed, the pre-emptee has to execute a registered sale deed within stipulated time failing which the Court shall execute the registered deed and shall hand over the possession to the pre-emptor.
(vii) Non-agricultural land or holding should be considered as synonym. If the non-agricultural land is recorded in different khatians by survey operation or by mutation proceeding, the right of pre-emption shall be ceased.
(viii) The ceiling of the agricultural or non-agricultural land should not be more than twenty bighas in case of agricultural land and only five bighas in case of non-agricultural land and accordingly, consequential amendment has to be made in Bangladesh Land Hodling (Limitation) Order, 1972(PO 98 of 1972), the Land Reforms Ordinance, 1984(Ordinance No. X of 1984) and Section 90 of the SAT Act (Act XXVIII of 1951).
(ix) As per Rules of Business and Allocation of Business, it is the subject of the Ministry of the Land, therefore, the Ministry of Land may take necessary step to review the provisions of law relating to pre-emption as set out under Section 24 of the NAT Act. ...Most. Shamima Begum & anr Vs. Most. Rezuana Sultana & ors, (Civil), 18 SCOB [2023] HCD 284 ....View Full Judgment

The Constitution of Bangladesh, 1972
Article 42(1) r/w article 31
The Limitation Act
Article 10 (First Schedule)
State Acquisition and Tenancy Act, 1950
Section 96
Hadis r/w Quran
Pre-emption–– From the judgment of the trial Court, it appears that it decreed the suits on the findings, inter alia, that the plaintiffs proved that they were the owners of ‘B’ scheduled land which is contiguous to the suit land and therefore, they were entitled to file the suit for pre-emption as Shafi-I-Jar; that the plaintiffs failed to prove that they had a path way on the suit land for engress and outgress from ‘B’ scheduled land; that the suits were filed well within the period of limitation; that the plaintiffs proved their case of Talab-I Mowasibat and Talab-I-Ishad. ––Appellate Division can easily and definitely say that the saying of the great Prophet (saw) is Hadis. ––The source of pre-emption as Shafi-I-Jar, i.e. vicinage from Hadis: (I) Narrated by Ibn Abbas that the Prophet (saw) said, “Whoever has land and wants to sell it, let him offer it to his neighbour (Ibn Majah).” (II) Narrated by Abu Rafi “That the Prophet (saw) said, “The neighbour has more right to property that is near (Sahih Al Bukhari and Sahih Al Muslim).” (III) Narrated by Sharid Bin Suwaid that “I said, O Messenger of Allah, (what do you think of) land owned by only one person but this land has neighbours?” He said: “The neighbour has more right to property that is near” (Sahih Al Bukhari). (IV) Narrated by Samarah that the Prophet of Allah (PBUH) said, “The neighbour of the house has a greatest right to pre-empt the house” (Jamai of Tirmizi).
In the instant case, the agreement for sale vide Ext-‘A’ was executed on 16.08.1995 and part payment was made on that date and physical possession of the suit property was also handed over to the vendee on receipt of full consideration, the sale deed was executed and presented for registration on 07.03.1996 whereas, the suit was filed on 30.06.1997, i.e. much beyond the period of limitation of 1 (one) year as provided in article 10 of the First Schedule to the Limitation Act. But the trial Court totally ignored the above factual and legal aspects of the case and thus erred in law in holding that the suits were not barred by limitation. ––Appellate Division finds that the High Court Division was totally wrong in declaring the right of pre-emption under the Muhammedan Law on the ground of vicinage both agricultural and town property void being discriminatory and violative of article 42(1) read with article 31 of the Constitution. .....Jamuna Knitting and Dying Ltd. =VS= Messer’s Y. K. Co. Textile Ltd, (Civil), 2023(1) [14 LM (AD) 139] ....View Full Judgment

Transfer by way of exchange not Preemptable—
Transfer by way of exchange is not pre-emptable under section 96(10)(b) of the State Acquisition and Tenancy Act. But when it is established by consistent evidence that although a transfer is shown in the deed as exchange the same is out and out a sale, such transfer is pre-emptable. Idris Mia (Ma) Vs. Haji Abdul Mannan Sarker and others 4, MLR (1999) (AD) 18.

Partial pre-emption can be allowed–– The trial Court as well as the Appellate Court refused to allow pre-emption. However, the High Court Division in revision allowed partial pre-emption relying on the case of Karimunnessa Begum Chowdhurani and others Vs. Niranjan Chowdhury & another, reported in 43 DLR (AD)108. ––In the cases of Ahmed Hossain & ors. Vs. Basharat Ali and ors. reported in 32 DLR (AD)54, wherein principle of partial pre-emption has been discussed. ––Reported in 31 DLR (AD)88 pre-emption was allowed to a contiguous land holder in respect of two out of three plots comprising the land transferred. In the cases of Haji Tajamal Ali being dead his heirs: Kamarunnessa and ors. Vs. Abdus Sattar and others reported in 34 DLR (AD)217, it has been observed as follows: “This rule (partial pre-emption) is applicable to a case where pre-emption is sought by a co-sharer tenant who is required to pre-empt the entire (wrongly typed as enslre) land transferred, but is not applicable in a case where a contiguous land holder seeks pre-emption and ‘contiguity’ being the only basis for his claim, 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.”
The attending facts and circumstances of the present case, in particular the pre-emptor Arif Miah is a co-sharer in holding No.459, Appellate Division is of the view that the High Court Division did not commit any error in allowing the partial pre-emption as the same is permissible in law. .....Muntachir =VS= Ruposhi Begum, (Civil), 2023(2) [15 LM (AD) 1] ....View Full Judgment

The suit land was wrongly recorded in Khas Khatian No. 1 in the name of the government–– The defendant No. 1 claims that the government gave lease of the suit land to Abdul Mannan and some others, but the defendant No. 1 could not produce any document in support of the said lease. Moreover, none of the lessees deposed before the Court to prove the claim. ––Regarding possession, the plaintiff examined four witnesses including himself. P.W.1 deposed that he is in possession of the suit land. P.Ws.2, 3 and 4 also deposed supporting the possession of the plain-tiff in the suit land.
––The trial Court without proper appraisal of the oral evidence as well as documentary evidence available on the record dismissed the suit. The appellate Court correctly set aside the judgment and decree of the trial Court and the High court Division lawfully up-held the judgment and decree of the appellate Court. Appellate Division does not find any perversion in the impugned judgment and decree of the High Court Division and as such this Division is impelled to hold that the plaintiff has acquired a valid title and possession in the suit land. Due to reasons stated above, it does not warrant interference with the judgment and decree dated 10.05.2006 passed by the High Court Division in Civil Revision No. 3150 of 1998. Therefore, this Division does not find any merit in the submissions of the learned Counsel for the appellant and as such the instant civil appeal is liable to be dismissed. .....DC, Noakhali =VS= Md. Rafiquzzaman Bhuiyan, (Civil), 2023(2) [15 LM (AD) 197] ....View Full Judgment

Pre-emption–– In the instant case, the trial Court allowed the preemption and the Court of appeal below being the final Court of fact affirmed the judgment and order passed by the trial Court.––However, in revision the High Court Division held that the alleged transfer was not out and out sale but it was an exchange (ewaj) and, that the pre-emptor failed to prove that the alleged transfer was not a deed of ewaj, rather sale deed. ––From the evidence, it reveals that to defeat the right of the pre-emptor the alleged transaction was made showing exchange. The High Court Division measurably failed to appreciate this aspect and thus, miscarriage of justice has been occurred. .....Uzzal Sarker =VS= Kutub Uddin, (Civil), 2023(2) [15 LM (AD) 437] ....View Full Judgment

Pre-emption–– The suit is bad for defect of parties but the High Court Division non-considering the same reversed the findings of the last court of fact–– On conclusion of the trial, the learned Senior Assistant Judge, Burichang, Comilla Sadar, Comilla 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 6-9-1998. ––Feeling aggrieved, by the judgment and order of the trial Court, the pre-emptees as appellants preferred Miscellaneous Appeal No.82 of 1998 before the learned District Judge, Commilla. On transfer, the learned Additional District Judge, First Court, Comilla by his judgment and order dated 20-11-2002 allowed the appeal, and, thereby, set-aside the judgment and order of the trial Court, and, dismissed the pre-emption Case No.13 of 1997. A single Bench of the High Court Division upon hearing the parties, made the Rule absolute by the impugned judgment and order dated 20-3-2007, and set-aside the judgment and order of the Appellate Court below, and, affirmed the judgment and order of the trial Court. The impugned deed clearly shows that the case land was exchanged through a deed of exchange and in that view of the matter the pre-emption case was not maintainable as per clause (b) of Sub-section 10 of section 96 of the State Acquisition and Tenancy Act, 1950 and thus the impugned judgment and order is liable to be set-aside. ––Appellate Division opines that the single Judge of the High Court Division upon erroneous view made the Rule absolute by the impugned judgment and order which is liable to be set-aside. .....Shiraj Ali =VS= Shahid Meah, (Civil), 2023(2) [15 LM (AD) 452] ....View Full Judgment

The trial Court after hearing the parties allowed the pre-emption finding that the pre-emptor was a co-sharer by inheritance and that the pre-emptee failed to prove that he was also co-sharer which was affirmed upto to the High Court Division. Any ground not canvassed before the Courts below cannot be raised before the Appellate Division. Abdul Kashem vs Amirun Nahar 11 BLC (AD) 147.

Ex-parte order which has been obtained by practising fraud cannot be sustained–– It is well settled principle that a decree or order obtained by playing fraud on the court is a nullity and non-est in the eye of law. Once it is established that the order was obtained by a successful party by practising or playing fraud, it is vitiated and cannot be allowed to stand. This is fundamental principle of law and needs no further elaboration, the High Court Division erred in law in maintaining the order of pre-emption partially. The appeal is allowed. The judgment and order dated 29.04.2007 and 30.04.2007 passed by the High Court Division in Civil Revision No.5369 of 2000 is hereby set aside. .....Md. Shafiullah Patwari =VS= Momin Mia, (Civil), 2023(2) [15 LM (AD) 476] ....View Full Judgment

অগ্রক্রয়যোগ্য- গ্রামাঞ্চলে অবস্থিত জমি রাষ্ট্রীয় অধিগ্রহণ ও প্রজাস্বত্ব আইনের ৯৬ ধারা অনুসারে অগ্রক্রয়যোগ্য, যদিও সে জমি বসতবাড়ি হিসেবে ব্যবহৃত হয়- আপিল বিভাগে নিষ্পত্তিকৃত বিভিন্ন মামলায় অনেক সিদ্ধান্ত রয়েছে যেখানে বলা হয়েছে যে, "আইনে এখন এটা প্রতিষ্ঠিত যে মিউনিসিপিলিটির বাইরে রায়তের বসতবাড়ি রাষ্ট্রীয় অধিগ্রহণ ও প্রজাস্বত্ব আইনের ৯৬ ধারা অগ্রক্রয়যোগ্য" (স্ব-অনুদিত)। আপিল বিভাগের বিচারপতি জনাব রুহুল আমিন মো: ফজলু মিয়া এবং অন্যান্য বনাম আসাবুর রহমান এবং অন্যান্য, ১০ বি. এল. সি. (এডি)১০ মামলায় এই অভিমতটি ব্যক্ত করেন। অত্র বিভাগ ২০১৩ খ্রিস্টাব্দে আব্দুল কুদ্দুস বনাম রাকিব আলি এবং অন্যান্য ১ সি. এল. আর. (২০১৩)১৩৩, মামলায় একই দৃষ্টিভঙ্গি ব্যক্ত করেন যেখানে বলা হয়েছে যে ,"এটা সুস্পষ্টভাবে প্রতিষ্ঠিত যে, গ্রামাঞ্চলে অবস্থিত জমি রাষ্ট্রীয় অধিগ্রহণ ও প্রজাস্বত্ব আইনের ৯৬ ধারা অনুসারে অগ্রক্রয়যোগ্য, যদিও সে জমি বসতবাড়ি হিসেবে ব্যবহৃত হয়"। ...মোঃ নুরুল ইসলাম বনাম সফুরুন্নেসা, (Civil), 2021(1) [10 LM (AD) 290] ....View Full Judgment

State Acquisition & Tenancy Act, 1950
Section-96 r/w
The Civil Procedure Code
Section-115(2), 115(4)
Pre-emption–
Preemptor filed an application under Section 96 of the State Acquisition and tenancy Act in the Court of Assistant Judge, 9th Court Dhaka giving rise to preemption Miscellaneous Case being No.69 of 2006. The case is being contested by the pre-emptee-petitioners by filing written objection. the pre-emptees filed an application for rejection of the pre—emption application on grounds (1) all necessary parties were not impleaded in the preemption application and (ii) in filing the pre-emption application, the preemptor did not comply with the provisions of Section 96 (3) of the State Acquisition and Tenancy - Act as amended in 2006. .....Alhaj Md. Maruf Hasan Swapan & another =VS= Kohinur Aziz & others, (Civil), 2016-[1 LM (AD) 273] ....View Full Judgment

Pre-emption–
It is true that the High Court Division in its revisional jurisdiction cannot reassess the evidence on record and should not readily reverse the concurrent findings of fact of the trial Court and the appellate Court which are both Courts of fact. However, it is within the jurisdiction of the High Court Division in its revisional jurisdiction to see whether the trial Court and the appellate Court have misread or left out of consideration any evidence on record. The High Court Division rightly held that the pre-emptor was not able to prove that the transaction was a sale. Hence, we are inclined to agree with the High Court Division that the deed in question is a deed of exchange and, therefore, the application for pre-emption was rightly rejected by reversing the decisions of the trial Court and appellate Court. .....Abdul Mobin (Md.) =VS= Abdur Rab, (Civil), 2018 (1) [4 LM (AD) 6] ....View Full Judgment

The prayers for preemption of the original preemptor and the co-preemptor of the case land are allowed in equal share. The original preemptor shall be entitled to withdraw the money deposited by him in excess of his proportion. .....Masum Ali (Md) =VS= Laynur Begum, (Civil), 2017 (2)– [3 LM (AD) 266] ....View Full Judgment

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, (Civil), 2017 (2)– [3 LM (AD) 459] ....View Full Judgment

Pre-emption–
We state the law that no application for pre-emption under section 96 of the Act, 1950 can be rejected on the ground of long lapse of time, if the same is found to have been filed within the statutory period of limitation, making the statutory deposit and impleading all the necessary parties and of course subject to the fulfillment of other requirements of law as regards the right of pre-emption of the pre-emptors. So, the impugned judgment and order cannot be sustained and that must be interfered with. The impugned judgment and order of the High Court Division is set aside and those of the Courts below are restored. .....Syed Emdad Hussain =VS= Muzahar Ali Mallick, (Civil), 2017 (2)– [3 LM (AD) 466] ....View Full Judgment

We must state the law that the pre-emptors were not at all required to file a separate suit for the declaration that the deed in question was not an ewaj deed, but it was an out and out sale deed, as the question could very well be raised and decided in the miscellaneous case itself filed for pre-emption of the land transferred by the deed in question. And it appears to us that the suit was filed on misconception of law by the Bar at the woe of pre-emptors. .....Ruhul Amin (Md) =VS= Md Forkan Ullah, (Civil), 2018 (2) [5 LM (AD) 65] ....View Full Judgment

Pre-emption–– It is true, the right of pre-emption accrues after transfer of the land and statutory right of pre-emption cannot be taken away by mere verbal assurance of the person having such right unless other facts and circumstances clearly make out a case of acquiescence or waiver. 'Acquiescence'–– In this case, the lower Appellate Court arrived at finding that the pre-emptor Md. Saher Ali was a co-sharer by inheritance of the case holding, the case was not barred by limitation and also not bad from having defect of parties. In addition, the High Court Division too concurred with these findings of the Courts below.–– It is the long standing prime principle of appreciation of evidence that finding of facts, arrived at by the lower Appellate Court is immune from interference in revisional jurisdiction, apart from in certain well definite circumstances such as non-consideration and misreading of material evidence affecting the merit of the case, or misconception, misapplication or misapprehension of law.–– Appellate Division finds no substance in all of the contentions raised by the learned Counsel for the appellants. The High Court Division upon correct assessment of the materials on record arrived at a correct decision. This Division, therefore, find no reason to interfere with the same. .....Dr. Nurul Huq =VS= Md. Shaher Ali, (Civil), 2022(2) [13 LM (AD) 29] ....View Full Judgment

Whether the pre-emptors had no locus-standi to file the case as the case khatian had already been separated–
It appears that the High Court Division considered the case of the respective party as made out in the respective pleading and the evidence on record and came to the clear finding that the order of separation of the khatian vide Mutation Case No. 683 of 1995-1996 was set aside in miscellaneous Appeal No. 03 of 1997 and that from the order in the miscellaneous appeal, it appeared that notice was served upon the dead persons named Yakub Mollah and Ramizuddin. The High Court Division also noticed that against the order passed in Miscellaneous Appeal No. 03 of 1997 cancelling the mutation of the pre-emptee, Miscellaneous Appeal No.301 of 2012 was filed before the Commissioner and the appeal was dismissed upholding the order dated 14.11.2012 in Miscellaneous appeal No.03 of 1997 and came to the conclusion that the pre-emptors were the sharers by inheritance in the case holding. On behalf of the pre-emptor-respondents, an additional paper book has been filed incorporating the orders passed in Miscellaneous Appeal No. 03 of 1997 and Appeal No.301 of 2012; from perusal of those orders, we found that the High Court Division took the correct view as to the separation of the khatian and the co-sharers ship of the pre-emptors in the case holding. .....Akhtaruzzaman Mollah(Md.) =VS= Jahirul Alam, (Civil), 2018 (2) [5 LM (AD) 166] ....View Full Judgment

Pre-emption of the case–
The High Court Division as the revisonal Court upheld the judgment and order of the appellate Court for the reason that the trial Court did not consider the whole aspect of the case, whilst the appellate Court considered the deposition of the witnesses, evidence on record, the impugned deed and location of the suit land.
The appellate Court also rightly refused to accept the solenama, the contents of which tend to show that pre-emptee No.2 was in collusion with the pre-emptors having received money outside the Court. Clearly this was not the money which the pre-emptor had deposited with the pre-emption application.
In the light of the facts and circumstances discussed above, we do not find any illegality or infirmity in the impugned judgement, which in our view does not call for any interference. .....Tafazzal Haq(Md.) =VS= Nazrul Islam(Md.), (Civil), 2018 (2) [5 LM (AD) 284] ....View Full Judgment

Pre-emption of the case–
Both the Courts below also found that the pre-emptees could not prove that the pre-emption case was barred by the principles of waiver and acquiescence. These findings of the Courts below having been based on proper appreciation of evidence on record should not be interfered with by the High Court Division as there is no mis-reading or non-reading of evidence on record.
We are of the view that High Court Division was not justified in setting aside the concurrent findings of fact of the Courts below.
This civil appeal is allowed and the impugned judgment and order passed by the High Court Division is set aside. The judgment and order passed by the appellate Court affirming the judgment and order of the trial Court is hereby restored. .....Ramoni Golder =VS= Gopal Chandra Chowdhury, (Civil), 2018 (2) [5 LM (AD) 288] ....View Full Judgment

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

Pre-emption application fail for non deposit of the value of the deed under Section 96 (3) of the Act, 1950–
A deed of sale and not a deed of exchange, that the pre-emptors were co-shares in the case holding, the miscellaneous case was filed within time, there was no defect of party were ball based on proper sifting of the evidence and the High Court Division was totally wrong in holding that the deed in question was a deed of ewaz nama and not a deed of sale, the pre-emption application must fail for non deposit of the value of the deed under pre-emption and the statutory compensation thereon as discussed above and accordingly, we find on merit in the appeal and in the same is dismissed. .....Ruhul Amin (Md) =VS= Md Forkan Ullah, (Civil), 2018 (2) [5 LM (AD) 65] ....View Full Judgment

The Appellate Division finds that the two registered deeds were executed on 31.07.2001 by opposite party No. 2 Saiful Islam who is the 2nd party in the divorce agreement. The total quantum of land is 66 decimals which is the quantum of land mentioned in the divorce agreement executed and signed by the parties on 31.07.2001. Thus the nexus between the registered land deeds and the divorce agreement is obvious on the face of the record. The claim of respondent No. 1 that the transfer of land was in lieu of dower is clearly established. .....Md. Shahidul Islam =VS= Sobejan Khatun & others, (Civil), 2016-[1 LM (AD) 75] ....View Full Judgment

State Acquisition & Tenancy Act, 1950
Section 96(10) r/w
The Evidence, Act,1972
Section 92
The High Court Division did not at all take into consideration the full purport of section 96(10) of the State Acquisition and Tenancy Act, 1950 and that a pre-emption case under Section 96 of the State Acquisition and Tenancy Act depends on the very nature of transaction i.e. whether a sale or a exchange and further the High Court Division failed to consider that the appellate Court, after thorough discussion of the evidence on record both oral and documentary, correctly came to the finding the transaction was not an out and out sale but an exchange which is not pre-emptible under Section 96(10) of the State Acquisition and Tenancy Act, 1950.
It further appears that the High Court Division failed to grasp the legal aspect to the effect that under section 92 of the Evidence, Act,1972 no evidence is admissible to vary the contents of the documents by any oral evidence and oral or extraneous evidence to contradict the terms of the contents of document is inadmissible. In view of section 92 of the Evidence Act a deed of exchange which is not pre-emptible under section 96 of the E.B. State Acquisition and Tenancy Act cannot be treated as a deed or sale and intention to treat a deed of exchange as a deed of sale is not permitted. The judgment of the High Court Division cannot be sustained and liable to be set aside. .....Nur Mohammad Mondal =VS= Mohammad Golam Rabbani, (Civil), 2018 (2) [5 LM (AD) 390] ....View Full Judgment

From a conjoint reading of the above provisions of law it is divulged that sub-section 3 of Section 96 of the Act requires that an application for pre-emption must be accompanied by deposit of the entire consideration money of the property transferred as stated in the notice under section 89 together with compensation @ 10% thereof. The statutory deposit being a condition precedent to the application being entertained, its non-compliance renders the application liable to be dismissed. Therefore, direction for depositing the rest statutory compensation deposit and consideration out of time would not cure the lacuna, thus, is also illegal and without jurisdiction. …Md. Rabiul Islam & ors. Vs. Sultan Mahmud & ors., (Civil), 15 SCOB [2021] AD 95 ....View Full Judgment

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

On perusal of proviso to Sub-section (1) of Section 96 of the State Acquisition and Tenancy Act it appears that the right of pre-emption is not available to a co-sharer tenant or tenants holding land contiguous to the land transferred unless he is a person to whom transfer of the holding or the portion or share thereof, as the case may be, can be made under section 90. …Abdur Rashid being dead his heirs Md Hossain & ors. Vs. Nurul Amin & ors, (Civil), 16 SCOB [2022] AD 77

Our apex court denied right of pre-emption in the case when the vendee retransferred the land to the vendor and the right is barred by the principle of estoppel, waiver and acquiescence. …Abdur Rashid being dead his heirs Md Hossain & ors. Vs. Nurul Amin & ors, (Civil), 16 SCOB [2022] AD 77 ....View Full Judgment

We have no hesitation to hold that even after subsequent transfer by the stranger preemptee to another co-sharer of the holding, the pre-emptory right of a co-sharer preemptor will not be defeated as because the subsequent transfer is subject to the right available against the original transfer and the subsequent transferee would be impleaded as party in the pre-emption proceeding and he would be entitled to get the consideration and compensation money as deposited by the pre-emptor. …Abdur Rashid being dead his heirs Md Hossain & ors. Vs. Nurul Amin & ors, (Civil), 16 SCOB [2022] AD 77 ....View Full Judgment

Pre-emption– On the basis of the comments of the Tahsilder, Dandkandi Tahsil Office, the Circle Officer (Revenue), Dandkandi, allowed the prayer of the pre-emptor and eventually, the pre-emptor’s name was mutated. And accordingly, the pre-emptor started paying rents separately. So factually and legally, there was no separation or sub-division of the case holding but separation of jama only to pay the rent. But both the learned Senior Assistant Judge and the learned Additional District Judge without considering the relevant provisions of law and the mutation proceedings initiated by the concerned Tahsilder and the order of the Circle Officer (Revenue), Dandkandi treated the separation of jama as separation of the case holding and held erroneously that there was separation or sub-division of the case holding and thus the pre-emptor ceased to be a co-sharer in the case holding and therefore, it was not entitled to pray for pre-emption of the case land as a co-sharer in the case holding. However, both the Courts below found that the pre-emptor was a contiguous land owner to the case land.
We find no error committed by the High Court Division in allowing the pre-emption applications of the pre-emptor-respondent setting aside those of the Courts below. Accordingly, the appeals are dismissed. …Atiqur Rahman Chowdhury(Md.) =VS= M/S. Marshu Ltd., (Civil), 2020 (1) [8 LM (AD) 244] ....View Full Judgment

The right of pre-emption accrues after transfer of the land and statutory right of pre-emption cannot be taken away by mere verbal assurance of the person having such right unless other facts and circumstances clearly make out a case of acquiescence or waiver–– It is accepted that the pre-emptor-appellant had the knowledge of the sale of disputed land, he is entitled to pre-empt the case land. Because, on the basis of discussed case laws above along with section 96(1) read with 96(4) of the SAT Act, the pre-emptors’s right to pre-empt the case land accrued on the date of registration of the case Kabala that is on 06.12.2004 and remained intact for next four (04) months. After obtaining certified copies of the case Kabala on 18.12.2004 the pre-emptor filed the case on 17.01.2005, which is well within limitation period. .....M.A. Majid =VS= Shahab Uddin, (Civil), 2023(1) [14 LM (AD) 40] ....View Full Judgment

The Registration Act, 1908
Section 60
State Acquisition and Tenancy Act, 1950
Section 96
Pre-emption– The cause of action for filing the pre-emption case arose on 30-12-2007 i.e. the date when the kabala under pre-emption was registered under section 60 of the Registration Act, 1908 and the amended provision of section 96 of the Act came into operation on 20-9-2006 by Act No. XXXIV of 2006. Therefore, through the pre-emption case was filed on 18-9-2006, it was before the actual date of cause of action. Thus, filing of the pre-emption case by contiguous land owner having not in existence on the date of cause of action, Chand Miah had no legal right of pre-emption to the case land transferred by the kabala concerned as a contiguous land owner. Facts and circumstances, Appellate Division finds that the High Court Division lawfully allowed the appeal and thereby, set-aside the judgment and order passed by the learned Joint District Judge, 2nd Court, Narayangonj. The appeal is dismissed and the impugned judgment and order dated 12-2-2013 passed by the High Court Division in First Miscellaneous Appeal No. 45 of 2011 is hereby affirmed. .....Chand Miah (Md) =VS= Alauddin Sarker, (Civil), 2022(1) [12 LM (AD) 167] ....View Full Judgment

Subsequent transfer by the stranger pre-emptee to another co-sharer of the holding, the pre-emptory right of a co-sharer pre-emptor will not be defeated– In the present case the vendor¬-opposite party Sekandar Mia sold the case land to pre-emptee-opposite party Feroj Mia who was a stranger in the case land and said Feroj Mia transferred the land to opposite party no.6 Abdur Rashid, predecessor of the present appellants, on 21.06.1992 who was a co-sharer in the holding as such considering the view taken by their lordship in the case of 50 C.W.N. 806 as well as 35 DLR 238 and also distinguishing the facts of 35 DLR (AD) 225, Appellate Division has no hesitation to hold that even after subsequent transfer by the stranger pre-emptee to another co-sharer of the holding, the pre-emptory right of a co-sharer pre-emptor will not be defeated as because the subsequent transfer is subject to the right available against the original transfer and the subsequent transferee would be impleaded as party in the pre-emption proceeding and he would be entitled to get the consideration and compensation money as deposited by the pre-emptor. .....Abdur Rashid =VS= Nurul Amin alias Abu Taher, (Civil), 2022(1) [12 LM (AD) 13] ....View Full Judgment

Pre-emption– From the judgment of the lower appellate Court it appears that it held that the pre-emptor has no right to file the pre-emption case over the case land because of the fact that the pre-emptee appellant, Dr Forman Ali Miah, when purchased the case land the applicant Nizamuddin was not the co-sharer tenant in the case jote and further held that the pre-emptee has residence contiguous to the case land whereas the applicant Nizamuddin has no such residence contiguous to the case land. The Court of appeal below further held that Kuddus Mollah also transferred some land from the case jote to one Abdul Kader on the same day i.e. on 15-6-1994 but the applicant-Nizamuddin, did not raise any objection to that transfer. Considering all these aspects the Court of appeal rightly allowed the appeal upon setting aside the order of pre-emption which the High Court Division failed to consider in its true perspective. Appellate Division holds that the High Court Division erred in law in making the Rule absolute and thereby allowing the pre-emption case by the impugned judgment and order upon setting aside the judgment of the lower appellate court which is based on proper appreciation of fact and law and, as such, the impugned judgment is required to be interfered with. .....Dr Md Forman Ali Miah =VS= Nizamuddin, (Civil), 2022(1) [12 LM (AD) 138] ....View Full Judgment

The Court of Appeal being the last Court of fact is not open to interfere with in revisional jurisdiction unless it is shown that the same has been based upon gross misreading of evidence or founded on misconception or misapplication or misapprehension of law or of any misinterpretation of any material document or otherwise perverse being contrary to law, evidence and materials on record, while the appellate Court below dealt with all material points raised by the respective party at the time of hearing, as the appellate Court below did not exceed its jurisdiction, rather its decisions were based on exact and precise analysis of the legal aspects involved in the pre-emption case. Whereas the revisional Court appears to be travelled beyond its jurisdiction and thereby made the Rule absolute which is liable to be interfered with. .....Khairuzzaman Mondal(Md.) =VS= Most. Zakia Akhtar (Fenshi) , (Civil), 2022(1) [12 LM (AD) 700] ....View Full Judgment

Pre-emption– Settled clearly that any land within rural area, whether agricultural or homestead is pre-emptable under section 96 of the State Acquisition and Tenancy Act– The pre-emptor was a contiguous land holder while he instituted the case for pre-emption. In the meantime, the original pre-emptor has died and his heirs have been substituted in this case. The documents filed by the appellant before this Court though show that the substituted pre-emptors have sold out some of their lands but on examination of these deeds it is apparent that the pre-emptors still have some lands contiguous to the case land. We find no merit in this appeal. The High Court Division rightly allowed the case for pre-emption after setting aside the judgment and order of the appellate Court below and the trial Court. ...Aftabuddin(Md.) =VS= Abdul Musabbir, (Civil), 2020 [9 LM (AD) 24] ....View Full Judgment

It is now a well settled principle of law that the cause of action under section 96 of the State Acquisition and Tenancy Act accrues on the date of the registration of the deed of sale, when registration is compulsory[Ayesha Khatun (Musammat)-Vs-Musammat Jahanara Begum and others, 43 DLR (AD)9]. .....Matiar Rahman Bhuiyan =VS= Md. Ekram Hossain Bhuiyan, (Civil), 2024(1) [16 LM (AD) 1] ....View Full Judgment

Even if the case land was a part of homestead situated within the rural area, the case for pre-emption under section 96 of the State Acquisition and Tenancy Act was very much maintainable.
The Appellate Division observed that the High Court Division, on consideration of evidence adduced by both the parties, rightly found that the land in question is a vacant land. Even if the case land is deemed to be part of a homestead then also, in view of above stated legal position, this case under section 96 of the State Acquisition and Tenancy Act is very much maintainable. Md. Aftabuddin -Vs.- Abdul Musabbir and others (Civil) 2019 ALR (AD) Online 347 ....View Full Judgment

Pre-emption– Last and final Court of fact, it’s findings, observations and decisions are not open to be interfered with in revisional jurisdiction, unless it is shown that the same has been based upon gross misreading of evidence or founded on misconception or misapplication or misapprehension of law– The Court of appeal being the last and final Court of fact, it’s findings, observations and decisions are not open to be interfered with in revisional jurisdiction, unless it is shown that the same has been based upon gross misreading of evidence or founded on misconception or misapplication or misapprehension of law or of any misinterpretation of any material document or otherwise perverse being contrary to law, evidence and materials on record. In the present case when both the Courts below dealt with all material points raised by the respective parties at the time of hearing, and the Courts below did not exceed their jurisdictions, rather their decisions were based on exact and precise analysis of fact and legal aspects involved in the pre-emption case, thus interference in the said decision by the revisional Court is serious error of law occasioning failure of justice. This appeal is allowed without any order as to costs and the impugned judgment and order dated 06.04.2010 delivered by the High Court Division is set aside and the judgment and order passed by the courts below is restored. ...Ali Miah =VS= Peyara Begum, (Civil), 2021(2) [11 LM (AD) 31] ....View Full Judgment

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

The Constitution of Bangladesh, 1972
Article 42 r/w
The State Acquisition of Tenancy Act, 1950
Section 97 r/w
The Chittgaong Hill Tracts Regulation, 1900
Rule 34 r/w
The Rangamati, Bandarban, Khagrachori Zilla Parishad Ains, 1989
Section 64(a), (b), (c), (d), (e), (f) and (g)
The restrictions mentioned in Article 42 will be available in section 97 of the State Acquisition of Tenancy Act, 1950, Rule 34 of the Rules for the administration of the Chittgaong Hill Tracts and section 64 of the Rangamati, Bandarban, Khagrachori Zilla Parishad Ains, 1989. Section 97 of the Act of 1950 provides ‘Restriction of alienation of land by aboriginals’. Under this provision if an aboriginal raiyat desires to transfer holding or any portion thereof by private sale, gift or will to any person who is not such as aboriginal, he may apply to the Revenue Officer for permission in that behalf and the Revenue Officer may pass such order on the application as he thinks fit. There are also restrictions for mortgage of land of aboriginals. Rule 34 of the Rules promulgated in exercise of powers under Chittgaong Hill Tracts Regulation, 1900 which restricts “Settlement and Government khas land, Transfer, Partition and Subletting”. It is provided that no ‘settlement of Government Khas Land shall be made in the district of Chittagong Hill Tracts except in the manner specified in clauses (a), (b), (c), (d), (e), (f) and (g). Section 64 of the Ains of 1989 prohibits sale, lease, settlement or otherwise transfer of lands of three hill districts without prior permission of the Hill District Parishads. .....Wagachara Tea Estate Ltd =VS= Muhammad Abu Taher, (Civil), 2017 (2)– [3 LM (AD) 478] ....View Full Judgment

The High Court Division discharged the Rule holding that the appel­late Court has duly found that the plaintiff Bigraha is in possession of the suit land and further, the claim of alleged pattan by the defendants in the city of Barisal is hit by the provision under section 107 of the Transfer of Property Act and so the contesting defendant acquired no pattani right in the suit land on the basis of unregistered docu-ment. Moreover, the Exhibits showing payment of rent do not show that those were paid in respect of the suit land. Morium Begum vs State 13 BLC (AD) 131.

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

When a valid order under section 117 of the State Acquisition and Tenancy Act is given, the court is not competent to ignore the said order when disposing of a case under section 96 of the said Act. M Bank vs Nitya Ranjan 39 DLR (AD) 75.

Upon partition of the non-agricultural land by metes and bounds by a decree in a partition suit there occurs ceasing of co—sharership among the separate specific saham holders. Alfazuddin Ahmed vs Abdur Rahman and others 55 DLR (AD) 108.

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 is not binding on the co-sharer. Md. Abdur Rouf and others Vs. Ahmuda Khatun and others, 1BLD (AD)269

The last Court of fact has found that the plaintiff has title in the land in suit and he is in possession of the land in suit as the record of right was prepared in favour of the plaintiff, who has been paying rent for the same when the Advocate Commis­sioner's report shows that there is no structure of Dagonbhuiyan Charitable Hospi­tal and the Thana Health Complex in the land in suit. There is no infirmity in the finding of the High Court Division regarding the right, title and possession of the plaintiff in the land in suit and that claim of the defendants has not been substantiated by oral or documen­tary evidence. Bangladesh vs Sultan Ahmed 14 BLC (AD) 47.

The pre-emptor and the vendor being full brothers, the pre-emptor is entitled to prevent any stranger from entering into what was their joint family property–
The evidence on record that the pre-emptor is the full brother of the vendor of the case land. One should not lose sight of the intention of the legislature behind the provisions of law for pre-emption. Essentially the provision exists to prevent any stranger from buying land which form a part and parcel of jointly owned property. The aim of the legislature is to give opportunity to the co-sharers to buy the case land thereby excluding incursion by strangers. In the facts of the instant case, clearly the pre-emptor and the vendor being full brothers, the pre-emptor is entitled to prevent any stranger from entering into what was their joint family property. It has been rightly held that separation of the Jama is not effective since the provisions of section 117(1)(c) of the Act have not been complied with; simply having a separate Municipal holding does not sever the joint ownership of the property unless the mutation takes place in accordance with the provisions of the Act. .....Harunur Rashid =VS= Afruza Khanam, (Civil), 2018 (1) [4 LM (AD) 221] ....View Full Judgment

The High Court Division has rightly found that the petitioner's basis of title is a registered deed from her vendor who claims the suit property by oral gift. Being a member of the Hindu Community by the alleged gift petitioner's vendor acquired no title in the suit property. So her vendor Guru Dasi Dey had nothing to transfer to the petitioner. Shahanaz Begum vs Md Kutubuddin 13 BLC (AD) 15.

Section 143A is only concerned with the question of possession of the land—Question of title to the land is beyond the scope of this section. Reazuddin vs Jatindra Kishore 37 DLR (AD) 202.

Record of rights prepared on the basis of possession—High Court Division cannot interfere with lower court's decisions on grounds which cannot be considered in a case under section 143A. Reajuddin vs Jatindra Kishore 37 DLR (AD) 202.

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

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.

Respondent nos. 7-9 were not legally allowed to approach the A/C Land for correction of the record-of-rights at a time, when the same dispute and grievance is being taken care of by a competent civil Court. ...Md. Safiqul Islam Vs. Bangladesh & Ors., 1 SCOB [2015] HCD 99 ....View Full Judgment

The learned Additional Attorney-General argued that the material consideration in a case under section 143A of the Act is the question of possession and since in the instant case the appellate Court which is the final Court of fact on consi­deration of the evidence clearly recorded a finding that the Government has been in possession of the disputed land and the said finding has not been reversed in revision, the learned Single Judge of the High Court Division has fallen into an error of law in interfering with the order of the appellate Court refusing correction of the record of right. Bangladesh vs Ramiz Mia 12 BLC (AD) 201.

It is apparent that the defendant did not take settlement of any land relating to the Taluk named as Abdul Taluk, rather he may have taken settlement of land relating to other Taluk which is adjacent to the land of Abdul Taluk. Therefore, the claim of the defendant has not been established and the Courts below without properly appre­ciating of that exhibit illegally decided the fate of the suit. It appears that the so-called record of right in the name of Abdul Monaf and subsequently corrected in the name of the contesting defendant by filing a suit under section 143 A of the state Acquisition and Tenancy Act is not at all relevant to the suit land and the plaintiff is not bound by the decree of the suit, Famim Khatun us Fazlul Karim 15 BLC (AD) 236.

Writ Petitioners having not enclosed any order of the Revenue Officer pursuant to the filing of their application for mutation and only stated that they prayed to the Assistant Commissioner for mutation of their names who expressed his inability to mutate their names. The High Court Division in no way is sitting on appeal from the order of the Revenue Officer. Since no action or order contrary to law has yet been taken by the Revenue Officer, the writ petition in the nature of mandamus is a premature one. Government of Bangladesh vs M Anwar Hossain 16 BLC (AD) 155.

The Specific Relief Act, 1877
Section 42 r/w
The State Acquisition and Tenancy Act
Section 143A
Appellate Court being the last Court of facts– The appellate Court being the last Court of facts, found that the plaintiffs were eight annas owners of the suit property including houses which may be standing thereon. We find that the evidence and materials on record fully support such finding. The view taken by the High Court Division, is in our view erroneous and, hence, the impugned judgement is not sustainable. The impugned judgement and order of the High Court Division is set aside. .....Hena Begum(Most.) =VS= Abdul Kader, (Civil), 2017 (2)– [3 LM (AD) 229] ....View Full Judgment

The Specific Relief Act, 1877
Section 42 r/w
The State Acquisition and Tenancy Act
Section 143A
Appellate Court being the last Court of facts– The appellate Court being the last Court of facts, found that the plaintiffs were eight annas owners of the suit property including houses which may be standing thereon. We find that the evidence and materials on record fully support such finding. The view taken by the High Court Division, is in our view erroneous and, hence, the impugned judgement is not sustainable. The impugned judgement and order of the High Court Division is set aside. .....Hena Begum(Most.) =VS= Abdul Kader, [3 LM (AD) 229] ....View Full Judgment

The Appellate Division observed that in a proceeding under section 143A of the E.B. SAT Act title is not decided and the decree passed in a suit for title shall always prevail upon the order passed in such a proceeding, so the High Court Division committed no illegality in relying upon the decree passed in Title Suit in preference to the order passed in Miscellaneous Case in interfering with the order passed by the Full Board. Accordingly, petition is dismissed.
Md. Mintu Chowdhury -Vs.- Khurshid Nayeem and others(Md. Abdul Wahhab Miah J) 6 ALR (AD) 2015 (2)184

It is by now a well settled legal principle that the finding in a suit for permanent injunction cannot be binding in a suit for title– As the ex parte decree passed in Title Suit No.204 of 1946 of the Court of Munsif, third Court is concerned that suit was filed for correction of the record, the trial Court and the Appellate Court rightly refused to rely upon it as the plaintiffs failed to prove their title to the suit land on the basis of their oral settlement as decided in the instant suit. Therefore, Appellate Division does not find any substance on the point of non-consideration of the judgment and decree passed in the said two suits (Title Suit Nos.204 of 1976 and 506 of 1976) on which leave was granted. Since the plaintiffs failed to prove their title in the suit land by virtue of their oral settlement, the Courts below as well as the High Court Division did not commit any error of law in passing the impugned judgment and order calling for interference by this Court. ...Mizanur Rahman Molla(Md.) =VS= Rustom Molla, (Civil), 2021(2) [11 LM (AD) 23] ....View Full Judgment

The presumption as regards the entries in the RS Khatian so attached under section 144A of the Act is rebuttable by leading evidence from the side of the person questioning correctness of the entry made therein. Government of Bangladesh, represented by the ADC vs AKM Abdul Hye and ors 56 DLR (AD) 53.

During conducting the revisional survey under Section 144 of the SAT Act, till final record-of-rights are published, no suit lies in any civil Court challenging any action or Order of the Settlement Officer as provided in Section 144B of the SAT Act and, thus, the only option available for respondent no. 12 was to take recourse to the provision of Rule 42A of the Tenancy Rules. ...Mainuddin Ahammed Vs Bangladesh & ors, (Civil), 7 SCOB [2016] HCD 134 ....View Full Judgment

Any person feeling aggrieved by the order of the Board on account of some glaring mistake or error apparent on the face the record or where it requires interpretation of law in view of any legal complicacy can invoke the review jurisdiction of the Full Board.
The impugned order dated 9.12.2003 (Annexure-D to the writ petition) indicate that Full Board without discovery of new and important matter or evidence or any mistake or error on the face of the record or showing any sufficient ground granted review in setting aside the order passed by the Board.
The High Court Division held that the impugned order dated 9.12.2003 (Annexure-D to the writ petition) indicate that Full Board without discovery of new and important matter or evidence or any mistake or error on the face of the record or showing any sufficient ground granted review in setting aside the order passed by the Board. In such view of the matter, we find that the Full Board exceeded its jurisdiction under the statute in setting aside the order passed by the Board dated 29.8.1995 in Case No. 3-85 of 1984 (Appeal)-Dhaka (Annexure-C to the writ petition). From the foregoing discussions and having regard to the factual circumstances of the case, we are of the opinion that the order dated 9.12.2003 passed by the Full Board of the Land Appeal Board in Case No. 3-108 of 1995 (Re-view) Dhaka allowing the review and revising the decision passed by the Chairman, Land Appeal Board dated 29.8.1995 in Case No. 3-85 of 1994 (Appeal) Dhaka (Annexure-C) and allowing the Miscellaneous Case No. 19 of 1987 are without lawful authority and of no legal effect. The Rule therefore, succeeds. Khorsid Nayeem and others -Vs.- Land Appeal Board and others (Civil) 2019 ALR (HCD) Online 362 ....View Full Judgment

State Acquisition and Tenancy Rules 1955
Rule 31, 35 and 42A r/w
State Acquisition and Tenancy Act
Section 144
The repeated hearing of appeals under Rule 31 or even under Rule 42 or 42A, by the Revenue Officers after final publication of a record-of-rights is without lawful authority, illegal and is of no legal effect–– Rule 42A does not give any authority to rehear an appeal under rule 31 of the Tenancy Rules, 1955 by the concerned Settlement Officer after publication of the final record-ofrights, as the such publication is conclusive evidence (rule 35) and thus, in the instant cases the Settlement Officer has acted illegally and without jurisdiction in re-hearing the appeals repeatedly. .....Bangladesh Textile Mills Corporation =VS= Nasrin Sultana, (Civil), 2023(2) [15 LM (AD) 408] ....View Full Judgment

The trial Court arrived at its wrong decision because of non-consideration of the material evidence on record namely, the rent receipts granted by the Government and the deed a 90 years old registered deed as well as the SA Khatian and RS Khatian standing in the names of the predecessor-in-interest and in the name of the plaintiffs respectively and the Judgment of the High Court Division is in accordance with law and hence no interference is called for. Abdul Jabbar vs Akter Hossain Bhuiyan 17 BLC (AD) 174.

Without correcting the SA Khatian and RS Khatian as prepared in respect of the case lands in accordance with law earlier, the leave petitioner cannot get its name entered in the recent record of right prepared during Mohanagar Survey allegedly only on the basis of CS Khatian.
The petitioner had no locus standi to chal­lenge the draft Mahanagar Survey Khatian as prepared in the names of the respective writ petitioners, at least after publication of the gazette notifications dated 24-3-1952 and 29-2-1956. Bhawal Raj Court of Wards Estate vs Rasheda Begum 15 BLC (AD) 115

The burden of proof, in civil litigations initially is upon the plaintiff, but depending on the circumstances, it also shifts upon the defendant’.
The Appellate Division considered that since the defendants did not deny the title of the plaintiffs, specifically, in their pleadings or in their evidences and since the defendants totally failed to prove acquisition of the suit land by LA Declaration of 1882 by adducing sufficient evidence, the burden of proof is thus shifted upon the defendants to prove their foundation of recording their names in the R.S. record. Having failed to do so the High Court Division, relying on the case of Cinmoy Chowdhury and another Vs. Sree Mridul Chowdhury and others (23 BLD (AD) 83) and Ali Mondal and others Vs. Md. Anowar Hossain and others (24 BLD 243), rightly came to the conclusion that the RS record has been prepared wrongly in the name of the defendants. Moreover, the defendants neither in their pleading nor in their depositions specifically denied publi-cation of C.S. and S.A. record in the name of Yasin Hazi and his subsequent transferees through his daughter Duburunnessa. Apart from the above all the subsequent transferees got their names recorded and mutated in the government record and accordingly they had been paying rents to the government in respect of the suit land.
Divisional Estate Officer, Bangladesh Railway, Rail Bhaban, Kamlapur, Dhaka & others. -Vs.- Jashimuddin and others. (Civil) 13 ALR (AD) 11-17

State Acquisition and Tenancy Act
Section 144(A)
Bengal Tenancy Act (VIII of 1885)
Section 103(B)(5)
Presumption of correctness–– A finally published record of rights revised under Section 144(A) of the State Acquisition and Tenancy Act has a presumption of correctness and that presumption continues till it is otherwise rebutted by a reliable evidence. This proposition of law is well settled. The oldest record of rights being the cadastral survey prepared under section 103(B)(5) of the Bengal Tenancy Act (Act No. VIII of 1885) also got a high presumptive value as to correctness of entries therein as it has also been enjoined under section 144(A) of the State Acquisition and Tenancy Act. Of course this is a rebuttable peace of presumption, if it has been so rebutted by evidence. .....Government of Bangladesh =VS= Tenu Miah Tofadar, (Civil), 2023(1) [14 LM (AD) 30] ....View Full Judgment

Bengal Tenancy Act
Section 103(B)
State Acquisition and Tenancy Act
Section 144A r/w
Code of Civil Procedure
Order 6 Rule 7 r/w
Registration Act
Section 17(2)(VI)
Declaration of title and confirmation of possession over the suit land— Every entry in the Khatians, as the case may be, shall be presumed to be correct until it is proved by evidence to be incorrect— Presumption of correctness the record— There is conflict between the CS and RS khatians the RS khatian will prevail over the former— Both the provisions as contemplated in Section 103(B) of the Bengal Tenancy Act (in respect of CS Khatian) and Section 144A of the State Acquisition and Tenancy Act (in respect of RS Khatian) are rebuttable, that is to say, every entry in the Khatians, as the case may be, shall be presumed to be correct until it is proved by evidence to be incorrect. .....Md. Abdul Hanif @ Abu Hanif =VS= Bhupen Nath, (Civil), 2024(1) [16 LM (AD) 617] ....View Full Judgment

SAT Act, 1950
Section 145A
Tenancy Rules, 1955
Rule 42
It appears from the very record that, apparently, the said Settlement Officer, vide order dated 10.07.2003, reversed the course of parent law from its concluded stage to a lower stage. Not only that, the said Settlement Officer also gave an additional leverage in favour of the respondent no.4 to present its case again before another Appellate Officer of same rank. This order has made several interferences into the normal course to be taken or followed under SAT Act, 1950, namely:
(a) It did not allow final publication of City Khatian in the normal course after disposal of appeals by the Appellate Officer
(b) It allowed the respondent No.4 to avoid the Land Survey Tribunals constituted under Section 145A of the SAT Act, 1950. Rather, it allowed respondent no.4 to avail of another forum under Rule 42 contrary to the relevant provisions of parent law.
(c) It deprived the petitioners of their legal and legitimate expectation and rights to have the concerned City Khatians finally published in their names as owners in respect of the said lands.
(d) For all practical purposes, by this order, the Settlement Officer has already expressed his view regarding merit of the case and as such left nothing for the 2nd Appellate Officer to hear and decide the dispute.
(e) Pursuant to this order of the concerned Settlement Officer under Rule 42, the subsequent Appellate Officer has virtually set aside the order passed by the First Appellate Officer, who is of equal rank like him.
While this Court has repeatedly held that, the delegatee of power cannot go beyond the power of delegation, it appears that, there cannot be any better example than this case that how a power, not permitted by parent law, may be delegated and as to how a delegatee can exceed its limit of power given by the parent law. Here, the delegatee, namely the concerned Settlement Officer, has reversed the normal course of parent law and thereby sat over the first appellate order like a higher authority, in particular when the higher authority as provided by law against such order is the Land Survey Tribunal, which is empowered by parent law to determine those issues as raised by respondent no.4 after final publication of City Khatian. ...Md. Nurul Islam & ors. Vs. Charge Officer and Appeal officer & ors., (Civil), 10 SCOB [2018] HCD 234 ....View Full Judgment

SAT Act
Section 146
State Acquisition Rules, 1951
Rule 17
Absence of the finality in the orders of the Revenue Officers, reduces them to the administrative functionaries only:
The Provision of Section 146 of the SAT Act as well as rule 17 of the Rules, 1951 clearly indicate the absence of the finality in the orders of the Revenue Officers, reducing them to the administrative functionaries only under the Board of Land Administration and the Government. Thus, from this point of view as well, the Revenue Officers are not performing any judicial function under the provisions of the SAT Act. ...Md. Safiqul Islam Vs. Bangladesh & Ors., (Civil), 1 SCOB [2015] HCD 99
If there is a case pending in a competent Court of law regarding any dispute over any land property and on the same dispute, pending disposal of the said case, a Revenue Officer is subsequently approached by any claimant with a prayer to update a record-of-rights in the form of amendment or the correction of the record-of-rights, the Revenue Officer should abstain from proceeding with the mutation case. ...Md. Safiqul Islam Vs. Bangladesh & Ors., (Civil), 1 SCOB [2015] HCD 99
Unless a Revenue authority is presented with a registered instrument of amicable settlement or the contending parties of a mutation case agrees on their respective shares, no Revenue Authority is competent to change the record-of-rights by apportioning/allocating shares to the claimants of any landed property. ...Md. Safiqul Islam Vs. Bangladesh & Ors., (Civil), 1 SCOB [2015] HCD 99
Revenue Officer must not proceed further when a civil suit is pending:
In dealing with the mutation proceedings the Revenue Officers’ duties are only to record the names of the owners of the land upon examining the relevant papers and documents, if the same are produced before them without raising/taking any objection thereto. But the moment the Revenue Officer would come to know, either through an enquiry conducted by him with the assistance of the Tahshilder or any other staff of his office, or through an application filed by a private party for mutation, that there are disputes regarding the produced papers and documents and there are contending claimants over any land and the matter is pending in the Court for disposal, the concerned Revenue Officer must not proceed further with regard to the said mutation case until the said civil suit is finally disposed of. ...Md. Safiqul Islam Vs. Bangladesh & Ors., (Civil), 1 SCOB [2015] HCD 99 ....View Full Judgment

Board of Land Administration—Section 146(1) shows that the general power of superintendence and control over all Revenue Officers is vested in the Board of Land Administration and not in the Government. Moreover, section 146(1) vests the Board of Land Administration with Administrative control over the Revenue Officers and by no means empowers it to revise the order passed by the Revenue Officers under the State Acquisition and Tenancy Act, 1950. Saifur Rahman Vs. Govt. of Bangladesh and others, 10 BLD (AD) 286.

State Acquisition & Tenancy Act, 1950
Section 148 r/w
The Limitation Act, 1908
Section 29
The main ground on which the order of the Additional Deputy Commissioner (Revenue), Dhaka was challenged was that the limitation for filing an appeal under section 147 of the State Acquisition and Tenancy Act, 1950(the Act, 1950), as provided in section 148 thereof was 30 days, but the appeal was filed beyond 30 days with an application for condonation of delay. Therefore, the order passed by the Additional Deputy Commissioner (Revenue) admitting the appeal condoning the delay was without jurisdiction. From the impugned judgment and order, it appears that the High Court Division accepted the said contention of the writ-petitioner and made the Rule Nisi absolute. We find nothing wrong with the view taken by the High Court Division inasmuch as limitation provided in the Act, 1950 was a special limitation. .....A.T.M. Nasiruddin =VS= Shirin Ahmed Chy., (Civil), 2017 (2)– [3 LM (AD) 45] ....View Full Judgment

The Code of Civil Procedure, 1908
Section 11
State Acquisition and Tenancy Act, 1950
Section 150(1)
The Transfer of Property Act
Section 52
The question of re-opening the separation of khatians touching the cessation of co-sharership of the pre-emptors would be a res judicata within the meaning of section 11 of the Code– The finding of the Appellate Court clearly shows that it did not also at all consider the facts and circumstances of the case under which the order of amalgamation of the khatians was passed. Since the Appellate Court failed to consider provisions of section 150(1) of the Act, 1950 in rejecting the cross-objection filed by the pre-emptors against the finding of the trial Court as the co-shareship of the pre-emptors its finding in that respect was per incuriam. Further the Appellate Court totally misconceived the doctrine of lis pendens and also totally failed to consider that the act of amalgamation of the khatians of the pre-emptors on the basis of an application under section 150(1) of the Act, 1950 during the pendency of the miscellaneous cases was not a case of lis pendens within the meaning of section 52 of the Transfer of Property Act, but a malafide and smart move made by the pre-emptors to acquire the locus standi to file the application for pre-emption by resorting to amalgamating the khatians which stood separated long three years before and had already been acted upon. Therefore, Appellate Division finds no substance in the submission of Mr Khair Ezaz Maswood that the question of re-opening the separation of khatians touching the cessation of co-sharership of the pre-emptors would be a res judicata within the meaning of section 11 of the Code. The facts and circumstances of the case under which the Privy Council propounded the principle of resjudicata in the case of GH Hook (supra) are absolutely distinguishable from the instant case and hence the principle of law enunciated therein has no manner of application in the instant case. This Division finds merit in the appeals and accordingly, both the appeals are allowed. The judgment and order of the High Court Division is set-aside and those of the Courts below are restored. .....Abdul Gafur =VS= Md Muklesur Rahman, (Civil), 2022(1) [12 LM (AD) 200] ....View Full Judgment

State Acquisition and Tenancy Act
Bengal Tenancy Act, 1885 r/w
Specific Relief Act, 1877
Section 42
Declaration of title–– Mokararee (মোকররী) right is nothing but a right of collecting rent on behalf of the superior landlord, which was not a tenancy or raiyati right and that right has been acquired by the Government after promulgation of State Acquisition and Tenancy Act–– Mere possession of the plaintiffs is not enough to declare title of the plaintiff–– The trial Court dismissed the suit. The appellate court also affirmed the judgment of the trial Court. The plaintiffs then moved before the High Court Division by filing Civil Revision No.982 of 2000. Upon hearing, a single Bench of the High Court Division by the impugned judgment and order dated 03-03-2009 made the Rule absolute.
Appellate Division has perused the R.S. Khatian No. 171. It transpires that the name of Bala Miah has been mentioned in the column of ‘অত্র স্বত্বের বিবরণ ও দখলকার’, but in the column “অত্র স্বত্বের শ্রেণী এবং বিশেষ নিয়ম ও অনুষঙ্গ’ it has been mentioned ‘মধ্য স্বত্বাধীকারী চিরস্থায়ী মোকররী’ । In the Bengal Tenancy Act,1885 certain settlement and vernacular terms were commonly used and the term ‘Mokarari’ means a fixed lump rent which is not based on calculation. In view of the above, the Mokararee (মোকররী) right is nothing but a right of collecting rent on behalf of the superior landlord, which was not a tenancy or raiyati right and that right has been acquired by the Government after promulgation of State Acquisition and Tenancy Act.
The High Court Division without considering the said vital legal aspect most illegally decreed the suit finding the possession of the plaintiffs in the suit land. The High Court Division failed to appreciate that mere possession of the plaintiffs is not enough to declare title of the plaintiff, when admittedly the S.A. Khatian has been prepared in the name of the Government as khas land. Moreover, the plaintiff did not claim title on the plea of adverse possession. .....DC, Gopalgonj =VS= Saleha Begum, (Civil), 2023(2) [15 LM (AD) 387] ....View Full Judgment

The High Court Division as well as this Division inaccurately decided that after the enforcement of the State Acquisition of Tenancy Act, 1950, there established a land lord and tenant relationship between the Government and the plaintiffs. For the establishment of a land lord and tenant nexus linking the Government and the ancestor of the plaintiffs there should exists a lawful affiliation between them prior to the enactment. In Appellate Division’s opinion the plaintiffs’ side was not able to set up such a tie. .....Deputy Commissioner, Ctg. =VS= Abdul Salam Chowdhury, (Civil), 2023(1) [14 LM (AD) 469] ....View Full Judgment