Appellate Division Cases
(Civil)
PARTIES
Abdul Wahed ………………………………….Appellant.
versus
Arun Kumar Ganguly & others ……………. Respondents.
JUSTICE
Mustafa Kamal. C. J
Latifur Rahman.J
Bimalendu Bikash Roy Chowdhury.J
Date of Judgment 7th June. 1999
Whether paragraph 8 of Government Memo No.21-77/70/223R/L dated 2nd August, 1972 has any application in the present settlement case wherein settlement was given to the appellant by re-opening the case of earlier settlement given in favour of plaintiff-respondent No.l. paragraph 8 of the memo provides that all previous proposals for settlement of agricultural khas land at whatever stage may be except where the lease deed has already been executed and registered should be cancelled and the land covered by such proposal should be leased out in accordance with the provision of this order. (8)
ADVOCATES
Abdul Quavuni, Advocate, instructed b\ Md. Aft ah Hossain Advocate-on-Record For the
Appellant Shamsul Alain,Advocate, instructed by Sharifuddin Chaklader Advocate-on-Record For Respondent No.l. Respondent Nos.2-6. : Not represented.
JUDGMENT
1. LATIFUR RAHMAN,.!.- This appeal by leave by defendant No.6 is against the judgment and order dated 4.6.1996 passed by a learned Single Judge of the Hi eh Court Division in Civil Revision No. 3283 of 1991 (Dhaka) / (Civil Revision No. 128 of 1990 (Barisal) making the Rule absolute in part, thereby setting aside the judgment and decree dated 9.9.1990 passed by the Subordinate Judge. PaUiakhali in Title Appeal No. 157 of 1985 reversing the judgment and decree dated 31.8.95 passed by the learned Munsif, Bauphal in Title Suit No.439 of 1993.
2. Respondent No.l as plaintiff brought the said suit on the averments, inter alia, that he took settlement of the land described in schedule-Ka to the plaint in Settlement Case Ne.242 of 1962-63 and the same was recorded in his name in Khatian No. 646. This settlement was necessary for the purpose of his duty as shebayet of the dety kali installed in a temple upon the adjoining land. The plaintiff had since been in possession of the said land. Defendant No.6 applied for settlement of the same land and obtained in his favour an order from the Revenue Authority behind his back. The plaintiff moved the Revenue Deputy Collector and Additional Deputy cominissioner concerned with an application for settlement of the said land, which was allowed on 19 August 1968. Defendant No.6 took an appeal thereform but the settlement in favour of the plaintiff was confirmed and a direction was issued on 3 May 1969 to give settlement of some other khas land to defendant No.6. Aggrieved defendant No.6 challenged the said order in Title Suit No. 152 of 1969 in the Third Court of Munsif. Patuakhali with a prayer for permanent injunction against the plaintiff. The suit was dismissed on contest and the decision was upheld in appeal upto the High Court Division. After the disposal of the appeal the plaintiff came up with an application before the Revenue Authority for paying the selami and the rent and his prayer was allowed. Accordingly he paid the selami and rent for the disputed land till 1388 B.S. efendant No.6 once again filed an application for confirming the settlement of the land in his fovour. Defendant No.3 thereupon made an order on 21 October 1979 cancelling the settlement of the plaintiff without considering the decision of the civil court in the earlier suit brought by defendant No.6. The plaintiff thereafter approached defendant No.3 with an application which was marked as Miscellaneous Petition Case No.57 S.A./1979-1980 for setting aside his order. The matter was sent to defendant No.4 who illegally upheld the order of defendant No.3 by “his”order dated 22 May 1982. On these averments the plaintiff prayed for declaration of title in respect of ‘Ka’ schedule land and also for declaration that the aforesaid orders dated 21 October 1979 and 22 May 1982 were illegal and ultra vires.
3. Defendant No.6 contested the suit contending, inter alia that the plaintiff fraudulently managed an order of settlement in his favour in respect of 1.10 acres of land though he was not entitled thereto and that the plaintiffs settlement was legally cancelled.
4. The learned Munsif found that the settlement of the plaintiff was legal and that he had
title to the ‘Ka1 schedule land. He further found that the impugned orders dated 21 October 1979 and 22 May 1982 were illeagt. Consequently he decreed the suit.
5. Defendant No.6 perferred an appeal and the appellate court set aside the decree of the trial court holding that the plaintiff acquired no title to the disputed land on the basis of his unconcluded settlement and that the cancellation of the plaintiffs order of settlement was made as per rules and regulation.
6. In revision a learned Single Jugde of the High Court Division found that the plaintiff had acquired no title to the land, that the two orders were not applicable to the facts of the
present case and that the cancellation of settlement of the plaintiff by applying paragraph 8 of a memo was not proper and legal. Accordingly the learned judge set aside the judgment and decree of the learned subordinate Judge and decreed the suit in part declaring only that the impimned orders dated 21 October 1979 and 22 May 1982 were illegal and void.
7. Leave was granted to consider whether the learned Single Judge of the High Court Division erred in law in setting aside the orders dated 21 October 1979 and 22 may 1982 upon a misconception that paragraph 8 of Government Memo. No.21-77/70/223 R-Ldated 2 August 1972 has no application in respect of settlement case No. 242/62-63 in
favour of plaintiff-respondent No.l. although the plaintiffs settlement is still in the proposal stage.
8. The material question in this appeal is. whether paragraph 8 of Government Memo No.21-77/70/223R/L dated 2nd August. 1972 has any application in the present settlement case wherein settlement was given to the , appellant by re-opening the case of earlier set-‘ tlement given in favour of plaintiff-respondent No.l. paragraph 8 of the memo provides that all previous proposals for settlement of agricultural khas land at whatever stage may be except where the lease deed has already been executed and registered should be cancelled and the land covered by such proposal should be leased out in accordance with the provision of this order. Now we shall have to see whether this provision will apply in the facts of the present case.
9. It appears from the record that settlement in favour of the plaintiff-respondent was earlier approved by order dated 3.5.69 of the joint Deputy Collector, patuakhali. Against that order Title Suit No. 152 of 1969 was filed in the Court of 3rd Munsif. patuakhali by the present appellant and the suit was dismissed. Against that judgment there was Title Appeal was Preferred by the present appellant, being Second Appeal No. 12 of 1970 and the same was dismissed by the Subordinate Judge, Patuakhali on 11.2.70. Against that dismissal order a Second Appeal No.28 of 1972 and the said appeal was summarily dismissed upholding the settlement in favour of the plaintiff-respondent No.l. Thus the proceeding of the settlement case in favour of plaintiff-respondent No.l was started earlier and finally concluded by the judgment of the High Court Division. It only appears that the next appropriate steps for finalisation of settlement in favour of present respondent No.l could not be taken because of the pendency of several cases between the parties. The question of settlement in favour of the present plaintiff-respondent No.l was concluded by the judgment of the High Court Division and as such there was no scope for re-opening the settlement case afresh and giving resettlement to the appellant by the two orders of the Revenue Authorities. Paragraph 8 of the said memo may has no application in this case. In view of the judgment of the High Court Division passed in Second Appeal No.28 of 1972 the settlement of respondent No.l cannot be lawfully cancelled by applying the provision of paragraph 8 of the Government memo as the Revenue Authorities are bound by a higher authority than the memo of the Government, namely, the judgment of the High Court High Court Division rightly held that the orders dated 21.10.79 and 22.5.82 are not legal and proper. The learned Single Judge having correctly decided the case the same calls for no interference. Accordingly, the appeal is dismissed with costs.
Source: III ADC (2006) 815