Appellate Division Cases
(Civil)
PARTIES
Government of the Peoples Republic of Bangladesh repre-sented by the Deputy Commissioner Cum-Collector, Mymensingh……………………………….Appellants.
-Vs-
Mega FisheriesLimited, Dhaka……………………………..………..……Respondedts.
JUSTICE
Syed J. R. Mudassir Hussain C J
Mohammad Fazlul Karim J
Amirul Kabir Chowdhury J
JUDGEMENT DATE
4th July 2005
The Deputy Commissioner during the susistence of lease cancelled the lease.
It appears that the plaintiff cancelled the ease and did not deliver the possession of the land in favour of the defendant. In such view of the matter we are unable to understand what prompted the palintiff to file the suit for cancellation of the deed of lease on the face of …………….. between the parties (11)
Fida M. Kamal, Additional Attorney General, instructed by B. Hossain, Advocate-on-Record For the Appellants
Civil Appeal No. 228 of 2004
(From the Judgment and Decree dated 07.07.2003 passed by the High Court Division in First Appeal No. 465 of 2000.)
Khandker Mahbubuddin Ahmed, Senior Advocate instructed by Md. Nawab Ali, Advocate-on-Record for the Respondent.
JUDGMENT
1. Amirul Kabir Chowdhury J:Government of the People Republic of Bangladesh represented by the Deputy Commissioner, Mymensingh preferred this appeal against the judgment and order dated 07.07.2003 passed by the High Court Division in First Appeal No. 456 of 2000 dismissing the appeal.
2. The facts leading to the appeal are that the appellant as the plaintiff instituted other Class Suit No. 12 of 1996 for declaration that the registered lease deed No. 4330 dated 15.06.1996 between the plaintiff appellant and defendant Megha Fisheries Ltd. is null and void and not binding upon the plaintiff. In the suit , it has been stated that the defendant fisheries, a public Ltd. Co. applied to the government for long term lease of 155.39 acres of non-agricultural land for fish cultivation in scientific way; that after enquiries and observing all formalities he lease was granted to the defendant in respect of aforesaid non- agricultural land within Bhaluka P.S. District-Mymenshingh for a period of 10 years at a ‘Salami’ of TK. 9,30,396/07 and on receipt of first installment of Salami amounting to amounting to Tk. 1,86,079/22 a lease deed was registered on 15.06.1996 and that the Deputy Commissioner during the subsistence of lease cancelled the lease on
10.09.1996 on the plea that some terms and conditions in the draft of the original lease deed agreed upon by both the parties were altered/ modified before registration of the deed by the respondent Co. without the consent of the plaintiff petitioner. It was alleged that the terms and conditions in the draft agreement which were earlier approved by the plaintiff being deleted some new conditions had been included by the defendant Co. by practicing fraud.
3. The defendant-respondent contested the suit denying material allegations made in the plaint and it was contended, inter alia, that the lease agreement was properly drafted incorporating therein the terms of the agreement agreed upon by both the parties; that several officials of the Deputy Commissioner pursed the lease agreement before execution and accordingly it was legally registered and that the defendant-respondent committed neither any wrong nor any fraud as alleged but the Deputy Commissioner most illegally cancelled the valid lease and the suit was filed malafide and prayed for dismissal of the suit.
4. Upon recording evidence and hearing the parties the learned Subordinate Judge dismissed the suit, against which the petitioner took and appeal and the learned Judges of the High Court Division dismissed the appeal as aforesaid.
5. Leave was granted to consider the ubmission that the learned Subordinate Judge wrongly dismissed the suit on misconception of the provisions of Sections 39 and 42 of the Specific Relief Act and also the provisions of Evidence Act and that the High Court Division committed error of law in not considering that the defendantrespondent committed a fraud by altering the original terms of the lease agreement vitiating the transaction.
6. In support of the appeal Mr. Fida M. Kamal, learned Additional Attorney General reiterated the submissions made earlier at the time of hearing of the leave petition.
7. He further submits that there being a “?]fiij[5jj issued by the Government published in Bangladesh Gazette dated 8 March, 1995 the directives given therein are required to be embodied in the lease of long term settlement for fisheries, but the lease dated 10.06.1996 executed in favour of the defendant respondent being violative of the directives in the “%%srt^ and fraud being practiced in getting the lease deed executed the courts below ought to have found that the plaintiff is not bound by the aforesaid illegal lease deed and thus committed error in dismissing the suit. 8. Mr. Khandker Mahbubuddin Ahmed, learned Counsel appearing on behalf of the defendant respondent opposes the appeal stating, inter alia, that the learned Subordinate Judge on consideration of materials on record including the evidence found that the plaintiff failed to make out the case and as such correctly dismissed the suit and that the High Court Division in its turn affirmed the said judgment of the trial court and there being no illegality in the impugned judgment and order of the High Court Division, the appeal is liable to be dismissed We have considered the submissions made at the Bar and perused the materials on record. The plaintiff appellant instituted the suit for a declaration that the deed of lease executed between the parties was a void and fraudulent document and not binding upon the plaintiff on the assertion that the aforesaid deed has been executed not on the basis of original draft agreed upon between the parties and some clauses of the previously greed draft being altered, the deed has been registered and thus fraud has been practiced.
9. It appears that the trial court considered the evidence of the parties. The solitary witness of the plaintiff Md. Golum Mostafa deposed that the draft agreement was approved on 09.06.1996 by the Revenue Deputy Collector (R.D.C), Additional Deputy Commissioner (A.D.C) and Deputy Commisioner and it was accordingly executed by the parties on 10.06.1996 and registered on 15.06.1996. The witness deposed that he was not aware of the terms of the draft deed nor he knew what are the conditions of the draft agreement those have been violated in the aforesaid impugned lease deed dated 10.06.1996 nor he read the draft agreement. The assertion of the plaintiff-appellant has been denied by the defendant respondent. Except lump averment in the plaint, there is no other material to prove the fraud allegedly committed by the defendant respondent.
10. It appears that the draft agreement puiported to have been made has not been produced before nay courts. The plaintiff further asserted that after the fraud was de detected the plaintiff called the defendant respondent and after discussion with the consent of the defendant a ” BANGLA (NITYMALA)” was made but the said ” BANGLA (NITYMALA)” was also not produced before any court.
11. Further more, it appears that the plaintiff cancelled the lease and did not deliver the possession of the land in favour of the defendant. In such view of the matter we are unable to understand what prompted the palintiff to file the suit for cancellation of the deed of lease on the face of ” between the parties.
12. We have given our anxious consideration to the facts and circumstances of the case and we are of the view that the Subordinate Judge did not commit any illegality in dismissing the suit.
13. We have also perused the impugned judgment of the High Court Division. There is no illegality in the aforesaid judgment.
14. In such view of the matter the grounds canvassed on behalf of the appellant have no leg to stand and as such we do not find any substance in this appeal. The appeal is dismissed without any order as to cost.
Source : III ADC (2006), 197.