Appellate Division Cases
(Civil)
PARTIES
Government of the People’s Republic of Bangladesh, represented by Additional Deputy Commissioner (Revenue) and Officer in Charge of the Vested and Non-Resident Properties, Kishorgonj ………………Petitioner
-Vs
Md.Shahbuddin and others………………. Respondents
JUSTICES
Md. Ruhul Amin J
Md.Tafazzul Islam J
Judgment Dated: 18th June 2006
Delay of 29 days is condoned …………………….(1)
The suit was filed seeking declaration of title in respect of the land in suit, recovery of possession upon evicting the defendants from the land in suit and demolishing the structures in the land in suit and for further declaration that the order dated April 22, 1977 passed . by defendant No.3 treating the property in suit as vested property and thereupon leasing out the property in suit is illegal and void ……………….(2)
It is seen from the materials on record that plaintiffs’ predecessor acquired the property by the kabala executed by the Court in execution of the decree in a suit for specific performance of contract filed against Harihar Das the owner, who entered into an agreement for sale. In the said suit Government of Bangladesh as well as the vested property authority were defendants. In execution of the decree passed in the suit for specific performance of contract the plaintiff, i.e. Abdul Barek Bepari got the kabala. It was contended from the side of the defendants of the instant suit that the decree in the suit for specific performance of contract was obtained upon suppression of summons. The trial Court on consideration of the materials on record held that the defendants failed to establish their contention of obtaining decree in the suit for specific performance of contract upon suppression of summons. The trial Court also held that the property was illegally treated as vested property and the same was leased out illegally to the defendants upon evicting the plaintiffs. The appellate Court without adverting to the finding and decision of the trial Court reversed the judgment and decree of the trial Court. The High Court Division on detailed discussions of the materials on record held that the appellate Court set aside the judgment of the trial Court on mis-reading of the evidence and also on surmise and conjecture. The High Court Division also held that the property in suit at no point of time assumed the character of enemy property, lateron vested property since it was not established from the side of the vested property authority that the owner thereof left the erstwhile East Pakistan at any point of time………….. (7)
Accordingly the petition is dismissed. …(9)
Md. Aftab Hossain, Advocate-on-record ……………….For the Petitioner
A.K.M. ShahiduJ Huq, Advocate-onrecord For Respondent Nos. 1 -3
Respondent Nos .4-19…………………………….. Not represented
Civil Petition For Leave To Appeal No.l716of2005
(From the Judgment and Order dated March 14, 2005 passed by the High Court Division
in Civil Revision No.2580 of 2000)
JUDGMENT
Md. Ruhul Amin J: Delay of 29 days is condoned.
2. This petition for leave to appeal is directed against the judgment dated March 14, 2005 of a Single Bench of the High Court Division in Civil Revision No.2580 of 2000 making absolute the Rule obtained against the judgment and decree dated March 22, 2000 of the 1st Court of Subordinate Judge (now Joint District Judge) Kishoreganj in Other Appeal No. 139 of 1995 allowing the same upon reversing the judgment and decree dated May 20, 1995 of the Court of Assistant Judge, Kotiadi, Kishoreganj in Other Class Suit No.28, 1994 decreeing the same. The suit was filed seeking declaration of title in respect of the land in suit, recovery of possession upon evicting the defendants from the land in suit and demolishing the structures in the land in suit and for further declaration that the order dated April 22, 1977 passed by defendant No. 3 treating the property in suit as vested property and thereupon leasing out the property in suit is illegal and void.
3. Facts in short, are that the original owner Harihar Das entered into an agreement for sale on May 19, 1962 with Abdul Barek Bepan and upon receiving Tk.6,000/-out of the total consideration money Tk.6,500/- executed an agreement for sale and made over possession, that Harihar Das having had failed to execute and register the kabala, Abdul Barek Bepari filed Other Class Suit No.50 of 1975 for a decree for specific performance of the agreement for sale of the land, that in the suit the Deputy Commissioner, Mymensingh as well as the Assistant Custodian of vested property were made parties. The suit was decreed and in execution of the decree Abdul Barek Bepan obtained the kabala through Court, that by a deed of exchange dated March 19, 1977 between Abdul Barek Bepari and his brother, plaintiff No. 1, the plaintiff No. 1 got the land in suit and thereupon mutated his name and paying rent and is possessing the land in assertion of title, that two rooms of the building were occupied by police personnel as monthly tenant of Harihar Das, that the said police personnel admitted ownership of Abdul Barek Bepari and paid rent as tenant to him, that in the building there were two other tenants, defendant Nos.7 and 8 and they upon accepting Abdul Barek Bepari as landlord paid rent to him, that after getting the land by exchange the tenants accepted the plaintiff No. 1 as landlord and paid rent, that defendant Nos.7 and 8 paid rent for some time but lateron in collusion with the personnel of the vested property authority have created some forged documents and got the property enlisted as vested property, that the defendant No.7 filed three suits in the Court of Assistant Judge and one suit in the Court of Subordinate Judge, that all the suits were dismissed and thereupon the defendant Nos.7 and 8 in collusion with the vested property officials started V.P. Case No.2 of 1978-79, that the said case was contested by the plaintiffs and the Additional Deputy Commissioner (Revenue) passed order re-commending release of the property from the list of vested property and the record was sent to the Ministry of Land for final approval but the Ministry instead of passing the order of release sent back the record to the District authority for fresh consideration of the case, that while the process for releasing the property from the list of vested property was going on plaintiff No.l transferred 2/3rd portion of the property in suit to the proforma-defendant No. 14 by the registered deed of exchange dated September 13, 1983 and the said defendant mutated his name and paid rent, that lateron the order of mutation was re-called by defendant No.5. It is the case of the plaintiffs that the original owner Harihar Das had never left the erstwhile East Pakistan at material point of time and as such the property in suit had never assumed character of vested property and at the instance of the defendant Nos.7 and 8 the vested property authority illegally listed the property as vested property and leased out to the defendants.
4. The vested property authority entered appearance and filed written statement denying the material averments made in the plamt and stated, inter alia, that land in suit belonged to Harihar Das who appointed Jatindra Chandra Sarker as attorney to look after the property and to sell the property and thereupon left for India, that Attorney of Harihar Das inducted defendant No.5 as tenant in the building and also defendant Nos.7 and 8 and the said persons paid rent to the Attorney of Horihar Das, that Attorney of Harihar Das left for India before 1965 and had settled there, that the property left by Harihar assumed character of enemy property, lateron vested property and the same vested in the Government, that Jatindra Chandra Sarker claimed title in the land in suit but he failed to substantiate his claim, that his objection against treating the property as vested property was rejected on May 20, 1969, that Jatindra Chandra Sarker left the country in 1971, that the property was in possession of the defendant Nos.5, 7 and 8 and lateron defendant Nos.7 and 8 left the property, that the defendant No.7 created certain papers for raising claim in the property in suit and that he in collusion with the interested quarter and behind the knowledge of the defendant No.l upon initiating V.P. Case No. 199 of 1973-74 obtained lease, that defendant Nos.5 and 8 were in possession of the land and obtained lease of the respective portion of the building, that the defendants i.e. defendant
Nos.5, 7 and 8 have become owner of the land in suit as the lessee, that plaintiffs’ case of entering into an agreement by Harihar Das for sale of the property to Abdul Barek Bepari is not correct and that Harihar Das had never executed any agreement for sale and that he left erstwhile East Pakistan in 1962 and residing permanently in India, that Abdul Barek Bepari obtained the decree in Other Class Suit No.50 of 1975 without serving notice and upon practicing fraud on the Court, that plaintiffs at no point of time got possesion of the property in suit.
5. The trial Court decreed the suit declaring the right, title and possession of the plaintiffs and also declared illegal and void order treating the property in suit as vested property. The trial Court further decreed the suit of the plaintiffs for recovery of possession upon evicting the contesting defendants.
6. The defendant No.l, Government of Bangladesh, represented by the Deputy Commissioner, Kishoreganj went on appeal. The appellate Court reversed the judgment of the trial Court on the finding that the plaintiffs were illegally in possession of the property and that the property assumed character of vested property. The plaintiffs moved the High Court Division in revisional jurisdiction and obtained Rule. The High Court Division made the Rule absolute on the finding that from the defendant’s side it was not established that Abdul Barek Bepari obtained the decree for specific performance of contract without service of summons on the defendants thereof, that the judgment of the appellate Court suffers from mis-reading of evidence and as such same is not sustainable in law.
7. We have heard the learned Advocate on-record and perused the materials in the petition for leave to appeal. It is seen from the materials on record that plaintiffs’ predecessor acquired the property by the kabala executed by the Court in execution of the decree in a suit for specific performance of contract filed against Harihar Das the owner, who entered into an agreement for sale. In the said suit Government of Bangladesh as well as the vested property authority were defendants. In execution of the decree passed in the suit for specific performance of contract the plaintiff, i.e. Abdul Barek Bepari got the kabala. It was contended from the side of the defendants of the instant suit that the decree in the suit for specific performance of contract was obtained upon suppression of summons.
The trial Court on consideration of the materials on record held that the defendants failed to establish their contention of obtaining decree in the suit for specific performance of contract upon suppression of summons. The trial Court also held that the property was illegally treated as vested property and the same was leased out illegally to the defendants upon evicting the plaintiffs. The appellate Court without . adverting to the finding and decision of the trial Court reversed the judgment and decree of the trial Court. The High Court Division on detailed discussions of the materials on record held that the appellate Court set aside the judgment of the trial Court on mis-reading of the evidence and also on surmise and conjecture. The High Court Division also held that the property in suit at no point of time assumed the character of enemy property, lateron vested property since it was not established from the side of the vested property authority that the owner thereof left the erstwhile East Pakistan at any point of time.
8. The learned Advocate-on-record failed to point out any error in the judgment of the High Court Division of the kind calling for interference by this Division.
9. Accordingly the petition is dismissed.
Source : V ADC (2008),385