JAHIRUDDIN MOLLAH (MD) Vs. HOSNE ARA BEGUM

JUDGEMENT

(1.) In this appeal by special leave the only question is whether the High Court Division is well founded in law in refusing pre-emption in full on a finding that the land of the Pre-emptor, who is a contiguous land-holder, is not wholly contiguous to the land transferred. The impugned Judgment of the High Court Division is dated 4 July 1985 in Civil Revision No. 84 of 1983.

(2.) Appellant-Pre-emptor is the owner of A No. 2575 of Mouza Alipur. Some portion of Plo Nos. 2574 and 2573 were transferred by their own under a kabala dated 3 June 1976, whereupon appellant filed an application under section 96 of the State Acquisition and Tenancy Act before the Munsif, Faridpur, claiming pre-emption of both the plots taking the ground that these two plots contiguous to his own land. His claim was resisted by the respondent-transferee taking the ground that only a part of Plot No. 2574 is contiguous to the appellant's land that Plot No. 2573 is not at all contiguous, and as such he is not entitled to pre-empt both the plots. The trial Court allowed pre-emption in respect of both the plots finding them to be contiguous to the pre-emptor's land. This finding was confirmed in appeal by the Subordinate Judge. But in revision, as stated above, a learned Single Judge of the High Court Division reversed the finding in respect of Plot No. 2573 and modified the decision of the courts below and allow pre-emption only in respect of Plot No. 2574 which he found to be contiguous to the pre-emptor's land in Plot No. 2575. The pre-emptor came before us leave to appeal and leave was granted to consider whether both the Plots, 2574 and 2573, being allegedly contiguous to each other and forming compact block, should have been allowed o pre-emption on the ground of "contiguity."

(3.) The learned Single Judge did not find Plot No. 2573 to be contiguous to appellant's land, Plot No. 2575, and refused pre-emption to this extent relying upon an observation of this Court in Ahmed Hossain Ys. Basharat Ali, 32 DLR (AD) 54. In that case lands in several plots comprising five different holdings, but touching each other only marginally and not forming a compact block of land, were sought to be pre-empted by a person claiming that his land was contiguous to these five lands, which were transferred under a single Kabala. In that case five different lands transferred "were close to each other in a zig zag way" and the pre-emptor's land was not directly contiguous to any of these lands transferred except one of these lands, namely, a tank. This tank was also separated from the pre-emptor's land by a public path. The courts below including the High Court Division ignored the public path which belonged to the Government and over which no other person put forward any competing claim for pre-emption. In these circumstances, the Courts below held the tank to be contiguous to the pre-emptor's land and allowed pre-emption of all the lands transferred. But on appeal, this Court took the view that the word "contiguous" was not neighbouring", but it meant actually "touching" and that the tank being separated by a public path it could not be held to be contiguous to the pre-emptor's land. This was the main reason for this Court's interference with the finding of the courts below and pre-emption was refused on the ground that "contiguity" was snapped by the public path. In that connection this Court made a query as to whether these five different lands, which were transferred under a kabala could be held to be contiguous to each other so as to form a single compact block, and found the answer in the negative. Indication was, however, given in that Judgment that had those five plots been closely connected together holding a compact block of land and had there been no public path between the pre-emptor's land and the compact block including the tank, the principle of "contiguity" might have been applicable.