Appellate Division Case
(Civil)
PARTIES
Bangladesh represented by Deputy Commissioner, Kurigram………… Petitioner
.
-VS-
Mohammad Ali Khondker ………………….Respondent.
JUSTICES
Md. Ruhul Amin CJ
M.M. Kuhul Amin J
Md. Jovtvsi Vbedin J
Judgment Dated: 8th March 2007
The State Acquisition and Tenancy Act. 1950. Section 20
The case of the plaintiff is that the ex-landlord auction purchased the suit land in rent sale and certified copy of the sale certificate was produced without calling for the original of the same and as such the High Court Division was not inclined to rely upon the same. The writ of delivery of possession was not at all produced by the plaintiff and no explanation was offered for such non-production. It is not disputed that the suit land was rayoti land of the recorded tenant Formani Bibi. There is no evidence on record that the ex-landlord was ever inducted in the suit land by ousting the recorded tenant Formani Bibi or her heirs after the alleged auction purchase by the plaintiffs predecessor (i.e. ex-landlord) ………………………….(7)
In our view, the High Court Division took correct view that the plaintiff could not prove that the ex-landlord auction purchased the suit land and made the same khas and thereafter, the same vested in the Government as excess non-retainable khas land of the ex-landlord. But no paper has been produced by the plaintiff in that respect to show that the Provisions of Section 20 of the State Acquisition and Tenancy Act, 1950 were duly complied with in the matter of acquisition of khas lands in excess of the limit imposed by law. ……………………….(9)
Accordingly, the leave petition is dismissed ……………………(11)
Zainul Abedin, JJeputy Attorney General, instructed by B. Hossoin, Advocatc-on-Record ……………………….For the Petitioner.
Sujhi Khatitn, Adxocate-on-Record. ………………………………For the Respondent
Civil Petition for Leave to Appeal No. 884 of 2003
(From the judgment and order dated 25.02.2003 passed by the High Court Division in Civil Revision No. 1303 of 1995.)
JUDGMENT
M.M. Ruhul Amin J : This petition for leave to appeal is directed against the judgment and order dated 25.02.2003 passed by a Single Bench of the High Court Division in Civil Revision No. 1303 of 1995 making the Rule absolute.
2. The plaintiff filed Other Class Suit No. 81 of 1990 in the Court of Assistant Judge,
Ulipur. District-Kurigram for setting aside the ex-parte decree dated 15.11.1974 passed in Other Class Suit No. 575 of 1974 stating, inter aha, that the suit holding recorded in C.S. Khatian No. 32 belonged to Formani Bibi. The jote was sold in auction for arrears of rent in execution of decree obtained in rent suit and the ex-landlord auction purchased the land and made the same khas. The R.S. Khatian was correctly prepared in the name of the
plaintiff. Thereafter the plaintiff leased out the suit land to Md. Mojibur Rahman and
Mokter Ah sons of Hasem Ah for a period of 15 years on the basis of two registered
lease deeds. The documents regarding acquisition of ownership by the ex-landlord were gutted by fire during the war of liberation in 1971. Taking advantage of the situation, the defendants instituted Title Suit No. 575 of 1974 and obtained and ex-parte decree on 15.11.1974 on the basis of some forged and fraudulent documents by suppressing service of summons upon the present plaintiff. The plaintiff came to know about the ex-parte decree in question on 31.07.1989 and then filed the suit.
3. The defendant contested the suit by filing written statement denying the material
allegations made in the plaint.
4. Their case, in short, is that the suit land belonged to Formani Bibi in rayoti right.
She died leaving four sons Faktulluddin Khondoker, Fazaluddin, Hasem Ali and Fariduddin. By amicable partition, Hasan Ali gave settlement of .95 acres of land from his share to defendant Faktul Uddin Khondaker by a registered patta dated 29.06.1950. Hasan Ah again transferred .86 acres of land to him by a registered kabala dated 21.01.1960. In thTs way, Faktul Uddin Khondaker became owner of 1.85 acres of land from C.S. Khatian No. 32 and transferred .68 acres of land to Md. Majibur Rahman and others. The defendant’s predecessor-m-interest Faktul Uddin Khondaker retained ownership of the suit land measuring 1.44 acres of land. Since the R.S. Khatian was wrongly recorded in the name of the plaintiff, he filed Other Class Suit No. 575 of 1974 for declaration of title against the Government and obtained ex-parte decree on 15.11.1974. The summons of the suit was duly served upon the Government. On 11.08.1980 Faktul Uddin Khondaker transferred the suit land to his brother’s sons Fazlul Haque and others by a registered heba-bil-ewaj and delivered possession.
5. The learned Assistant Judge on consideration of the materials on record dismissed
the suit. On appeal in Other Class Appeal No. 21 of 1992, the appellate court allowed the appeal and decreed the suit. Being aggrieved, the defendant No.3 moved the High Court Division in rcvisional jurisdiction and obtained the Rule which after hearing was made absolute.
6. We have heard Mr. Zainul Abedin, the learned Deputy Attorney General for the petitioner and Mrs. Sufia Khatun, the learned Advocate-on-Record for the respondent and perused the judgment of the High Court Division and other connected papers.
7. The case of the plaintiff is that the ex-landlord auction purchased the suit land in rent sale and certified copy of the sale certificate was produced without calling for the original of the same and as such the High Court Division was not inclined to rely upon the same. The writ of delivery of possession was not at all produced by the plaintiff and no explanation was offered for such non-production. It is not disputed that the suit land was rayoti land of the recorded tenant Formani Bibi. There is no evidence on record that the ex-landlord was ever inducted in the suit land by ousting the recorded tenant Formani Bibi or her heirs after the alleged auction purchase by the plaintiffs predecessor (i.e.
ex-landlord).
8. The contention of the plaintiff is that summons of Other Class Suit No. 575 of 1974 brought by the defendant for declaration of title was not served upon the plaintiff. But the High Court Division upon consideration of the materials on record came to the finding that summons of the suit was duly served on the authorized officer of the Deputy Commissioner, Rangpur who by putting his signature and official seal on the summons received the same. The High Court Division disbelieved the case of the plaintiff also on the ground that the plaintiff could not produce the writ of delivery of possession and only
the certified copy of sale certificate was produced without calling for the original of the same.
9. In our view, the High Court Division took correct view that the plaintiff could not prove that the ex-landlord auction purchased the suit land and made the same khas and thereafter, the same vested in the Government as excess non-retamable kha.s land of the ex-landlord. But no paper has been produced by the plaintiff in that respect to show that the Provisions of Section 20 of the State Acquisition and Tenancy Act, 1950 were duly complied with in the matter of acquisition of khas lands in excess of the limit imposed by
law.
10. Therefore, in view of the discussion above and the materials on record, we are of the view, that the High Court Division upon correct assessment of the materials on record arrived at a correct decision. There is no cogent reason to interfere with the same.
11. Accordingly, the leave petition is dismissed.
Source : V ADC (2008), 245