Govt. BSMRW Vs. Israt Jahan Kazal

Appellate Division Cases

(Civil)

PARTIES

The Government of Bangladesh

represented by the Secretary Ministry of

RepublicWorks and Urban Development ………………..Appellant.

-vs-

Israt Jahan Kazal ………………………………….. Respondent

JUSTICE

Md. Ruhul Amin, J.

M.M. Ruhul Amin, J. ,

Md. Tafazzul  Islam, J.

JUDGEMENT DATE: 24th March,2004.

Articles 14C, 23 and 24. Article 6 of P.O.16 of 1972.

Mirza Shahab Ishpahani reported 40

D.L.R.(AD) 116

Government contested the suit by filling written statement and contended that the

suit property was treated by the government as abandoned property within the meaning of P.O.16 of 1972. The suit was barred under Articles 14C, 23 and 24 of the said order. After liberation of the country was found absent from the suit property and he was not possessing, controlling, managing and supervising the property and hence the same was rightly declared as abandoned property and since liberation of the country the defendant has been possessing the suit property through lessee………….. (3)

Temporary absence of Abdul Jalil or his sons from the suit property would not make the same abandoned property Mirza Shahab Ishpahani reported 40 D.L.R.(AD) 116 …………….(9)

In the circumstances, we are of the view that the High Court Division committed an error of law in holding that the suit property is not abandoned property. We are also of the view that the citizenship of Md. Karim and Md. Khaleque could be considered by the High Court Division if it could be proved that Abdul Jalil was present in Bangladesh after liberation of this country and died in this country and he managed, controlled and supervised the suit property………………. (11)

A.J. Mohammad Ali, Additional Attorney General, instructed by Sajjadul Huq, Advocateon-Record…………… For the Appellant.

Shafiq Ahmed, Senior Advocate instructed by Md. Aftab Hossain, Advocate-on-

Record ………………For the Respondent.

JUDGMENT

1. M.M. Ruhul Amin, J: This appeal by leave is directed against the judgment and decree dated 08.02.1995 passed by a Single Bench of the High Court Division in Civil Revision No. 1608 of 1992 discharging the Rule.

2. Short facts are that the disputed property belonged to one Abdul Jalil who got the same by way of lease form the Government. While possessing the same by making constructions thereon Abdul Jalil with his family members took shelter in Murapara Camp of Dhaka District during the war of liberation. During his temporary absence form the suit property some miscreants took possession of the property illegally and managed to get it declared as abandoned property. Abdul Jalil died in Bangladesh leaving two sons Md. Karim and Md. Khaleque and bank deposit of Tk. 9,00/-. Md. Karim and Md. Khaleque obtained Bangladeshi nationality certificate from the Ministry of Home Affairs and prayed to the Government not to treat the suit property as abandoned property but with no effect. Md. Karim and Md. Khaleque then sold the disputed property to the plaintiff’s father on 30.06.1980 by a registered kabala. At the time of purchase of the suit property the plaintiff’s father was not aware of the abandoned character of the property and hence the suit.

3. The defendant Government contested the suit by filling written statement and contended that the suit property was treated by the government as abandoned property within the meaning of P.O. 16 of 1972. The suit was barred under Articles 14C, 23 and 24 of the said order. After liberation of the country Abdul Jalil was found absent from the suit property and he was not possessing, controlling, managing and supervising the property and hence the same was rightly declared as abandoned property and since liberation of the country the defendant has been possessing the suit property through lessee.

4. Leave was granted to consider the submission that none of the courts below applied their mind to the question of maintainability of the suit as without a prayer for declaration of title to the suit property the suit was not maintainable and the plaintiff has no manner of locus standn and cause of action against the defendant in the suit The suit was barred under Provisions of P.O. 16 of 1972 and the further submissions that it was incumbent upon the plaintiff to prove that Abdul Jalil was present in Bangladesh and was possessing, managing, controlling and supervising the suit property. But there is no finding by the courts below in this respect.

5. We have heard Mr. A.J. Mohammad Ali, the learned Additional Attorney General for the appellant and Mr. Shafiq Ahmed, the learned Counsel for the respondent and perused the judgment of the High Court Division and other connected papers.

6. It is not disputed that the suit property was allotted to Abdul Jalil as refugee from India. The plaintiff’s case is that during the war of liberation Abdul Jalil temporarily took shelter at Murapara Camp of Dhaka District and during his temporary absence from the suit property some miscreants took possession of the property and managed to get it declared as abandoned property. The plaintiff’s further case is that Abdul Jalil died in this country leaving two sons Md. Karim and Md. Khaleque and the plaintiff’s father purchased the suit property by registered kabala dated 30.06.1980 from the aforesaid Md. Karim and Md. Khaleque.

7. The learned Additional Attorney General submits that the plaintiff could not prove that Abdul Jalil was present in this country after liberation and he died in this country leaving two sons Md. Karim and Md. Khaleque as his heirs. His further submissions is that whereabouts of Abdul Jalil were not known and he vailed to possess, supervise, manage and control the property, and as such the same became abandoned property by operation of law.

8. He further submits that the plaintiff’s father purchased the suit property at a time when it was already abandoned property and as such under Article 6 of P.O. 16 of 1972 such transfer is not valid rather the same is hit by the provisions of Article 6 of P.O. 16 of 1972. He next submits that as the property was already abandoned property, a suit for mere declaration that the same is not abandoned property without a prayer for declaration of title was not maintainable. He lastly submits that it was the duty of the plaintiff’s father before purchase to inquire from the relevant authorities as to whether the property has any encumbrance or whether the proposed vendor has valid title in the property but the plaintiff’s father failed to do so.

9. Mr. Shafiq Ahmed submits that temporary absence of Abdul Jalil or his sons from the suit property would not make the same abandoned property. In support of his contention the learned Counsel placed before us the case of Mirza Shahab Ishpahani reported 40 D.L.R.(AD) 116. But the facts of this case are quite distinguishable from the facts of the present case.

10. It appears that there is no material on record to show that Abdul Jalil was in possession of the suit property after liberation of the country or he managed, supervised or controlled the property. Therefore, by operation of law that is P.O. 16 of 1972 the property become abandoned property and the plaintiff purchased the suit property at a time when the same was abandoned property and such transfer is hit by Article 6 of P.O. 16 of 1972.

11. In the circumstances, we are of the view that the High Court Division committed an error of law in holding that the suit property is not abandoned property. We are also of the view that the citizenship of Md. Karim and Md. Khaleque could be considered by the High Court Division if it could be proved that Abdul Jalil was present in Bangladesh after liberation of this country and died in this country and he managed, controlled and supervised the suit property.

12. In the light of our above discussions, we are of the view that the judgment of the High Court Division requires interference by us. The appeal is accordingly allowed without any order as to costs.

Ed.

Source: I ADC (2004), 525

Disclaimer:

The information contains in this web-site is prepared for educational purpose. This site may be used by the students, faculties, independent learners and the learned advocates of all over the world. Researchers all over the world have the access to upload their writes up in this site. In consideration of the people’s participation in the Web Page, the individual, group, organization, business, spectator, or other, does hereby release and forever discharge the Lawyers & Jurists, and its officers, board, and employees, jointly and severally from any and all actions, causes of actions, claims and demands for, upon or by reason of any damage, loss or injury, which hereafter may be sustained by participating their work in the Web Page. This release extends and applies to, and also covers and includes, all unknown, unforeseen, unanticipated and unsuspected injuries, damages, loss and liability and the consequences thereof, as well as those now disclosed and known to exist.  The provisions of any state’s law providing substance that releases shall not extend to claims, demands, injuries, or damages which are known or unsuspected to exist at this time, to the person executing such release, are hereby expressly waived. However the Lawyers & Jurists makes no warranty expressed or implied or assumes any legal liability or responsibility for the accuracy, completeness or usefulness of any information, apparatus, product or process disclosed or represents that its use would not infringe privately owned rights. Reference herein to any specific commercial product process or service by trade name, trade mark, manufacturer or otherwise, does not necessarily constitute or imply its endorsement, recommendation or favouring by the Lawyers & Jurists. The views and opinions of the authors expressed in the Web site do not necessarily state or reflect those of the Lawyers & Jurists. Above all, if there is any complaint drop by any independent user to the admin for any contents of this site, the Lawyers & Jurists would remove this immediately from its site.