Appellate Division Cases
Mohammad Ali………….. Appellant.
Bangladesh and others ………………Respondents
Mohammad Fazlul Karim J
Amirul Kabir Chowdhury J
Judgment Dated:13th March 2007
The State Acquisition and Tenancy Act, Section 76
The Constitution of the People’s Republic of Bangladesh, Article 42
Plaintiff is a landless cultivator and he prayed for settlement of ‘B’ schedule land without Salami and rent in the year 1975 before the Sub-Division Officer………….(2)
It appears from the record that the land was leased out without any salami and rent on certain conditions but the plaintiff has violated condition No.3 of the Kabuliat by digging a pond in the settled land and thus violation rendered the settlement lible to be cancelled and accordingly the lease was cancelled and Government took over possession of the settled land …………………….(5)
We do not find any substance in the submissions of the learned Advocate for the petitioner……………… (6)
Accordingly, this petition is dismissed……………..(7)
Md. Abdul Hoque, Advocate instructed by Mahmuda Begum, Advocate-on-record. ……………………….For the Petitioner.
Respondents …………………………None represented
Civil Petition for Leave to Appeal No. 165 of 2005
(From the judgment and order 06.12.2004 passed by the High Court Division in Civil Revision No. 2126 of 1994).
Mohammad Fazlul Karim J : This petition for Leave to Appeal is directed against the judgment and order dated 06.12.2004 passed by a Single Bench of the High Court Division in Civil Revision No. 2126 of 1994 reversing the judgment and decree dated 19.01.1994 passed by the Additional district Judge, 1st Court, Tangail, in Other Class Appeal No. 47 of 1993 reversing those dated 18.02.1993 passed by the Subordinate Judge. 2nd Court, Tangail. in Other Class Suit No. 10 of 1992.
2. The relevant facts of the case are that the plaintiff is a landless cultivator and he prayed for settlement of ‘B’ schedule land without Salami and rent in the year 1975 before the Sub-Division Officer, Tangail and after due inquiries the Sub-Division Officer, Tangail granted settlement to the plaintiff under L. A. Case No. 114/46(XII) in the year 1975-76 from 30th Chaitra 1380 B.S. to 30th Chaitra 1394 B.S. for a period of 15 years by way of a registered kabuliyat No. 9101 dated 15.07.1976 under certain terms and conditions and the plaintiff has been possessing the same by cultivating the schedule-2 land and the
plaintiff in the meantime has developed certain portion of low land after spending his own money and made it fit for cultivation though the part of the leased out land was not fully agricultural land at the time of settlement and after the expiry of 15 years under condition No. 10 of the kabuliyat the plaintiff acquired proprietary right as the settlement was made for permanent Maliki purposes and after the expiry of 15 years the plaintiff can use the land in any manner he liks and the plaintiff has been possessing the land as Malik’
without affecting any terms and conditions of the kabuhyat but the respondent No.3 in collusing with other respondents without issuing any notice to the plaintiff asking him to show cause for any alleged breach of condition of the kabuliyat, not illegally, arbitrarily and by acting beyond jurisdiction the defendant No. 1 cancelled the plaintiffs settlement on 19.01.1992 with the help of Memo No. 10-228/91604(6) S.A. which clouded the title of the plaintiff upon schedule-2 land and consequently the plaintiff was constrained to file the suit as aforesaid.
3. The defendant-respondents’ contention in the suit is that the suit is not maintainable
in its present form, that the suit is barred by limitation and by the principle of estoppel, acquiescence and waiver; that the plaintiff has no right, title and possession in the land and the suit is barred by Section 76 of the State Acquisition and Tenancy Act. The further case of the defendant No. 1 is that the suit land is khas land of the Government and was given in settlement to the plaintiff in L.A. Case No. 114/46 (XII) in the year 1975-76 without Salami and rents on his application on certain terms and conditions on his executing a kabuliyat but the plaintiffs have violated condition No.3 of the kabuliyat by digging a pond in the suit land changing the nature and value of the same without any permission from the collector’s office and the Government took possession of the same
pursuant to condition 10 of the kabuliyat canceling the settlement and as such, the suit is liable to be dismissed without costs.
4. Mr. Md. Abdul Iloque, learned Advocate, apparing for the petitioner submits that the Single Judge of the High Court Division in spite of the proved and admitted facts and circumstances of the case, failed to consider and interpret the condition of the kabuliyat No. 10 dated 15.07.1976 to the effect that after the expiry of 15 years the settlement in favour of the plaintiff will automatically be converted into a permanent ‘maliki’ settlement but the Single Judge of the High Court Division due to its misconception in law in interpreting deeds has failed to interpret the kabuliyat in a proper way and has
decided the fate of the case causing complete miscarriage of justice. He further submits that the High Court Division failed to consider the proved and admitted facts and circumstances of the case, the settlement of the schedule-2 land granted for a period of 15 years from 30th Chaitra, 1380 B.S. to 30th Chaitra 1394 B.S. and after the expiry of the aforesaid period the plaintiff has acquired permanent ‘Maliki’ right i.e. proprietary right upon the settled land which is heritable and transferable according to the existing law of the country and the defendants have no power, authority and jurisdiction to cancel the settlement on 19.01.1992 A.D. Lastly, the learned Advocate submits that the respondents have no power, authority and jurisdiction to take away the vested right of the plaintiff from the property under Article 42 of the Constitution of the People’s Republic of Bangladesh which is the guaranteed rights of the plaintiff to the property.
5. It appears from the record that the land was leased out without any salami and rent on certain conditions but the plaintiff has violated condition No.3 of the Kabuliat by digging a pond in the settled land and thus violation rendered the settlement lible to be cancelled and accordingly the lease was cancelled and Government took over possession of the settled land.
6. We do not find any substance in the submissions of the learned Advocate for the petitioner.
7. Accordingly, this petition is dismissed.
Source : V ADC (2008), 299