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Non-agriculture Tenancy

Right to pre-empt accrues only after transfer, not before

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Appellate Division :
Md Abdul Wahhab Miah  
Md Imman Ali J
AHM Shamsuddin Choudhury J
Awlas Hossain Babor……..Petitioner
Ziaul Hasan Chowdhury and others….Respondents
June 15th, 2015
Non Agricultural Tenancy Act (XXIII of 1949)
 Section 24
Whether because of the Pourashava road, the land stands partitioned by the act of a statutory body, and thus the pre-emptor is not a co-sharer……......(7)
Mahbubey Alam, Senior Advocate, instructed by Chowdhury Md Zahangir, Advocate-on-Record-For the Petitioner.
Kamal-ul-Alam, Senior Advocate, instructed by Zainul Abedin Advocate-on-Record-For the  Respondents No.1
None Represented-Respondent Nos. 2-57.
Md Imman Ali J: This civil petition for leave to appeal is directed against the judgement and order dated 18-8-2011 passed by a Division Bench of the High Court Division in First Miscellaneous Appeal No. 234 of 2009.
2. Respondent No. 1 before us as pre-emptor filed the pre-emption case under Section 24 of the Non-Agricultural Tenancy Act on 1-1-2009 m the Court of Joint District Judge, 1st Court, Faridpur to pre-empt 0.0560 acre of land out of 0.1706 acre of plot No. 1311 of S.A Khatian No. 115 of Mouza No. 118 of Faridpur Pourashava.
3. The pre-emptor averred that he is the descendant of the person who owned 0.1031 acre of land in the subject and other plots, while the opposite parties No. 13-17, 18-20, 21-22 and 2-12, are the heirs of one Adil Uddin Ahmed, who was a recorded co-sharer of the case Khatian, but they do not possess the same, but live in Dhaka.
4. The aforesaid opposite parties No. 2-12, without informing the pre-emptor clandestinely transferred their share in the land on 25-11-2008 to opposite party No.1, the pre-emptee, who is a stranger. The pre-emptor, as a co-sharer in the land, having his place of abode thereon would definitely have purchased the land had he known of the opposite party's decision to sell the land.
5.  Case of the pre-emptee respondent is that when the seller declared his interest to sell the land neither the pre-emptor, nor his sister, the opposite party No. 29, who were present, showed any interest to buy the land. The opposite party Nos. 2-12 of the pre-emption case were not known to the pre-emptee. It was the husband of opposite party No. 29 who informed the pre-emptee of the owner's decision to sell the case land. When visited the opposite party No. 29's house, the seller declared his wish to sell the land presence of opposite party No.2, opposite party No. 3 and many concerned people, including the owners and the pre-emptee expressed his desire to buy the land. That though the land was purchased for Taka 36 lacs, the price was shown as Taka 11,01,000 at the instruction of opposite party No. 29.     
6. The Joint District Judge, 1st Court, Faridpur allowed the pre-emption case in Miscellaneous Case No, 1 of 2009. On appeal the High-court Division in First Miscellaneous Appeal No. 234 of 2009, on 18-8-2011, affirmed the judgment of the trial Court. The High Court Division observed that the evidence on record depict that the pre-emptor is a co-sharer by inheritance and is also holder of adjacent land and opposite party No,-2 admitted that the land was not partitioned and that it could not be proved that the case is barred by estoppels, waiver or acquiescence.                                             
7. As we picked up the leave petition for hearing Mr Mahbubey Alam, the learned Senior Advocate for the leave petitioner argued that as it is proved that the pre-emptor was present when the seller declared his intention to sell the land, but  expressed unwillingness to buy the same, the High Court Division erred in affirming the trial Court's judgment. He also submitted, that oral evidence on the difference between the actual and corded price should have been given effect, to as the Same was proved by oral and documentary evidence. He also added that the case land and the  pre-emptor's land  has been divided by a Pourashava road, and, as such, the pre-emptor's land cannot be deemed to be contiguous to the case land, and also the plea of necessity or family privacy is not applicable. He continued to say that because of the Pourashava road, the land stands partitioned by the act of a statutory body, and thus the pre-emptor is not a co-sharer.
8. Mr Kamal-ul-Alam, the learned Senior Advocate for respondent No.1 argued that the trial Court did not, by examining evidence, believe in the claim that the pre-emptor was present at the time the seller declared his intention to sell the land, but expressed his unwillingness to buy the land. He added that the right to pre-empt arises only after the transfer, not before that.
9 Having gone through the judgements of the court below and the transcripts of evidence, and having considered the submissions of the learned Advocates, we are left with no doubt as to the cogency and accuracy of the judgements of the Courts below.
10. On the petitioner's plea that the pre-emptor was present, but expressed unwillingness to buy the land, the trial Court made a factual finding that the same could not be proved. In any event the law is that right to pre-empt accrues only after transfer, not before.
11. We are unable to accept the contention that the Pourashava road caused the land to be partitioned, because that cannot be drawn to the concept of partition, which has to be voluntary or by judicial order.
The leave petition having no merit is thus dismissed.

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