APPELLATE DIVISION :(Civil) Nazmun Ara Sultana JSyed Mahmud Hossain JMuhammad Imman Ali J Asad Ali (Md) and another ….. Appellants vsGolam Sarwar and others … Respondents JudgmentMay 28th, 2014. Non Agricultural Tenancy Act (XXIII of 1949) Section 24 In a proceeding under section 24 of the Act the question of co-sharership in the holding or tenancy is immaterial, however, the question of co-sharership in the ‘land’ is material. After partition by metes and bounds of the land or a holding or even of a plot or plots among its cosharers each of such co-sharers loses their cosharership in all other land of the holding or the plot or plot excepting his own share only even if the holding or tenancy remains intact and he, therefore, cannot claim pre-emption under Section 24 of the Act if any share or portion thereof of any other owner of holding or plot is transferred. It is evident that this Section 24 of the Non-Agricultural Tenancy Act does not say about the right of pre-emption of co-sharers of a holding but it says about the right of pre-emption of the sharers of the land. “Land” means land. ‘Land’ does not mean ‘holding’ or ‘tenancy’. Land can be divided by partition, holding can be divided by separation of ‘joma’. After partition of any land by metes and bounds a co-sharer remains no more co-sharer of the land and loses all his right, title and interest in that land save and except his own share only even if the original holding/tenancy remains intact and there is no division or separation. of tenancy. Section 24 of the Non Agricultural Tenancy Act has given the right of pre-emption to the co-sharer tenants of the non-agricultural land while Section 96 of the State Acquisition and Tenancy Act has given the right of pre-emption to the co-sharer tenants of the holding. To seek pre-emption under Section 24 of the Non-Agricultural Tenancy Act the petitioner does not require to be co-sharer of the holding, but he requires to be co-sharer of the land. The High Court Division, obviously, has failed to take into consideration the distinction between land and holding. ……..(15 & 17).Mahbubey Alam, Senior Advocate instructed by Chowdhury Md Zahangir. Advocate-on-Record-For the Appellants. Sufia Khatun, Advocate-on-Record-For Respondent Nos. 1 and 2. Judgment Nazmun Ara Sultana J: This Civil Appeal by leave, at the instance of the pre-emptees, is directed against the judgment and order dated 1610-2001 passed by the High Court Division in Civil Revision No.3271 of 1997 discharging the rule and thereby affirming the judgment and order dated 24-6-1997 passed by the learned District Judge, Pirojpur in Miscellaneous Appeal No.5 of 1997 reversing those dated 4-2-1997 passed by the learned Senior Assistant Judge, Pirojpur in Miscellaneous Case No. 40 of 1994 disallowing the same. 2. The preemptor-respondents herein filed the above mentioned Miscellaneous Case No. 40 of 1994 under Section 24 of the Non-Agricultural Tenancy Act against. the pre-emptee-appellants and others stating, inter-alia, that they are cosharers by inheritance in the case khatian. That the vendor opposite party No.3 Azimunnessa sold the case land by two kabalas dated 23-6-1994 to the pre-emptee-opposite party Nos. 1 and 2 of whom the opposite party No.1 is a stranger purchaser and the opposite party No.2 is a co-sharer of the case khatian. That the pre-emptor-petitioners filed this case for pre-emption in respect of the share of the opposite party No.1 within the statutory period of limitation on depositing the requisite amount. 3. The pre-emptee opposite party Nos.1 and 2 contested that case by filing written objection stating, inter-alia, that the pre-emptor-petitioners are: not co-sharers of the land transferred. That the lands of plot Nos 487, 488 and 489 of RS Khatian No.197 corresponding SA Khatian No.60 was partitioned amongst the co-sharers by a soledecree of Title Suit No.397 of 1920 and the lands of plot Nos 487 and 488 fell in the share of Abdul Wazed, the father of the opposite party No.2 and Abdur Rahman and the land of plot No 489 fell in the share of Aftabuddin and Anwar Uddin the predecessors of the pre-emptors. That the preemptors are not co-sharers of the lands of plot Nos 487 and 488. That the land transferred being lands of plot Nos 487 and 488 the pre-emptors are not entitled to get pre-emption of this land under Section 24 of the Non-Agricultural Tenancy Act. 4. Further case of the pre-emptee opposite parties was that the pre-emptee opposite party No.2, who is admittedly a co-sharer of the case land, purchased the entire case land by 2 kabalas from the opposite party No.3; that the opposite party No.2 took loan of Taka 10,000 from the opposite party No.1 and as security of that loan he showed the opposite party No.1 as one of the recipients in those kabalas and the opposite party No.1, subsequently, on getting back that Taka 10,000 from the opposite party No.2, disowned his claim by executing a nadabipatra in favour of the opposite party No.2 and that the opposite party No.2 being a co-sharer in the case land the application for pre-emption is not maintainable.5., The trial court dismissed the case for preemption taking a wrong view that pre-emption was sought for the share of opposite party No,2 who is an admitted co-sharer. The appellate court below set-aside the judgment of the trial court and allowed the pre-emption case making observations to the effect that the opposite party Nos 1 and 2 failed to establish that the land of the case holding had been partitioned by metes and bounds and after such partition the predecessor of the preemptors had no subsisting interest in the land transferred and holding that the pre-emptor-petitioners are not only co-sharers of the case holding, but they are also co-sharers of the land transferred and, therefore, they have right to preempt the land under Section 24 of the Non-Agricultural Tenancy Act. The appellate court below did not believe the case of the pre-emptees that the pre-emptee-opposite party No.2 alone-the admitted co-sharer-purchased the entire land by the 2 kabalas.6. The High Court Division affirmed the judgment of the appellate court below making observation thus:- …. “if it is conceded that the decree was acted upon, and the land was partitioned between the parties by metes and bounds even then it cannot be said that there was a division or separation of the tenancy.” 7. The High Court Division took the view that unless there is mutation or division of the holding creating new tenancy in the revenue office for the purpose of payment of rent separately the co-sharers do not lose their co-shareship and also right of pre-emption. 8. Being aggrieved by the judgment and order of the High Court Division the pre-emptee opposite parties filed Civil Petition for Leave to Appeal No.321 of 2002 before this Division and this Division granted leave to appeal to consider the submissions of the learned Counsel for the leave-petitioners to the effect that High Court Division erred in holding that since original tenancy has not been divided the pre-emptors are still co-sharers in the land and have not lost their right of pre-emption ignoring the facts that the case for pre emption was under Section 24 of the Non-Agricultural Tenancy Act and the land in question having been partitioned by metes and bounds long before the pre-emptors did not remain co-sharers of the land transferred and, therefore they had no right to pre-empt the land transferred under section 24 of the Non-Agricultural Tenancy Act and that the High Court Division failed to make distinction between holding and the land, and that land can only be divided either by decree or by any document and not by separating ‘jama’. 9. Mr Mahbubey Alam, the learned Senior Advocate appearing for the pre-emptee-appellants has made submissions to the effect that in this case it has been proved sufficiently by the documentary evidence filed by the pre-emptee opposite parties that the lands of the original plots was partitioned among its co-sharers by the sole decree of the year 1920 and by that sole decree the land of plot Nos.487 and 488 fell in the saham of the predecessors of the purchaser and the vendor the opposite party Nos.2 and 3 and the land of plot No.489 fell in the saham of the predecessors of the pre-emptor-petitioners and thus the predecessors of the preemptor-petitioners lost their entire right, title and interest in the lands of plot Nos.487 and 488. Mr Mahbubey Alam has made submissions to the effect that this fact, that the land of the original plots was partitioned by metes and bounds among its co-sharers, was admitted by both the parties in a subsequent suit being Title Suit No.69 of 1987 filed by the 1st party against the second party of that sole decree for permanent injunction and in that suit both the parties categorically admitted about the sole decree and also about their right, title and possession according to that sole decree since passing of that sole decree.The learned Counsel has argued that in spite of all these evidence the appellate court below held most erroneously that there was no proof that the land of the original khatian was partitioned by metes and bounds among its co-sharers. The learned Counsel has argued also that the High Court Division committed serious error of law also in holding that since there was no division of the holding by creating new tenancy and separation of joma the pre-emptor-petitioners remained co-sharers of the holding and, as such, they are entitled to get pre-emption. The learned Counsel has argued that the High Court Division did not take into consideration the fact that this case for pre-emption was under Section 24 of the Non-Agricultural Tenancy Act which mentions cosharer of land and not co-sharer of tenancy or holding; that for seeking pre-emption under Section 24 of the Non-Agricultural Tenancy Act the pre-emptor-petitioner requires to be the co-sharer of the land transferred and not co-sharer of the holding; that in the present case it has been proved sufficiently that the pre-emptor-petitioners are not co-sharers of the land transferred. The learned Counsel for the appellants has contended that the High Court Division has failed to make distinction between holding and land and thus came to the wrong finding and decision. 10. Mrs. Sufia Khatun, the learned Advocate-on-Record for the respondent Nos 1 and 2 has made some submissions supporting the impugned judgment and order of the High Court. 11. We have considered the submissions of the learned Advocates of both the sides and gone through the impugned judgment and order of the High Court Division, those of the appellate court below and the trial court and also the evidence both oral and documentary-adduced by both the parties in this case .. adduced by the contesting opposite party Nos. 1 and 2 have proved sufficiently that the lands of the original plots was partitioned by metes and bounds among its co-sharers by the sole decree in Partition Suit No.397 of 1920 of the 3rd Court of Munsif, Pirojpur, District-Bakergonj. The exhibits-‘Ka’, ‘Kha’ and ‘Ga’ the orders and the sole decree passed in that Partition Suit No.397 of 1920 prove that the land of the original CS Plot Nos.301 and 301/084 was partitioned by metes and bounds and was divided into 2 blocks and the 1st party, i.e. Aftabuddin Ahmed and Anwaruddin Ahmed, both sons of late Yasin Ahmed, got the southern block in their 9 anas share and the 2nd party, i.e. Munshi Abdul Wajed and Abdur Rahman-both sons of late Mohammad Naimuddin got the northern block in their 7 anas share and both these 2 blocks (sahams) of land were demarcated well in that sole decree. The exhibit-‘ Ja’ and exhibit-‘ Jha’ -the judgment of Title Suit No.69 of 1987 of the court of Sub-Judge, Pirojpur and the judgment of Title Appeal No. 50 of 1988 of the Court of Additional District Judge, Pirojpur prove sufficiently that the successors-in-interest of both the 1st party and 2nd party of that sole decree of Partition Suit No.397 of 1920 categorically admitted about this partition of their land by metes and bounds by the sole decree of Partition Suit No.397 of 1920. The Title Suit No.69 of 1987 was filed by the successors-in-interest of 1st party against successors-in-interest of the 2nd party of that sole decree for permanent injunction and the Title Appeal No.50 of 1988 was filed against the judgment passed in that Title Suit No.69 of 1987. From these judgments-the exhibits-‘Ja’ and Jha’ it appears that in that suit both the parties categorically admitted that the lands of the original plots were partitioned among its co-shares by metes and bounds by the sole decree of Partition Suit No.397 of 1920 and both the parties have been possessing their respective saham separately since that sole decree. The plot index-the exhibits 2 and ‘Chha’ prove that the land of original plot Nos.30 I and 301/084 which was partitioned by that sole decree of Partition Suit No.397 of 1920have been recorded in the new plot Nos.487, 488 and 489. So, all these documentary evidence viz., the exhibits-‘Ka’, ‘Kha’, ‘Ga’, the exhibits-‘Ja’ and ‘Jha’ and the exhibits 2 and ‘Chha’ prove sufficiently that the land of the original plots was partitioned by metes and bounds among its coshares long before in the year 1920 and the cosharers have been possessing their respective share according to this partition since 1920. 13. The pre-emptors, admittedly, are the heirs of Aftabuddin Ahmed and Anwaruddin Ahmed the 1st party-who got their 9 anas share in the southern block and the vendor and the purchaser opposite party, admittedly, are the heirs of Abdul Wazed and Abdur Rahman-the 2nd party-who got their 7 anans share in the northern block according to that sole decree. So the pre-emptors are the co-sharers of the land of the southern block and they are not co-sharers of the land of northern block. Admittedly, the land transferred appertains to northern block. So, the pre-emptor-petitioners, being not the co-sharers of the land transferred cannot get pre-emption of this land under section 24 of the Non-Agricultural Tenancy Act. 14. Section 24 of the Non-Agricultural Tenancy Act provides: “If a portion or share of the non-agricultural land held by a non-agricultural tenant is transferred, one or more co-sharer tenants of such land may, within four months of the service of notice issued under section 23 and, in case no notice had been issued or served, then within four months from the date of knowledge of such transfer, apply to the court for such portion or share to be transferred to himself or to themselves as the case may be.” Non-Agricultural Tenancy Act does not say about the right of preemption of co-sharers of a holding but it says about the right of pre-emption of the sharers of the land. “Land” means land. ‘Land’ does not mean ‘holding’ or ‘tenancy’. Land can be divided by partition, holding can be divided by separation of joma’. After partition of any land by metes and bounds a co-sharer remains no more co-sharer of the land and loses all his right, title and interest in that land save and except his own share only even if the original holding/tenancy. remains intact and there is no division or separation of tenancy. Section 24 of the Non Agricultural Tenancy Act has given the right of pre-emption to the co-sharer tenants of the nonagricultural land while section 96 of the State Acquisition and Tenancy Act has given the right of pre-emption to the co-sharer tenants of the holding. To seek pre-emption under section 24 of the Non-Agricultural Tenancy Act the petitioner does not require to be co-sharer of the holding, but he requires to be co-sharer of the land. The High Court Division, obviously, has failed to take into consideration the distinction between land and holding . 16. By filing the plot index the exhibit-2 and exhibit-‘Chha’ it has been contended that the land of 9 anas share of the original plot Nos.301 and 301/084 has been recorded in new plot No.489 and the land of 7 an as share has been receded in new plot Nos.487 and 488. It appears that the appellate court below did not accept this contention. The appellate court below made observation to the effect that there was no proof that these new plot Nos.487, 488 and 489 have been created pursuant to that alleged partition among the cosharers. However we do not think that in this case for pre-emption there is any necessity of proving that these plot Nos.487, 488 and 489 were created pursuant to that partition among the co-sharers. In this case it has been proved sufficiently that there was a partition by metes and bounds among the co-sharers of the land of original plots and pursuant to that partition the predecessors of the preemptor-petitioners remained no more co-sharers in the land fell in the saham of the predecessors of the vendor and the purchaser opposite parties. The land transferred, admittedly, appertains to the share of the predecessors of the vendor and the purchaser opposite parties. The pre-emptor-petitioners are not co-sharers of this land transferred and, as such, they cannot get pre-emption of this land under section 24 of the Non-Agricultural Tenancy Act. 17. In a proceeding under section 24 of the Non-Agricultural Tenancy Act the question of cosharership in the holding or tenancy is immaterial the question of co-sharership in the ‘land’ is material. After partition by metes and bounds of the land or a holding or even of a plot or plots among its co-sharers each of such co-sharers loses their co-sharership in all other land of the holding or the plot or plot excepting his own share only even if the holding or tenancy remains intact and he, therefore, cannot claim pre-emption under section 24 of the Non-Agricultural Tenancy Act if any share or portion thereof of any other owner of this holding or plot is transferred. 18. However, from the above discussion, it is evident, that the High Court Division has committed wrong in allowing the case for pre-emption under section 24 of the Non-Agricultural Tenancy Act holding that inspite of partition the pre-emptors are still co-sharers of the land transferred since the original holding was not divided and the original tenancy also was not separated. These findings and decision of the High Court Division require to be set-aside. Hence, this appeal be allowed on contest without any order as to cost. The impugned judgment and order of the High Court Division and also that of the appellate court below are set-aside and the case for pre-emption be dismissed.
