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