IN THE SUPREME COURT OF BANGLADESH
APPELLATE DIVISION
PRESENT:
Mr. Justice Surendra Kumar Sinha.
Mr. Justice Md. Abdul Wahhab Miah.
Ms. Justice Nazmun Ara Sultana.
Mr. Justice Syed Mahmud Hossain.
Mr. Justice Muhammad Imman Ali.
Mr. Justice Mohammad Mamtaz Uddin Ahmed.
Mr. Justice Md. Shamsul Huda.
CIVIL APPEAL NOS.185-87 of 2004.
(From the judgment and order dated 23.07.2002 passed by the High Court Division in Civil Revision Nos.3863,4612 and 4613 of 1998).
Government of Bangladeshand others. …….Appellants.
(In all the appeals)
-Versus-
Abdul Motaleb and others. ….. Respondents.
(In all the appeals)
| For the Appellants. |
(In all the appeals):Mr. Kurunamoy Chakma, Deputy Attorney General, instructed by Mrs. Sufia Khatun, Advocate-on-Record.
Respondent Nos.1, 2, 5, 8, 9-13, 16-20, 22, 26-29, 31-38, 40, 41, 44 and 51.
(In all the appeals):Mr. A. J. Mohammad Ali, Senior Advocate, instructed by Mr. Syed Mahbubur Rahman, Advocate-on-Record.
Respondent Nos.3-4,6-7,14-15,21,23-25,30,39,42,43,45-50,52-65.
(In all the appeals):Not represented.Date of Hearing:The 12th October,2011.
J U D G M E N T
SYED MAHMUD HOSSAIN,J: These appeals, by leave, by the plaintiff arise out of the judgment and order dated 23.07.2002 passed by a Single Bench of the High Court Division in Civil Revision Nos.3863,4612 and 4613 of 1998 making all the Rules absolute by setting aside the judgment and decree dated 04.06.1998 passed by the learned Additional District Judge, Patuakhali in Title Appeal Nos.5, 87 and 116 of 1992 reversing the judgment and decree dated 29.10.1991 passed by the learned Subordinate Judge, Patuakhali in Title Suit No.111 of 1987.
Civil Appeal Nos.185, 186 and 187 of 2004 have been heard together and are being disposed of by this common judgment as they do involve common questions of laws and facts.
The facts, leading to the filing of these appeals, in short, are that Abdul Motaleb and 36 others as the plaintiffs instituted the instant suit for declaration of their title in the suit land described in the schedule to the plaint. The land covering an area of 43 acres appertaining to R.S. Khatian No.157 originally belonged to Lamio Matbar to the extent of 8 annas share and Khemari Mongi and Chamakhi Mongi to the extent of 2 and 6 annas shares respectively. The Revenue Officer by an order dated 03.04.1953 made 17.79 acres of land as khas out of the share belonging to Lamio Matbar in Miscellaneous Case No.09 of 1952 under section 20 of the State Acquisition and Tenancy Act and the remaining .372 acre was duly recorded in his name in S.A. Khatian No.240. The shares of Khemari and Chamakhi Mongi were recorded in the S.A. Khatian No.142. Against the decision of making khas, Lamio Matbar preferred an appeal before the learned Special Judge, Bakergonj, who on consideration of the evidence on record set aside the order passed by the Revenue Officer. The Additional Collector, Bakergonj by an order dated 12.07.1955 in Miscellaneous Case No.192/55-56 directed to realize the rent from Lamio Matbar for those lands. He also directed not to disturb the possession of Lamio Matbar in those 17.79 acres of land. Subsequently, the Revenue Officer corrected the Khatian in Miscellaneous Case No.30 of 1977-78. The plaintiffs purchased the suit land from Lamio Matbar and had their names recorded in the khatian between 1956 and 1963. In 1987 some of the defendants claimed that they had taken settlement of the suit land from the Government denying the title of the plaintiffs to the suit land and hence the plaintiffs have been constrained to file the aforesaid suit.
The Defendants filed three sets of written statements. Their case, in essence, is that suit land is khas land of the Government which settled the same to the defendants in different settlement cases and they have been in possession of the suit land by paying rent to the Government regularly. Defendant Nos.4 to 11 also stated in their written statement that the suit land is the khas land of the Government which settled 13.03 acres of land to these defendants who are landless cultivators and on the contrary the plaintiffs have no title to, and possession in, the suit land. Defendant Nos.25 to 28 also filed a separate written statement but ultimately did not contest the suit.
Trial Court by its judgment and decree dated 29.10.1991 decreed the suit in part for 17.19 acres of land.
Being aggrieved by and dissatisfied with the judgment and decree of the trial Court, the plaintiffs (respondents herein) preferred Title Appeal No.116 of 1992, the Government preferred Title Appeal No.5 of 1992 and some of the defendants preferred Title Appeal No.87 of 1992.
All those appeals were analogously heard and disposed of by the learned Additional District Judge, Patuakhali, who by the judgment and decree dated 04.05.1998 allowed the Title Appeal Nos.87 of 1992 and 5 of 1992 and dismissed the Title Appeal No.116 of 1992 and set aside the judgment and decree of the trial Court and also dismissed the suit as a whole.
Feeling aggrieved by the aforesaid judgment and decree of the appellate Court, the plaintiffs preferred three revisional applications before the High Court Division and obtained Rules being Civil Revision Nos.3863, 4612 and 4613 of 1998.
A learned Single Judge of the High Court Division made the Rules absolute by the judgment and order dated 23.07.2002 and decreed the suit in full.
Against the judgment and order of the High Court Division passed in the civil revisions, the Government of Bangladesh, represented by the Deputy Commissioner, Patuakhali and other defendants preferred Civil Petition for Leave to Appeal Nos.196, 197 and 198 of 2003 before this Division and leave was granted on 25.07.2004 resulting in Civil Appeal Nos.185-87 of 2004.
Mr. Kurunamoy Chakma, learned Deputy Attorney General, appearing on behalf of the appellants in all the appeals, submits that the suit land was made khash as per provision of section 20 of the State Acquisition and Tenancy Act and that the High Court Division without taking into consideration this legal aspect reversed the judgment delivered by the appellate Court, which allowed two appeals and dismissed the other.
We have considered the impugned judgment delivered by the High Court Division and the other papers in the paper book. Admittedly, the suit land along with other lands originally belonged to Lamio Matbar. The Revenue Officer by an order dated 03.04.1953 made 17.79 acres of land khas out of the share belonging to Lamio Matbar in Miscellaneous Case No.09 of 1952 under section 20 of the State Acquisition of the Tenancy Act (hereinafter referred to as the Act). Against the decision of making khas, Lamio Matbar preferred Special Appeal No.290 of 1954 before the learned Special Judge, Bakergonj, who on consideration of the evidence on record, set aside the order passed by the Revenue Officer. The Additional Collector, Bakergonj, by an order dated 12.07.1955 in Miscellaneous Case No.192/55-56 directed to realize rent from Lamio Matbar from those lands. He also directed not to disturb the possession of the Lamio Matbar in those 17.79 acres of land. Subsequently, the Revenue Officer recorded the khatian in Miscellaneous Case No.30/77-78 in respect of those lands. The plaintiffs purchased the suit land from Lamio Matbar and had their names recorded in the khatian in respect of their purchased land. In 1987 some defendants claimed that they had taken settlement of the suit land from Government denying the title of the plaintiffs.
In order to address, the submission of the learned Deputy Attorney General, it is necessary to go through the leave granting order. Leave was granted to consider the following submissions of the learned Advocate for the petitioners.
“I. The land in question is the khas land of the Government and the Government settled the same to various defendants and they have been possession the same by paying regular rent and the plaintiffs have no right, title, interest and possession and that the land has been made khas under section 20 of the State Acquisition and Tenancy Act. It is argued that the revenue officer by order dated 03.04.1953 declared that 17.79 acres of land were the khas land of the original owner Lamio Matbar and the original owner successfully challenged the order in Special Appeal No.2904 of 1954 before the Special Judge, Bakergonj and the High Court Division committed an error in arriving at a finding that since the revenue authority did not take any action as per direction of the Special Judge and accepted rent from the original owners, they have acquired right, title and interest. It is further argued that the original owner did not challenge the judgment and order passed by the Special/Subordinate Judge before the higher court and the same is binding upon the revenue authority as well as the original owner and the revenue authority has no power to pass any order for collection of rent from the original owner and that the High Court Division having considered that the schedule and the provision of section 20 of the State Acquisition and Tenancy Act declared that the suit is the khas land of the Government and has accordingly been recorded in khatian No.1 Lamio Matbar ceased to have any right, title and interest in the same land and as such the transferee from him has acquired no right, title and interest.”
To begin with, it is necessary to quote section 53 of the Act as under :
“53. Appeal to the Special Judge-Any person aggrieved by an order of the Revenue Authority under sub-section (2) of section 19 passed on appeal filed in respect of the determination of rent or recording of possession of any land, or by an entry made in a record-of-rights under sub-section(2) of section 31 relating to the determination of rent or recording of possession of any land (or by an order settling fair and equitable rent of any land under sub-section (2) of section 46A), may present an appeal against such order or entry within three months from the date of the final publication under section 42 of the Compensation Assessment-roll to which such appeal relates, to the Special Judge appointed under sub-section (4) of section 48. The decision of the Special Judge on such an appeal shall, notwithstanding anything contained in section 52, be final.”
Having considered the section, it appears that the decision made by the Special Judge on such appeal shall be final. The learned Special Judge in the concluding portion of the judgment stated that the procedure initially adopted by the Revenue Officer was correct. He allowed the appeal and set aside the order of the Revenue Officer dated 03.04.1953. He also observed that the revenue authority might take appropriate action according to law in the light of the observations contained in his judgment. The learned Special Judge regretted that in this ex-parte case, he had to make observation detrimental to the appellant Lamio Matbar.
The Special Judge as mentioned in section 53 of the State Acquisition and Tenancy Act (in short the Act) is appointed under sub-section (4) of section 48 of the Act which runs as follows :
“(4) The Government may appoint one or more persons who has or have exercised the power of a District Judge or a Subordinate Judge to be a Special Judge or Special Judges for the purposes of hearing appeals which may be preferred to him or them under the provisions of this Act and of inquiring into disputes as to the title to receive any compensation under a Compensation Assessment-roll finally published under section 42 or as to the apportionment of any compensation referred to him under section 60.”
Having considered sub-section (4) of section 48 and sections 51 and 55 of the Act, it appears that a District Judge or a Subordinate Judge to be appointed as a Special Judge is not a ‘persona designata’ but a Court, who exercises the power of a District Judge or a Subordinate Judge (now Joint District Judge) and he has to follow the procedures prescribed under section 55 of the Act. He is to determine and to decide the right of the parties; therefore, he is a ‘Court’ within the meaning of the Civil Courts Act,1987. Since the Special Judge is a ‘Court’ such Court is subordinate to the High Court Division. Any order passed by a Special Judge is amenable to the High Court Division under section 115 of the Code of Civil Procedure. The word final in section 53 means that no appeal lies against the decision of the Special Judge but it does not take away the revisional powers of the High Court Division.
In the case of A.K.M. Rurul Amin Vs. District Judge and Appellate Election Tribunal, Bhola and others (1986) 38 DLR (AD) 172, the question arose whether the District Judge while acting under section 29 (4) of section 29 of the Local Government (Union Parishad) Ordinance,1983 (in short, the Ordinance) is a ‘persona designata’ or a Court. In the above case, this Division held as follows :
“When a District Judge has been defined as “the Judge of a Principal Civil Court of original jurisdiction” by using this expression for constituting the election appellate tribunal and empowering to hear him an appeal from the decision of an Election Tribunal, it can not be intended that he is to act as a ‘persona designata’. While making such legislation the law-making authority is supposed to know the definition of such expression provided in existing Act. Also, from the very context in which it has been used, it is evident that District Judge is not to act in his private capacity or any capacity other than a Court. This would appear from the qualifying words “within whose jurisdiction the election in dispute was held” used in Article (section) 29(4) of the Ordinance. The qualifying words exclude any other capacity which may be attributed to him, obviously enough, such jurisdiction means and refers to the jurisdiction he exercises while sitting as a Court.”
From the above case, it appears that while acting under sub-section (4) of section 29 of the Ordinance as Election Appellate Tribunal, the District Judge is not a ‘persona designata’ but a Court. Therefore, this Division has concluded that against the decision of Election Appellate Tribunal, an aggrieved party may file a revisional application under section 115 of the Code of Civil Procedure before the High Court Division. In the case of Pijush Kanti Chowshury and others vs. Abdur Rashid and others (1971) 23 DLR 60, it has been held as under:
“The learned Special Judge exercises jurisdiction under section 53 of the East Bengal State Acquisition and Tenancy Act. Section 55 of the Act clearly lays down that the provisions of the Civil Procedure Code shall, as possible, apply to all appeals presented to a Special Judge under section 53 and some other sections. In our opinion, the provision of section 55 of this Act is conclusive on the point that these appeals are to be considered not by ‘a persons designate’ but by a Court as contemplated under the Code of Civil Procedure.”
From the above, it transpires that the Special Judge as mentioned in section 53 is not a ‘persona designata’ but a Court as contemplated under the Code of Civil Procedure. Though finality has been attached to the decision delivered by the Special Judge, the revisional jurisdiction of the High Court Division under section 115 of the Code of Civil Procedure is available against such decision.
Moreover, similar view has also been taken in the case of Abdul Mannan Vs. Mofiz Uddin (1958) 10 DLR 527.
Be that as it may, nobody came forward to invoke the revisional jurisdiction of the High Court Division.
Having gone through the judgments of the Courts below, it appeared that the revenue authority had not taken any action according to law in the light of the observations contained in the judgment passed by the learned Special Judge. The learned Special Judge delivered his judgment on 23.04.1959 but the Additional Collector, Bakergonj by an order dated 12.07.1959 directed to realize rent from Lamio Matbar from those lands in Miscellaneous Case No.192/55-56.It is also curious to note that the Additional Collector also directed not to disturb the possession of the Lamio Matbar in those 17.79 acres of land. Subsequently, the Revenue Officer corrected the khatian in Miscellaneous No.30/77-78.
From the aforesaid action of revenue authority, it appears that Lamio Matbar was allowed to continue his possession in the aforesaid lands and that the revenue authority failed to take possession of the excess land in possession of Lamio Matbar. It appears from Exhibits-2(ka) and 3 that Lamio Matbar filed an application to the Additional Collector, Bakergonj to accept rent from him and to make necessary arrangement so that he could peacefully possess the suit land. On 12.05.1955, the Additional Collector passed an order to the effect that Lamio Matbar would remain in possession of the said land and directed the authority to realize rent from him. He also directed the District Manager and Circle Officer not to disturb possession of Lamio Matbar. Therefore, it appears that the authority protected the right and possession of the Lamio Matbar in the suit land without dealing with the matter in the light of the observations made by the learned Special Judge. Record also reveals that the Additional Collector also allowed Lamio Matbar to transfer the suit land. Neither the Government nor the other defendants in their written statement or in their evidence claimed that any decision of making the suit land khash by the Government was notified in the official gazette and compensation was assessed and the same was published.
Sub-section 1 of section 39 laid down that compensation payable to a rent receiver, a cultivating raiyat, a cultivating under-raiyat or a non-agricultural tenant, in respect of the acquisition of lands in his khash possession which he is not entitled to retain under section 20, shall be determined in accordance with the table mentioned in section 39. Sub-section 2 of section 39 then states that said that any dispute regarding classification of the lands for the purpose of sub-section 1 shall be referred to the prescribed revenue authority whose decision thereon shall be final. Section 40 deals with preliminary publication of Compensation Assessment-roll and then section 41 deals with appeal which can be presented with regard to assessment of compensation against the decision of the revenue authority. It is after all these that under section 42 the final publication of Compensation Assessment-roll is made. Section 44 then says that on the publication of a notification in the official gazette under sub-section 2 of section 43 declaring that compensation mentioned in that section shall ensue, one of them, being that all the interests that are acquirable under the Act but have not acquired under Chapter-II of the Act shall “with the effect from the fist day of the agricultural year next following the date of publication of such notification in the Official Gazettee, be deemed to have been acquired by the Government and vest absolutely in the Government free from all encumbrances”.
A close reading of the provisions made in the sections 42,43 and 44 of the Act point to inevitable conclusions that every interest which is liable to be acquired under the Act has to be paid for and that except in the cases of acquisition under Chapter-II of the Act the interests which are acquirable vest in the Government only if assessment of compensation in regard to the same has been made and published as provided in the Act. Record reveals that the suit land has not been included in the Compensation Assessment roll of the area. Therefore, it can not be contended that the said land has vested in the Government merely because it was acquirable and because there has been notification in respect of the area under section 43(2) of the Act.
Another important aspect is that by Ordinance No.XV of 1961 the retainable quantity of khash land has been increased from 100 to 375 standard bighas. In the case of Sree Gour Nitai Saha Vs. Providence of East Pakistan, (1970) 22 DLR 143 it has been held that any attempt to take away and settle lands in khas possession of the tenant when the area of such lands is not in excess of 375 bighas will be unauthorized in law.
The High Court Division came to a finding that the total land under possession of Lamio Matbar was not more than 375 standard bighas before or after amendment of proviso to section 20 of the Act. The High Court Division further found that the Government failed to produce any document to substantiate that the suit land was in excess of 375 bighas belonging to Lamio Matbar.
Having considered Exhibit-4 series the High Court Division found that Lamio Matbar transferred some land after taking permission and approval of the Collector and that the Collector considered the law resisting the transfer which came into operation on 14.12.1948 and gave permission and approval to Lamio Matbar to transfer the same. Therefore, the Government now can not claim the suit property which was purchased by the plaintiffs and their predecessors. The High Court Division also found that there is nothing in the evidence on record that the Government took over possession of the excess land of Lamio Matbar; rather the Additional Collector, Bakergonj, directed the revenue authority as well as the Manager to realize rent from him as it appeared in Exhibit-2(ka) and Exhibit-Ka, it appeared that the Revenue Officer found possession of the plaintiffs in the suit land.
In the light of the findings made before, we find that the petitioners could not make out any case to interfere with the impugned judgment and order delivered by the High Court Division. The findings arrived at and the decision made by the High Court Division are based on proper appreciation of laws and facts.
Accordingly, all the 3 (three) appeals are dismissed without any order as to costs. J.
J.
J.
J.
J.
J.
J.
The 12th October,2011.
/Rezaul/