Assistant Horticulturist Vs. M. A. Sattar Bhuiyan and others, 2018(1) LNJ 305

Case No: Civil Revision No. 314 of 2005

Judge: Soumendra Sarker, J.

Court: High Court Division,

Advocate: Mr. Surojit Bhattacharjee, Advocate, Mr. Md. Abdul Hai, D. A. G.,

Citation: 2018(1) LNJ 305

Case Year: 2017

Appellant: Assistant Horticulturist

Respondent: M. A. Sattar Bhuiyan being dead his heirs: 1(a) Aleya Begum and others

Subject: Specific Relief Act, Evidence Act & Code of Civil Procedure

Delivery Date: 2018-06-04

Commission (UGC). However, if the University Authorities are unable to obtain the required approval from UGC and accommodate them in the current academic session, the aforesaid 71 students shall have the right to be admitted to the Islamic University under F Unit in the next academic year i.e. 2017-2018. In that event, the University Authorities will only publish notice and take admission test in F Unit for the remaining 29 seats only in the next academic year. However, should any of the 71 students decline to take admission in the University in the following academic year, the University Authority will be at liberty to fill up those seats from amongst the new applicants.

66.         Furthermore, we direct the University Authority to carry out a thorough investigation into the matter and identify the persons involved with the leakage of question papers and take severe punitive action against each of them.

67.         Let it be made very clear that if any of the students, including any of the petitioners, are found guilty of being involved with the incident in question, the University Authority shall be at liberty to proceed against them in accordance with law and impose the severest punishment under the law, if necessary.

68.         There will be no order as to cost.

69.         The office is directed to communicate the order.

Ed.

 

 

 

 

 

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Soumendra Sarker, J.

 

Judgment on

12.12.2017

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Assistant Horticulturist

. . . Defendant-Appellant- Petitioner

-Versus-

M. A. Sattar Bhuiyan being dead his heirs: 1(a) Aleya Begum and others

. . . Plaintiff-Respondent- Opposite Parties

Specific Relief Act (I of 1877)

Section 54

The relevant law of perpetual injunction as provided in section 54 of the Specific Relief Act, 1877 contemplates that in appropriate cases the court is empowered to pass a decree of perpetual injunction to prevent the breach of an obligation existing in favor of the applicant, whether expressly or by implication and the court shall be guided by the rules and provisions contained in chapter-II of this Act. Where it is proved that the applicant has prima-facie title and exclusive possession over the land- in – dispute, in that case only, a decree can be awarded. The paramount consideration in a suit for permanent injunction is whether the plaintiff has been successful in proving his exclusive possession. Question of title may be looked into incidentally but decision of title in such a suit is not a guiding principle for holding that the suit is not maintainable without a partition suit. It is a decided matter that, if the dispute involves complicated question of title, the plaintiff must establish his title by filing a regular suit for declaration of title. A simple suit for permanent injunction should not be allowed to be used as a testing device for ascertainment of title. In this case the plaintiff assails the presumption of the Khatian; a kind of exercise the court in a simple suit for permanent injunction should ordinarily avoid.  . . . (10, 11 and 32)

Evidence Act (I of 1872)

Section 114 (e and g)

It is apparent from the face of the records that the documents/papers produced at present from the side of the petitioners are all coming from official custody. With regard to this, I may not be out of place to advert that under section 114 (e) of the Evidence Act, 1872 it is presumed that the official acts as it appears, have been regularly performed and the court may presume the existence of such documents/ papers as submitted from the side of the government in support of their contention and that’s why these papers are accepted. Accordingly, under the ambit of 114(g) of the Evidence Act, 1872 it is a legal presumption that had they been examined, they would not have supported the case of the plaintiff and as a result of that they have been withheld.            . . .(12 and 28)

Code of Civil Procedure (V of 1908)

Section 115

The reasoning of both the trial court as well as the appellate court during disposal of the original suit and its subsequent appeal are apparently ill founded and the courts below committed gross illegality in evaluating the oral and documentary evidences in its true perspective and also there has been non-consideration of material facts resulting in an error in the decision occasioning failure of justice in disposal of the original suit and its subsequent appeal, causing sufficient merit in this revisional application. Accordingly, I find support in the submission advanced from the side of the learned Attorney General and the Deputy Attorney General.        . . . (33)

Jobayer Hossain and others Vs. Noor Hafez and another,  56 DLR (AD) 22; 3 DLR 337; PLD 949 Privy Council 31; 28 DLR 99; 10 DLR 447; 25 DLR 398; 22 DLR 431; 16 DLR 224; 30 DLR (AD) 81; 31 DLR 405; 50 DLR 116; 2 BLC (AD) 85 and Rafizuddin Ahmed Vs. Mongla Barman and others, 43 DLR (AD) 215 ref.

Mr. Surojit Bhattacharjee, Advocate with

Mr. Mohammad Nurul Huda Ansary, Advocate

. . . For the petitioners.

Mr. Mustafa Kamal Pasha, Advocate

… … For the opposite party No. 01.

Mr. Md. Abdul Hai, D. A. G. with

Mr. Md. Shahidul Islam Khan, A. A. G.

. . .For the Government

JUDGMENT

Soumendra Sarker, J. The Rule issued calling upon the Opposite Party No. 1 to show cause as to why the judgment and decree dated 08.08.2004 passed by the learned Additional District Judge, 5th Court, Dhaka in Title Appeal No.571 of 2001 in affirming the judgment and decree dated 17.10.2001 passed by the learned Joint District Judge, 2nd Court, Dhaka in Title Suit No.218 of 1991 decreeing the suit should not be set aside and/or pass such other order or further order or orders as to this Court may seem fit and proper.

2.            The facts leading to the issuance of the Rule in a nutshell can be stated thus, the predecessor-in-interest of the present petitioners No. 1(a)-1(f) one M.A. Sattar Bhuiyan as plaintiff instituted the original Title Suit being No. 218 of 1991 in the 2nd Court of the learned Joint District Judge, Dhaka for perpetual injunction restraining the defendants from disturbing the plaintiff in owning and possessing the suit land and also from evicting the plaintiff therefrom, contending inter alia, that the suit land along with other lands originally belonged to one Kadam Mia, Kuran Mia, Nur Khatun, Abdul Malek, Asia Khatun and Amode Ali. One Mazaharul Hoque and others purchased the said land from them by a registered sub-kabala in the year 1965. Thereafter, Mazaharul Hoque and others mutated their names, and obtained separate khatian and used to possess the suit property by payment of rent to the government sheresta regularly. The R.S. khatian was accordingly prepared in the name of Mazaharul Hoque and others. The further case of the plaintiffs is such that Mazaharul Hoque and others for demarcation of their purchased land filed an application before the then Circle Officer (Rev), Savar on the basis of which a demarcation Case being No.21/1981-82 was started and upon field measurement the applicants got their purchased land demarcated with specific boundaries. Thereafter, Mazaharul Hoque and others transferred 3.51 acres of land by several transferred deeds in favour of the plaintiff and the number of transfer deeds were thirteen of the year 1990 and since then the plaintiff has possessed the suit property. After purchase, the plaintiff mutated his name in respect of his purchased land and paid rent regularly. The plaintiff has been possessing the suit property by plantation of various trees and growing crops therefrom. While the plaintiff had been owning and possessing the suit property peacefully, the defendant No.1 to the original suit demanded bribe from the plaintiff on different pretext and being refused, the defendant No.1 threatened the plaintiff with the help of some riotous people. On 25.06.1991 the defendant No.1 along with some terrorist resisted the work of the plaintiff’s people on the suit property and they damaged some tree and tried to evict the plaintiff from the said land which constrained the plaintiff to institute the original suit for permanent injunction.

3.            The contrary case of the defendant-petitioner and others who contested the suit by filing written statement in short is thus that the case of the plaintiff is false, fabricated and mala fide. The further case of the defendants is such that the plaintiff knowing fully well that the suit property is an abandoned property since 1971 prayed before the Ministry of Agriculture for release of the said property from the list of abandoned property. The Ministry of Agriculture after consultation with the connected papers rejected the prayer of the plaintiff. Subsequently, the local Tahshilder in collusion with the plaintiff illegally released the suit property from the list of abandoned property. The plaintiff also by some illegal influence and exercising undue pressure obtained mutation in respect of the suit property and while it has come to the notice of the government, the government’s concerned high official cancelled the mutation order and a proceedings was started in the Anti-corruption Department against that Tahshilder and related Circle Officer. The further case of the defendants in a nutshell is such that the suit property is originally belonged to non-Bengali people who after the independence of Bangladesh left this country for Pakistan leaving the suit property along with their other lands measuring an area of 14.27 acres and accordingly the suit land along with other lands of the aforesaid non-Bengali people has been declared abandoned property and have been enlisted as abandoned property. In the said suit property a project of ‘mushroom’ cultivation has been started and some hybrid fruit plants also have been planted thereon; by the concerned government machinery and besides this; a high quality training course have been going on there to train up the workers of the government and non-government nursery. One and half crores taka has been invested in the said project. The further case of the government is such that one Anisur Rahman Saju in collusion with some officials of revenue department tried to grab 2.65 acres of land out of 14.27 acres of land and for that reason a case under Anti-corruption Department has been started against that person, in which charge-sheet has already been submitted which is pending for disposal. That the plaintiff along with 250 others armed persons on 25.06.1991 tried to possess the suit property forcibly which is ‘Sobhanbag Uddyan Base’, but failed at the resistance of the local people and police force. A police case being Savar Police Station Case No.21 dated 25.06.1991 has been started on that incident. That the plaintiff has got no right, title, interest and possession in the suit land, rather; the defendants have been owning and possessing the suit property for the last 24 years.

4.            During trial of the original suit the learned trial court after taking evidence from the sides of the respective parties decreed the suit on contest by the judgment and order dated 17.10.2001. Being aggrieved the defendant No.2 i.e. the present petitioner preferred a Title Appeal being No. 571 of 2001 in the court of learned District Judge, Dhaka which was transmitted to the 5th Court of learned Additional District Judge, Dhaka for hearing and disposal and the learned appellate court by the impugned judgment and decree dated 08.08.2004 disallowed the appeal and affirmed the judgment and decree passed by the trial court.

5.            Being aggrieved by and dissatisfied with the impugned judgment and decree the defendant-appellant-petitioner has preferred this revisional application under section 115(1) of the Code of Civil Procedure and obtained the Rule with an interim order of stay.

6.            During hearing of this Rule Mr. Mahbubey Alam, the learned Attorney General with Mr. Md. Abdul Hai, the learned Deputy Attorney General appeared on behalf of the petitioner while Mr. Mustafizur Rahman the learned Advocate appeared on behalf of the opposite parties.

7.            The learned Attorney General appearing on behalf of the defendant-appellant-petitioner submits that the learned trial court as well as the appellate court during disposal of the original suit and its subsequent appeal committed gross illegality and irregularity. The learned Attorney General further submits that the judgment and decree passed by the learned courts below is perverse in the eye of law, which is based on misreading and non-reading of evidence and non-consideration of material facts resulting in an error in the decision occasioning failure of justice. The learned Deputy Attorney General (herein after DAG) in his submission submits that the trial court as well as the appellate court were totally misconceived in ignoring that the disputed property is out and out an abandoned property and the government by operation of law has been enlisted the property as abandoned in the year 1972 when the original owners who were     non-Bengali people in origin/nationality migrated to Pakistan leaving behind this country, the People’s Republic of Bangladesh after its independence. The learned DAG also submits that the papers produced from the side of the plaintiffs are collusive, forged and were not acted upon and that the learned courts below failed to appreciate the actual proposition of law and factual aspects of the case and there has been total non-consideration of material facts resulting in an error in the decision occasioning failure of justice. That the suit properties is under exclusive possession and control of the government and the government by the concerned Agriculture Department is owning and possessing the suit property which is commonly known as “Sobhan Bagh Horticulture Base”. The learned DAG after producing some official documents through supplementary affidavit submits that some important information supported by official papers which are very much essential for disposal of the matter, has been dropped out at the time of filing of the civil revision, which is unintentional and beyond the knowledge of the concerned persons who placed the matter in favour of the petitioners. The learned DAG with regard to this argued that, for proper adjudication into the matter-in-dispute and for ends of justice; all these papers and official documents are very much necessary for consideration of this Court to arrive at a correct decision as to the matter of adjudication between the parties. With regard to this, the learned DAG argued that the property-in-dispute is absolutely an abandoned property and admitting that fact the plaintiff applied before the Secretary concerned of the government for releasing the suit property from the abandoned property’s list on 12.11.1990 which has already been exhibited as Exhibit-‘Gha’ as per Abandoned Property Case No.02 of 1972 and concerned file which has been lying with the Anti-corruption Department in connection with Kotwali Police Station Case No.6(3)87 and that was earlier ceased and the defendant’s witness No.1 in his deposition has mentioned about this. The photocopy of that document (official) was not considered by the trial court, and the same has been kept with the record. The learned DAG argued that after promulgation of the President’s Order No.16/1972, the suit property has been vested in the government under the Abandoned Property (land building and any other property) Rules, 1972 vide Notification dated 08.05.1972 and after that, the concerned Sub-divisional Officer, Sadar (North), Dhaka by his office Memo No.2404(4) Rev/73 dated 19.05.1973 issued a letter to the Circle Officer (Rev), Savar, Dhaka for handing over charge of the abandoned property of Sobhan Bagh Horticulture Nursery at Savar. The photocopy of the aforesaid memo has been annexed with the supplementary affidavit filed on behalf of the petitioner marked as Annexure-‘A’. The learned DAG also submits that the concerned Circle Officer (Rev), Savar by his office Memo No.823/2 dated 30.05.1973 issued a letter to the Sub-divisional Officer, Sadar, (North), Dhaka regarding handing over the possession of “Sobhan Bagh Horticulture Nursery, Savar and its photocopy has been marked as Annexure-‘B’, and earlier to that, the District Agricultural Officer vide his office Memo No.912/1(5) dated 11.04.1973 issued a letter to the Deputy Commissioner, Dhaka for handing over the charge of Sobhan Bagh Horticulture Nursery and the Circle Officer (Rev), Savar also issued a letter to the Deputy Commissioner vide his office Memo No.409/1(6)-SA dated 19.04.1973 for handing over the possession of Sobhan Bagh Horticulture Nursery of Savar and the Photostat copy of the aforesaid letters are marked herewith as Annexure-‘C’ and ‘C-1’. Another letter relating to the handing over of possession issued by the Circle Officer (Rev), Savar vide Memo No. 696/1(3)-SA dated 16.05.1973 in favour of Sub-Divisional Officer, Sadar (north), Dhaka is also annexed with the supplementary affidavit marked as Annexure-‘D’. The learned DAG during his submission also submits that the all papers relating to mutations of the plaintiff including the DCR and other rent receipts in favour of the plaintiff-opposite party has been cancelled by the concerned authority viz. A.C.(land) Savar vide his office Memo No.86 dated 19.02.1998 and there is no record yet has been prepared in favour of the plaintiff and the earlier office order vide Memo No. 86 dated 19.02.1998 is in force till today vide Annexure-‘E’ and during the present settlement  operation the connected B.S. record of the disputed land has been prepared in the name of the government and that record is still in existence. The leaned DAG further submits that, all these papers go to show that the government is possessing the disputed property and the copies of the connected B.S. khatians are annexed with the supplementary affidavit marked as Annexure-‘F’ series and the suit property was duly handed over by the connected Tahsildar, Bagdunia Tahshil Office, Savar preparing the lists of articles in favour of the agriculture department, Ministry of Agriculture and the lists of articles are also annexed with the supplementary affidavit marked as Annexure-‘G’ series and in this way the government is possessing the suit property through Agriculture Department as abandoned property and the Agriculture Department paid the lease money to the government by taking the DCR. The photocopies of the DCRs showing payment of lease money has been marked as Annexure-‘H’ series. The learned DAG also submits that the vendors of the plaintiff-opposite party were not the Bangladeshi nationals and as such they had no legal right to enter into any agreement, sale or execution of a document of transfer in favour of the plaintiff or his predecessor-vendors. The list of abandoned property has been marked as Annexure-‘I’.The learned DAG argued that the vendors of the deeds in favour of the plaintiff, since were not Bangladeshi citizens, their whereabouts are not known after the war of liberation in the year 1971, and after independence of Bangladesh their names are not included in the voter lists. In support of the aforesaid contention the learned DAG has pointed out the voter lists of the year 1976 which is marked as Annexure-‘J’. The learned DAG lastly submits that, all these papers which are purely official makes it clear that the title documents in favour of the plaintiff as alleged are all created spurious papers which have got no legal effect or force to substantiate the prima-facie title and possession of the plaintiff and the so called clearance certificate issued by the Sub-divisional Officer, Sadar, Dhaka in favour of the plaintiff is also a created spurious paper which is forged and not acted upon, inasmuch as; at the relevant time under the government of Bangladesh there was no such officer/office in the name of Sub-divisional Officer, Sadar, Dhaka. The learned Deputy Attorney General with regard to this, has drawn my attention during his submission that under the District of Dhaka, from the official documents it is apparent that the office of the concerned S.D.O. was designated in the name of S.D.O., Sadar (North), Dhaka and in support of this; the learned DAG produce some corresponding letters and documents of the concerned office which has been marked as Annexure-‘K’. In support of the contention given by the learned DAG, he has cited some decisions of our Apex Court and the learned Attorney General with regard to the respective contention of the government and the grounds of the revisional application in his submission specifically argued that the suit as instituted by the plaintiff was not at all maintainable under the purview of section 54 of the Specific Relief Act, 1877 since the plaintiff to the suit during trial has hopelessly failed to discharge his onus in proving that he has prima-facie title and exclusive possession in the disputed property, but the learned courts below totally overlooked the said legal aspect of the case and thereby committed gross illegality in deciding the merit of the suit as well as the appeal, which deserve interference of this Court. The learned Attorney General further submits that the papers produced from the custody of the government inasmuch as; are all official documents; these have a presumption of correctness under the ambit of section 114(e) of the Evidence Act, 1872 and the papers which has been submitted along with the supplementary affidavit requires consideration of this Court under the ambit of law as this Court is quite empowered to look into these papers which has falsified the pleading’s case of the plaintiff and has enable the court to arrive at a correct decision. The leaned Attorney General Mr. Alom in this regard, has referred some decisions of our Apex Court and lastly submits that the learned trial court as well as the appellate court during passing the judgment and decree since committed gross illegality and not evaluated the evidence on records in its true  perspective and not considered the material facts, causing an error in the decision occasioning failure of justice, the impugned judgment and decree is not sustainable in the eye of law and as such the Rule has got every merit to succeed.

8.            As against the foresaid submission of the learned Attorney General and the learned Deputy Attorney General in support of the case of the government, the learned Advocate appearing on behalf of the opposite parties opposing the Rule submits that, both the trial court as well as the appellate court during disposal of the original suit and its subsequent appeal committed no illegality or infirmity, rather; in deciding the fate of the plaintiff’s case the courts below rightly assessed the evidence on record and also considered the factual aspects of the case. The learned Advocate after submitting a counter affidavit on behalf of the opposite parties further submits that the plaintiff to the suit has successfully proved his case by adducing sufficient evidence that in the suit property the plaintiff have prima-facie title and exclusive possession, but the defendants having no manner of right, title, interest and possession therein, illegally threatened the possession of the plaintiff. The learned Advocate also submits that the courts below in their observation and findings rightly arrived at a decision that the property-in-dispute is not an abandoned property or the defendants have no authentic paper to substantiate their claim that the property is abandoned property, and scrutinizing the documentary as well as oral evidence, both the trial and appellate court below concurrently found that the present opposite parties have title and exclusive possession in the suit land and accordingly decreed the suit and dismissed the appeal, both on contest, respectively. It is submitted by the learned counsel of the opposite parties that the suit property has never been included in the list of abandoned property or published in any official gazette and the petitioners as defendants could never produce any such document to support their claim and that the concerned authority did not serve any notice as per the requirement under Article 7 of the President’s Order (P.O.) No. 16 of 1972 and never took possession of the suit land, which also depicts from the cross-examination of the Defendant’s witnesses but the case of the plaintiff that the vendors of the plaintiff purchased the suit property from the S.A. recorded tenants Madan Mia, Kadam Mia and others (Exhibit-7 series) and accordingly they got delivery of possession, and their names were mutated and they paid rent, is proved and that the plaintiff could prove that the vendors of the plaintiff were the owners of the suit land in whose names  R.S. Khatian No.10 and 104 Exibit-7(gha) and 7(umo) were prepared and that they never left this country for Pakistan and they got the suit land demarcated vide ‘p£j¡e¡ ¢edÑ¡lZ£ ®LCp ew- 21/1981-82’ (Exhibit-5), filed in the office of the Revenue Officer, Savar, Dhaka and the Sub Divisional Officer, Dacca Sadar, Dacca vide Memo No. 39 V.P. Dated 11.01.1982 in reference to A.P. Clearance Case No. 1/82 (Savar) Issued a Clearance Certificate for mutation of name (Exhibit-8) and that the suit property had not been enlisted or leased out as abandoned property. The leaned Advocate lastly submits that the plaintiff by 13 Kabala Deeds purchased the suit property in 1990 from the R.S. recorded tenants and accordingly got delivery of possession and also got his name mutated and paid rents (Exhibit-3 series) and when the Defendant No.1, an officer attached to the Government Sobhanbag Horticulture Centre, Savar tried to extort some illegal gains dishonestly from the plaintiff and when the plaintiff refused to be blackmailed, he started creating impediments and hurdles in the way of the plaintiff’s possession in the suit property by using the name of the office and that of the Government and ultimately, the plaintiff initially filed a criminal case followed by the instant Civil Suit in which both the courts below held that the cancellation of the mutation in the name if the plaintiff was illegal and during trial all the plaintiff’s witnesses corroborated the plaintiff’s possession in the suit land, whereas; the case of the defendants as made out in their written statement was proved to be contradictory to the depositions of their witnesses. The learned Advocate submits that the witnesses adduced from the side of the plaintiff during trial of the original suit successfully proved the case of the plaintiff that the plaintiff has title and interest including possession over the disputed property and all the witnesses are competent, trustworthy and reliable, and as such courts below rightly relied upon the testimonies of the witnesses as examined from the side of the plaintiff and on the contrary, the witnesses adduced from the side of the defendants to substantiate their case, were totally failed to falsify the case of the plaintiff and prove the case of them (defendants), which is considered rightly by the learned trial court as well as the appellate court and there is no illegality or infirmity including misreading or non-reading of evidence or non-consideration of the material facts resulting in an error in the decision occasioning failure of justice by which the impugned judgment and decree can be interfered with. The learned Advocate in support of his contention has referred some decisions of our Apex Court and in his concluding argument submits that the concurrent findings and decisions of both the courts below since not based on any illegality or infirmity, there is no reason to discharge the Rule.

9.            Considering the submissions of the learned Advocates, having gone through the connected documents including the judgment and decree passed by the trial court as well as the appellate court and the connected official papers produced from the side of the petitioners annexed with their supplementary affidavit and the documentary evidences adduced from the sides of both the parties, it transpires that in the original suit, the plaintiff under the ambit of section 54 of the Specific Relief Act, 1877 prayed for getting a decree of perpetual injunction for restraining the defendants permanently from entering into the disputed property.

10.        The relevant law of perpetual injunction as provided in section 54 of the Specific Relief Act, 1877 contemplates that in appropriate case the court is empowered to pass a decree of perpetual injunction to prevent the breach of an obligation existing in favour of the applicant, whether expressly or by implication and the court shall be guided by the rules and provisions contained in Chapter-II of this Act. Where it is proved that the applicant has prima-facie title and exclusive possession over the land-in-dispute, in that case only, a decree can be awarded.

11.        The paramount consideration in a suit for permanent injunction is whether the plaintiff has been successful in proving his exclusive possession. Question of title may be looked into incidentally but decision of title in such a suit is not a guiding principle for holding that the suit is not maintainable without a partition suit. In a suit for permanent injunction the court need not enter into a question on disputed title except to the extent that it would help the court in finding which of the parties have prima-facie title and exclusive possession [Ref. Jobayer Hossain and others –vs.- Noor Hafez and another, 56 DLR (AD) 22.] In the instant case as I have come-across that the parties to the suit in order to enable the court to find out the prima facie title and exclusive possession have adduced witnesses in support of their pleadings.

12.        In this case; it is apparent from the face of the records that the documents/papers produced at present from the side of the petitioners are all coming from official custody. With regard to this, I may not be out of place to advert that under section 114(e) of the Evidence Act, 1872 it is presumed that the official acts as it appears, have been regularly performed and the court may presume the existence of such documents/papers as submitted from the side of the government in support of their contention and that’s why these papers are accepted. The court also presumes the existence of the facts which is supported by these official papers and it is likely to have happened, under the ambit of the relevant provision of law as cited from the side of the learned Deputy Attorney General. [Ref. 3 DLR 337; PLD949 Privy Council 31; and 28 DLR 99]. Hence, I find that the official acts supported by the series of papers which have been marked as annexures, definitely have got a presumptive value of its correctness. The papers produced from the side of the petitioners go to show that the plaintiff’s mutation including up-to-date payment of rents is no more in existence, in respect of the disputed property. The present khatian also stands recorded in the name of the government.

13.        On meticulous consideration of the evidence on records, I find that both the parties to the suit in order to establish their pleading’s case have adduced witnesses. Among them, P.W.1 is the plaintiff himself M.A. Sattar Bhuiyan. This witness in his testimony tried to depose in support of his pleading. At a stage of his deposition he has frankly conceded that on the basis of thirteen sub-kabala deeds he has acquired title and interest in the disputed property. The plaintiff has failed to state the C.S. khatian number of the disputed land and also failed specify the boundaries of the disputed property in his deposition. It is the contention of the plaintiff in his testimony that his property (suit land) is being managed by his caretaker, who use to reside therein in a dwelling hut, but in the plaint; there is no mention about the existence of dwelling hut of his caretaker. As to the cause of action of the suit, on perusal of the plaint I find that, it is also not mentioned in the plaint that in what date and time the defendant No. 2 and 3 threatened the plaintiff or his caretaker to dispossess from the disputed property. P.W.1 has admitted at a state of his testimony that his mutation has been cancelled by the authority and he filed an appeal before the Divisional Commissioner. The plaintiff as P.W.1 also testified that he does not know as to whether the Anticorruption Department has started a case against the concerned Circle Officer (Rev) and Tahashilder. In a reply to a question from the side of the defendants P.W.1, the plaintiff admits at a stage of his testimony that he could not file any rent receipt showing his payment of rent for the disputed property after the year 1990 AD.

14.        P.W.2 is Nesar Ahmed Koreshi, who is one of the vendors of the plaintiff. This witness in his testimony testified that he executed a sub-kabala deed on 28.08.1990 being No. 11205 in favour of the plaintiff which has been marked as Exhibit-1().

15.        During cross-examination P.W.2 testified that, he is a ‘non-Bengali’ by birth. P.W.2 has failed to state the name of his deed writer. During cross-examination P.W.2 also admits that the power of attorney on the basis of which he has executed the kabala deed [Ext.1()] has not been produced by him. This witness further admits that, on behalf of the vendors on behalf of whom he has executed the deed are mostly ‘non-Bengali’ people.

16.        P.W.3 Md. Nurul Islam is a possession witness of the plaintiff. This witness in his examination-in-chief testifies that the plaintiff do possess the disputed property and he knows the suit land. In the year 1967-68 he has seen that the owner of the land Nesar Ahmed, Mazharul Hoque and Mahmudul Hoque visited the disputed property and they possessed the same, but 2/1 years after liberation of Bangladesh he (P.W.3) did not find Nesar Ahmed and others. This witness also testified that, he is a family planning inspector and he does not know as to why the plaintiff instituted the suit and he has heard that, as the caretaker of the plaintiff was taken by the police, the plaintiff instituted the suit. As to the boundaries of the suit land this witness testified that, to the eastern side of the suit land one Mohobbot Ali and one police surgeon possess and besides them one Moktar Kazi and Abdur Rashid use to reside in the boundaries of the disputed property.

17.        P.W.4 is Md. Siraj Uddin, who is another a possession witness of the plaintiff, in his testimony testified that, previously the suit land was possessed by Nesar Ahmed and others and at present in the suit land there is a dwelling hut and the remaining land is vacant and in that dwelling hut, the plaintiff’s caretaker use to reside.

18.        During cross-examination P.W.4 testified at a stage that he is a businessman and a man of Kishoreganj. He resides in the land of former witness Nurul Islam(P.W.3). During cross-examination in a reply to a question from the side of the defendants, P.W.4 testified at a stage that he cannot say the name of mouza, khatian number and plot number of the suit property.

19.        P.W.5 Md. Mazaharul Hoque is one of the vendors of the plaintiff. This witness in his testimony testified that in the year 1965, they (31 in numbers) purchased the suit property and on 24.04.1990 he transferred his portion of land in favour of the plaintiff.

20.        During cross-examination of P.W.5, this witness admits that he is ‘non-Bengali’ by birth and he does not know anything about the cause of action of the suit.

21.        P.W.6 Md. Abu Bakar, who is one of the owners of the suit land as alleged from the side of the plaintiff, testified that he gave power of attorney in favour of one Imtiaz Ahmed to transfer the suit land and that Imtiaz Ahmed on his (P.W.6) behalf, executed a deed of the transfer in favour of the plaintiff which has been marked as Exhibit-1(Jha) by the trial court.

22.        During cross-examination P.W.6 admits at a stage that he did not file the power of attorney and he was not present at the time of registration of the deed and all the relevant acts of transfer were done by his attorney Imtiaz Ahmed. This witness also testified in his testimony that Imtiaz Ahmed is alive.

23.        The last witness of the plaintiff is P.W.7 Haji Zahurul Islam, who has claimed himself another possession witness of the plaintiff. This P.W.7 in his deposition at a stage testified that he knows the plaintiff and the suit land. This witness also testified in his testimony that from 1969 to 1990 AD, the suit property was possessed by the ‘non-Bengali people’ and from 1990 the plaintiff Abdus Sattar use to look after the suit property. During cross-examination this witness with regard to the identity of the suit land testified that he cannot say the khatian number of the suit property and also cannot say about the cause of action of the suit and against whom the plaintiff instituted the suit.

24.        Vis-à-vis; in support of the pleading’s case of the defendants, they have examined two witnesses.

25.        D.W.1 is Saleh Ahmed, who is Upazila Agriculture Officer, Savar. This witness in his deposition testified that the original owners of the suit properties ware one Haji Abdus Sobhan and his relatives, who during the war of liberation left this country for Pakistan and accordingly under P.O. 16 of 1972 the suit property has become abandoned property. This witness in his testimony testified about the abandoned property case No.02 of 1972 and with regard to the papers relating to the taking over and making over possession of the suit property by dint of several official correspondence followed by series of papers. This witness also testified in his testimony that the plaintiff to the suit has got no title, interest and possession in the suit property and the collusive demarcation, mutation, payment of rent which were in favour of the plaintiff, has been cancelled by the appropriate authority of the government. D.W.1 in his examination-in-chief corroborates the case of the government and proves the papers filed, which has been marked as Exhibits.

26.        During cross-examination from the side of the plaintiff this witness testified at a stage that, there is a list of abandoned properties in their concern office and in that list, the name of Hajee Abdus Sobhan is enlisted and beside Hajee Abdus Sobhan; the names of his other ‘non-Bengali’ relatives has been included in the aforesaid papers and in these papers; the suit property has been shown as abandoned property.

27.        D.W.2 Saiful Islam Patwary is an official witness of the defendants who is the defendant No.2 of the suit. The defendant No.02 in his testimony testified with regard to their pleading’s case. At a stage of his deposition he testified that, beside the official documents he has no personal knowledge about the case. This witness states that the suit land is situated to the north-east corner of their office and in the suit property there is ‘mushroom’ cultivation and plantation is going on.

28.        Evaluating the testimonies of the witnesses along with other evidence led from the sides of the respective parties it transpires that, the Plaintiff’s witnesses who were examined from the side of the plaintiff are not independent, disinterested, and credible and none of the boundary men, as stated by the witness No.3 of the plaintiff, is examined to corroborate the pleading’s case of the plaintiff as to his possession in the suit property. Apart from this, neither the four persons whose names is transpired from the deposition of P.W.3 nor the so-called caretaker of the plaintiff who allegedly reside in the dwelling hut of the suit property and who was allegedly taken away by the Police men has not been examined from the side of the plaintiff to substantiate his possession in the suit property, and cause of action of the suit. Accordingly, under the ambit of 114(g) of the Evidence Act, 1872 it is a legal presumption that had they been examined, they would not have supported the case of the plaintiff and as a result of that they have been withheld. [Ref. 10 DLR 447; 25 DLR 398; 22 DLR 431; 16 DLR 224; 30 DLR(AD)81; 31 DLR 405; 50 DLR 116 and 2 BLC(AD)85].

29.        With regard to the nature and character of the suit consulting the Bangladesh abandoned property (Land building and any other property) Rules, 1972 which is P.O. No.16 of 1972 it is noticed that this provision of law contemplates that the land including agricultural, horticultural and non-agricultural land and land which is covered with water at any time of the year, and including benefits to arise out of such land lies under the definition of abandoned property, but not including any land connected with commercial or industrial undertaking or any land referred to in item (1)of the Rules.

30.        With regard to the control, management and disposal of the abandoned property.-

(1)   The Deputy Commissioner or the Sub-divisional Magistrate shall manage the property taken possession under Article 7.

(2)   Till the expiry of the time for filing the applications under Article 15, and when such application has been till the disposal of such application and when any appeal has been filed under clause (1) of Article 16, till the disposal of such appeal, the lands and buildings shall be managed by leasing them out on a basis for a period not exceeding one year at a time, on such terms and conditions and in such manner as the Government may from time to time direct. Thereafter, such lands shall be managed in accordance with the rules and orders applicable to Government khas lands and the buildings, if they are not required for any public purpose or in public interest shall be sold to the highest bidder in open auction, the lands underneath being leased out on long term basis according to rules applicable to Government khas lands.

(3)   A temporary lessee under sub-rule (2) of any abandoned land or building shall not acquire any right or occupancy in such land or building and shall not be entitled to hold over after the expiry of the lease.

(4)   If any abandoned land or building taken possession of under Article 7 by the Deputy Commissioner or the Sub-divisional Magistrate is subsequently released as a result of any order passed under Article 15 or clause (1) of Article 16, the release shall be subject to any lease granted under sub-rule (2).

(5)   Any other property shall, under intimation to the Ministry of land Administration and Land Reforms about the details of the property, be kept in safe custody by the Deputy Commissioner or the Sub-Divisional Magistrate and further instructions be sought from the said Ministry about their disposal or preservation, as the case may be.

                                i.            Provided that, if any such other property consists of perishable commodities, such commodities shall be sold to the highest bidder in open auction.

(6)   During the period of temporary management, all receipts from lands, buildings and any other property shall be credited to a personal ledger account to be opened in the name of the Deputy Commissioner and all expenditure for the control, management and disposal of such property shall be met from such account.

31.        Having regard to the cited laws, decisions of our Apex Court, facts, circumstances and the discussions referred to above, I am constrained to hold such a view that it is apparent in the instant suit of perpetual injunction that the plaintiff is not in a position to get any relief as sought for.

32.        It is a decided matter that, if the dispute involves complicated questions of title, the plaintiff must establish his title by filing a regular suit for declaration of title. A simple suit for permanent injunction should not be allowed to be used as a testing device for ascertainment of title. In this case the plaintiff assails the presumption of the Khatian, a kind of exercise the Court in a simple suit for permanent injunction should ordinarily avoid. [Ref. Rafizuddin Ahmed –vs.- Mongla Barman and others. 43 DLR(AD)215]. Apart from this, going through the evidence on records and the papers produced from the side of the government which have got a presumptive value of correctness it reveals that the case of the plaintiff with regard to the prima facie title and possession is not proved by any tangible, cogent and credible evidence, rather; the Plaintiff’s witnesses contradicted the case of the plaintiff obviously in their testimonies and the Plaintiff’s witnesses No. 02, 05, and 06 practically has admitted the case of the government.

33.        In the foregoing narrative, I have every reason to inclined such a view that, the reasoning of both the trial court as well as the appellate court during disposal of the original suit and its subsequent appeal are apparently ill founded and the courts below committed gross illegality in evaluating the oral and documentary evidences in its true perspective and also there has been non-consideration of material facts resulting in an error in the decision occasioning failure of justice in disposal of the original suit and its subsequent appeal, causing sufficient merit in this revisional application. Accordingly, I find support in the submission advanced from the side of the learned Attorney General and the Deputy Attorney General.

34.        In the result, the Rule is made absolute. The impugned judgment and decree dated 08.08.2004 passed by the learned Additional District Judge, 5th Court, Dhaka in Title Appeal No.571 of 2001 in affirming the judgment and decree dated 17.10.2001 passed by the learned Joint District Judge, 2nd Court, Dhaka in Title Suit No.218 of 1991 is hereby set aside, and the original suit be dismissed on contest.

35.        Let the order of stay granted earlier at the time of issuance of the Rule stands vacated.

36.        Consequently; the Civil Rule No. 794(R) of 2009 and 795(R) of 2009 be disposed of.

37.        However, there will be no order as to costs.

38.        Send down the Lower Court’s Records immediately and communicate the judgment and order at once.

         Ed.  



Civil Revision No. 314 of 2005 with C. Rule No. 794(R) of 2009 with C. Rule No. 795(R) of 2009