LEX/BDAD/0204/2003

IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)

Civil Pitition for Leave to Appeal No. 1229 of 2002

Decided On: 16.04.2003

Md. Fazlu Miah and Ors.

Vs.
Asabur Rahman and Ors.

Hon'ble Judges:
Md. Ruhul Amin and K.M. Hasan, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: Md. Mahbubay Alam, Senior Advocate, instructed by Chowdhury
Md. Zahangir, Advocate-on-Record

For Respondents/Defendant: J.N. Deb Chowdhury, Advocate instructed by Md. Nawab Ali,
Advocate-on-Record

Subject: Property

Catch Words

Mentioned IN

Relevant Section:
STATE ACQUISITION AND TENANCY ACT, 1950 - Section 96

Acts/Rules/Orders:
State Acquisition And Tenancy Act, 1950 - Section 82, State Acquisition And Tenancy Act, 1950 -
Section 89, State Acquisition And Tenancy Act, 1950 - Section 90, State Acquisition And Tenancy
Act, 1950 - Section 96

JUDGMENT

Md. Ruhul Amin, J.

1. This petition for leave to appeal is by the pre-emptee against the judgment and order dated
February 18, 2002 of a Single Bench of the High Court Division in Civil Revision No. 913 of 1998
discharging the Rule obtained against the judgment and order dated January 28, 1998 of the 1st

2023-09-26 Source: www.bdlex.com Supreme Court of

Bangladesh
Court of Subordinate Judge, Sunamgonj, in Miscellaneous Appeal No. 17 of 1993 allowing pre-
emption upon reversing the judgment and order dated May 29, 1993 of the Court of Assistant
Judge. Jagannatpur. Sunamgonj, in Miscellaneous (pre-emption) Case No. 19 of 1986 rejecting
the prayer for pre-emption sought under Section 96 of the State Acquisition and Tenancy Act,
1950, (the Act) as contiguous land owner. Facts in short, are that pre-emptor-respondent No. 1
filed the Miscellaneous Case stating, inter-alia, that Respondent No. 2 (seller) sold the land sought
to be pre-empted to the pre-emptees beyond his knowledge and without serving notice under
Section 89 of the Act. It is also the case of the pre-emptor that pre-emptees are strangers as
regards the land sought to be pre-empted.

2. The pre-emptees opposed the prayer for pre-emption contending, inter alia, that the
Miscellaneous Case is barred by limitation, that prayer for pre-emption is barred by waiver,
acquiescence and estoppel and that pre-emptor is not a contiguous land owner. The trial Court
although found the Miscellaneous Case maintainable, and the pre-emptor is a bona fide cultivator
as well as owner of the land contiguous to the land sought to be pre-empted and that the pre-
emption case was not bad for defect of parties but rejected the prayer for preemption on the
finding that the Miscellaneous Case was barred by limitation and pre-emptor's prayer for pre-
emption is not maintainable on the ground of waiver. On appeal the appellate Court allowed the
appeal and setting aside the judgment and order of the trial Court allowed the prayer for pre-
emption. The appellate Court set aside the finding of the trial Court as to limitation since the
Miscellaneous Case was filed quite within time. The pre-emptees as seen from the judgment of
the courts below did not/establish their case of waiver on the part of the pre-emptor by reliable
evidence.

3. The learned Counsel for the petitioner primarily made submission as to that pre-emptor is not a
bona fide cultivator since he stays in London. The High Court Division in the light of the language
of section 82 of the Act and the evidence on record held that pre-emptor is a bona fide cultivator. It
is the evidence of P.W. 1 that he cultivates his land with the aid of 'Baragadars' and in the
background of the said evidence of P.W. 1 the High Court Division held that the pre-emptor is a
bona fide cultivator because of satisfying one of the circumstances as set forth in sub-section 1 of
Section 82 of the Act. The learned Counsel for the petitioner because of the materials on record
felt difficulty to take exception to the finding of the High Court Division that the pre-emptor is a
bona fide cultivator. It may be mentioned that pre-emption under Section 96 of the Act is available
on fulfillment of the conditions as are in the said Section of the Act subject to that the land so
sought to be pre-empted and if allowed would not exceed the total quantity of land a tenant can
hold as per provision of Section 90 of the Act. A feeble submission was also made on behalf of the
petitioner that the land sought to be preempted is homestead and as such pre-emption under
Section 96 of the Act is not maintainable. The law is now settled that homestead of the raiyat
outside municipality is preemptable under section 96 of the Act. Accordingly the petition is
dismissed.

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2023-09-26 Source: www.bdlex.com Supreme Court of

Bangladesh
2023-09-26 Source: www.bdlex.com Supreme Court of
Bangladesh