M/S Haque’s Bay Vs. Mrs. Jahanara Ahmed and others

Appellate Division Cases

(Civil)

PARTIES

M/S Haque’s Bay ……………..Petitioner.

-Vs-

Mrs. Jahanara Ahmed and others ………………. Respondents.

JUSTICES

Mohammad Fazlul Karim J

Amirul Kabir Chowdhury J

Md. Joynul Abedin J

Judgment Dated: 29th April 2007

The Code of Civil Procedure, Section 115(4), Order 7, Rule 11

The (Emergency) Requisition of the Property Act 1948, Section 14(A)

Declaration of title, recovery of khas possession of the suit land, permanent injunction and for some other relief on the averment that a piece of land……… (2)

Since the suit land is claimed to have not been acquired by the Government the suit was not barred under section 14Aof the Act, 1948………………. (3)

Faruque Ahmed, Advocate, instructed by Md. Aftab llossain, Advocate-on-Record ………………………..For the Petitioner

For Respondents………………………. Not Represented.

Civil Petition For Leave To Appeal No.1350 of 2005

(From the judgment and order dated 25.6.2005 passed by the High Court Division in Civil Order No.3170 of 2005.)

JUDGMENT

Md. Joynul Abedin J: This petition for leave to appeal at the instance of the defendant No.6 is directed against the judgment and order dated 25.6.2005 passed by a Division Bench of the High Court Division in Civil Order No.3170 of 2005 summarily rejecting the application under section 115(4) of the Code of Civil Procedure affirming the judgment and order dated 8.5.2005 passed by the Additional District Judge, 5th Court,Dhaka in Civil Revision No.82 of 2004 and the judgment and order dated 22.1.2002 passed by the Joint District Judge, 2nd Court, Dhaka in Title Suit No.347 of 2002 refusing to reject the plaint under Order 7, Rule 11 of the Code of Civil Procedure.

2. Facts briefly stated are that the plaintiff respondents filed Title Suit No.347 of 2002 in the 2nd Court of Joint District Judge, Dhaka against the petitioner and some others as defendants for declaration of title, recovery of khas possession of the suit land, permanent injunction and for some other relief on the averment that a piece of land comprising 4.90 acres of C.S. Plot No.208 of C.S. Khatian No.755 of Mouza-Senpara Parbata, Mirpur, Dhaka belonged to one Kanu Madbar and after his death the same devolved on his son,

Warish Matbar and while he was in possession thereof the government vide L.A. Case No. 13/59-60 acquired 4.65 acres of land leaving .25 acres out of acquisition but by mistake the entire land measuring 4.90 acres was shown to have been acquired by the Government by a Gazette notification published in that behalf. Since .25 acres of land was not acquired under the said L.A. Case the same was purchased by the plaintiffs under various sale deeds from Major (Retd.) Sabed Ali and were in possession. On 21.10.2002 defendants forcibly entered into this suit land and started demolishing the homestead of the plaintiffs on the plea that they obtained lease from the Government. The plaintiffs then filed the suit.

3. The petitioner being defendant No.6 filed a petition under Order 7, Rule 11 of the Code of Civil Procedure for rejection of the plaint on the ground that the suit is barred by section 14(A) of the (Emergency) Requisition of the Property Act, 1948. The trial court rejected the petition by order dated 22.1.2004 and against this order the petitioner preferred a Civil Revision No.82 of 2004 before the District Judge, Dhaka whereupon on transfer the Additional District Judge, 5th Court, Dhaka by order dated 8.5.2005 dismissed the revisional application affirming the aforesaid order passed by the trial court. The petitioner then moved the High Court Division in revision and the learned Judges of the High Court Division by the impugned judgment and order dated 25.6.2005 summarily rejected the revisional application on the ground that since the suit land is claimed to have not been acquired by the Government the suit was not barred under section 14A of the Act, 1948.

4. Mr. Faruquc Ahmed, the learned Advocate for the petitioner submits that the plaint obviously represents that the Government acquired the plot in suit in L.A. Case No. 13/59-60 and published gazette notification thereof and leased out the suit land to the defendant Nos.6 and 7 and demolished the structure thereon to settle the lessees therein, the plaint is barred under section 14(A) of the (Emergency) Requisition of Property Act,

1948 for which Civil Court has no jurisdiction to entertain the suit but the High Court Division on mistaken view of the law summarily rejected the revisional application occasioning failure of justice and as such the impugned judgment and order is liable to be set-aside.

5. We have considered the point raised and peaised the connected papers. We are not impressed by the submissions of the learned Advocate for the petitioner. The High Court Division upon correct assessment of the materials on record arrived at a correct decision. There is, therefore, no cogent reason to interfere with the same.

6. Accordingly, the petition is dismissed.

Source : V ADC (2008),409

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