IN THE SUPREME COURT OF BANGLADESH

Appellate Division

PRESENT

Mr. Justice Hasan Foez Siddique, C. J.

Mr. Justice M. Enayetur Rahim Mr. Justice Jahangir Hossain

CIVIL APPEAL NO. 10 OF 2017  

(From  the  judgment  and  order  dated  the  15th  day  of April,  2013  passed  by  the  High  Court  Division  in Civil Revision No. 761 of 2010).

Muntachir and others  :  . . . Appellants -Versus-

Ruposhi Begum and others : . . . Respondents

For the Appellants : Mr. Qumrun Nessa, Advocate,

instructed by Mr. Md. Taufique Hossain Advocate-on-Record

For Respondent Nos. 1-8  :  Mr. Md. Abul Kalam Chowdhury,

Advocate, instructed by

 Mr. Zainul Abedin,

Advocate-on-Record

Respondent Nos.9-17  :  Not represented

Date of hearing  :   The 23rd day of May, 2023 

Date of judgment  :   The 24nd day of May, 2023 

JUDGMENT

M.  Enayetur  Rahim,  J:  This  civil  appeal,  by  leave,  is

directed  against  the  judgment  and  order  dated  15.04.2013 passed by the High Court Division in Civil Revision No. 761 of 2010 making the Rule absolute.

The  facts,  relevant  for  disposal  of  this  appeal  in brief, are that one Arif Miah, the predecessor of the present respondents and another as petitioners (hereinafter referred to as pre-emptor) filed Miscellaneous Case No.58 of 1990 for pre-emption of the case land under Section 96 of the State Acquisition  and  Tenancy  Act  in  the  Court  of  the  Senior Assistant  Judge,  Begumgonj,  Noakhali.  The  pre-emptors’  case

was that Dan Gazi and others were the original owners of the land of Khatian No. 459 and the preemptors were recorded as co-owners in the land of the said Khatian. One Quader Miah, the father of pre-emptor No. 2 was also a co-sharer of the land of the said Khatian. They were full brothers. The land of Khatian No. 448 is adjacent to the said Khatian No. 459. The  homestead  of  the  pre-emptors’  is  on  plot  No.  1526  and 1527. Land of plot Nos. 1522 and 1525 of Khatian No. 448 are adjacent to the south. Thus the pre-emptors are co-sharers by inheritance  and  contiguous  landowner  of  plot  Nos.1522  and 1525 of Khatian Nos. 448 and 459. The vendor opposite party Nos.3 and 4 are co-sharers with the pre-emptors who sold the case land vide saf-kabala dated 06.10.1990 for taka 10,000/- beyond the knowledge of the pre-emptors and they came to know about  it,  and  on  18.10.1990  obtained  certified  copy.  The purchaser-opposite  parties  (hereinafter  referred  to  as  pre- emptee) are strangers. The pre-emptors prayed for pre-emption of  the  transferred  land  measuring  05 decimals  of  Khatian

No.448 and   decimals of Khatian No. 459 in all 09 decimals land.

The  present  appellant  No.  1,  as  pre-emptee  contested  the  case  by  filing written objection contending, inter alia, that Jamal Uddin, the predecessor of the appellant No.

2  was  the  uncle  of  the  pre-emptor,  namely  Arif  Miah  (now deceased). The preemptors are the successors of the said Arif Miah. Said late Arif Miah was a co-sharer in the said Khatian and  jote,  who  claimed  right  of  pre-emption  against  the predecessor  of  the  pre-emptee  alleging  that  opposite  party Nos. 3 and 4 in the pre-emption case sold a land measuring 9 decimals  by  saf-kabala  dated  06-10-1990  for  Tk.  10,000/-

which is  within the  knowledge  of  the  preemptors. Opposite party Nos. 2-4 in the pre-emption case filed another written objection contending, inter alia, that the preemptors are not contiguous owners of land described in schedule-1 of the pre-emption case. Opposite party No. 3 and 4 mortgaged the case land to opposite party Nos. 1-2  of  the  pre- emption case which was retransferred by a deed executed on 03.06.1991. The pre-emptor Abdul Malek withdrew his money amounting to Tk. 5,500/- by admitting the contention made by the pre-emptees, as such there cannot be any pre-emption case under the provisions of law on an application dated 12.01.1991 on which the pre-emptor No.1, Arif Miah filed an objection on such application. However, the trial Court passed the order and allowed him to withdraw the said amount, but eventually the pre-emptor Abdul Malek could not withdraw the deposited money.

During trial, the respective parties adduced both oral and documentary evidence.

Trial Court rejected the pre-emption case by its order dated 01.09.2003. Being aggrieved, pre-emptor No. 1, Arif Miah filed Miscellaneous Appeal No. 73 of 2003 in the Court of District Judge, Noakhali. On transfer the appeal was heard by the Joint District Judge, Third Court, Noakhali, who after hearing, by his order dated 24.11.2009 dismissed the appeal. Then the preemptors filed Civil Revision No. 761 of 2010 before the High Court Division and obtained Rule, which upon hearing the parties was made absolute.

Being aggrieved by and dissatisfied with judgment and order passed by the High Court Division, the pre-emptees filed Civil Petition for Leave to Appeal No. 1479 of 2014 before this Division. Accordingly, leave was granted on 06.12.2016.

Hence the present appeal.

Ms. Quamrun Nessa, learned Advocate appearing on behalf of the petitioners submitted that the trial Court as well as the lower appellate Court having considered the evidence on record came to a definite finding that the pre-emptee is a co-sharer in Khatian No. 448 and as such the preemptors’ claim for pre-emption as contiguous land holder in Khatian No. 448 is not maintainable. The High Court Division without reversing the concurrent finding of fact regarding the co- shareship of the pre-emptee arrived at by the Courts bellow most erroneously made the Rule absolute reversing the lower Courts' judgments and orders.

 She further submits that admittedly the preemptor Arif Miah is a co-sharer in Khatian No. 459 and the trial Court as well as the appellate Court concurrently held that his claim for partial pre-emption in Khatian No. 459 is not permissible in law but the High Court Division erred in law in making the Rule absolute holding that claim of partial pre-emption is maintainable which is contrary to the decision of Hazi Tajamal Ali being dead his heirs Kamarunnessa and ors. Vs. Abdus Sattar and another reported in 34 DLR(AD) 217 in which it has been held that partial pre-emption is not allowed where a co-sharer tenant claims pre- emption.

Mr. Md. Abul Kalam Chowdhury, learned Advocate appearing on behalf of respondent Nos.1-8 having supported the impugned judgment and order of the High Court Division submits that all the Courts found that preemptor Arif Miah is a co-sharer

in Kha schedule land of pre-emption petition, Khatian No. 459 but  trial  Court  and  appellate  Court  erroneously  found  that partial  pre-emption  is  not  permissible  in  law;  however  in Civil  revision  the  High  Court  Division  found  that  partial pre-emption  is  permissible  with  reference  to  the  case  of Karimunnessa  Begum  Chowdhurani  and  others  Vs  Niranjan Chowdhury  and  another,  reported  in  43  DLR(AD)  1991  page 108 and as such High Court Division rightly and legally made the Rule absolute. 

Mr. Chowdhury also submits that as co-sharer preemptor, Arif  Miah  now  his  heirs  these  respondents  claim  land  of Khatian No. 459 measuring transferred 3 decimals land of Kha schedule  of  the  pre-emption  petition  and  they  do  not  claim land of Khatian No. 448 of Ka schedule and after judgment and order  of  the  High  Court  Division  these  respondents  took possession through Court only 3 decimals land of Khatian No. 459 on 16.04.2014 and as such pre-emption case was acted upon partially  as  per  findings  of  the  High  Court  Division.  He lastly submits that admittedly the pre-emptees are strangers in Khatian No. 459 and the preemptor Arif Miah is a co-sharer by inheritance and partial pre-emption for 3 decimals land of Khatian No. 459 was taken possession by preemptor and partial pre-emption has already been acted upon.

  We  have  considered  the  submissions  of  the  learned Advocates  for  the  parties  concerned,  perused  the  impugned judgment and order of the High Court Division as well as the Courts below and other connected papers on record.

In this particular case, it is admitted fact that pre-         emptor  Arif  Miah  is  a  co-sharer  by  inheritance  in  khatian No.459  and  the  said  pre-emptor  abandoned  his  claim  of  pre-

emption for   decimals of land in khatian No.448 and, that the  other  pre-emptor  gave  up  his  claim  of  pe-emption,  the contiguous land owner.

Now the moot question in this appeal is whether 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 above case it has been held by this Division to the effect:

“Here in this case, five holdings were transferred by a single kabala and consideration money of each of the holdings was shown separately in the kabala.  The  petitioner  deposited  the  consideration  money  for  the  four holdings he prayed for by way of pre-emption; there was no difficulty in allowing his prayer for pre-emption of the four holdings as pre-emption is preferable holding-wise. This pre-emption is not hit by the doctrine of partial pre-emption.  Section  96  gives  right  to  a  co-sharer-tenant,  like  the respondent-pre-emptor  to  purchase  the  “portion  or  share  of  a  holding transferred”  By  the  pre-emption  in  question  he  is  entitled  to  get  those portions  or  shares  so  that  he  could  keep  intact  the  original  holding  or

holdings.” 

 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.

In  the case of Aktarunnessa Vs. Habibullah,  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.”

If  we  consider  the  above  propositions  of  law  coupled with  the  attending  facts  and  circumstances  of  the  present case, in particular the pre-emptor Arif Miah is a co-sharer in  holding  No.459,  we  are  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.

Having considered and discussed as above, we find merit in  the  appeal.  Accordingly,  the  appeal  is  allowed  in  part. The application for pre-emption is disallowed in respect of

decimals land of holding No.448 and allowed in respect of

03 decimals land of holding No. 459.

There will no order as to costs.

C. J. J.

J.

B.S./B.R./*Words-1,820*