Appellate Division Cases
Additional Deputy commissioner (Rev) Dhaka & others……………… Appellants.
Mst. Farhad Begum and others …………………………………Respondents.
Md. Ruhul Am in. J
M. M. Ruhul amin. J
Md. Tafazzul Islam. J
JUDGEMENT DATE: 15th May 2004
Abandoned Building Provision of Ordinance No. 54 of 1985
Which admittedly has been listed as an abandoned holding and taking over of the
said holding as abandoned property remained unchallenged as yet High Court
Division erred in law in importing a theory of certificate as to the non abandoned character of the suit land and in imputing ill motive upon the constituted attorney of
defendant No. 6 on the ground that he has applied for lease of the suit land the High
Court Division erred in law in failing to notice that the deed showing Nasima and
Farhanan as transferors bear fictitious address and was concocted by impersonation
and that Exhibits 2 and 5 are papers created for the purpose of the suit…………. (6)
Civil Appeal No. 163 of 2000. (From the judgment and order dated 18.5.1999
passed by the High Court Division in F. A. No. 74 of 1998).
Anwarul Azim Khair, Deputy Attorney General, instructed by A. K. M. Shahidul Huq, Advocateon-Record. …………..For the Appellants.
Khondker Mahbubuddin Ahmed, Senior Advocate, instructed by S. R. Khoshnabish
Advocate-on-Record …………….For Respondents Nos. 1-9
Not represented………………… Respondent No. 10
1. Md. Tafazzul Islam, J :- This appeal, by leave, arises out of the judgment and decree
dated 18.5.1999 passed by the High Court Division in First Appeal No. 74 of 1998 reversing the judgment and decree dated 18.5.1999 passed by the learned Subordinate judge 2nd court, Dhaka in title Suit No. 148 of 1992 dismissing the suit.
2. The respondent Nos. 1 to 9, filed the above Title Suit No. 148 of 1992 seeking declaration of title Simpliatier in respect of the suit land stating inter alia, that the suit land is part of C.S./S.A Plot No. 1497 the above plot comprised of an area of 3.09 acres and originally belonged to Yad AH and Upon his death the same devolved upon his heirs whose names appeared in the S. A records; the heirs of Yad Ali at different time transferred different quantum of land to various persons and delivered possession there of to them; Safar Ali purchased the suit land from the heirs of C. S. and S. A recorded tenants by Kabala Nos. 4683 and 9250 while in possession the said Safar Ali Sold the suit land to Mr. Mujibul Hoque by kabala Nos. 23998 and 24036 both dated 19.6.79;
Mujubul Hoque after getting possession of the suit land mutated his name and continued to possess the suit land on payment of rent to the Government and while in possession he died leaving the plaintiffs as his heirs the plaintiffs had been possessing the suit land by erecting huts there on through their own men suit land never belonged to any non Bengali and therefore the question of the suit land being abandoned property does not arise some people having greedy eyes on the suit land started harassing the plaintiffs by making false allegations against them and at their instigation on 26.9.91 a Magistrate came to evict the plaintiffs but on perusal of the papers the Magistrate refrained from evicting them but subsequently at the instance of the same quarter again order was passed for eviction of the plaintiffs from the suit land and the plaintiffs on 21.7.92 came to learn that the office of the ADC (Rev) is going to take immediate action to evict the plaintiffs from the suit land with in a day or two and hence the suit.
3. The respondent Nos. 1-5 contested the suit and filed written statement stating inter alia
that the suit plot was recorded in the name of Yad Ali and during S.A operation the some was recorded in the names of his heirs in S. A khatian No. 133; the vendors of the alleged kabalal Nos. 4683 and 9250 as referred to in paragraph 4 of the plaint were not the S.A recorded tenants Abul Baser on 18.6.67 purchased some land out of the suit plot from the S.A recorded tenants and he then by kabala Nos. 14252 and 14254 dated 13.9.68 sold 6 kathas of Ian to Nasima Khatun and Farhana Khatun who were non Bengalese and they having left the country during the liberation war the suit land became abandoned property and was taken over in A. P. Case No. D/1977 the plaintiffs illegally trespassed into the suit land and so the defendant in pursuance of an order dated 19.12..1990 issued Memo. No 89/2-Rev-A.P.6/77 dated 19.1.91 evicted the plaintiffs and possession was taken
over on 26.1.91 and since then the suit land had been under the management of the government as abandoned property the so-called title deed showing sale of land by Nasima and Farhana are forged and fraudulent and have been created by impersonation and mutation of the records has also been managed by the plaintiffs by illegal means
4. The defendant No. 6 who got himself impaled in the suit, also contested the suit and
filed written statement stating inter alia that the suit plot was recorded in S. A khatian No. 133 in the names of the heirs of Yad Ali, the son If Yad Ali sold 9% decimals of land from Plot No. 1497 to one Abul Baser by registered Kabala dated 18.8.67 Shammeher Begum Wife of Abul Basher by Kabala Dated 23.8.67 also purchased 3V2 decimals of land from the heirs of Yad Ali: Abul Baser Sold 9% decimals of land to Nasima and Farhana by kabala Nos. 14253 and 14254 both dated 13.9.68; Shammehar Begum
sold 3Vi decimals of land to Mosammat Mahela Khatun by Kabala No. 5991 dated 13.4.1968 and Mahela Khatun then sold his 3½ decimals of land to him ( the respondent No. 6) by two registered documents dated 5.3.84 and since then he has been in possession of the above 3½ decimals of land Nasima and Farhana who were non Bengali left this country during the liberation war and their properties were traded as abandoned properties and their homestead situated at 10/C.L12-3 Mirpur Housing Estate was also taken over has abandoned property and such taking over as abandoned property and
such taking over has never been challenged kabala No. 14064 dated 25.6.75 is forged false and Nasima arhana were literate persons but in the above deed alleged to have been executed by Nasima and Farhana in favour of Jamir Mia, Mokbul Hossain and Abdul Gani do not contain their signatures and merely contain their thumb impressions by giving their false address at 227 Wiseghat.
5. The trial court after hearing dismissed the suit and the High Court Division after hearing allowed the appeal. Leave was granted in the following terms :”Learned DAG submits that findings of the trial court that plaintiffs could not prove their title has not been reversed by the High Court Division . He further submits that plaintiffs witnesses having admitted that the suit land was an agricultural land even in 1995 High Court
division acted illegally relying on notice of the City corporation to hold that suit property is a building and on the gazette notification in respect of the abandoned buildings to hold that the suit property is not an abandoned property. He further submits that High Court Division wrongly shifted the onus on the defendant petitioners without appreciating that the corporation holding Exhibit-5 did not relate to the suit property and no case has been
made out about creation of the corporation holding in the plaint and as such impugned judgment suffers from misreading of material evidence and also based on conjecture and surmise. He further submits that High Court Division erred in law in finding that Nasima Kahtun and Farhana Khatun were not non-locals.”
6. The learned counsel for the appellant submits that the plaintiffs in their plaint clamied
title in the suit property on the basis of purchase by their predecessor Mujubul Huque from Safar Ali stating that Safar Ali purchased 6 kathas of land from C.S and S. A recorded tenants by kabala nos. 4683 and 9250 but in the plaint the dated of those documents as well as the names of the vendors of those documents were not disclosed
and the plaintiffs also led no evidence to prove the plaint case and thus they abandoned
the plaint case during her deposition P.W.I without even amending the plaint introduced a
new case and documents of transfer particularly Exhibits-1 l(ka) 10 and 11 series though seriously challenged as forged and fabricated , have not been proved in accordance with law; P. Ws 1 and 2 having admitted that the plaintiffs are out of possession and thus neither title nor possession of the plaintiffs having been proved, the High court Division erred in law in decreeing the suit against the well-settled principle of law that the plaintiffs must prove their own case and cannot succeed on the weakness, if any, of the
case of the defendants, the High Court Division relying on inadmissible evidence held that the suit property is not an abandoned property as it was not included in “ka” and “kha” list of abandoned property though there is no evidence as to existence of any structure/ holding on the suit land prior to the publication of the list under Ordinance No. 55 of 1985, a Magistrate already evicted the plaintiffs on 26.1.91 D.W-2, admitted
predecessor-in-interest having acquaintance with the Nasima and Farhanan proved their
homestead address at Holding No. 10/C.L 12-3 Mirpur Housing Estate Which admittedly has been listed as an abandoned holding and taking over of the said holding as abandoned property remained unchallenged as yet High Court Division erred in law in importing a theory of certificate as to the non abandoned character of the suit land and in imputing ill motive upon the constituted attorney of defendant No. 6 on the ground that he has applied for lease of the suit land the High Court Division erred in law in failing to notice that the deed showing Nasima and Farhanan as transferors bear fictitious address and was concocted by impersonation and that Exhibits 2 and 5 are papers created for the purpose of the suit.
7. The learned counsel for the respondent submits that the finding of trial court as to the
title of the plaintiffs to the suit land was not correct and High Court Division rightly decreed the suit which in law, constitutes a proper reversal of the trial court’s finding the questions whether the notice of Dhaka Municipal Corporation Ext.5 related to the suit property or not and whether suit property is abandoned property or not and whether Nasima Khatun and Furhana Khatun were no locals and left Bangladesh during liberation war are questions of factor and were decided in the first appeal upon consideration of evidence on record and no specific misreading and/or non consideration of evidence having been raise before this court, decision of the final court of fact calls for no
interference in this appeal.
8. As it appear the plaintiff No. 1 who examined her as P.W. 1 in her deposition stated
that Ishad Ali son of syad Ali sold 9¼ Decimals of land to Abul Bahser by Kabalas
No. 16226 dated 18.8.67 photocopy of which was proved by her as Ext.8, then abul Bahser sold 6 kathas of land to Nasima and Farhanan by two kabala Nos. 14253 and 14254 both dated 13.9.68 photocopies of which were proved by her as Ext. 8 series, then Farhana and Nasima sold the 2 khatas of land ot Mohibul Hossain and Abdul Gani by Kabala Nos. 14064 dated 25.6.76, the photocopy of which was proved by her as Ext. 10 then Samir Mia sold 2 khatas of land to Safar Ali by Kabala No. 7611 dated 3.3.79 and on the same dated Abul Hossain also sold 2 khatas of land to Safar Ali and then the heirs of Abdul Ghari sold 2 khatas of land to Safar Ali by Khabala Nos. 15162 and she proved the photocopies of those filed by her as Ext. 11 series, her husband Mujibul Hoque purchased 3 Kathas of land from Safar Ali by kabala Nos. 23998 and 24036 which she
proved as Exts. 1 and l(ka). Whereas, the plaint case is that Safar Ali who sold the suit
land to Mujubul Haque by kabala Nos. 22998 and 24036 both date 19.6.79, Exts.l and (ka), purchased 6 kathas of land by kabala Nos. 4683 and 9250 from the C.S and S. A recorded tenets but in the plaint the dates of the aforesaid kabalas No. 4683 and 9250 as well as the names of the vendorse of the above kabalas were not mentioned. But as it appears only Abdul Basher purchased 9% decimals of land from Ishad Ali, heirs of C. S /S.A. recorded tenatn and Nasima, Farhana and the persons who alletged to have purchased the suit land from Nasima and Farhana and also the persons from whom Safar Ali puchased the suit land were not the heirs C.S and S. A recorded tenants. In the kabala No. 22998 Safar Ali, the vendor, stated that he purchased his land from Bachhu Mia but P.w. 1 in the depostition stated that Samir, Moqubul and the heirs of Abdul Gani sold 6 kathas of land to Safar Ali. Further ther is nothing on record to support that Bachhu Mia was an heir of the C.S and S.A recorded tenants. It is also an admitted fact that the homestead of Nasima and Farhanan situated at 10/C.L 12-3 Mirpur Housing Estate was
aslo declared an abandoned property and the said declaration has not beenchallegned as yet even thought the P.Ws took the stand that Nasima and Farhana never left the country and are still in Bangladesh. As it appears the trial court on consideration of the same dismissed the suit.
9. As it appears the High Court Division allowed the appeal and decreed the suit mainly
on the ground that the suit land has not been included the ka and kha list of the abandoned i Building in terms of the Provision of Ordinance No. 54 of 1985 by Ext. 5 Dhaka I Municipal corporation demanded municipal i tax from the respondents and during the years i 1975 there was an embargo of registering sale I deeds in respect of lands at Senpara Parbata i Mouza at Miipur wihtout the clearance of the I Abandoned Property Authority.
10. The High Court Division as it appears | did not at all consider the fact that Nasima and I Farhanan, the predecessors in interest of Safar i Ali. were non Bangladees and they left I Bangladesh during the liberation war and that i is why declaration of their homestead 10/C.L I 12-3 Mirpur Housing Estate as abandoned i property has not yet been challenged and that j Kabala Nos. 14064, Ext. 10 alleged to be executed by Nasima and Farhanan on 25.6.1975 in ! favour of Nzmir Mia, Moqbul Hossain and I Abdul Gani was concocted by way of imper-I sonation and that is why the said kabala con; tained only the thumb impressions of alleged I Nasima and Farhana even thought they were I literate and so Safar Ali did not get any title by I the alleged purchases made by Ext. 11 series i pecially in view of the specific plaint case that Safar Ali acquired the title in the suit land by i sale deed Nos. 4683 and 9250 executed by the i heirs of C.S/S.A recorded tenants. The High I court Division did not at all consider that during her cross examination P.W. 1 , supported the I statements made in both the written statements I filed by the defendants regarding chain of title i upto sale of land upto Nasim and Farhana. The j High Court Division Falied to consider the set-I tied principal of law that in order to get a i decjee the plaintiff must prove his own case j and can not rely upon the the weakness of the case of the defendants and in the present case the plaintiff failed to prove even their plaint I case and introduced facts which were beyond I plaint.
11 It further appears that Ext. 5 is only a notice directing the respondents to pay the municipal taxes but the present Title Suit No. I 148 was filed on 22.7.1992 stating that cause of action of the suit arose on 21.07.92 whereas I Ext. 5 is dated 13.02.95 .There is also nothing on record to show that the respondents paid the earlier installments. Regarding non inclusion of the suit land in schedule ka and kha of the list of Abandoned Properties in terms of Ordinance No. 54 of 1985 it is an admitted fact that the plaintiffs did not reside in the suit land and there is also nothing on record to show that there were any building or even any permanent structure in the suit land and so the question of
including the suit land in ka or kha schedule of the list of abandoned properties did notaries. It is an admitted fact the A.P. Case No. 6 of 1977 was started and Magistrate went to the suit land as early as 26.9.91 to evict the respondents and the appellants asserted that on 26.9.91 the respondents were evicted. The High Court Division observed that since in the years 1975 and 1979 there was an embargo on the registration of kabalas in Senpara Parbat Mouza, Mirpur during the said years 1975 to 1979 without clearance from the Abandoned Property Authority and so Farhana and Nasima would not have been in a position to sell 6 kathas of land to shamir Mia, Abul Hossein and Abdul Gani on 26.5.1975 and register kabala in the office of Sub-Registrar had there been no clearance
and in the like manner Safar Ali without such clearance would not have been in a position
to purchase 6 kathas of land in the year 1975 from Samir Mia, Mokbul and heirs of
Abdul Gani and register the deeds in the office of the Sub-Registrar. However as it appears there is nothing on record to show that at the time any clearance or no objection were required to be obtained from the Abandoned property Authority for sale and registration of the properties situated at Shanpara Parbata Mouja, Mirpur.
12. Regarding holding No. 10/C.L 12-3 which has been declared as abandoned property
admittedly belonged to Nasima and Farhana. In the plaint an attempt was made to obtain a decree by merely stating that Safar Ali purchased the suit from the heirs of C.S./S.A
recorded tenants, However P. Ws. had admitted that Nasima and Farhana become the owners of the suit land and they sold it to the predecessor-in-interest of Safar Ali and that Nasima and Farhana were Bengalees and they did not leave Bangladesh during liberation war and they reside in Bangladesh. But the fact remains that Nasima and Farhana has not yet challenged the above order declaring Holding No. 10/C.L 12-3 as abandoned property. The High Court Division however, tried to avoid this question holding that holding No. 10/C.L 12-3 situates at Mirpur Housing Estate which is a leasehold property of the Ministry of Works whereas the suit property situates at a portion of C.S/S.A
Plot No. 1497 which is a private holding and accordingly there is no nexus between the suit property and the aforesaid holding No. 10/c.L 12-3 Mirpur Housing Estate and there is nothing to show that by A.P Case Nos. 6 of 1977 related to the suit property and that by the above case the suit property was not taken over as abandoned property. Since it is an admitted Fact that the said holding No. 12/C.L 12-3 still remains as abandoned property and Nasima and Farhana as yet did not challenge the taking over of the above holding, which is a valuable property, as abandoned property supports the case of the appellant that Nasima and Farhana were non Banglees and they left Bangladesh during the liberation war and A.P. case Nos. 6 of 1977 very much relates to the suit property
and no further evidence is needed in this regard. If Nasima and Farhana did not leave
Bangladesh during liberation, in a natural course of human conduct, certainly they or their successors in interest, would have challenged the order by which holding No. 10/C.L. 12-3 Mirpur Housing Estate, as abandoned property was taken over as abandoned property. So the judgment and order dated 18.5.1999 passed in First Appeal No. 74 of 1998 can not be sustained and is liable to be set aside.
13. Accordingly the appeal is allowed without any order as to costs. The judgment and
order dated 18.5.1999 passed by the High Court Division in FA. No. 74 of 1998 is set aside and the suit is dismissed.
Source: I ADC (2004), 256