Appellate Division Cases
(Civil)
PARTIES
Rupali Bank Ltd. Head officer Motijhell commercial Area, Dhaka……Appellant
(In C. A. 97/97)
Government of Bangladesh,
Represented by the Secretary, Ministry of Works Dhaka Appellant (In C.A.98/97).
-vs-
Shawkat Ara Salauddin and anothers ………………………….Respondent
(In both the appeals)
JUSTICE
Md. Ruhul Amin. J
M. M. Ruhul Amin. J
Md. Tafazzul Islam. J
JUDGEMENT DATE: 5th April, 2004
The Registration Act, Section 28(2), 30 (2),. The Evidence Act, Sub Section 6 of Section 76. rticle 6 of the Above Order.
We are of the view that Annexure L to the leave Petition and the certified copy produces before us prima facie shows that late Md. Serajuddin having transferred his title and interest in the property in question to Standared Bank by deed of conveyance date 19.8.1965 the respondents at the time of filing the Writ Petition No. 2465 of 1992 had no title at all to the property in question and so the respondents, without title, was not entitled to pray for a writ of mandamus for directing the Ministry of Works to mutate their names in the records……………… (22)
Civil Appeal No 97-98 of 1997 (Form the judgment and order dated 27th June,
1996 passed by the High Court Division in Writ Petition No. 2465 of 1992).
Mahmudul Islam, Senior Advocate instructed by Sufia Khatun. Advocate-on-Record……………. For the Appellant (In C.A.No. 98/97)
Mohammad AH, Additional Attorney General, instructed by Sufia Khatun, Advocate-on-
Record………………. For the Appellant (In C. A. No. 98/97)/
Khondker Mahbubuddin Ahmed, Senior Advocate, (K.S. Nabi, Senior Advocate with
him) instructed by Mr, Aftab Hossain .Advocate-on-Record…….. For Respondent Nos. 1.6-11 (In C.A. No. 97/97).
Ataul Huq, Advocate-on-Record. ………….For Respondent No. 14.
Ex-part…………… Respondent Nos. 12, 13 & 15 .
Khondker Mahbubuddin Ahmed, Senior Advocate, K.s. Nabi, Senior Advocate, instructed by Aftab Hossain Advocate-on-Record……….. For respondent Nos. 6-11 (In
CA.No. 98/97).
Ataul Huq, Advocate-on-Record……………For Respondent No. 14.
Ex-parte…………… Respondent Nos. 1-5 12. 13 &15.
JUDGMENT
1. Md. Tafazzul Islam, J :- These two appeals by leave arise out of the judgment and
order dated 27.6.1996 passed by the High Court Division in Writ Petition No. 2465 of 1992 making the Rule absolute and directing the Ministry of Works. Government of
Bangladesh, to mutate the names of the respondents in place of late Md. Serajuddin .within 60 days from the date of receipt of the copy of the judgment, in the relevant records of rights of the Ministry of Works and all other records of the Government or wherever it is necessary in respect of the premises situated at 156 and 157 Motijheel commercial Area, Dhaka. The Government of Bangladesh represented by Ministry of Works is the appellant in Civil Appeal No. 97 of 1997 and Rupali Bank Ltd. is the appellant in Writ Petition No. 98 of 1997.
2. Late Md. Salahuddin, son of late Md. Serajuddin, filed the above Writ Petition No.
2465 of 1992 stating inter alia that after his father late Mr. Md. Serajuddin paid Tk. 1.14,
966.00, a dead of lease for 99 years was duly executed and registered on 26″1 of August,
1960 between late Md. Serajuddin and the Ministry of Works leasing the property situated at 156 and 157, Motijheel Commercial Area, Dhaka, comprising of 18 Kathas of land in his favour and then late Md. Serajuddin, with the permission of the Rajuk, constructed a big multi-storied commercial building thereon; late Md. Serajuddin died on 8.10.1976 leaving behind four sons two daughters and one wife and the said heirs had been possessing some portions of the above multi-storied building and the remaining portion were let out to different tenants; the above heirs of late Md. Serajuddin approached the Ministry of Works on several occasions for mutation of their names in place of their father late Md. Serajuddin and then in reply to their letter dated 28-07-87 requesting for mutating their names, the Ministry of Works by letter dated 2-8-87 directed the said heirs to submit certain papers and documents as mentioned in the above letter dated 2.8.87 for consideration of their request for mutation and then as directed, those papers and documents including the documents of title and all other connected
papers were submitted and being satisfied the Ministry of Works by letter dated 13.9.87
asked the aforesaid heirs to deposit a total sum of Tk. 77,87,876.00, the arrear premium which had fallen due against the above premises on 11.1.1988 the heirs deposited the entire amount of Tk. 77,87,876.00 and also submitted the succession certificate dated 16tn March, 1977 issued by the District Judge, Dhaka on 16.5.1977; after verification of the records, by report dated 28.01.88 Annexure H to the writ petition, Ministry of Works recommended to the relevant authority for mutation of the names of the heirs of late Md. Serajuddin immediately but the mutation has not yet been completed even thought the relevant authority went on giving hope.
3. During the pendency of the above writ petition late Md. Salauddin having died, his
heirs were substituted as petitioners in his place and subsequently the remaining heirs of late Md. Serajuddin were also made petitioners in the above writ petition.
4. No affidavit-in-opposition was filed in the above writ petition by the appellants but the
learned Assistant Attorney General appeared and made his submission. The High Court
Division, after hearing made the Rule absolute. Leave was granted in both Civil Appeal
Nos. 97 and 98 of 1997 on the following submissions : “The petitioner Rupali Bank Ltd. has inter alia, stated in leave petition that it is in fact and law the owner in possession
of the disputed property .It appeared and filed a power in the writ petition on 25.8.93 thought its Advocate and got a draft affidavit in opposition ready. The original writ
petitioner Md. Salauddin died a few days lat^r but there was no service of notice upon the Rupali Bank for substitution of the heirs of the deceased, writ petition had abated and so the affidavit -in-opposition was not filed and the Bank did not follow the case any
longer. On receipt of a notice from Mr. Kabir, learned Advocate of the writ petitions on 01.08.96 for payment of all arrear rents etc. the Bank upon enquiry came to know all about the matter.”
5. The petitioner Bank has further stated that the disputed premises originally belonged
to Md. Serajuddin who transferred his right , title and interest and possession of the same in favour of the Standared Bank Ltd. by a deed of conveyance dated 19.08.65 for a consideration of Tk. 25,00,000/- The standard Bank got delivery of possession and had been possessing the property to the knowledge of the public in general and the writ petitioners respondents in particular. The premises after transfer has been duly mutated in the name of its original owner the Standard Bank/ Rupali Bank and taxes and rates etc. are being paid in the name of the petitioner Bank, copies of a number of documents
including the sale deed dated 19-08-65 have been annexed to the leave petition in support
of the title and possession of the writ petitioner bank.
6. It has been stated that in the circumstances stated above the petitioner Bank could
not represent its case in the High Court Division and the Rule was made absolute causing
great miscarriage of justice. The impugned judgment and order have been obtained upon
practicing fraud on the court.
7. Dr. Rafiqur Rahman, learned counsel for the petitioner Bank, submits that after the
transfer by sale of the right, title and interest in the disputed premises by Md. Serajuddin, the owner therefore and the predecessor in interest of the writ petitioner, the prayer for mutation of their name as successors in interest of Md. Serajuddin had no legal basis and that they succeeded in obtaining the impugned judgment and order by practicing the impugned judgment and order by practicing fraud upon the court. He submits further that the writ petition was not exfacie maintainable for the relief sought.
8. The learned Additional Attorney General, appearing for the Government petitioner
, submits that the law officer who represented the Government in the High Court
Division was not posted with facts, the correct facts have now been brought to the notice on the basis of official records. The learned Additional Attorney General submits that the
writ petitioner respondent to are bound by the sale deed of their predecessor in interest late Md, Serajuddin and the said deed having been acted upon the respondents have no legal basis to pray for mutation of their names in respect of the disputed premises. The respondent were required to establish their title to the disputed premises before praying for a direction for mutation of their names and the writ jurisdiction was not the proper forms for deciding the question of title. Mutation could not be ordered without finding title with the writ petitioners and the High Court Division acted beyond its jurisdiction in allowing the prayer of the respondents.”
9. Mr. Mahmudul Islam, the learned counsel appearing for the appellant in Civil Appeal
No. 98 of 1997, submits that late Md. Serajuddin ,the predecessor of the respondents
and the lessee of the property in question, on receipt of Tk. 25,00,000/- from Standared
Bank transferred the title and possession of the property in question to Standard Bank by a deed of conveyance dated 19.8.1965 executed at Karachi and since then Standard Bank pos sessed the property in question; the appellant bank was constituted under by Bangladesh Banks Nationalization Order 1972 ( P. O. No. 26 of 1972 ) and in terms of Article 6 of the above Order the undertakings of Standard Bank, Commerce Bank and Australatia Bank situated in the then East Pakistan stood transferred to the appellant Bank as shown in column 2 of the schedule of the Above Order; in terms of Article 7 of the above Order the undertakings of the Standard Bank also meant all the asset of Standared Bank situated in the then East Pakistan including its property situated at 156-157 Motijheel Commercial Area, Dhaka the appellant bank including its predecessor Standard Bank has been in possession of the premises since 1965 to the knowledge of the public in general and also late Mr. Sirajuddin and the respondents in particular; the premises in question was duly mutated in the name of Standard Bank/Rupali Bank and Annexes N to
Z of the leave petition show that Dhaka Municipal Corporation asked the appellant
bank to pay taxes in terms of which municipal taxes were paid and the appellant bank paid rents act to Tahsil Office and also paid urban immovable property tax as well as income tax to the Income Tax Authorities; in terms the principle of promissory estoppels the respondents, being the successors-in-interest of late Md, Serajuddin ,are bound by the aforesaid deed of conveyance dated 19.08.65 which having been acted upon and the name of Standered Bank/Rupali Bank having been mutated the respondents has no locus stand to file the writ petition and suppressing the material facts and practicing fraud upon the Court the respondents got the Rule absolute causing great miscarriage of justice in terms of section 30 (2) Of the Registration Act. as it stood in the year 1965 the
aforesaid deed of conveyance dated 19.8.65 could be registered at any place with in then
Pakistan and further in terms of Section 28(2) of a Registration Act the validity of the registration of the above deed of conveyance regarding jurisdiction of the Sub-Registrar can not be challenged since the property in question stood transferred to Standard Bank on 19.8.1965 the claim of the respondents for mutation of their names has no legal basis and the respondents are at first required to establish their right title and interest over the property in question in a competent court of law before praying for direction for mutation of their names and writ court is not the proper forum for deciding such question of title and accordingly the High Court Division acted beyond its jurisdiction in making the Rule absolute.
10. Mr. A. J. Mohammed Ali, the learned Additional Attorney General appearing for the
appellant in civil Appeal No. 97 of 1997, has submitted that since the respondents did not at all approach the Assistant Commissioner (land) Dhaka or the Additional Deputy commissioner (Revenue) Dhaka or Commissioner Dhaka Division regarding mutation, the writ petition is not maintainable.
11. Mr. Khondker Mahbubuddin Ahmed, the learned counsel appearing for the respondents in both the appeals, submits that in the present case the original deed of conveyance alleged to have been executed on 19.08.1965 has not yet been produced and merely a copy of the certified copy, obtained as late as in the year 1993 from the Office of the Sub-Registrar, Karachi for the first time has been annexed with the leave petition as Annexure-L and further their being no explanation as to why the original deed of conveyance could not be filed, such certified copy is not admissible in evidence for
non compliance of the relevant provisions of the Evidence Act in this regard and further
Annexure-L is merely a deed of agreement; since in District Registration Office Dhaka
nothing has been recorded in respect of the deed of conveyance dated 19.8.1965 alleged to have been registered at Karachi and the appellant bank, though supposed to be in possession of premises in terms of the deed of conveyance, did not take any step for mutation of their names after 19.8.1965 and obtained the certified copy of the deed of conveyance only on 4.;8.1993 i.e after issuance of the Rule on 13.7.92, there is something fishy in the above deed of conveyance the balance money due against the lease having not been deposited before execution of the deed of conveyance dated 19.8.65 , the above deed of conveyance is ex-facie illegal the direction given by the Ministry of Works to the respondents to deposit Tk. 77,875/- invariably proves that in the recodes of right lying with the Ministry of Works late Md. Serajuddin still remained as lessee and a sum of Tk. 77,875 was due from him as arrear against the aforesaid premises other was the Ministry of Works by letter dated 13.9.87 would not have directed the respondents to deposit the balance arrear premium amounting to Tk. 77,875/- and also would not have given the report dated 28.1.88 recommending for mutation and thus the relation between the Government of Bangladesh and late Md. Serajuddin/respondents as lesser and lessee Still continues ; acceptance of Tk. 77,875/- against arrear premium amounts to mutation of the names of the respondents in respect of the property in question even if the respondents, as landlords, could not produce any paper showing receipt of rent from the appellant bank since 1972 the same will not establish the ownership of the appellant bank in the above premises enquiry as to whether the appellant bank acquired title to the premises in
question on the basis of alleged deed of conveyance dated 19.8.1965 cannot be done in
writ jurisdiction.
12. In reply Mr. Islam submitted that the original deed of conveyance dated 19.8.1965 is
lying with the Head Office of the Standard Bank at Karachi, Pakistan and since the same
may be required by the above bank in connection with their accounts in respect their undertakings situated in the then East Pakistan, the above Bank retained the original deed; the above deed of conveyance being out and out a sale the respondents can not at all take the plea of non payment of balance premium against the lease as the liability of payment of arrear premium if any, will go with the land on transfer and the authority concerned may always demand from he transferee and in case of default consequence
will follow. There was no bar for registration of the aforesaid deed of conveyance
dated 19.8.1965 at Karachi and at the relevant time there was no provision to the affect that if a deed of conveyance in respect of any property situated in the then East Pakistan is registered outside the territory of the then East Pakistan, copy of the same ought to have been sent to the District Registration Office Dhaka and that noncompliance there of would render such deed of conveyance void Ministry of Works issued the letter 13.9.87 and the report dated 28.1.1988 on the basis of the papers submitted by the respondents in terms of the latter dated 2.8.87 issued by the Ministry of Works and not on basis of the records lying with it.
13. As it appears leave was granted to consider, amongst others, the submission of the
learned counsel of the appellant to the effect that in the writ petition the appellant bank filed power on 25.08.1992 through its advocate and got a draft of affidavit in opposition ready and the original writ petitioner Md. Salahuddin died few days later but there being no substitution of his heirs with in time the writ petition had abated and so the affidavit-in-opposition was not filed and the appellant bank also did not follow the case any longer and it is only on receipt of the notice on 1.8.1996 issued by the learned Advocate of the respondents asking for payment of all arrears rent etc the appellant bank, upon inquiry, came to know all about the matter and also the submission that by a deed of conveyance
dated 19.08.65 late Md. Serajuddin the previous owner transferred the property in
question to standard Bank at a consideration of Tk. 25,00,000/- and the above bank after getting delivery of possession had been possessing the premises to the knowledge of public in general and the writ petitioners respondents in particular.
14. As it appears the copy of the certified copy of the above deed of conveyance dated
19.08.1965 has been annexed as Annexure-L to the leave petition and during hearing Mr.
Mahmudul Islam produced before us the certified copy and we perused the contents of the same. We are of the view that in terms of the leave granting order we may consider as to whether by the deed of conveyance dated 19.8.1965 the title of the property in question
was transferred to Standard Bank provided the certified copy of the same produced by the
appellant bank is otherwise admissible in evidence.
15. In terms of Sub-Section 6 of Section 76 of the Evidence Act the above deed of conveyance dated 19.8.1965 may be proved by producing the original, or by a copy there of certified by the legal keeper there of, with a certificate under the seal of a notary public or of Bangladesh Consul or diplomatic agent, that the copy has been duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country.
16. As it appears from the contents of Annexure L and the certified copy produced
before us, the application for the above certified copy was filed on 13. 07. 93 and the Sub-Register Central Record, Karachi certified the copy on 4.8.93 and the signature of the Sub-Register Central Record was attested by the Protocol Officer, Ministry of Foreign Affairs, Government of Pakistan camp office, Karachi as well as by Mr. Golam Mohammad, First Secretary, Office of the Deputy High Commission for Bangladesh at karachi, Further Section 79 of the Evidence Act provides that the Court Shall presume such certified copy as genuine.
17. Regarding registration of the above deed of conveyance dated 19.8.1965 at Karachi,
Sub-Section (2) of Section 30 of the Registration Act, as it stood on 19.8.65, provided
that notwithstanding anything contained in section 28 any Registrar may receive and register any document without regard to the situation in any part of Pakistan of the property to which the document relates if he is satisfied that there is sufficient cause for doing so.
18. Further sub-Section (2) of Section 28 of the Evidence Act provides that notwithstanding anything contained in sub-Section (1) after a document is registered, no party there to shall be entitled to question the validity of its registration on the ground that the property which purported to give jurisdiction to the Sub-Registrar to register it either did not exist or was fictitious or insignificant or was not intended to be conveyed.
19. Regarding Acquisition of the property in question by the appellant bank it papers that
Article 6 of P.O No. 26 of 1972 provides that the undertaking of Standard Bank situated in the then East Pakistan stood transferred to the appellant Bank as shown in column (2) of the Schedule of the above Order and in terms of Article -7 of the Above Order the under taking of the Standard Bank also meant all the assets of the Standard bank in the then East Pakistan including the property in question situated at 156/157 Motijheel Commercial Area. Dhaka.
20. The contents of above Annexure L and the certified copy produced before us at the
time of hearing shows that by the above deed of conveyance dated 19.8.1965 late Md.
Serajuddin, the predecessor in interest of the respondents, transferred the property in question to the Standard Bank on 19.08.65 and it is also not a deed of agreement as submitted by Mr. Ahmed, As stated earlier at the relevant time there was no bar to register the above deed of conveyance at Karachi and by the said deed the title of the premises in question stood transferred to the Standard Bank. It also appears that in terms of the provisions of Articles 6 and 7 of P. O. 26 of 1972, the appellant bank became
owner of the property of Standard Bank situated at 156-157 Motijheel commercial Area
Dhaka of the then East Pakistan.
21. We are of the view that the appellant bank had been able to prove the circumstances
under which they could not file the affidavit in opposition during hearing of the writ petition and as it appears the High Court Division in the absence of the copy of deed of conveyance dated 19.8.1965 made the Rule absolute mainly on the ground that late Md. Serajuddin got lease of the property in question for 99 years by deed of lease registered on 26.8.1960 and the succession certificate issued by the District Judge, Dhaka in 16.5.77 showed that the respondents were the heirs of Late Md. Serajuddin and accordingly after the death of Late Md. Serajuddin the respondents became the owners of the property in question and that Ministry of Works, the respondent No. 12 by report dated 28.1.1987 recommended the relevant authority to accord immediate mutation but even then
mutation was illegally Withheld and no affidavit in opposition was also filed by the
Ministry of Works denying the statements made in the writ petition and that the learned
Assistant attorney General, who appeared for the respondent No. 1, found it difficult to
oppose the Rule.
22. We are of the view that Annexure L to the leave Petition and the certified copy produces before us prima facie shows that late Md. Serajuddin having transferred his title and interest in the property in question to Standared Bank by deed of conveyance date 19.8.1965 the respondents at the time of filing the Writ Petition No. 2465 of 1992 had no title at all to the property in question and so the respondents, without title, was not entitled to pray for a writ of mandamus for directing the Ministry of Works to mutate their names in the records.
23. Mr. Ahmed by referring to letter dated 13. 9. 87 and report dated 28.1.88 submitted
that those invariably proved that in the records of the Ministry of Works late Md. Sirajuddin, remained as lessee otherwise the letter dated 13.9.87 directing the respondents to deposit the balance arrears rent amount to Tk. 77,875.00 would not have been issued and the Ministry of Works also would not have issued the report dated 28.l.88recommending the relevant department to mutate the names of the respondents,
whereas Mr. Islam referring to annexure-N to Z of the leave petition submitted that
against the property in question the appellant bank paid the municipal taxes, paid rents to
Tahsil office and also paid urban immovable property tax as well as income tax to Income Tax Department and that letter dated 13.8.87 and report dated 28.1.88 was issued on the basis of papers submitted by the respondents and not on the basis of records lying with it. However those have no relevancy in the background of the facts placed on record by the appellant Rupali Bank.
24. In any view of the matter since because of the acceptance of Annexure L to the leave
petition as additional evidence it sufficiently appears that late Md. Serajuddin transferred the property in question to standard Bank on 19.8.1965 and in terms of the provision of P.O. 26 of 1992 as the appellant bank is also the successor if interest of Standard Bank, we are of the view that the respondents were not legally competent as well as entitled to pray /seek for a direction upon the Minatory of Works for mutation of their names and accordingly the High Court Division acted beyond its jurisdiction in making the Rule absolute.
25. Accordingly the appeals are allowed with costs and the judgment and order dated
27.6.1996 passed by the High Court Division in making the Rule absolute and directing mutation of the names of the respondents are set aside.
Ed
Source: I ADC (2004), 337