Appellate Division Cases
(Civil)
PARTIES
Rajdhani Unnayan Kartripakkha(RAJUK)……………… Petitioner
-Vs-
Iqbal Ahmed and others………….. Respondents
JUSTICES
Md. Ruhul Amin J
M.M. Ruhul Amin J
Md. Tafazzul Islam J
Judgment Dated: 28th August 2006
The Specific Relief Act, Section 42
The suit was filed seeking declaration of lease hold right in the land in suit and for cancellation of the lease deed made in favour of the defendant No.l by the defendant No.2……………….. (2)
Transfer was made in pursuant to the permission accorded by the RAJUK and the said transferee i.e. plaintiffs’ predecessor submitted the deed of transfer, deed of agreement and deed of undertaking with the RAJUK on December 30,1990 along with a petition with the prayer for mutation. The High Court Division also has noticed that after lapse of almost 5 years i.e. on November 9, 1995 RAJUK without mutating the name of the plaintiffs’ predecessor cancelled the lease and also cancelled the letter according permission to transfer. ………………..(12)
The High Court Division in the afore state of the matter held that the lease was cancelled “Without hearing the original lessee or petitioners and without issuing any notice upon them, the transfer permission was cancelled, which cancellation order was not even communicated to Khaleda or to the plaintiff petitioners”. The High Court Division in the background of the materials on record held that whatever were in letter dated 26.6.1988 the same was complied with though at a point of time other than the time as claimed by RAJUK to have been fixed but RAJUK sat over the matter of mutation for 5 years although prayer was made upon furnishing the requisite documents by the plaintiffs’ predecessor and then went for cancellation of the lease and the letter of permission. As it is seen that whatever action RAJUK took as regard the matter of cancellation of the lease and the letter of permission, the same were taken beyond the notice of the allottee and the valid transferee. ………………….(13)
In that state of the matter we are of the view High Court Division was quite correct
in holding that RAJUK’s action was not legal ……………(14)
Md. Wahid Islam, Advocate-on-record……………For the Petitioner
Respondents …………………..Not represented
Civil Petition For Leave To Appeal No.872 of 2005
(From the Judgment and Order dated April 19, 2005 passed by the I Iio.h Court Division
in Civil Revision No. 1910″ of 2003)
JUDGMENT
Md Ruhul Amin J: This petition for leave to appeal has been filed against the judgment dated April 19, 2005 of a Single Bench of the Hi«h Court Division in Civil Revision No.1910 of 2003 making; absolute the Rule which was obtained against the judgment and decree dated i February 8, 2003 of the 2nd Court of Additional District Judge, Dhaka in Title Appeal No.520 of 1999 dismissing the same and thereby affirming the judgment
and decree dated July 12, 1999 of the 6th Court of Assistant Judge, Dhaka in Title Suit No.129 of 1999 dismissing the same.
2. The suit was filed seeking declaration of lease hold right in the land in suit and for cancellation of the lease deed made in favour of the defendant No.l by the defendant No.2.
3. Facts, in short, are that land in suit was acquired by purchase by Md. Amanullah, predecessor of the plaintiffs, from the allottee of the RAJUK, that the transfer was made by the allottee upon obtaining permission from the RAJUK as back as on January 24, 1988, that the property in suit was allotted by the defendant No.2 (RAJUK) to certain Khaleda Rahman and the allotment was completed by execution and registration of the lease deed between RAJUK and Khaleda Rahman, wife of Md. Mojibur Rahman, that the full consideration money of the leased land was paid and possession was duly delivered to the allottee by the RAJUK, that allottee entered into an agreement for transfer of
thctiand in suit with Md. Amanullah, predecessor of the plaintiffs, and the RAJUK
(defendant No.2) upon obtaining requisite fee accorded permission for transfer and that the RAJUK by written order accorded permission to transfer the land to the predecessor of the plaintiffs, that after the transfer was made by the original allottee Khaleda Rahman to Md. Amanullah the RAJUK illegally allotted the land in suit to the defendant No.l beyond the knowledge of Md. Amanullah and his vendor Khaleda Rahman although when the allotment was made to the defendant No.l Md. Amanullah on the basis of the permission accorded by RAJUK purchased the property in suit from Khaleda Rahman and intimated the RAJUK about the acquiring of the property on the basis of permission
accorded by RAJUK from Khaleda Rahman and requested the RAJUK to mutate his name i.e. Md. Amanullah’s name i.e. predecessor of the plaintiffs.
4. The suit was contested by the defendant Nos.l and 2 by filing separate sets of written
statement, stating the facts more or less common.
5. It was the case of the defendants that the suit as framed is not maintainable since defendant No.2 has allotted the land in suit to the defendant No.l, that the allotment of land made to the original lessee khaleda Rahman was cancelled on May 21, 1995 and thereafter the land in suit has been allotted to the defendant No.l on February 12, 1996 and finally lease deed was executed and registered on March 23, 1996 in favour of the defendant No.l and he is in possession of the land. It was the case of the RAJUK that Md. Amanullah. the predecessor of the plaintiffs, did not file agreement, affidavit and certified copy of the registered document within the stipulated period of 4 months as was in the letter according permission to transfer and as such the RAJUK cancelled the allotment on May 21, 1995 and upon such cancellation allotted the land in suit to the defendant No.2 on observation of the formalities.
6. The trial Court dismissed the suit on the finding that the lessor cancelled the lease legally and as such the plaintiffs’ predecessor by purchase from the lessee Khaleda Rahman did not acquire any right, title and interest in the land in suit, that RAJUK cancelled the permission for transfer and thereupon allotted the land to the defendant No.l and that after such allotment executed and registered lease deed in favour of the defendant No.l and as such lease deed executed between defendant Nos.l and 2 is not void.
7. The plaintiffs went on appeal. The appellate Court dismissed the appeal upon observing that since papers as per terms and conditions set by the RAJUK were not
submitted and consequent thereupon cancellation of the lease by the RAJUK was quite legal, that plaintiffs failed to prove that they are in possession of the land in suit and that the papers submitted from the side of the defendant No.l show that he is in possession of the land, that plaintiffs being not in possession of the land the suit is barred under Section 42 of the Specific Relief Act.
8. Plaintiffs moved the High Court Division in revisional jurisdiction and obtained the Rule. It was contended before the High Court Division that plaintiffs’ predecessor acquired the land from the lessee Khaleda Rahman who transferred the land in suit upon obtaining permission from RAJUK and that plaintiffs’ predecessor having purchased the property applied to the RAJUK for mutation on December 30, 1990 and thus RAJUK had the information about the transfer in favour of the plaintiffs’ predecessor but illegally cancelled the allotment made to Khaleda Rahman on September 11, 1995, although
at that time Khaleda Rahman was not the lessee and that plaintiffs’ predecessor was
the owner of the land and to that effect intimation was made to the RAJUK. It was also contended that cancellation of allotment was made illegally without. serving any notice to either Khaleda Rahman or Md. Amanullah. It was further contended that after purchase by Md. Amanullah on the basis of permission granted by the RAJUK he submitted all the papers i.e. kabala by which Md. Amanullah acquired the property, affidavit and the other papers as well as mutation fees.
9. The learned Advocate submitted that lower appellate Court was in serious error in holding that the suit as framed was not maintainable in that plaintiffs sought for declaration of his lease hold right and also prayed for cancellation of the lease made
by RAJUK in favour of the defendant No.l.
10. The learned Counsel for the defendant opposite party No.l submitted that RAJUK after compliance of due procedure allotted the land to defendant No.l and that he got his name mutated and that allotment was made in lieu of his earlier allotment and that lease deed having been executed and registered between him and the RAJUK he has right, title and interest in the land in suit, that RAJUK cancelled the allotment since the condition of the letter granting permission to transfer was not complied with and as such permission
to transfer was cancelled and the permission to transfer having been cancelled plaintiffs’ predecessor by purchase from the original lessee Khaleda Rahman did not acquire any interest in the land in suit.
11. The learned Advocate for the opposite party No.2 (defendant No.2) submitted that plaintiffs’ predecessor or the plaintiffs were not recognised by the RAJUK as the lessee of the land in suit and as such RAJUK was not required to serve any notice to plaintiffs or to their predecessor in terminating the lease which was earlier made to Khaleda Rahman from whom plaintiffs’ predecessor said to have purchased the land in suit, that original lessee Khaleda Rahman was duly informed about the matter of cancellation of the
lease as well as the cancellation of the permission accorded earlier, that it was the
stipulation in the lease deed that if transfer is made before making any construction the lease shall stand cancelled and the land shall vest in the lessor and that transfer having been made without making any construction and that permission having been sought for transfer in that state and that finally the lessee Khaleda Rahman has transferred the land without making construction and thus having had violated the condition in the lease deed. RAJUK was quite legal in cancelling the lease of Khaleda Rahman, that lessee Khaleda and her proposed transferee having not submitted the papers as were required to be
submitted in terms of letter dated June 20, 1988 issued by the RAJUK, the RAJUK in cancelling the lease deed did not commit any illegality, that the plaintiffs’ predecessor
submitted the requisite papers beyond the period fixed in the letter according permission for transfer i.e. on December 30, 1990 and as such lease was cancelled on November 9, 1995 and the letter according permission was also cancelled. It was also contended on behalf of the RAJUK that since transfer to the plaintiffs’ predecessor was not in accordance to the terms and conditions set forth by RAJUK and consequently the transfer being not legal, the RAJUK was not required to serve any notice on the predecessor of the plaintiffs, that plaintiffs failed to prove their possession in the land in suit and that
opposite party was successful in proving that he is in possession of the land in suit.
12. The High Court Division on consideration of the materials on record held that transfer was made in pursuant to the permission accorded by the RAJUK and the said transferee i.e. plaintiffs’ predecessor submitted the deed of transfer, deed of asreement and deed of undertaking with the RAJUK on December 30, 1990’along with a petition with the prayer for mutation. The High Court Division also has noticed that after lapse of almost 5 years
i.e. on November 9, 1995 RAJUK without mutating the name of the plaintiffs’ redecessor
cancelled the lease and also cancelled the letter according permission to transfer.
13. It was the case of the RAJUK that it wrote a letter on 26.6.1988 directing the lessee and the plaintiffs’ predecessor to submit the papers i.e. deed of agreement, deed of undertaking and deed of transfer etc. within 4 months from the date of issuance of the said letter and that the papers as required to be submitted in the light of the letter dated 26.6.1988 having not been furnished the RAJUK cancelled on September 26, 1995 the lease as well as the letter according permission to transfer. It was the case of the plaintiffs that their predecessor and the original lessee Khaleda Rahman did not receive any such
letter. From the RAJUK’s side no attempt was made to establish before the Court that the said letter was served on the plaintiffs’ predecessor and the original lessee Khaleda Rahman and the said letter was also not produced in Court. The High Court Division in the afore state of the matter held that the lease was cancelled “Without hearing the original lessee or petitioners and without issuing any notice upon them, the transfer permission was cancelled, which cancellation order was The not even communicated to Khaleda or to the plaintiff petitioners”. The High Court Division in the background of the materials on record held that whatever were in letter dated 26.6.1988 the same was complied with though at a point of time other than the time as claimed by RAJUK to
have been fixed but RAJUK sat over the matter of mutation for 5 years although prayer was made upon furnishing the requisite documents by the plaintiffs’ predecessor and then went for cancellation of the lease and the letter of permission. As it is seen that whatever action RAJUK took as regard the matter of cancellation of the lease and the letter of permission, the same were taken beyond the notice of the allottee and the valid transferee.
14. In that state of the matter we are of the view High Court Division was quite correct in holding that RAJUK’s action was not legal. The High Court Division in the background of the materials on record has observed “that the original allottee did not violate any condition of the lease deed because she got time extension from RAJUK for construction and also permission to transfer the land without construction and subsequently transferred the property in favour of Amanullah. Amanullah also in compliance with the requirements of RAJUK, deposited transfer fees, service charges and the relevant
documents with RAJUK for mutation but as he was not aware of the prescribed time limit of such submission directed by the letter dated 26.6.88. he submitted those at a belated stage. The opposite parties could not show anything before the courts below that the letter dated 26.6.88 was received by Amanullah or by the plaintiff petitioners. The courts below failed to consider that before canceling of the transfer permission notice ought to have been issued to the prospective transferee who has filed the required documents before RAJUK and was awaiting mutation”. The High Court Division reversed the finding of the
lower appellate Court as to maintainability of the suit since plaintiff prayed for declaration of his lease hold right and also prayed for cancellation of the lease deed
by RAJUK in favour of the defendant No.l. and thereupon affirmed the finding of the trial Court that the suit is maintainable.
15. It is seen from the judgment of the appellate Court that the said Court held that the suit was not maintainable since the plaintiffs failed to prove their possession in the land in suit and that defendant No.l was able to prove his possession. The appellate Court was in serious error in that no material was brought on record from the side of the RAJUK that after cancellation of the lease of Khaleda Rahman or for that matter letter according permission for transfer the RAJUK obtained the possession of the land in suit from
Khaleda Rahman. It is not denied by the RAJUK that possession of the property in suit was made over to Khaleda Rahman. Nor it was the case of RAJUK that Khaleda Rahman had not gone into possession after execution and registration of the lease deed. Since no material was placed before the Court from the side of the RAJUK that after cancellation of the lease of Khaleda or for that matter letter according permission for transfer to the
plaintiffs’ predecessor the RAJUK took over the possession. So whatever materials produced before the Court from the side of the defendant No.l in assertion of his claim of possession were mere paper transactions and thus the appellate Court was in error in holding that the defendant No.l has proved his possession in the land in suit and thereupon held that the suit was not maintainable since consequential relief in that regard was not prayed for.
16. In the background of the discussions made hereinbefore we find no merit in the petition.
17. Accordingly the petition is dismissed.
Source : V ADC (2008),631