BADSHA MIA BEPARI Vs. ABUL BASHAR

JUDGEMENT

(1.) This appeal is by special leave by the purchaser pre-emptee in an application for pre-emption under section 96 of the State Acquisition and Tenancy Act. Fact is that the appellant filed O.C. Suit No. 120 of 1963 in the Second Court of Munsif, Lakshmipur, Noakhali for specific performance of contract against Respondent No. 5. The suit was decreed and the properties were conveyed in favour of the Appellant through Court by a registered Kabala dated 18.9.70. On 6.1.1971 Respondents 1-4 filed a pre-emption case being Mise. Case No. 4 of 1971 under section 96 of the State Acquisition and Tenancy Act for preemption of the said transfer on the ground that they are the co-sharers by purchase from Respondent No. 5 Jogendra Kishore Chokraborty, by virtue of a Kabala dated 14.5.63. The appellant filed a written objection contending that the Respondents were not co-share's and that it was a homestead land with a tin shed standing thereon and as it is not an agricultural land, it is not pre-emptible. The Munsif dismissed the pre-emption case but the Court of appeal below allowed the pre-emption case. The High Court Division in Civil Revision discharged the Rule by holding that the lower appellate Court had not committed any illegality or material irregularity in allowing the preemption.

(2.) Leave was granted to consider two questions, first is, whether a sale completed in pursuance of a decree for specific performance of contract is pre-emptible under section 96 of the State Acquisition and Tenancy Act, and the second question is, if the decree for specific performance of contract relates back to the date of agreement whether the pre-emptor had any locus standi. Of the two questions, the second question is dependent on the answer to the first.

(3.) Miah Abdul Gafur, learned Advocate on Record appearing for the appellant tried to argue that the transfer referred to in section 96 of the Act denotes voluntary and not involuntary transfer under a decree for specific performance of contract. The contention is difficult to accept as a reference to section shows that the word 'transfer' is not hedged or qualified by any way limiting its operation to the extent the learned Advocate-on-Record wants to establish. There being no word of limitation as to the nature of transfer in the section any transfer which is a transfer in the eye of law subject to the restriction laid down in the section is preemption, In this regard the decision of Chandra Kumar Maladas vs. Abdul Motaleb (1967) 19 DLR (SC) 36 may be cited where an auction sale was assumed without contest to be pre-emptible under section 26F of the Bengal Tenancy Act. The language of section 96 of the State Acquisition and Tenancy Act is substantially the same as that of section 26F of the Bengal Tenancy Act and so the cited decision gives ample authority for holding that a sale in pursuance of a decree for specific performance of contract is pre-emptible.