IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Zafar Ahmed

Civil Revision No. 1297 of 2017 Md. Rowson Alam

...Pre-emptor-petitioner -Versus-

Md. Moshiur Rahman and others

…Opposite parties

Mr. Ashfaqur Rahman, with

Ms. Mosroj Jharna Shathi, Advocates

...For the petitioner

Mr. Fahad Mahmood Khan, Advocate

.........For the opposite party Nos. 1-5

Heard on: 22.10.2024, 28.10.2024 and 01.12.2024 Judgment on: 10.12.2024

Miscellaneous Case No. 28 of 2005 under Section 96 of the State Acquisition and Tenancy Act, 1950 (S A & T Act) for pre- emption of the case land was allowed by the learned Assistant Judge, Debhata, Satkhira on 12.01.2012. Miscellaneous Appeal No. 10 of 2012 was allowed by the learned Joint District Judge, 2nd Court, Satkhira on 19.02.2017 and the pre-emption case was rejected. Thereafter, the pre-emptor filed the instant civil revision and obtained the Rule on 10.04.2017.

The Rule has been contested by the pre-emptee opposite party

Nos. 1-5.

It is admitted by the parties that the pre-emptor was the co- sharer tenant in the case jote, the pre-emptees are strangers and the conditions laid down in Section 96 of the S A & T Act were complied with at the time of filing the case. The only issue raised in the instant civil revision is whether the separation of the case jote by publication of the relevant B.S. khatian during pendency of the appeal or instant Rule takes away the pre-emptor’s right of pre-emption. In other words, whether the interest of the pre-emptor subsists in spite of separation of the case jote after disposal of the original case. This issue did not arise at the trial stage for the reason that the case jote was separated after conclusion of the trial. The trial Court allowed the pre-emption case.

The appellate Court below observed that during the pendency of the appeal, a separate B.S. khatian being No. 3759 was published by which the case jote was split up and thus, the pre-emptor ceased to be a co-sharer tenant in the case jote which under the S.A. khatian was a compact block. The appeal Court allowed the appeal and rejected the pre-emption case on this point only relying upon the cases reported in 19 DLR (SC) 36, 35 DLR (AD) 305, 35 DLR 295, 50 DLR (AD) 97, 54 DLR 181 and 13 MLR (AD) 143.

During the course of hearing of the instant Rule, the learned Advocate appearing for the pre-emptor-petitioner filed a supplementary affidavit annexing Bangladesh Gazette published on 21.01.2021 (Annexure-1). It appears from Annexure-1 that the relevant B.S. khatian was finally published on 05.11.2020 after issuance of instant Rule. This fact has been admitted by the contesting opposite parties. In view of the admitted facts, the position is that the case jote was split up by publication of a separate B.S. khatian No. 3759 on 05.11.2020 during pendency of the civil revision.

The learned Advocate appearing for the pre-emptor-petitioner submits that subsequent separation of the case jote by publication of a new khatian during the appeal or revision does not take away the pre- emptor’s right of pre-emption which existed at the time of filing the pre-emption case. The learned Advocate appearing for the pre- emptee-opposite parties, on the other hand, argued the subsequent separation of the case jote during the appeal or revision takes away the pre-emptor’s right of pre-emption. The learned Advocates of both sides refer to several case laws in support of their arguments. In order to assess the arguments, the reported cases require an in depth analysis.

The case of Chandra Kumar Maladas vs. Abdul Motaleb and others, 19 DLR (SC) 36 arose out of a pre-emption application under Section 26F of the Bengal Tenancy Act, 1885. Leave to appeal was granted to consider whether after setting aside of the auction sale the High Court was justified in allowing pre-emption of the said sal