Appellate Division Cases
(Civil)
PARTIES
Secretary, Rahmat- E-Alam Islam Mission & Etim Khana, No.l, Rail Gate, Tejgaon. Dhaka …………………… Petitioner, (in C.P. No.949of 2005)
Additional Deputy Commissioner. Dhaka ………..Petitioner. (in C.P. No.95l of 2005)
-Vs-
Md. Shafiqul Huq. being dead his heirs: Captain Salauddm & others…Respondents (in both the cases)
JUSTICES
Md. Ruhul Amin J
M.M. Ruhul Amin J
Md. Tafazzul Islam J
Judgment Dated: 31st August 2006
Munsur AH Mallik Vs. Nurul Haque Mallik BCR 1986 (AD) 56
The High Court Division held that there is nothing on record to indicate that any vested property case was started in respect of the suit land but from the evidence on record it was found that the Title Suit No.346 of 1977 was decreed expartc on 05.06.1980. The High Court Division held that this will be sometimes after 1980 as the exparte decree was passed on 05.06.1980 and the law on enemy property itself died with therepeal of Ordinance 1 of 1969 with effect from 23.03.1974 and no further vested property case could be started thereafter. Accordingly, the High Court Division held that the plaintiff having failed to prove that the S.A. recorded tenants left for India in 1965 and the suit land became enemy property, he has no locus standi to challenge the decree passed in Title Suit No.346 of 1977. The High Court Division further observed that P.W.I admitted that the summons of Title Suit No.346 of 1977 was served upon the Deputy Commissioner, Dhaka. There is no evidence of any fraud practised upon the party or upon the court in obtaining the decree in Title Suit No.346 of 1977. Non-inclusion of Additional Deputy Commissioner (Revenue) in charge of vested property is not a fraudulent act to turn down the earlier decree on the ground of fraud are rightly held by the lower appellate court that non-joinder of a party may not defeat the suit is all cases…………….. (6)
The High Court Division further held that non-inclusion of a party cannot be construed as a fraud ……………………(6)
Fazlul Haque, Advocate instructed by Md. Af’tab Ilossain, Advocate-on-Record…………… For the Petitioners (in both the cases)
Abdul Wadud Bhuixcm, Senior Advocate instructed by Md. Nawab AH, Advocateon-
Record …………………For Respondent Nos.1-10 (in both the cases)
For Respondent Nos.ll-31(in both the cases)…………….. Not represented.
Civil Petition For Leave To Appeal Nos.949 &951 of 2005
(From the judgment and order dated 23.02.2005 passed by the High Court Division in Civil Revision Nos.3992 & 2974 of 1999.)
JUDGMENT
M.M. Ruhul Amin J: These two petitions for leave to appeal arc directed against the
common judgment and order dated 23.02.2005 passed by a Single Bench of the Hieh Court Division in Civil Revision Nos.3992 & 2974 of 1999 discharging both the Rules.
2. Short facts are that the plaintiff instituted Title Suit No.66 of 1991 in the Court of the Subordinate Judge (now Joint District Judge), Additional Court. Dhaka for declaration that the judemcnl and decree dated 05.06.1980 passed in Title Suit No.346 of 1977 by the 1st Court of Subordinate Judgc(now Joint District Judge). Dhaka is illegal, void and not
binding upon the plaintiff stating, inter alia, that the suit land originally belonged to Priaya Nath Basak. Nagendra Nath Basak. Bhupendra Nath Basak and Digcndra Nath Basak who were owners of the suit land to the extent of 4 annas share each and their names were correctly recorded in the S.A. Khatian and that during 1965 war between India and Pakistan the aforesaid S.A. recorded owners left the country for India and the suit land was declared and treated as enemy property (now vested property) . The suit land was leased out to one Abdul Batcn in L.P.Case No.210 of 1967 and subsequently lease was granted to Rahmat-H-Alam Islam Mission who also paid lease money up
1 385 B.S. The further allegation is that the defendant obtained an expartc decree in
Title Suit No.346 of 1977 on 06.05.1980 declaring that the suit land is not vested
and non-resident property and it was their purchased land from Rathindra Nath Basak who was the adopted son of Dcbendra Nath Basak by resistered kabala dated 21.07.1977. ‘ The Deputy Commissioner. Dhaka was implcaded as a party in the said suit land but the Assistant Custodian of the vested and non-resident property was not implcaded in the suit as a party in Title Suit No.346 of 1977 and thus expartc decree dated 05.06.1980 is
illegal, void and not binding upon the plaintiff.
3. The defendant No.l contested the suit by filing a written statement contending, inter alia, that the suit land originally belonged to Dcbendra Nath Basak. Lai Mohan Basak and Promotha Nath Basak and by an amicable partition, the suit land fell in the saham of Dcbendra Nath Basak. one of the sons of Modon Mohan Basak who got 4 annas share in the suit land. Debcndra Nath Basak died issuclcss leaving behind only a widow who adopted a son named Rathindra Nath Basak and the suit land was recorded in the name of
Rathindra Nath Basak on mutation in the S.A. Khatian and the defendants purchased the suit land from Rathindra Nath Basak by two separate registered kabaias on 21.07.1977 and got their names mutated in the Khatian. The defendant was compelled to file.Title Suit No.346 of 1977 against the present plaintiff and others. The summons was duly served upon the plaintiff and others but none appeared to contest the suit and the suit was ultimately decreed expartc on 05.06.1980. The defendants then filed an application for correction of the S.A. record before the Circle Officcr(Revenue) on the basis of the decree passed in Title Suit No.346 of 1977 and when the matter was placed before the Circle Officer he refused the proposal for correction on the ground that the suit land was declared vested and nonvested property. It was further alleged that the suit land was leased out to one Monir Hossain and others and subsequently to defendant No. 12 who was put in possession in respect of 13.70 acres of land and has been possessing the same. The further allegation is that the defendant Nos.l-U of Title Suit No.346 of 1977 obtained an exparte decree though they were not owners of the suit land. It was further alleged
that adoption Rathindra Nath Basak was illegal and invalid.
4. The trial court decreed the suit in favour of the plaintiff. The defendants then preferred
Title Suit No.357 of 1992. The appellate court allowed the appeal and dismissed the plaintiffs suit. Being aggrieved thereby the plaintiff being the Additional Deputy Commissioner (Revenue) in charge of the vested and non-resident property, Dhaka moved the High Court Division in rcvisional jurisdiction and obtained the Rules. The defendant No. 12, Secretary, Rahmat-H-Alam Islam Mission and Htimkhana as petitioner has obtained another Rule being Civil Revision No.2974 of 1999. Since both the Rules
arising out of self-same judgment of the appellate court, were heard together and disposed of by the impugned judgment. The High Court Division upon hearing the
parties discharging the Rules as noticed earlier.
5. We have heard Mr. Fazlul Haque, the learned Advocate for the petitioner in both the cases and Mr. Abdul Wadud Bhuiyan, the learned Counsel for respondent Nos.l10 in both the cases and perused the judgment of the High Court Division and other connected papers.
6. The Hiah Court Division held that there is nothing on record to indicate that any vested property case was started in respect of the suit land but from the evidence on record it was found that the Title Suit No. 346 of 1977 was decreed exparte on 05.06.1980. The High Court Division held that this will be sometimes after 1980 as the exparte decree was passed on 05.06.1980 and the law on enemy property itself died with the repeal of Ordinance ] of 1969 with effect from 23.03.1974 and no further vested property case could be started thereafter. Accordingly, the High Court Division held that the plaintiff having failed to prove that the S.A. recorded tenants left for India in 1965 and the suit
land became enemy property, he has no locus standi to challenge the decree passed in Title Suit No.346 of 1977. The High Court Division further observed that RW.l admitted that the summons of Title Suit No.346 of 1977 was served upon the Deputy Commissioner. Dhaka. There is no evidence of any fraud practised upon the party or upon the court in obtaining the decree in Title Suit No.346 of 1977. Noninclusion of Additional Deputy Commissioner (Revenue) in charge of vested property is not a fraudulent act to turn down the earlier decree on the ground of fraud arc rightly held by the lower appellate court that non-joinder of a party may not defeat the suit is all cases. The High Court Division further held, “I have examined the documentary evidence and
the oral evidence but I could not find out any materials indicating that any fraud was practiced upon the party or the court in obtaining the decree in Title Suit No.346 of 1977. The learned Advocate for the petitioners could not point out any evidence indicating fraud committed by the plaintiffs of the earlier suit in obtaining the earlier exparte decree. I do not therefore, find any error ol’ law committed by the lower appellate court in dismissing the plaintiffs suit. The trial court made a totally wrong approach to the pleading of the parties and the evidence on record.” The High Court Division further held that noninclusion of a party cannot be construed as a fraud.
7. The learned Advocate for the petitioner submits that the Additional Deputy Cominissioncr(Revcnuc), Dhaka who was in charge of vested and non-resident property
was no! a party in Title Suit No.346 of 1977 and as such the decree is not binding
on him. Therefore, the decree is liable to be set aside. In this connection it may be stated that since the petitioner was not party to the decree, the same is not automatically binding on him. A void decree need to be avoided by a decree of a competent court but a voidable decree need be avoided by a decree of the court of competent jurisdiction. Therefore no suit is maintainable at the instance of such a party for declaration that the decree passed in such a suit is not binding on him.
8. In the case of Munsur Ali Mallik Vs. Md. Nurul Haque Mallik and others reported in BCR 1986(AD)56 the plaintiff challenged the decree obtained in Title Suit No.69 of 1961 by one Lakshman Chandra Dhupi, predecessor of the defendant. In the suit, the”plaintiff was not a party. In the second appeal, the High Court Division considered the submission
exhaustively and it was noticed that in the suit of Lakshman Chandra Dhupi, the plaintiff, was not a party. Hence the suit for declaration that the decree passed in Title Suit No.69 of 1961 at the instance of Lakshman Chandra Dhupi could not be entertained. In this view of the matter, the appeal was dismissed.
9. In the facts and circumstances of the case and in view of the discussions made above, we are of the view that the High Court Division upon correct assessment of the materials on record arrived at a correct decision. There is no cogent reason to interfere with the impugned judgment.
10. Both the civil petitions accordingly are
dismissed.
Source : V ADC (2008),569