Present:

Mr. Justice Md. Salim

CIVIL REVISION NO.2349 OF 2014.

Md.  Abdul  Khalek,  being  dead,  his heirs:

Md. Oyaz Kuruny and others

 ...... Pre-emptee-Petitioners.

    -VERSUS-

                                Md. Monayem Hossain and others

.... Pre-emptor-Opposite Parties.

                                Mr. Bazlur Hasan, Advocate.

                                                   ......... For the petitioners.           

Mr. Fahad Mahmood Khan, Advocates

........ For the opposite parties.

Heard  on  13.11.2024,  19.11.2024, 09.12.2024, 10.12.2024 and 15.12.2024.

Judgment on 18.12.2024.  By this Rule, the opposite parties were called upon to

show  cause  as  to  why  the  Judgment  and  order  dated 24.03.2014  passed  by  learned  Joint  District  Judge,  1st Court, Naogaon in Miscellaneous Appeal No.73 of 2013, allowing the appeal and reversing the Judgment and order dated 30.07.2013 passed by the learned Assistant Judge, Dhamoirhat, Naogaon in Miscellaneous Case No.23 of 2011

rejecting the case should not be set aside and/or pass such other or further order or orders as to this Court may seem fit and proper.

         The facts, in brief for disposal of the Rule, are that the  opposite  party  Nos.1-4  as  pre-emptors  filed Miscellaneous  Case  No.23  of  2011  before  the  Assistant Judge,  Dhamoirhat,  Naogaon  for  preemption  of  0.0375 acres of land under section 96 of the State Acquisition and Tenancy Act,1950 as co-sharer by inheritance into the case Khaitan contending inter-alia that, the preempte-opposite party No. 2 and 3, full sister of the preemptors through registered sale deed No. 4481 dated 05.10.2011 secretly sold the case land to the pre-empte-petitioner beyond their knowledge having served any notice prior to the transfer of the case land. Preempte purchaser is a stranger in the case holding. Preemptors had no knowledge about the transfer. Therefore, they filed the case within the limitation period from the date of knowledge.

The pre-empte-purchaser-petitioner contested the suit by filing a written objection contested the case contending inter-alia that the case is barred under section 96 of the State Acquisition and Tenancy Act because the case land is a homestead in nature situated in the rural area. The case is barred by limitation, and the case land was transferred within the knowledge of the preemptor-opposite parties.

The learned Joint District Judge, 1st Court, Naogaon, framed necessary issues to determine the dispute involved between the parties.

Subsequently,  the  learned  Assistant  Judge, Dhamoirhat, Naogaon, dismissed the case by the Judgment and order dated 30.07.2013.

Being  aggrieved,  the  pre-emptor  opposite  parties, preferred Miscellaneous Appeal No.73 of 2013 before the District  Judge,  Naogaon.  Eventually,  the  learned  Joint District Judge, 1st Court, Naogaon, by the Judgment and order dated 24.03.2014, allowed the appeal and thereby reversed the Judgment and order of the trial Court.

Being aggrieved, the pre-emptee-petitioner preferred this Civil Revision under section 115 (1) of the Code of Civil Procedure before this Court and obtained the instant Rule and an order of stay.

Mr. Bazlur Hasan, the learned advocate appearing on behalf of the preempte-petitioner, submits that the case land being homestead situated in a rural area in rayati holding is excluded from preemption as provided by newly inserted  section  96(16)  of  the  State  Acquisition  and Tenancy Act,1950, so the appellate Court below committed an error of law resulting in an error in the decision an occasioning failure of justice in allowing the preemption, in misinterpreting the decision reported in 11 MLR(AD), 75, 3 ADC 97, and 20 DLR 1197.

 Mr.  Fahad  Mahmood  Khan,  the  learned  advocate appearing  on  behalf  of  the  preemtors-opposite  parties, submits that the case land is agricultural in nature and situated in a rural area, so the appellate Court below, with proper appreciation of evidence on record, rightly allowed the preemption.

I  have  anxiously  considered  the  submissions advanced by both parties, perusing the Judgment of the courts below and oral and documentary evidence on the records.

It  manifests  from  the  record  that  the  pre-emptor opposite parties filed the instant preemption case under Section 96 of the State Acquisition and Tenancy Act,1950, but the trial Court dismissed the preemption case on the ground that the suit land is a homestead situated in a rural area is barred under Section 96(16) of the State Acquisition and Tenancy Act,1950.

The Court of Appeal below relies upon the case of Abdul Khaleque Vs. Abdul Noor and Ors reported in 11 MLR(AD) 75, 6 BLD(AD) 130, 3 ADC 97, and 20 DLR 1197  allowed the claim of preemption on the ground that a co- sharer transferred non-agricultural land in a rural area to a stranger, and the suit land is Basat-Bithi. Therefore, the suit land is pre-emptiable under Section 24 of the Non- Agricultural Tenancy Act.

It appears that, admittedly, the preemptors, as co- sharers  of  the  case  jote,  filed  the  instant  case.  The preemptors  examined  two  witnesses,  and  the  preempte petitioner examined four OPWs to prove their respective cases. I have anxiously scrutinized depositions and cross- examinations of both parties. Their evidence shows that the

case  land  is  admittedly  situated  in  a  rural  area,  and classification is Bhiti in nature and used for agricultural purposes. 

Further, from the alleged deed of transfer Exhibit-‘Ka’ it appears that the case land was mentioned as agricultural land(Jami). Moreover, the land has been identified as Bithi in Exhibit-1; R.S. Dag No.200, R.S. Khatian No.42, and R.S. Dag No.199 under R.S. Khatian No.43. Therefore, it appears to me that character of the case land is Bithi and admittedly situated in a rural area.

Now, it is a settled provision of law by our Apex Court that any land recorded in Khatian as Bagan Bari, Bithi, Bari but situated outside the municipal area should fall within the definition of agricultural land. This view gets support  from  the  case  of  Chittaranjan  Saha  Vs.  Md. Mortuza Mollah and Ors reported in 14 ALR (AD) 41 it was held that—

"It is necessary to keep on record that admittedly the case  land  is  outside  the  municipal  area,  and  merely because in the khatian, it was recorded as Bagan Bari, Bari, and Bhiti, and it did not become a non-agricultural land. Such kind of land clearly falls within the definition of agricultural land."

Considering the facts and circumstances and relying upon the decision as mentioned above, it appears that the case land is preemptable under section 96 of the State Acquisition  and  Tenancy  Act,  and  the  appellate  Court, though rightly reversed the finding of the trial court and allowed the preemption but wrongly mentioned that the case was required to be file under Section 24 of the East Bengal  Non-Agricultural  Tenancy  Act,1949  instead  of section 96 of State Acquisition and Tenancy Act as the case land is Basat-Bithi.

Now, it is settled proposition of law that mention of a wrong  provision  or  omission  to  mention  the  provision containing the source of power will not invalidate an order where such power exists. This view gets support from the case of Union of India Vs. Tulsiram Patel, AIR 1985 (SC) 1416, 1477:

“It is also well settled that where a source of power exists, the exercise of such power is referable only to that source and not to some other source under which were that power exercised, the exercise of such power would be invalid and without jurisdiction. Similarly, if a  source  of  power  exists  by  reading  together  two provisions, whether statutory or constitutional, and the order refers to only one of them, the validity of the order should be upheld by construing it as an order passed under both those provisions. Further, even the mention of a wrong provision or the omission to  mention  the  provision  which  contains  the source of power will not invalidate an order where the source of such power exists.”

In the instant case, the preemptors, as co-sharers in the  Khaitan,  are  entitled  to  initiate  a  preemption  Case under section 96 of the State Acquisition and Tenancy Act. Therefore, it appears that they have rightly initiated the preemption case under section 96 of the State Acquisition and Tenancy Act since the case land is admittedly situated outside the municipal area, and the land's classification is Bithi, i.e., agricultural.

Consequently, it appears to me that the Judgment of the appellate Court below does not suffer from any legal infirmity, so the impugned Judgment is well founded in accordance  with  law  and  based  on  the  materials  on records,  which  cannot  be  interfered  with  by  this  Court exercising revisional power under Section 115 (1) of the code. However, the trial court below appears to have clearly fallen into an error of law in holding that the case is barred under section 96(16) of the State Acquisition and Tenancy Act.

 Resultantly,  the  Rule  is  discharged  with  cost.  The impugned Judgment and order dated 24.03.2014 passed by  learned  Joint  District  Judge,  1st  Court,  Naogaon  in Miscellaneous Appeal No.73 of 2013 is hereby affirmed.

      Let the order of stay granted at the time of issuance of Rule is hereby vacated.

Communicate the Judgment with lower courts' records at once. 

…………………….  (Md. Salim, J).

Kabir/BO