LEX/BDAD/0079/2017

Equivalent Citation: 15ADC (2018)20, 15ADC (2018)20, 201916 ALR 15, 201916 ALR 15, 2019(27)BLT(AD)4, 70 DLR(AD) (2018) 180

IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)

Civil Appeal No. 01 of 2003
Decided On: 25.10.2017
Appellants: Harunur Rashid and Ors.
Vs.
Respondent: Afruza Khanam and Ors.
Hon'ble Judges:
Md. Abdul Wahhab Miah, Syed Mahmud Hossain, Muhammad Imman Ali, Hasan Foez
Siddique and Mirza Hussain Haider, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: A.J. Mohammad Ali, Senior Advocate instructed by
Zahirul Islam, Advocate-on-Record
For Respondents/Defendant: Abul Kalam Chowdhury, Senior Advocate instructed by
Nurul Islam Bhuiyan, Advocate-on-Record
Case Note:
Property - Pre-emptor - Rights of - Present civil appeal, by leave, is directed
against judgment and order passed by High Court Division reversing order
passed by trial Court, thus allowing pre-emption - Whether High Court erred
in allowing pre-emption - Held, law exists to prevent any stranger from
buying land which form part and parcel of jointly owned property - Aim of
legislature is to give opportunity to co-sharers to buy case land thereby
excluding incursion by strangers - In present case, pre-emptor and vendor are
full brothers - Pre-emptor is entitled to prevent any stranger from entering
into what was their joint family property - No illegality or impropriety in
impugned judgment - Appeal dismissed. [13]
JUDGMENT
Muhammad Imman Ali, J.
1 . This civil appeal, by leave, is directed against the judgement and order dated
14.12.2000 passed by a Single Bench of the High Court Division in Civil Revision No.
4966 of 1998 discharging the Rule. The facts of the case, in brief, are that one Eklas
Hossain Khan, predecessor of respondent Nos. 1 and 2 filed an application under
section 24 of the Non-agricultural Tenancy Act, 1949 for pre-emption of the case land
measuring 0.0206 acre of C.S. and S.A. Plot No. 565 appertaining to S.A. khatian No.
612 and mutation khatian No. 474/18. The case of the pre-emptor was that the case
land along with other land originally belonged to Jogesh Chandra Majumder and others
and the C.S. record of rights was accordingly prepared and published in their names.
Golam Mortuza Khan, father of the pre-emptor and respondent Nos. 3-11 purchased 5
kathas of land by registered deed of sale from the said tenants and lived there by
constructing dwelling house and paid rents on mutation of his own name. Golam
Mortuza Khan died leaving behind the pre-emptor and respondent Nos. 3-5 as four sons
and respondent Nos. 6-11 as six daughters and the said heirs possessed the land jointly

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by way of inheritance. Respondent No. 4 Golam Mostafa Khan by registered deed of sale
dated 18.02.88 transferred his share to his brother Moslemuddin Khan-respondent No. 3
and delivered possession. Respondent No. 3 transferred the said land by a deed of sale
executed on the same date to the pre-emptee-Harunur Rashid and the deed of sale was
registered on 13.08.88. In spite of the fact that the pre-emptor was a co-sharer in the
joint tenancy, no notice was served upon him. The pre-emptee was a stranger and a
tenant under respondent No. 3. The pre-emptee declined to re-convey the land to the
pre-emptor. Hence, the pre-emptor was constrained to make the application for pre-
emption.
2. The pre-emptee appeared and opposed the application for pre-emption. His case was
that the pre-emptor and his brothers and sisters got their inherited lands and properties
amicably partitioned by a family arrangement executed on 05.05.1978. The case land
was recorded in the name of Molsemuddin Khan, the vendor in the Dhaka Municipal
Corporation in separate holding. The pre-emptor and his brothers and sister were
paying rents in two separate jamas. The pre-emptee after purchase of the case land got
his name mutated without any objection from any quarter in mutation khatian No.
474/18/1 and has been paying rent since then. The price of the land was settled at Tk.
1,56,000/- and the pre-emptee paid the said amount as consideration, but the price of
the land was written as Tk. 50,000/-. After purchase the pre-emptee had invested huge
sum of money to construct a semi pucca building and obtained electricity, WASA and
Gas connection, thereby he had to incur a cost of Tk. 1,15,000/-.
3. During the pendency of the pre-emption case the pre-emptor died leaving respondent
Nos. 1 and 2 herein as his heirs and legal representatives.
4 . On conclusion of hearing the learned Senior Assistant Judge, Dhaka dismissed the
pre-emption application by his order dated 21.06.1998.
5. Being aggrieved, the pre-emptor preferred Miscellaneous Appeal No. 189 of 1998 and
the said appeal was heard by the learned Subordinate Judge, Second Court, Dhaka, who
by his judgement and order dated 18.11.1998 allowed the appeal thereby reversing the
order passed by the trial Court, thus allowing the pre-emption.
6 . Against the aforesaid judgement and order, the pre-emptee filed Civil Revision No.
4966 of 1998 before the High Court Division and obtained Rule, which upon hearing
was discharged. Hence, the pre-emptee filed Civil Petition for Leave to Appeal No. 1008
of 2001 before this Division and leave was granted on the following submissions of the
learned Advocate appearing for the petitioner:
"I. That in view of the con current finding of facts by the courts below including
the High Court Division that "They are living separately", the High court
Division fell into error in "failing to note the distinction between co-sharers in
the land transferred and co-sharer in the tenancy" inasmuch as even if the pre-
emptors remain co-sharer, in the tenancy but if they cease to be co-sharer in
the land transferred the right of pre-emption does not accrue and as such erred
in holding that "So, the heirs of Golam Mortuza Khan must be held to be still
enjoying the joint tenancy left by him" causing error in the decision of the case
on its, merit.
(II) That having regard to the provision of section 24 of the Non-Agricultural
Tenancy Act, 1949, the High Court Division erred in holding that "Similarly, no
amicable partition among the co-sharers even if reached in writing nor even a
decree passed in a partition suit allowing different sharers to the co-sharers can

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 substitute the order as mentioned in section 117(c) of the State Acquisition and
Tenancy Act." And thereupon in allowing the case for pre-emption though it has
been clearly found that the pre-emptors were no longer co-sharers in the land
transferred. (See the decision reported in 35 DLR (AD) 239).
(III) That having regard to the fact that there has in fact been a separation of
jama by Golma Mostafa Khan an heir of Golam Mortoza Khan and thus the pre-
emptors ceased to be joint tenant in respect of the land in question, a fact
which could not be brought into evidence in the case (Annexed to the Leave
Petition, this Court for doing complete justice in the case way look to the
certified copy of the order of separation of tenancy in Mutation Case No. 16511
(Mir)/85 of Thana Revenue Officer, Tejgaon, Dhaka and/or pass an appropriate
order for deciding the case completely and effectively."
7 . Mr. A.J. Mohammad Ali, learned Senior Advocate appearing on behalf of the
appellants made submissions in line with the grounds upon which leave was granted.
He re-iterated that when the jama is separated by mutation, then an application for pre-
emption cannot be maintained since the property ceases to be in joint ownership.
8 . Mr. Abul Kalam Chowdhury, learned Advocate appearing for the respondent made
submissions in support of the impugned judgement and order of the High Court
Division. He further submitted that both the appellate Court as well as the High Court
Division after thorough analysis and assessment of the pleadings and the evidence
adduced by both the parties found that the pre-emptor is a co-sharer of the holding and
the said pre-emption case was not barred by limitation and as such allowed the pre-
emption case. He further submitted that the High Court Division found that no notice
was ever served upon the heirs of Golam Mostafa Khan; and no power of mutation has
been given to any other authority including Dhaka Municipal Corporation; that mutation
of the Dhaka Municipal Corporation to be valid must be based on an order in writing of
the Revenue authority concerned under section 117 of the State Acquisition and
Tenancy Act, 1950 (the Act); that the heirs of Golam Mostafa Khan are still enjoying the
joint tenancy left by the father and that amicable partition amongst the co-sharers even
if recorded in writing or even a decree passed in a partition suit, cannot subdivide the
joint tenancy of Golam Mostafa Khan and as such the pre-emptor did not cease to be a
co-sharer in the tenancy left by him. He submitted that the High Court Division held that
Exhibit 'Uma(O)' series were issued during the pendency of hearing of the pre-emption
case and that subdivision without notice upon a co-sharer of joint tenancy could not
affect the right of pre-emption and admittedly both the appellate Court and High Court
Division held that no notice was served upon the co-sharer for subdivision of the
holding and as such the respondents are the co-sharers as well as the pre-emption was
filed within time from the date of registration under section 60 of the Registration Act.
He submitted that the Senior Assistant Judge committed error of law resulting in the
decision occasioning failure of justice in passing the order dated 21.6.1998 in Pre-
emption Miscellaneous Case No. 85 of 1988.
9 . We have considered the submissions of the learned Advocates appearing for the
parties concerned, perused the impugned judgement of the High Court Division and
other connected papers on record.
10. In essence the only substantive issue is one of maintainability of the application for
pre-emption of non-agricultural land under section 24 of the Non-Agricultural Tenancy
Act in the facts and circumstances of the case. The claim of the pre-emptor is that he is
a co-sharer of the case plot by inheritance. In fact we find from the records that the

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vendor of the case land and the pre-emptor are full brothers. On the other hand, the
claim of the pre-emptee is that the pre-emptor and his siblings are living separately
having mutated their names in Municipality records. The pre-emptee, therefore, claims
that the pre-emptor and the vendor are no longer co-sharer. The learned Advocate for
the appellants categorically submitted that by mutation, the property ceased to be in
joint ownership and, therefore, the application for pre-emption cannot be maintained.
11. On the question of maintainability of an application for pre-emption under section
24 of the Non-Agricultural and Tenancy Act, reference has been made to the decision of
this Division in the case of Aminullah (Md) and others vs. Serajul Huq and others
reported in 65 DLR (AD)82, where three of us were party. In the said case it was held
as follows:
"In a case of pre-emption filed under section 24 of the Non-Agricultural
Tenancy Act if a co-sharer tenant owns a portion of land in any plot, he is to be
treated as co-sharer in the entire plot even if the land of that plot is recorded in
more than one khatian. There fore, in the event of transfer of a portion of land
of that plot appertaining to another khatian a co-sharer tenant can file a pre-
emption case under section 24 of the Non-Agricultural Tenancy Act
notwithstanding the fact that he does not have any interest in that khatian. The
words "one or more co-sharer tenants of such land" occurring in section 24 of
the Non-Agricultural Tenancy Act means a co-sharer in the plot not the holding
as mentioned in section 96 of the State Acquisition and Tenancy Act."
12. Moreover, the High Court Division elaborately discussed the provisions of section
117(1)(c) of the Act and observed that the Dhaka Municipal Corporation has not been
given any authority under the said Act to effect mutation and that the authority under
the said provision lies with the Revenue Officer. It was further observed that "separate
holding number given by a Municipal Corporation cannot replace an order under section
117(1)(c) of the Act. So the heirs of Golam Mortuza Khan must be still enjoying the
joint tenancy left by him. Similarly no amicable partition among the co-sharers even if
reached in writing, nor even a decree passed in a partition suit allotting different shares
to co-sharers can substitute the order as mentioned in section 117(1)(c) of the Act. The
High Court Division agreed with the appellate Court that the joint tenancy was never
divided and that thereby the pre-emptor did not cease to be a co-sharer in the joint
tenancy left by Golam Mortuza Khan.
13. We note further from 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.
14. In the facts and circumstances discussed above, we do not find any illegality or
impropriety in the impugned judgement. Accordingly, the appeal is dismissed without,
however, any order as to costs.

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