Appellate Division Cases
(Civil)
PARTIES
Government of Bangladesh represented by the Secretary, Ministry of Works, Dhaka…………….. Appellant
-vs-
Mr. K. M. Zaker Hossain and others ………………………………..Respondents
JUSTICE
Md. Ruhul Amin. J
Syed J.R. Mudassir Hussin. J
Abu Sayeed Ahammed. J
JUDGEMENT DATE: 5th August, 2002
The Ordinance, Section 5 (l)(a)(b)(2), 7. The Transfer of Property Act, Section 53A.
The P.O. 16 of 1972, Article 10 .
Provision of Ordinance No. 54 of 1985. Provision of Lands and Buildings Recovery
Ordinance 1972. Property in the list of Abandoned property.
Hazerullah Vs. Chairma 3BLC (AD)(1998)42. 31 DLR. 45 DLR416.
Settlement the initial presumption is that the enlisted building is an abandoned property and that the onus lies on the claimant to show that it is not an abandoned property. The onus will be discharged by showing that on the date of promulgation of P.O No. 16 of 1972 the owner of his Attorney or his representative was in possession of the disputed property and was managing the same …………(10)
A decree in respect of a property obtained in the suit for specific performance of contract is no bar in listing the said property as abandoned property and that question of listing the property in ‘ka’ list or ‘kha’ list is immaterial unless the claimant of the particular property who has come before the court to seek release of the property from the list of abandoned building establishes that the property is not an abandoned property ……………………………….(29)
Civil Appeal No. 127 of 1998 31st (From the Judgment and order datedAugust, 1997 passed by the High Court Division in Writ Petition No. 41 of 1993).
A.J.Mohammad AH, Additional-Attorney-General, (Firoz Shaha, Assistant-Attorney-
General and Naima Haider, Assistant Attorney-General with him), instructed by b. Hossain, Advocate-on-Record………………… For the appellant
Rokanuddin Mahmud, Senior Advocate, instructed by Fakrul Islam, Advocate-on-
Record. ………..For Respondent No. 1
Ex-Parte……….. Respondent Nos.2-5
JUDGMENT
1. Md Ruhul Amin, J :- This appeal, by leave, is from the judgment and order dated
August 31, 1997 passed by the High Court Division in Writ petition No. 41 of 1993 making the rule absolute declaring the judgment of the Court of Settlement dated December 24, 1992 in case No. 397 of 1989 to have been passed without lawful authority and is of no legal effect and further declaring the enlistment of the holding No.NE (C)-2, Road No. 71. Gulahsan Model Town, Dhaka in the list of abandoned property published in the Bangladesh Gazette on September 23, 1986 to be illegal and is of no legal effect and directing the respondent petitioner to release the said holding from the list of abandoned buildings within 60 days from the date of receipt of the copy of the judgment.
2. The Rule was obtained in the aforesaid writ petition impugning the judgment and order
of December 24.1992 of the First Court of Settlement, Dhaka in case No. 397 of 1989 (ka-54, Gulashan Model Town, Dhaka) holding No. NE (C)-2 Road No. 71 Gulshan Model Town, Dhaka rejecting the prayer for releasing the aforesaid property from the list of abandoned buildings as published in the Bangladesh Gazette dated September 23, 1986. The list wherein the property in question has been listed as abandoned property was prepared as per provision of Ordinance No. 54 of 1985, hereinafter referred to as the ordinance and the Case No. 397 of 1989 seeking release of the property was filed before the Court of Settlement as per provision of Section 7 of the Ordinance .
3. The writ petition was filed on the averments, inter alia, that holding No. NE (C)-2
Road No. 71 Gulshan Model Town, Dhaka was leased out to Mr. Wali Mohammad by the then Dhaka Improvement Trust (DIT, now RAJUK) on June 23, 1964 by a registered deed of lease. Mr. Wali Mohammad appointed his brother Abdul Rahman, (Respondent No. 4) attorney by a registered power of Attorney of March 31, 1970 with the authority to construct a building in the said plot as well as to sell and transfer or otherwise dispose of the said property. Mr. Wali Mohammad through his attorney Abdur Rahman entered into a contract to sell the said plot of land to the respondent No. 1 (writ petitioner) for a consideration of TK. 1,00,000/and on receipt of TK. 40,000/- as earnest money executed a deed of agreement on December 29, 1970 and that on that very day delivered possession to the respondent No.l
4. Further averment was that respondent No.l obtained permission to construct building
after obtaining sanction plan from the DIT, now RAJUK. permission was accorded to him for transfer of the case plot in his name. But before completion of transfer in his name the Sub-divisional Officer, Sadar (south) Dhaka issued notice upon him under the provision of lands and buildings Recovery Ordinance 1972 to vacate the said plot and there upon he filed Title 3rd Suit No. 228 of 1977 in the Court of Munsif, (now Assistant Judge) Dhaka seeking a decree for permanent injunction and there in obtained an order of temporary injunction. The law enforcing agency inspite of order of injunction dispossessed him from a portion of the plot, but later on possession was restored to him
on July 3, 1979 as per order of mandatory injunction. He tendered balance of the consideration money to the attorney of Wali Mohmmad and requested him to execute and register the necessary kabala but he refused to accept the balance of the consideration money and did not execute and register the necessary Kabala. He then filed Title Suit No. 282 of 1983 in the 4th Court of Subordinate Judge, Dhaka Seeking decree for specific performance of contract for sale of the plot and obtained decree on February 5, 1989 (later on amended on August 29, 1989) . Thereafter in pursuant to the decree on August
29. 1989 kabala was executed and registered through the Court.
5. It was further averred that respondent No.l (in the Writ Petition, herein appellant) most illegally enlisted the property in violation of the provision of Section 5 of the Ordinance in the ‘ka’ list of abandoned properties at a time while the suit for specific performance of contract was pending and that he (respondent No.l herein) filed Case No. 397 of 1989 before the Court of Settlement and that the respondent No.4 (attorney) also filed Case No. 160 of 1987 claiming the disputed property as his own and the court of Settlement by the judgment and order of May 6, 1987 dismissed the said case and maintained the inclusion of the property in the list of abandoned property. The Court of settlement by the judgment and order dated December 24, of 1992 dismissed the Case No. 397 of 1989.
6. Appellant’s case before the High Court Division in his affidavit in opposition was that
lessee Mr. Wali Mohammad and his two brothers including Abdur Rahman left erstwhile East Pakistan for the then West Pakistan leaving behind the case property as well as other properties without making any arrangement for its management and possession, that the So called deed of agreement was executed by Mr. Wali Mohammad through his attorney Abdur Rahman sitting in Karachi in the month of December 1970 and that neither in the month of December nor at any time in the year 1971 or after emergence of Bangladesh Wali Mohammad or Abdur Rahman returned to Bangladesh and as such the property vested with the Government as abandoned property under P.O. No. 16 of 1972. It was also the case of the appellant in his affidavit-in-opposition that Wall Mohammad never executed any Power of Attorney in favour of the respondent No. 4 who filed the case before the Court of Settlement claiming the property as of his own and denying the execution of agreement for sale of the case property to the respondent No.l as constituted attorney of Wali Mohammad. It was also contended by the appellant that all the papers of respondent No. 1 were forged and collusive.
7. It may be mentioned the Court of Settlement dismissed the case No. 397 of 1989
filed by respondent No.l seeking release of the case property from the list of abandoned properties since the said Court by its judgment and order of May 6, 1987 dismissed the case No. 160 of 1987 (filed by respondent No. 4 seeking release of the case property from the list of abandoned properties) rejecting the prayer for release of the case property which was also the subject matter of case No. 397 of 1997.
8. The respondent No. 1 prior to the filing of writ petition No. 41 of 1993 filed Writ Petition No. 2300 of 1990 challenging legality of listing of the holding NO. NE (Q-2 Road No. 71 Gulshan Model Town, Dhaka in the list of abandoned buildings and the publication of the list in the Bangladesh Gazette dated September 23, 1986 and also the judgment and order dated May 6,1987 of the Court of Settlement in Case No. 160 of 1987. The said writ petition was disposed of making observation that the findings and remarks in the said case No. 160 of 1987 would not effect the claim and interest of the
respondent No.l in the holding. As regard the other relief i.e. relief sought against enlisting of the holding in the list of abandoned buildings it was observed by the High Court Division that respondent No.l would seek his remedy as against the enlistment in the proper forum.
9. The High Court Division made the Rule absolute obtained challenging the legality of the judgment and order of the Court of settlement in Case No. 397 of 1989 upon observing “The critical analysis of the aforesaid papers and documents led us to hold that the petitioner is after the suit property since 1970 and showed his immense patience and ultimately won the legal battle in this matter. So it appears that the petitioner is armed with a kabala in respect of the suit property executed and registered through court in pursuance of civil court decree and is in possession through his tenant Pakistan embassy
in the knowledge and sight of the government. Further the learned Deputy Attorney General representing the respondent No. 1 failed to explain the validity of enlistment of the suit property in the ‘ka’ list of Abandoned property in contravention to Section 5 of the Ordinance 54 of 1985. He also remained silent in the matter of possession of the suit property. However, the respondent No. 1 failed to come with the official file of the suit property in question to show their bonafide in the matter. Had it been filed we could at least see the genuineness of the claim of the respondent No.l. on the other hand, the papers and documents filed by the petitioner as referred to in Annexure discussed above led as to hold that the petitioner is a bonafide purchaser for value entered into possession
thereto before promulgation of P.O. 16 of 1972, the sheet anchor of the respondent’s
case and the same has been enlisted in ‘ka’ list of the abandoned properties when a suit for specific performance of contract was pending in violation of Section 5 of the Ordinance 54 of 1985 and as such the action of the respondent No.l in the matter of enlistment is found ex facie illegal.”
10. Leave was granted to consider the submissions that in a case before the Court of settlement the initial presumption is that the enlisted building is an abandoned property and that the onus lies on the claimant to show that it is not an abandoned property. The onus will be discharged by showing that on the date of promulgation of P.O No. 16 of 1972 the owner of his Attorney or his representative was in possession of the disputed property and was managing the same. Neither before the Court of settlement nor before the high Court Division respondent No.l produced any evidence to show that on 28-2-1972 the owner or his attorney was in possession and was managing the suit property. Respondent No.l obtained a decree for specific performance of contract much later on 5-2-1989 . This decree is not for a declaration that the suit property is not an abandoned property. In that view of the matter the High Court Division misdirected itself into
irrelevant matters and did not take the core matter of possession. Control and management of the suit property on the date of promulgation of P.O. No. 16 of 1972 into consideration at all. That in overlooking various decisions of this Court on the burden of proof and matters to be proved on abandoned property matters the High Court division passed an illegal order of release of the disputed property from the list of abandoned
properties, overlooking that in case No. 160 of 1987 decided earlier on 6-5-1987, the
Court of Settlement retained the inclusion of the said property in the list of abandoned properties.
11. The learned Additional Attorney General has submitted that undisputed position
is that the property in question as per provision of the Ordinance has been listed as the abandoned property and the said list has been published in the Bangladesh Gazette and consequent thereupon it was the duty of the respondent No. 1 to dislodge the statutory Presumption as in section 5 (2) of the Ordinance that the property is not an abandoned property. He continues that there is not an iota of the evidence that subsequent to the agreement for sale said to have been entered into by wali Mohammad the allottee of the property through his attorney Abdur Rahman with the respondent No.l on 29th December, 1970 at Karachi the said Wali Mohammad or Abdur Rahman came to erstwhile East Pakistan in 1970 or that in 1971 and that after emergence of Bangladesh and that Wali Mohammad or that Abdur Rahman put the respondent No.l in pursuant to the agreement
into possession of the property in question and as such the stipulation in the agreement for sale relating to putting the respondent No.l on the very day of agreement i.e. on 29-12-1970 into possession of the property in part performance of the contract of sale is nothing but a mere recital in the agreement and hence the said recital in no way reflecting the actual state of the matter relating to the possession of the property as claimed by the respondent No. 1. He also submits that no material evidence have been brought on record from the side of the respondent No.l that on 28-2-1972 he was in possession of the property and that the said fact having not been established by evidence the only logical conclusion is that on and from that day the property vested as abandoned property with
the Government. It has further been submitted by the learned Additional Attarney General that no illegality was committed in enlisting the property at a time when a suit for specific performance of contract for sale of the property in question was pending as because Pendency of the said kind of suit or a decree there m a,iy way prohibit enlisting under the ordinance an ‘ publishing of the list in the gazette as regard a j.roperty which has assumed character of the abandoned property. It has also been submitted that allotment of Wali Mohammad was cancelled by DIT (now RAJUK) in September 1976 and the respondent No.l challenged the said cancellation by filing the writ petition No. 533 of 1976 and obtained Rules, but ultimately the said rule was discharged for default in December 1979 . In the background of the said fact the learned Additional attorney General submits that while Wali Mohammad lost his title because of the cancellation of the lease by the DIT the respondent No.l in law is not entitled to raise any claim in the property in question unless the order of cancellation is revised or recalled and that he is also not competent to challenge listing of the property as abandoned and to have any
relief from any court by way of obtaining direction for releasing the property in question from the list of abandoned property. He also submits that at one time DIT notified the property for auction and that the said notification was challenged in writ petition No. 859 of 1977 filed by the attorney (wife) of the respondent No. 1 but on December 14.1977 the said writ petition was withdrawn.
12. The sum total of the submissions of the learned Additional Attorney come to that during the war of liberation and that later on upon emergence of Bangladesh till 28 February, 1972 the property in question was neither possessed by Wali Mohammad nor by his attorney or that managed and supervised by the authorized person of Wali Mohammad and that there being no evidence at what point of time the respondent No. 1 entered into possession of the property in question and consequent there upon as it was
not established that respondent No.l was in possession of the property prior to coming into force of P.O. 16 of 1972 and consequent thereupon the property in question having vested with the Government as abandoned property the list prepared under the provision of the Ordinance and published in the Bangladesh Gazette is quite legal and the Court of
Settlement did not commit any illegality in rejecting the prayer for releasing the property
from the list of abandoned properties.
13. The learned Counsel for the respondent No.l submits that respondent No.l entered into an agreement on December 29, 1970 with Wali Mohammad who got lease of the property by the registered deed dated 23-6-1964 for 99 years from DIT and that in part performance of the contract for sale of the property the owner on receiving Tk. 40.000/0 as the earnest money out of the total consideration money of Tk. 1,00,000/- put the respondent No.l into possession of the property on the very day of the contract and as such as per provision of Article 10 of P. O. 16 of 1972, even if for arguments sake
it is accepted that as Wali Mohammad and his attorney Abdur Rahman through whom Wali Mohammad entered into an agreement for sale of the property were not present in erstwhile East Pakistan during the war of liberation and that after emergence of Bangladesh the property assumed character of abandoned property and that the property in question vested in the Government, the Government is under obligation to perform that part of obligation relating to the property in question that the owner whose property vested in the Government was require to perform. He further submits that possession
of the property in question having been obtained by respondent No.l as part performance
of the contract entered into between him and Wali Mohammad, the possession so
obtained is Protected under Section 53A of the Transfer of property Act and as such the
Government upon the contention that the property has vested in it being the abandoned property in law can not disown the right created in favour of the respondent No. 1 by the specific provision of law. It is also the contention of the learned Counsel that respondent No. 1 came into possession of the property on 29-12-1970 long before emergence of Bangladesh and that since then he is in possession i.e the respondent No.l was and is in possession of the property prior to and during the war of liberation and after independence of Bangladesh and as such he having had went into possession of the property prior to war of liberation in part performance of the contract and consequently as per provision of Section 53 A of the Transfer of property Act respondent No.l as acquired legally protective interest and that in pursuant to a decree in the suit for specific performance of contract dated 29-12-1970 as obtained kabala as regard the property in question and as such his title to the property perfected on the basis of an agreement of a time when the country was one i.e. Pakistan and the decree obtained in the suit seeking decree for specific performance of contract dated 29-12-1970.
14. The learned Counsel continues that as no notice was served upon the respondent No.l
inspite of the fact of being in possession, prior to the enlistment of the property as abandoned property and that the property was enlisted in the ‘ka’ list although the respondent No.l is in possession which is violative of provision of section 5(a) of the Ordinance as such the very listing of the property as abandoned property was illegal. It has also been contended on behalf of the respondent No. 1 that as fact of respondent No. Is possession of the property is not disputed, rather admitted since at one time
Government served notice on the respondent No.l under the provision of Ordinance No. 24 of 1970 asking the respondent No.l insptie of the order of injunction obtained in a suit for permanent injunction but later on in view of an order of mandatory injunction restored the possession to the respondent No.l and that as the possession of the property was with the respondent No.l having been made over by the real owner since the date of agreement for sale dated 29-12-1970 and consequent thereupon as it can not be said that the property on the day of promulgation of P.O. No. 16 of 1972 on 28-2-1972 was not possessed, managed or supervised by the real owner and consequently the property became abandoned property, the listing of the property under the ordinance and publication of
the list in the Gazette was illegal.
15. It has further been contended on behalf of the respondent that as no relief was sought
for and that as no leave was granted as regard the positive finding of the High Court Division that from the side of the Government there was total failure to substantiate listing of the property in the ‘ka’ list in contravention of the provision of Section 5(a) of the Ordinance and as such so long the said finding of the High Court division remains unchallenged the judgment of the High Court Division can not be interfered with in the present appeal.
16. In reply to the submissions of the learned Counsel of the respondent No.l it has
been submitted by the learned Additional Attorney General that possession as claimed to
have been obtained in part performance of the so called agreement for sale entered into by Wali Mohammad through his attorney Abdur Rahman was not legal as the same was entered into without permission of the lesser and as such if any possession of the property said to have been obtained in pursuant to the agreement said to have been entered into between the lessee of the DIT and the respondent No.l though obtaining of possession on the very day of the agreement was impossible since the agreement was entered into sitting at Karachi and the property in question was in erstwhile East Pakistan, the same was not eagle as the agreement was not a legal agreement and consequently possession as claimed to have been obtained by the respondent No.l legally is not protective by the provision of Section 53A of the Transfer of Property Act. He continues that since the agreement between the respondent No.l and Wali Mohammad was not legal and that lease of Wali Mohammad as was cancelled by DIT in the year 1976 which was challenged by the respondent No.l by filing a writ petition but the same was ultimately dismissed for default and consequently order of cancellation as remains valid, by the decree obtained in Title suit No. 282 of 1983 /271 of 1985 (filed on 308-1983 and decree on 5-2-1989 filed seeking a decree for specific performance of contract dated 29-12-1970 and that by the kabala obtained in respect of the property in the case in pursuant to the decree in the aforesaid suit no title vested in the respondent No. 1 as regard the property in question and consequently he being not any body to the property has no right to
question legality of the listing of the property as abandoned property .
17. The property in question was acquired by Wali Mohammad by a lease deed dated 236-1964 (valid for 99 years) executed by the DIT ( now RAJUK). It is the case of the respondent No.l that real owner wali Mohammad entered into an agreement through his attorney Abdur Rahman who is the brother of Wali Mohammad, to sell the property in question to him and to that respect an agreement for sale, as claimed by the respondent No.l was executed on payment of Tk. 40,000/- as earnest money out of the total consideration money by Wali Mohammad. It is also the case of the respondent No. 1 that as per stipulation in the deed of agreement he was put into possession of the property. It has been contended on behalf of the respondent No. 1 that possession of the property
was made over to him on 29-12-1970 by the seller. It may be mentioned from the entered
into at Karachi on 29-12-1970. No evidence has been produced either in the Court of Settlement or before the High Court division at what point of time possession of the property in question in fact was obtained by the respondent No. 1, since it was physically impossible for Wali Mohammad and his attorney to put the proposed buyer into possession as well as well as for the buyer to go into possession of the property on the day of agreement as they on the day of execution of the agreement for sale were at
Karachi, although thee is recital in the agreement that on the execution of the deed of agreement the buyer was put into possession of the property. The determination of the point of time as to when the respondent No.l went into possession of the property is material from the point of view of the case of the appellant that the property assumed character of the abandoned property on and from 28-2-1972 and also because of the unreal contention of the respondent No. 1 that he obtained the possession of the property in question in part performance of contract for sale on the very day of contract or in other words on the day the agreement for sale was executed by Wali Mohammad, the owner
of the property and as such possession so obtained is protected by the provision of
Section 53 A of the Transfer of Property Act and hence even though the property has vested with the Government in the light of the provision of P.O. 16 of 1972 the Government is required under Article 10 of the P.O. 16of 1972 to discharge the obligation which the owner under the law was required to perform because of putting
the respondent No.l into possession of he property in part performances of written contract of sale.
18. Since the property has been listed under section 5(1) of the ordinance as abandoned
property and the said list has been published in the official Gazette, the claimant to the property i.e respondent No.l was required to dislodge statutory presumption as under section 5(2) of the Ordinance that the property in question was not an abandoned property and that the same has been wrongly listed as abandoned property. As we have already mentioned there is no material on record to show that on the execution of the agreement for sale, which was executed at Karachi as seen from the recital in the agreement, Wali Mohammad, owner of the property or his attorney Abdur Rahman came to erstwhile East Pakistan and made over possession of the property to the respondent No.1 or that anybody else on behalf of Wali Mohammad or Abdur Rahman put the respondent No. 1 into possession of the property , It is seen from the respondent No. l’s paper (his prayer to DIT to accept him as the new lessee of the property) that Wali Mohammad was away from the erstwhile East Pakistan during the war of liberation. So from the respondent No.l’s paper it is clearly seen Wali Mohammad during the war of liberation was not in erstwhile East Pakistan. No material has been brought on record to show after the emergence of Bangladesh Wali Mohammad came over to Bangladesh . Now there remains the question of coming of Abdur Rahman the attorney of Wali Mohammad after
execution of agreement to erstwhile East Pakistan and that of being present during war of
liberation as well as on the emergence of Bangladesh . It is seen from the judgment of the
Court of Settlement, Dhaka in case No. 160 of 1987 that Abdur Rahman was given certificate of citizenship under President’s Order No. 149 of 1972 in December 1978. This shows that during war of liberation and that after emergence of Bangladesh he was not in Bangladesh and that he might have come in the 2 n” part of 1970s and that obtained citizenship in the month of December 1978. The respondent No.l has placed a paper on the record wherefrorn it is seen that Abdur Rahman the constituted Attorney of Wali Mohammad (allegedly) filed an application in the middle of November 1971v
seeking permission for transfer of the property in question and that transfer fee was deposited on May 30, 1972. It is hard to accept the said paper as true as because there is no material on record to show that after the execution of the agreement for sale on 29-12-1970 Abdur Rahman came to erstwhile East Pakistan from Karachi and that was staying in erstwhile East Pakistan during the war of liberation and secondly because of his obtaining citizenship in December 1978. In the background of the discussion made hereinabove it is seen the claim of respondent No.l obtaining of the possession by
him in pursuant to the agreement for sale dated 29-12-1970 has not been established and that it has also not been established 28-2-1972 the respondent No.1 was in possession of the property on the basis of the agreement for sale. The property on the material date i.e on 28-2-1972 was neither possessed by the owner Wali Mohammad nor same was managed on behalf of Wali Mohammad by his attorney Abdur Rahman or the respondent No.l. The High Court Division in deciding the contention raised in the writ petition proceeded on the premise that possession of the property was obtained by the respondent No.l in pursuant to an agreement for sale and that said respondent inspite of being in possession of the property the same has been listed as abandoned property in ‘ka’ list
and that also inspite of the pendency of the suit for specific performance of contract and of obtaining kabala through the Court on the basis of the decree in the said suit the property was illegally listed as abandoned property.
19 . The listing of an abandoned property either in the ‘ka’ list or in the ‘kha’ list is not a
mistake or a default of the kind that makes the list so prepared illegal. Once a particular property is abandoned property then listing thereupon either in the ‘ka’ list or in the ‘kha’ list as provides in section 5(1) of the Ordinance is not of vital importance or in other wards is not material. In this connection reference may be made to the case of Hazerullah Vs. Chairman 1st Court of Settlement and another reported in 3 BLC (AD) (1998) 42. In the reported case it was contended that although the property is in possession of the appellant which as per provision of section 5(1) (b) ought to be listed in the ‘kha’ list but the property has been listed under section 5(1) (a) of the Ordinance in the ‘ka’ list.
In the background of the said contention it has been observed in the aforesaid case” this contention will stand only when the claimant can prove that the disputed building was not an abandoned property”
20. As to the other premise i.e the property in question was listed under the provision of the ordinance while a suit for specific performance was pending and consequent thereupon the High Court Division was of the view that the list so prepared in respect of the property in question under the ordinance was vialative of the provision of section 5 of the ordinance and consequent thereupon was of the view that the list so prepared was not legal. The High Court Division was in serious error in this regard since there is nothing in section 5 of the ordinance that property that has assumed character of abandoned property and has vested with the Government can not be listed as abandoned property when a suit in respect of the said property is pending seeking a decree for specific performance of contract. It has been held in the case of C. Q. M. H Md. Ayub Alivs. Bangladesh and others reported in 47 DLR (AD) 71 that decree in a suit for specific performance is no bar in listing a property as abandoned property. Under the proviso to section 5(1) of the ordinance when a decree obtained in the suit for specific performance of contract for sale of the property and that where in no question has been decided as to whether the property is an abandoned property or not. is not a bar for listing a property as abandoned property then there is no question of illegally listing the instant property as abahdoned property when a suit for specific performance of contract was pending. The other premise on which the High Court Division proceeded is the question of possession of the property, we have already discussed the question of possession and has arrived at the finding that there is no material on record to show that on the execution of the agreement for sale on 29-12-1970, as are recitals in the agreement, as regard putting respondent No. 1 ‘s into possession of the property or that at any time thereafter and that also there is no material on record that on 28-2-1972 the property was possessed by the real owner Wale Mohammad or his attorney Abdur Rahman or that by the respondent No. 1.
21. It has been contended on behalf of the respondent No.1 that since in part performance of the contract for sale he obtained possession of the property and as such his possession is protected by Section 53A of the Transfer of property Act and that his agreement being of December 29,1970 the Government as per provision of Article 10. of P.O 16 of 1972 is required to perform the obligation of the owner i.e. Wali Mohammad whose property as claimed by the Government vested with it under the provision of P.O 16 of 1970 . The sum total of the contention of the respondent No. 1 is that the Government is required under the law is to recognize his possession as legal since the same is protected by section 53A of the Transfer of property Act and that is required to transfer the land to him in the light of the provision of Article 10 of P. O 16 of 1972. Article 10 read as :
“10 (1) The Government may cancel any allotment or terminate any lease or amined the terms of any lease or agreement under which any abandoned property is held, occupied or managed by a person, where such allotment, lease or agreement has been granted or entered into after the 25th day of March, 1971. (2) Where by reason of any action taken under clause (1) any person has ceased to be entitled to possession of any abandoned property he shall, on demand by the Government, surrender possession of such property to the Government or to any person authorized by it in this behalf.
(3) If nay person fails to surrender possession of any property on demand under clause (2), the Government may eject such person and take possession of such property in such manner as may be prescribed.”
22. The learned Counsel in support of the contention of the respondent No. 1 that his possession is protected under Section 53A of Transfer of property Act and Government is required to discharge obligation as regard the property in question which the owner to discharge under the agreement for sale dated 2912-1970 has relied upon the decision in the case of Buxly paints (Bangladesh) Ltd. Vs. Bangladesh reported in 31 DLR (Ad) 266 and the decision in the case of ICI (Bangladesh) Ltd. Vs. M/S G.K. Brothers reported in 36 DLR. 114.
23. The facts of the case reported in 31 DLR (AD) 266 is that Buxly paints (Bangladesh) Ltd. a public limited company, was incorporated on February 15,1971 in the then East Pakistan for taking over from Buxly Paints (Pakistan) Ltd. which was a Company incorporated in Pakistan, all assets and liabilities of the Chittagong Branch of the Company and in pursuance of the said object Buxly Paints (Bangladesh) Ltd. entered into an agreement with Buxly Paints ( Pakistan) Ltd. on October 20, 1971 for consideration to be paid in several installments, out which a part was paid. In accordance with the said agreement the appellant was put into possession of the assets and industrial unit of the Pakistani Company at Chittagong. In pursuant to the agreement transfer could not be finally implemented because of the war of liberation. On the emergence of Bangladesh under Acting President’s order dated 26-12-1971 the management of the industrial unit of M/S Buxly Paints ( Bangladesh) Ltd. was taken over and thereupon it was represented that the assets and industrial unit of Buxly Paints (Pakistan) Ltd. lying at Chittagong had already been acquired by the Buxly Paints (Bangladesh) Ltd. and as such the assets and industrial unit of Buxly Paints ( Pakistan) Ltd. was not an abandoned property. The prayer for releasing the property having been rejected the appellant moved the High Court Division but did not have the desired result. Thereupon the appeal was filed by Buxly Paints ( Bangladesh) Ltd. It was argued in the appeal that the Government in which all the rights of the Buxly Paints (Pakistan) Ltd. in respect of the industrial unit concern as vested by operation of law Government can not claim a right higher than the said owner in respect of the property in possession of a 3rd party under a valid agreement unless and until the appropriate action under Article 10 of the President’s order No. 16 of 1972 has been taken. It was also urged in the case the right created under Section 53A of the Transfer of property Act is a right created under a positive provision of a statue and not a right arising from mere contract or equity independent of statutory provision as such is a protected right.
24. In the above mentioned case the agreement for taking over the industrial unit and other assets was entered on October 20. 1971 i.e at a time when war of liberation was going on, possession of the industrial unit was taken over by appellant in pursuant to the agreement at that time as well as continued possession even after emergence of Bangladesh and thereupon in the light of provision of Article 10(1) it has been observed in the reported case “so long as the agreement has not been terminated by an appropriate action under clause (1) of the Article, the possession of the appellant cannot be said to be unlawful and the Government is not entitled to ask the said occupant to vacate possession of the abandoned property. It is up to the Government whether it will accept the agreement and submit to it or terminate the same and take over possession of the abandoned property ousting the occupant in possession on the basis of the said agreement, but until and unless the Government chooses to take appropriate action under clause (1) of the Article the agreement is valid and binding upon the Government . The
provisions of President’s order No. 16 of 1972 do not confer any power upon the Government, apart from Article 10, to ignore such an agreement and eject the occupant lawfully in possession of the abandoned property.” “But in Bangladesh when such right arising from part performance of a contract has been given a positive statutory shape in Section 53A of the Transfer of Property Act, such right issues from a positive legislative enactment and is not founded merely on equity or a contract. So long as the agreement remains in force and the party in possession is agreeable to perform his part of the
contract, his possession cannot be interfered with by a party to the said contract or any person claiming under the said party. As admittedly the government has not taken any step under clause (1) of Article 10 of president’s order No. 16 of 1972, the Government cannot enforce surrender of the industrial unit concerned or interfere in any way with the possession of the appellant in respect of the said industrial unit.”
25. In the present case we have already observed that there is no evidence on record that in pursuant to the agreement the respondent No.l was put into possession of the property before 28-2-1972 and as such even though at some other time subsequent to 28-2-1972 the respondent No.l had gone into possession of the property that can not be said to have been in pursuant to the agreement for sale dated December 29,1970 since on and from 28-21972 the property vested with the Government and consequent thereupon respondent No.l’s possession is not protected under Section 53A of the Transfer of property Act. The respondent No.l in the case filed before Court of Settlement seeking release of the property from list of abandoned properties did produce any evidence to substantiate claim of going into possession of the property in pursuant to agreement or that prior to promulgation of P.O 16 of 1972. The fact of establishing claim of going into possession of the property in pursuant to agreement was very much material since the agreement for sale was executed at Karachi. In that view of the matter the case reported in 31 DLR is not of nay help to the respondent No.l since in the said case it was established that in pursuant to the agreement, even though the agreement was entered into at a time subsequent to 25-3-1971.
26. The learned Counsel of the respondent No.l has contended that in view of the provision of Article 10(1) of P.O. No. 16 of 1972 Government is under obligation to perform or to discharge the obligation of the owner of the property in question with whom respondent No. 1 entered into an agreement to purchase the said property. Suffice it to say as the property assumed the character of abandoned property as discussed hereinbefore on and from 28-2-1972 and that the property vested with the Government and that as the property has been listed as abandoned property under the provision of the ordinance and no material as has been placed on record to establish that the property is not an abandoned property and that as no decree or order was obtained at any time before the publication of the list in the official Gazette declaring the property not an abandoned property or not to have vested in the Government consequent thereupon the property remained abandoned property, the question of performance of obligation of the original owner by the government, as contended by the learned Counsel for the respondent No.l is not well founded in law. The decision in the case reported in 31 DLR (AD) 266 relating to provision of Article 10 of P.O 16 of 1972 is in the background of the facts of the said case. The instant case factually is quite different from the case reported in 31 DLR (AD) 266 and as such the decision and the ratio of the said case as relied upon by the learned counsel for the respondent No.l in support of the contention that Government under the law i.e as per provision of Article 10 (1) is under obligation to perform the duty of the original owner whose property vested in the Government is not well founded.
27. It is pertinent to mention that from the averments in the writ petition and the grounds taken there in support of the relief sought in the writ petition as well as from the judgment of the High Court Division it is seen that respondent No.l has never tried,to make out a case in the light of the provision of Section 53A of the Transfer of property Act and article 10 of the president’s order No. 16 of 1972. The learned Counsel for the respondent No.l tried in the appeal to make out a case to sustain the judgment of the High Court division placing reliance on the provision of section 53A of the Transfer of property Act and Article 10 of the president’s order No. 16 of 1972, It has already been mentioned by us that respondent No.l has not brought on record any material to establish that on the date of agreement i.e on December 29. 1970 as stated in the agreement for sale relating to putting respondent No. 1 into possession of the property in fact he was put into possession of the property or that on any date before February 28, 1972 he was put into possession of the property by the owner Wali Mohammad or his attorney Abdur Rahman (respondent No.4) or that he obtained possession before 28-2-1972 and that was in possession at the time when P.O. 16 of 1972 became operative. The respondent No.l in view of the provision of Section 5(2) of the ordinance was required to establish the said facts while he approached the Court of Settlement to get the property released from list of abandoned property, but did not do so, since the statement in the agreement for sale as to putting the respondent No.l on the day of agreement on receiving part of the consideration money into possession of the property is absurd one because of the fact the agreement was executed at karachi and as such it was physically impossible as stated in the agreement for sale that on receipt of the part of the consideration money the intended seller upon putting the proposed buyer into possession parted with his possession of the property in question. In the background of the discussion as on the promulgation of President’s order No. 16 of 1972 the property assumed the character of abandoned property and that as per provision of article 10 of the president’s order no. 16 of 1972 the property vested with the Government and that possession of the property in question, though claimed by the respondent No.l but as was not established was with him on the day P.O. No. 16 if 1972 came into force and that as no material has been brought on record whereupon it can be said the possession claimed by the respondent No. 1 is of the kind of possession as is being contemplated by the provision of Section 53A of the Transfer of property Act, as such possession of the respondent No.l of the property in question is not protected under section 53 A of the Transfer of property Act. As the case argued by the learned Counsel for the respondent onset No. 1 in the light of the provision of article 10(1) of the P.O. 16 of 1972 and the ratio of the case reported in 31 DLR was not before the High Court Division and as no declaration has been obtained as to that the property in question is not an abandoned property and consequently the contention that government is required to perform the obligation of the owner in the background of the agreement for sale entered into at a time when the parties were of the one country i.e Pakistan is not well founded one as in that regard no step has been taken by the respondent No. 1 i. e seeking enforcement of the contract between the respondent No. 1 and the original owner against the Government. Respondent No.l has filed the Title suit No. 282 of 1983 seeking decree for specific performance of contract which was entered into between him and Wali Mohammad, the owner, on December 29, 1970 and there in because of the provision of president’s order No. 142 of 1972 Government was made a party but the respondent No. 1 sought for relief against the owner Wali Mohammad and that in the suit No. 282 of 1983 wherein plaintiff sought for a decree for specific performance of contract for sale of the property in question on the basis of agreement dated December 29. 1970 Ministry of works was made a party and that decree was obtained as to the relief sought for in the suit but then too the said decree is not in fact binding on the Ministry of Works and the DIT since lease dated 23-6-1964 on the basis whereupon Wali Mohammad acquired the property was cancelled in the year 1976 and that challenging the said cancellation the respondent No.l filed writ petition No. 533 of 1976 and that although obtained Rule but the same was discharged for default on 6-12-1979. So if for argument’s sake it is accepted that respondent No.l sought for enforcement of the obligation that Government was required to perform as being the obligation of Wali Mohammad and that a decree was obtained against the Government in the said suit upon impleding the Government seeking the relief which could have been sought for against Wali Mohammad is of no help to respondent No.l as to the claim in the property in question since on the date i.e 5-2-1989 when he obtained decree in the Title suit No. 282 of 1983 (subsequently renumbered 271 of 1985 of the Court of First Subordinate Judge, Dhaka) was not a decree in respect of the property in question in the background of the discussion made hereinbefore, Moreover the property has been listed as abandoned property under the provision of the Ordinance and unless the presumption as regard property of being an abandoned property as in section 5(2) of the ordinance is rebutted the property vested with the Government remains the abandoned property and as has already been mentioned that the decree in Title Suit No. 282 of 1983 on the basis where of the respondent No.T in claiming the property as was not a decree declaring the property not an abandoned perorate is of no use since as per provision of section 5(1) of the Ordinance a decree in the suit for specific performance of contract is no bar in listing property as abandoned property. The other case, referred to by the learned Counsel of the respondent No.l reported in 36 DLR 114 is factually different from the instant case. The facts of the said case is that industrial unit and the assets of Imperial Chemical Industries (Pakistan) Ltd. was taken over by the government, But prior to taking over by Government Imperial Chemical Industries (Pakistan) Ltd. entered into an agreement with M/S G. K. Brothers on August 17, 1970 to sell some property of I.C.I. (Pakistan) Ltd. located at Chittagong. Although on the emergence of Bangladesh industrial unit and the assets of I. C. I. (Pakistan) Ltd. was taken over by the Government under P. O. 16 of 1972 but on the representation of the Manager (preliberation) of 1. C. I. Ltd. of Bangladesh part the Government released the property of I. C. I. (Pakistan) Ltd. located in Bangladesh since the said property was of the nationals of the country which was friendly to Bangladesh during the war of liberation and the property of the taken over company was released for incorporation of a new company in Bangladesh as a successor company to the Pakistani Company and ultimately I.C. I. (Bangladesh) Ltd. was brought into existence and thereupon all the assets, liabilities and business which earlier vested with the government under P.O. No. 16 of 1972 became vested in the I.C.I (Bangladeshi) Ltd. Thereupon M/S G/K. Brothers with whom I.C.I (Pakistan) Ltd. entered into an agreement on August 17 of 1970 requested the I.C.I. (Bangladeshi) Ltd. to transfer the property as to which agreement was entered into by I.C. I (Pakistan) Ltd. with M/S G.K. Brother and that request having not been complied with suit was filed seeking enforcement of the agreement dated August 17, 1970 against I.C.I. (Bangladesh) Ltd. the suit ultimately decreed by the trial court placing reliance on the decision in the case of Buxly paint (Bangladesh) Ltd. vs. Bangladesh, reported in 31 DLR (AD) 266. As it appears in the background of the facts of the case reported in 36 DLR the question of consideration of provision of Article 10 of P.O. 16 of 1972 was not of very much relevant since on the formation of the I.C.I (Bangladesh) Ltd. whatever assets as well as liabilities of I.C.I (Pakistan) Ltd. were in Bangladesh those devolved upon the new company i.e. I.C.I (Bangladesh) Ltd.
28. Feeble argument upon referring to the provision of section 5 of the Ordinance and referring to the decision reported in 45 DLR 416 has been that as possession of the property was not taken over prior to the listing of the property in the ‘ka’ list, as such the list so prepared and published is not a legal one and on the basis of the said list the property can not be treated as abandoned property, we have already mentioned that listing of a particular property in a particular list that is an ‘ka’ list or in ‘kha list is of no material importance to the claimant of the property unless it is established by him that the property is not an abandoned property.
29. In the background of our discussion we are of the view High court Division was not well founded in setting aside the judgment and order dated December 24, 1992 of the court of settlement passed as regarded the property in question in case No. 397 of 1989 proceeding upon the premises of question of the possession of the property by the respondent No.l and that of obtaining a decree in a suit for specific performance of contract and of having a kabala on the basis of the decree in the suit for specific performance of contract and that because of failure, as the High Court Division considered, of the government, to show justification as regard listing of the property in the ‘ka’ list although the possession of the property was with the respondent No.l and that considering the same as violation of section 5 of the Ordinance and further that record as being maintained as regard to the property in question was not placed before the court to satisfy itself the genuineness of the claim relating to the property and also that considering the respondent No.1 as a bonafide purchaser for value and that the said respondent No. 1, as considered by the High Court division entered into possession of the property in question prior to the promulgation of the P.O. 16 of 1972 and lastly that the property in question was listed in the list prepared under the provision of the Ordinance as abandoned property when a suit for specific performance was pending which, the High Court Division considered was a violation of the provision of Section 5 of the Ordinance and finally in the light of the aforesaid finding in holding that the listing of the property is illegal, since we have already observed that no material at al laws brought on record from the side of respondent NO. 1 to establish that he got possession of the property in question either on the day the agreement for sale was executed, as getting of possession of the property on the day of execution of the agreement was untrue and improbable because of the material in the agreement and that no material was also brought on record from the side of the respondent NO. 1 to establish that the got the possession of the property at any time before 28-2-1972. The High Court division as has already been observed in view of the provision of law in the ordinance was in error in holding that listing of the property during the pendency of the suit for specifics performance of contract was exfacie illegal. Moreover the High Court division lost sight of the position of law as has been laid down by this Division that a decree in respect of a property obtained in the suit for specific performance of contract is no bar in listing the said property as abandoned property and that question of listing the property in ‘ka’ list or ‘kha’ list is immaterial unless the claimant of the particular property who has come before the court to seek release of the property from the list of abandoned building establishes that the property is not an abandoned property. Accordingly the appeal succeeds. The judgment and order of the High Court division dated August 31, 1977 in writ petition no. 41 of 1973 is set aside. The appellant shall get costs.
Ed
Source: I ADC (2004), 371