Most. Mobashera Khatun & others Vs. First Court of Settlement, Dhaka & others 2017 (1) LNJ 80

Case No: Writ Petition No. 2931 of 2004

Judge: Muhammad Khurshid Alam Sarkar. J.

Court: High Court Division,

Advocate: Muhammad Jamiruddin Sarkar , Md. Khurshedul ALam,

Citation: 2017 (1) LNJ 80

Case Year: 2016

Appellant: Most. Mobashera Khatun & others

Respondent: First Court of Settlement, Dhaka & others

Subject: Writ Jurisdiction

Delivery Date: 2017-02-20

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Md. Rezaul Haque, J

And

Muhammad Khurshid Alam Sarkar, J

Judgment on

14.01.2016

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Most. Mobashera Khatun & others

. . . Petitioner

-VERSUS-

First Court of Settlement, Dhaka & others

. . . Respondents.

Constitution of Bangladesh, 1972

Article 102

A petitioner who invokes Article 102 of the Constitution must come before this Court in clean hands—In a proper and fit case, this Court has always endeavoured to protect the right of a citizen, who comes up with clean hands and appears to be bonafide in his approach. Whenever any citizen approaches this Court as a bonafide-petitioner, this Court has never ignored its duty to protect the citizen’s fundamental or statutory right; rather unhesitatingly has upheld and safeguarded the citizen’s right without emphasizing on the technical issues.         . . . (19)

Code of Criminal Procedure (V of 1898)

Sections 195 and 476

Duties of the Court of Settlement when forgery is detected—Given the propensity of the unscrupulous litigants in filing cases before the Court of Settlement by resorting to forged documents, all the Courts of Settlement are directed that they shall initiate criminal proceeding upon observing the formalities set out in Section 476 read with Section 195 of the CrPC, whenever in course of a trial of a case they would come to a finding that any paper/document produced before them appears to be forged.         . . . (24)

Mr. Jamiruddin Sircar, Senior Advocate with

Mr. Md. Masudul Haque, Advocate,

. . . For the petitioners

Mr. Md. Khurshedul Alam, DAG

Mrs. Nusrat Jahan, AAG

Ms. Nasrin Parvin, AAG

. . . For the respondents

JUDGMENT

Muhammad Khurshid Alam Sarkar, J:

This Rule was issued calling upon the respondents to show cause as to why the judgment and order dated 25.10.2003 (Annexure-N) passed by the First Court of Settlement, Dhaka in the Case No. 43/94 (Kha 147/Sutrapur, Dhaka) should not be declared to have been passed without any lawful authority and is of no legal effect and why they should not be directed to exclude the property in question from the “Kha” list of the abandoned buildings or such other or further order or orders passed as to this Court may seem fit and proper. 

2.            Succinctly, the facts of the case, as stated in the writ petition, are that the petitioner no. 1 and her husband (shortly, the petitioners) purchased the case land vide two registered deeds being nos. 23969 and 23970 dated 03.07.1978 from one Mr. Rowshan Jamil who had bought the same from one Ramanath Das vide registered deed no.1302 dated 17.02.1951. Since purchasing the case land, the petitioners were living therein with their other family members peacefully without encountering any difficulties from any corner, including the respondents. Eventually, when the case land was included in the list of the abandoned buildings in the year 1985, the petitioners filed Court of Settlement Case no. 43/94 before the First Court of Settlement, Dhaka, which was dismissed by the said Court of Settlement vide its judgment and order dated 07.09.1995. Then the petitioners challenged the said order dated 07.09.95 by way of filing the Writ Petition no. 2348 of 1995 and this Court upon hearing both the sides directed the Court of Settlement to rehear the case and, accordingly, the Court of Settlement heard the case again and dismissed the case vide its judgment and order dated 25.10.2003. Against the said judgment and order dated 25.10.2003, the petitioner moved before this Court and hence this Rule.

3.            Mr. Jamir Uddin Sircar, the learned Senior Advocate appearing for the petitioners, takes us through the registered deed of purchase no. 1302 dated 17.02.1951 by which Mr. Rowshan Jamil (hereinafter referred to as the ‘Vendor of the Petitioners’) had purchased the case land from Ramanath Das and submits that this deed is the source of title of the petitioners and the same has not been disputed by the respondents. Then, Mr. Sircar refers to the registered deed nos. 23969 and 23970 both dated 03.07.78 and submits that these are the original registered deeds by which the petitioners have purchased the case land from Mr. Rowshan Jamil. He forcefully argues that since the vendor’s deed as well as the petitioners’ deeds, both, are original, the Court of Settlement ought to have taken a positive view in favour of the petitioners’ rightful title and possession of the case land. Thereafter, the learned Advocate for the petitioners refers to the mutation papers recorded in the name of the petitioners after purchasing the case land, the rent receipts from 1978 to 2000 issued by Sutrapur Tahashil Office, SA Porcha in the name of the petitioners, the Municipal Tax receipts of the year 1973-1974 in the name of Mr. Rowshan Jamil and submits that all these papers corroborate the claim of the petitioners that they have purchased the case land from Rowshan Jamil and they have been enjoying the case land since 1978 and, according to him, inclusion of the case land in the year 1985 has been done whimsically, arbitrarily and, thus, without any lawful authority. 

4.            In an effort to establish the claim of Rowshan Jamil’s presence in Bangladesh during the liberation war of 1971 and his continuous stay in Bangladesh till the date of registering the deed nos. 23969 and 23970 on 03.07.1978, he refers to the Municipal Tax paid by Rowshan Jamil in the years 1973 and 1974, the voter list of 07.12.1976, wherein Rowshan Jamil’s name appears at serial no. 156, international passports of Rowshan Jamil bearing no. E- 720744 issued by the Government of Bangladesh on 29.11.1984 and another one on 12.07.1986 bearing no. F-328845, the registered General Power of Attorney executed in favour of Rowshan Jamil by one Jamila Khatun to conduct Title Suit no. 951 of 1983 and Rowshan Jamil’s deposition made on 29.06.1989 before the learned Additional Subordinate Judge, 1st Court, Dhaka in the said Title Suit no. 951 of 1983 and canvasses that the above documents amply demonstrate the fact that Rowshan Jamil was present in Bangladesh at the time of Liberation War and lived here permanently up to the date of selling these case lands.

5.            In a bid to controvert the findings and observations made by the Court of Settlement in the impugned judgment, he submits that all the findings are based on mere presumption and surmise and, therefore, the above findings being perverse are liable to be struck down by this Court. To substantiate his above argument he submits that P.W.1 Md. Shamsher Ali being the son of the purchaser late Md. Munsur Ali deposed before the Court of Settlement and, therefore, according to him, the findings of the Court of Settlement that none of the witnesses of the disputed deed nos. 23969 and 23970 dated 03.07.1978 came forward in support of the deeds is not tenable. With regard to the findings of the Court of Settlement that there is inconsistency in the signatures of Rowshan Jamil which were put on her passport and deed nos. 23969 and 23970 dated 03.07.1978, Mr. Sircar submits that apparently there is no dissimilarities in the signatures used by Rowshan Jamil on his passport and on the two disputed deeds concerning the case land if those are compared by naked eyes. With regard to the Settlement Court’s findings that there is difference in the name of Rowshan Jamil spelt in the passport (Rowshan Jamil, son of late Fazal Uddin) and the name of Rowshan Jamil written in the deed no. 1302 dated 17.02.1951 as Rowshan Jamil, son of late Fazal Uddin Khan, Mr. Sircar points out that these are trifling mistakes which usually happen in our society in using the name at the time of writing in different documents. With regard to the discrepancies found by the Court of Settlement in Rowshan Jamil’s father’s name in the disputed land, Mr. Sircar argues that this discrepancy is also an insignificant mistake which ought to have been ignored by the Court of Settlement. As to the discrepancies of the age of Rowshan Jamil found by the Court of Settlement, Mr. Sircar submits that in our society mentioning of anybody’s age in official documents, such as academic certificates or passport, is always different from that of the original age. As per Mr. Sircar, these are common mistakes which are incapable of overriding the claim of the petitioners’ rightful title over the case lands. 

6.            Mr. Sircar, the learned Advocate for the petitioners, then, humbly submits before this Court that evidently the petitioners have been enjoying the case land since their purchase in the year 1978 and the findings of the Court of Settlement simply on the basis of some discrepancies of documents and non-matching the signatures of the vendor cannot put the balance of convenience in favour of respondents in the backdrop of the fact that the petitioners have produced the original deed of vendors dated 17.02.1951. Then, he submits that right to property is a precious right of a citizen which should be protected by this Court upon considering the papers and documents annexed to the writ petition and other materials available in the Lower Court’s Record (L.C.R). In support of the learned Advocate for the petitioners’ submissions, he refers to the cases of Bangladesh and another Vs Mrs Shirely Anny Ansari 20 BLD (AD)284, Bangladesh Vs Amela Khatoon and others 53 DLR(AD) 55 and Serajul Huq and others  Vs Bangladesh and others 61 DLR(AD) 88.

7.            By making the above submissions, the learned Advocate for the petitioners prays for making the Rule absolute.      

8.            Per contra, Mrs Nasrin Parvin, the learned Assistant Attorney General appearing for the respondents, takes us through all the annexures to the writ petition for the second time, in particular the deed nos. 23969 and 23970 dated 03.07.1978 and two passports of Rowshan Jamil, and submits that the Court of Settlement has rightly found out the dissimilarities of the signatures of Rowshan Jamil put in the said disputed two deeds and in these two passports. By referring to annexure-L, which is the deposition of Rowshan Jamil made before the learned Subordinate Judge, 1st Court, Dhaka in Title Suit no. 951 of 1983, the learned Assistant Attorney General points out the falsity of the claim as to the age of Rowshan Jamil inasmuch as he claimed to be 57 years old at the time of giving his deposition on 29.06.1989, whereas the passport shows his date of birth to be 26.11.1936. Thus, she argues, if the passport’s date of birth is to be taken to be the genuine date of birth of Mr. Rowshan Jamil, his age becomes 53 years on the date of making deposition on 29.06.1989, whereas when he was making his deposition before the Court of Subordinate Judge he mentioned his date of birth to be 57 years. Then, the learned Assistant Attorney General, by referring to the deed no. 1302 on 17.02.1951, argues that if the date of birth as mentioned in the passports is to be believed, then Rowshan Jamil was only 16 years of age at the time of purchase of the case land in the year 195. She argues that all the above facts strongly suggest that the executor of the deed nos. 23969 and 23970 dated 03.07.1978 is clearly a different person than the person who purchased the case land on 17.02.1951 vide deed no. 1302 from Ramanath Das. Thereafter, the learned Assistant Attorney General refers to the address of Rowshan Jamil stated in the various papers, namely annexures-E, G, J and L, and submits that the different addresses have been used at different times which shows that the person, from whom the petitioners claimed to have purchased the case land, is a fake person.

9.            By making the above submissions, the learned Assistant Attorney General prays for discharging the Rule with exemplary costs.

10.        We have heard the learned Advocate for the petitioners, the learned Assistant Attorney General, perused the writ petition as well as the affidavit-in-opposition together with their annexures and the Lower Court’s Record (LCR). We have also read the relevant laws and decisions placed before us.

11.        The only issue to be adjudicated upon by this Court is whether the Court of Settlement fell in error in adjudication upon the application filed by the petitioners with a prayer for releasing their claimed property from the list of the abandoned buildings. To put it in other way round, the tasks that have been devolved upon this Court is to see whether the Court of Settlement has passed its judgment and order in accordance with law.

12.        This Court sitting in the writ jurisdiction exercises the power under Article 102 Article of the Constitution. Article 102(2)(a)(ii) of the Constitution empowers this Court to look into the legality of any order, action, decision taken by any person performing functions in connection with the affairs of the Republic or Local Authority. The impugned judgment has been passed by the Court of Settlement and the said Court comes within the terminology of ‘person’ defined in Article 102(5) of the Constitution. Therefore, this judgment and order is amenable under the writ jurisdiction as engraved in Article 102(2)(a)(ii) of the Constitution, which is quoted below:

(2) The High Court Division may, if satisfied that no other equally efficacious remedy is provided by law-

(a) on the application of any person aggrieved, make an order-

(ii)        declaring that any act done or proceeding taken by a person performing functions in connection with the affairs of the Republic or of a local authority, has been done or taken without lawful authority and is of no legal effect; or 

(5) In this article, unless the content otherwise requires, “person” includes a statutory public authority and any court or tribunal, other than a court or tribunal established under a law relating to the defence services of Bangladesh or any disciplined force or a tribunal to which article 117 applies. (underlined by us)

13.        From a plain reading of the above provision of the Constitution, it appears that this Court is empowered to examine the legality of the order passed by the Court of Settlement. In other words, whether the Court of Settlement has adjudicated upon the case applying the provisions of the relevant statute namely P.O. no. 16 of 1972, the Abandoned Buildings (Supplementary Provisions) Ordinance 1985 and the Rules made thereunder.

14.        Upon a close scrutiny of the impugned judgment and order, it appears to us that the application was filed by these petitioners in the year 1986 and, eventually, in the year 1994 the matter was taken up for hearing and after allowing adjournments on several occasions by the Court of Settlement on the prayer of the petitioners or due to their absence, when the petitioners were not appearing in the Court of Settlement for giving deposition, on 07.09.1995 the case was dismissed upon discussing the facts and circumstances of the case and examining the documents filed by the petitioners. However, when the petitioners took up the matter to the High Court Division challenging the legality of the said impugned judgment and order, the case was remanded to the Court of Settlement for enabling the petitioner to adduce further evidence in support of their case. Since remanding the case on 10.04.2000, the petitioners, as appears from the Lower Court’s Record, were dillydallying the disposal of the case by seeking adjournments one after another and when the Court asked the petitioners to produce their witness by giving last chance, the present writ petitioner no. 2, who is the son of the claimed purchaser of the case land vide registered deed nos. 23969 & 23970 dated 03.07.1978, appeared before the Court of Settlement and gave his deposition. Thereafter, the Court of Settlement upon examining all the papers produced by the petitioners and discussing the deposition made by the P.W.1 delivered the impugned judgment and order.

15.        Upon a minute reading through the impugned judgment and order, we find that there is hardly any scope and obligation for this Court to interfere with the findings of the facts arrived at by the Court of Settlement inasmuch as all the pertinent issues of this case have been meticulously looked into and thoroughly examined by the Court of Settlement. All the aspects of the genuineness of the two deeds in question, bearing deed nos. 23969 and 23970 dated 03.07.1978, have vigorously been dealt with by the Court of Settlement. While it was the duty of the petitioners to establish the authenticity of the deeds in question by producing the credible witnesses such as the vendor, the witnesses to the deed and the scribe, they failed to do so and, under the circumstance, the Court of Settlement made appropriate observations as to the aspect of absence of the relevant witnesses to substantiate the claimed purchase of the property by the petitioners. Although, P.W.1 Md. Shamsher Ali claimed that he is the witness to the said deeds, upon minute scrutiny of the said purchase deeds we find that he is not a witness to the aforesaid two deeds. More so, from a thorough examination of the papers available in the Lower Court’s Record it reveals that before passing the impugned judgment and order dated 07.09.1995 by the Court of Settlement, although the petitioners did not appear either in person or through their lawyers to make oral submission before the Court of Settlement, they submitted a written argument before the Court of Settlement. In the said written argument, it has been stated that Rowshan Jamil is still alive and he resides in Dhaka but due to his serious illness he could not appear before this Court to make his deposition. The said written argument also states that Rowshan Jamil, who owns some other property in Dhaka City, is engaged in some other businesses. The same claim has been made in the application filed by the petitioners for releasing the case land from the list of abandoned property (annexure-A). The paragraph T of the said list goes to state that:

“Se¡h lJne S¡¢jm ®jp¡pÑ EX ¢Lw g¡¢eÑp¡pÑ e¡­j Y¡L¡u ®ÖV¢Xu¡j j¡­LÑ­V Hhw HÉ¡¢mgÉ¡¾V ®l¡XÖq p¡Ce¡ mÉ¡h­lV¢ll ¢hfl£­a EJ²  ¢Lw e¡­j c¤¢V ®c¡L¡­el j¡¢mL ¢R­me Hhw haÑj¡­e J EJ² Öq¡­e ¢eE n¢fw ®p¾V¡­l ¢Lwp gÉ¡nep e¡­j HL¢V ®c¡L¡­el j¡¢mL b¡¢Lu¡ hÉ¡hp¡ f¢lQ¡me¡ L¢l­a­Rez ¢a¢e Y¡L¡­a h¡wm¡­cn ¢nÒf hÉ¡w­Ll pq¡ua¡u ®jp¡pÑ ¢Lwp N¡­jѾVp Cä¡Ö¢VÊS Öq¡fe L¢lu¡ CpL¡Ve ®l¡­X hÉ¡hp¡ f¢lQ¡me¡ L¢l­a­Rez”       

16.        As per the above claim of the petitioners, at the time of filing the written argument in the year 1995, Rowshan Jamil was present in Dhaka City and was carrying on his several businesses. Given the fact that the fundamental issue of the petitioners’ case was to establish the authenticity of the registered deed nos. 23969 and 23970 dated 03.07.1978 claimed to have been executed by Rowshan Jamil, it was incumbent upon the petitioners either to produce Rowshan Jamil before the Court of Settlement or to take his deposition on commission. By not doing so, the petitioners have failed to prove that Rowshan Jamil of the deed no. 1302 dated 17.02.1951 is the same person who sold the case land to them. In the light of the fact that the deed no. 1302 dated 17.02.1951 shows Rowshan Jamil as a resident of Peshwar, it was the duty of the petitioners to establish that Rowshan Jamil being a Urdu speaking Pakistani national has opted to become a Bangladeshi citizen and, in support thereof, the petitioners were required to submit plausible evidences.

17.        Therefore, we find that the Court of Settlement upon assiduously discussing all the issues has rightly come to the following conclusion ÔÔmvwe©K ch©v‡jvPbvq Avg‡`i wbKU BnvB cÖZxqgvb nq †h, bwjkx m¤úwˇZ `iLv¯—Kvixc¶ A‰ea `LjKvi Ges gyj `iLv¯—KvixØq bvgxq 03.07.78 Bs Zvwi‡L h_vµ‡g 23969 I 23970 bs `wjjØq m„Rb Kiv nBqv‡QÕÕ, meaning that the claimed deeds of purchase from Rowshan Jamil bearing deed nos. 23969 & 23970 dated 03.071978, which were produced before the Court of Settlement and has also been presented before this Court, are forged. In our way of scrutiny, we also find that the person in the name of Rowshan Jamil, who has been shown to have executed the two deeds in question bearing nos. 23969 & 23970 dated 03.07.1978, is a fictitious person and in a desperate attempt of grabbing the property the petitioner no. 1 and her deceased husband forged the deeds in question. Therefore, the Court of Settlement ought to have taken necessary steps under Section 476 of the Code of Criminal Procedure (CrPC) for initiating criminal proceeding against them. However, since the matter of committing forgery has been detected by this Court, we are of the view that in the interest of justice it is necessary to initiate a proceeding in compliance with the provisions of Section 476 read with 195C of the CrPC against the petitioners under the appropriate Section/s of the Penal Code. No Court, be it the Court of first stance or the superior Court; meaning the trial Court or the appellate Court or the High Court Division exercising original/special jurisdiction, should shrug off its duty to follow and apply the provisions of Sections 476 read with Section 195 of the CrPC if the Court finds that an offence under the relevant Sections of the Penal Code, which are mentioned in Section 195 of the CrPC, appears to have been committed. The scheme of incorporation of these provisions in the procedural law is to prevent and stop recurrence of using forged documents in the Court and the said purpose would be defeated if the Courts do not apply it in the cases where a finding of forgery or any other offence mentioned in Section 195 of the CrPC is made.

18.        We have read through the cases referred to by the learned Advocate for the petitioners and it appears to us that the facts of the cited cases are different from the facts of the present case and, thus, the ratio of the same are not applicable in this case. In AMELA KHATOON’s case (53 DLR, AD, 55), the petitioner succeeded on the point that the property was enlisted in the ‘Kha’ list without issuing a notice under Section 5(1)(b) of the Abandoned Buildings (Supplementary Provisions) Ordinance, 1985 and also the deed was found to be genuine. In SHIRELY ANNY ANSARI’s case (20 BLD, AD, 284), the petitioner did not succeed to get back her property. The learned Advocate for the petitioner, however, sought to rely on the following observations made in the said case; “When competent authority has certified that the deed has been duly registered the court of settlement cannot question the registration. Whether the executant has signed the volume or not is the concern of the registering authority and not of the court of settlement.” But in this case, the registering authority has not issued a separate letter confirming that the deeds are genuine. In SERAJUL HUQ’s case (61 DLR, AD, 88), there were plausible evidence in corroboration of the claim that the vendor was present in Bangladesh, for, he was drawing his pension regularly after the liberation war was over.

19.        In a proper and fit case, this Court has always endeavoured to protect the right of a citizen, who comes up with clean hands and appears to be bonafide in his approach. Whenever any citizen approaches this Court as a bonafide-petitioner, this Court has never ignored its duty to protect the citizen’s fundamental or statutory right; rather unhesitatingly has upheld and safeguarded the citizen’s right without emphasizing on the technical issues. 

20.        However, in the case at hand, it appears to us that the person named Rowshan Jamil is evidently a person from Peshwar and he lived in this part of the then Pakistan i.e. Dhaka only temporarily. The person with the name of Rowshan Jamil from whom these petitioners claimed to have purchased the case land, in our opinion, is completely a different person, for, while the former’s father’s name is Fazal Uddin Khan, the latter’s father name is Fazal Uddin. It is abundantly clear from the papers and documents available in the Lower Court’s Record (LCR) and the papers annexed to the writ petition that the petitioners’ vendor with the name of Rowshan Jamil, son of Fazal Uddin is clearly a different person who was living in Dhaka as per the claim of these writ petitioners. If this Rowshan Jamil is the person who had purchased the land on 17.02.1951, he would have certainly been present in the Court of Settlement or, at least, his deposition on commission would have been taken to succeed in the case.  

21.        This Court in exercising its power under Article 102(2)(a)(i) and (ii) of the Constitution can review the judgment and order passed by the Court of Settlement only to see as to whether the Court of Settlement has adjudicated upon the case in consonance with the provisions of law or whether the findings and reasonings are proper or whether it has exceeded its jurisdiction to try a case. A finding of fact is not reviewable unless the same is perverse.

22.        In this case, upon a minute examination of the facts of the case and scrutinizing the annexed papers, we find that the Court of Settlement has dealt with the case in accordance with the provisions of the relevant laws of the land and, also, all the findings of facts appear to us to be proper and sound and, thus, we do not see any reason for interfering with the impugned judgment and order passed by the Court of Settlement.

23.        In the result, the Rule is discharged with a cost of Taka 1 (one) lac to be paid by the petitioners in the national exchequer by way of submitting Treasury Challan within 30 (thirty) days. The order of stay granted at the time of issuance of the Rule is hereby vacated.

24.        After discharging this Rule in the above manner, we feel it pertinent to make the following directions;

(1)   Given the propensity of the unscrupulous litigants in filing cases before the Court of Settlement by resorting to forged documents, all the Courts of Settlement are directed that they shall initiate criminal proceeding upon observing the formalities set out in Section 476 read with Section 195 of the CrPC, whenever in course of a trial of a case they would come to a finding that any paper/document produced before them appears to be forged.

(2)    The Registrar General of the Supreme Court of Bangladesh is directed to file criminal case before the Court of a competent First Class Magistrate against the petitioner no. 1 Most. Mobashera Khatun and her elder son Md. Shamser Ali upon recording a finding made by this Court and the Court of Settlement as to their involvement in production of the forged papers before this Court and the Court of Settlement.

The Registrar General is further directed to send a copy of this order to all the Courts of Settlement for their information and compliance with the above direction no. 1 so as to help the Judiciary in dealing with vexatious cases and, thereby, reducing the backlog of cases.

Ed.