Harich Ahmed being dead his heirs l(ka) Abdul Khaleque and others Vs. Wali Ullah and others

Appellate Division Cases

(Civil)

PARTIES

Harich Ahmed being dead his heirs l(ka) Abdul Khaleque and others……. Petitioners

-Vs-

Wali Ullah and others ……………… Respondents

JUSTICES

Md. Ruhul Amin J

Md. Tafazzu! Islam J

Judgment Dated: 26th June 2006

Delay is condoned…………………. (1)

The suit was filed seeking redumption of the cot mortgage which was made by the kabala ……………………….(3)

Has proved the fact of auction sale of the land by producing the sale certificate. The High Court Division further observed that the trial Court was in serious error in holding that defendant gave undertaking in Title Suit No.121 of 1986 that he would not use the sale certificate in any proceeding if available in future as the order of the trial Court clearly shows that defendant No.l was debarred from using the sale certificate in Title Suit No. 121 of 1986 only. The High Court Division on consideration of the oral evidence as well as the documentary evidence held that the defendant is in possession of the land in suit. The High Court Division also on consideration of the documentary evidence held that the land in suit i.e. the land of kabala dated July 11, 1935 was auction sold and the same was purchased by defendant’s mother in his name and that on the basis of the auction purchase defendant got his name mutated in the khatian and paying the rent regularly. The High Court Division has observed since prior to the auction sale the defendant was in possession so even if no formal delivery of possession after auction purchase w as taken but for that title accrued by the defendant through the auction purchase will not be affected ……………..(6)

A.S.M. Khalequzzaman, Advocate-onrecord ……………..For the Petitioners

Respondents……………………….. Not represented.

Civil Petition For Leave To Appeal No.90 Of 2005

(From the Judgment and Order dated November 9, 2003 passed by the High Court Division in Civil Revision No.414 of 1998)

JUDGMENT

Md. Ruhul Amin J: Delay is condoned.

2. This petition for leave to appeal has been filed against the judgment dated November 9. 2003 of a Single Bench of the High Court Division in Civil Revision No.414 of 1998 discharging the Rule obtained against the judgment and decree dated September 6. 1997 of the Court of Subordinate Judge (now Joint District Judge) and Artha Rin Adalat, Noakhali in Title Appeal No.34 of 1994 reversing the judgment and decree dated January 26, 1994 of the 3rd Court of Additional Assistant Judge. Sadar, Noakhali in Title Suit No. 168 of 1989 decreeing the same with a direction to the defendant to make over possession of the land in suit in favour of the plaintiff and in case of default by the defendant to make over possession the plaintiff would be entitled to get the possession through Court.

3. The suit was filed seeking redumption of the cot mortgage which was made by the kabala dated July 11,1935. It may be mentioned that there was stipulation in the kabala in case of repayment of the money received on the execution of the kabala within the month of Magh 1346 B.S. possession of the land would be made over to the vendor i.e. predecessor of the plaintiffs and that in case of failure on the part of the vandor to get the land re-conveyed on repayment of money the vendee would be entitled to foreclose the mortgage, that the vendee did not foreclose the mortgage, that on wrong advice plaintiffs filed Title Suit Nos. 177 of 1986 and 121 of 1986 for re-conveyance, that the land has been wrongly recorded in the name of the defendant No. 1, that defendants rejected the request of the plaintiff for making over possession of the land which was once cot mortgaged. Hence the suit.

4. The suit was contested by the defendant No.l by filing written statement denying the material averments made in the plaint and stating, inter alia, that after the expiry of the period for which the land was mortgaged rent having not been paid the landlord instituted rent suit and obtained decree and in execution of the decree the land was put to auction and the same was purchased by defendant’s mother, that as the land was in the possession of the defendant’s mother no delivery of possession was required to be taken through Court, that the defendant through his mother is in possession of the land since auction purchase, that plaintiffs filed Title Suit Nos. 121 of 1986 and 177 of 1986 and while defendant filed written statement in the said suits the plaintiffs withdrew the same, that the kabala has been prepared in the name of the defendant within the knowledge of the plaintiffs and the defendant is possessing the land on payment of rent. The trial Court decreed the suit on the finding that the rent suit was not a genuine one and that the same was filed only to deprive the genuine claimant of the land and that there was no genuine auction sale of the land, that because of the nature -of the transaction the vendee was required to make over possession after the expiry of the period for which the land was mortgaged and that having had not done so the plaintiffs have filed the suit for getting the possession of the’land.

5. The defendant as against the judgment and decree of the trial Court went on appeal. The appellate Court allowed the appeal on the finding that as the rent was not paid by the vendor of the deed dated July 11, 1935 and consequent thereupon land having been put to auction by the landlord for arrears of rent and being sold and thereupon having been purchased by the predecessor of the defendant the kabala dated July 11, 1935 lost its effectiveness and as such the trial Court was in error in decreeing the suit on the view that the kabala was in force even after the rent sale of the kabala land and being purchased by the predecessor of the defendant.

6. The plaintiff moved the High Court Division in revisional jurisdiction and obtained Rule. The High Court Division discharged the Rule on the finding that defendant No. 1 has proved the fact of auction sale of the land by producing the sale certificate. The High Court Division further observed that the trial Court was in serious error in holding that defendant gave undertaking in Title Suit No. 121 of 1986 that he would not use the sale certificate in any proceeding if available in future as the order of the trial Court clearly shows that defendant No. 1 was debarred from using the sale certificate in Title Suit No. 121 of 1986 only. The High Court Division on consideration of the oral evidence as well as the documentary evidence held that the defendant is in possession of the land in suit. The High Court Division also on consideration of the documentary evidence held’ that the land in suit i.e. the land of kabala dated July 11, 1935 was auction sold and the same was purchased by defendant’s mother in his name and that on the basis of the auction purchase defendant got his name mutated in the khatian and paying the rent regularly. The High Court Division has observed since prior to the auction sale the defendant was in possession so even if no formal delivery of possession after auction purchase was taken but for that title accrued by the defendant through the auction purchase will not be affected.

7. We have heard the learned Advocate-on-record and perused the materials on record. The learned Advocate-on-record could not point out any error of the kind in the judgment of the High Court Division calling for interference by this Division.

8. Accordingly the petition is dismissed.

Source : V ADC (2008), 228

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