RAJUK Vs. Jonab Ali and others, 2 LNJ (AD) (2013) 33

Case No: Civil Appeal No. 280 of 2010

Judge: Syed Mahmud Hossain,

Court: Appellate Division ,,

Advocate: Mr. A. F. Hassan Ariff,Dr. Rafiqur Rahman,,

Citation: 2 LNJ (AD) (2013) 33

Case Year: 2013

Appellant: RAJUK

Respondent: Jonab Ali and others

Subject: Revisional Jurisdiction, Requisition of Property,

Delivery Date: 2012-07-18

APPELLATE DIVISION
(CIVIL)

 
Md. Muzammel Hossain. CJ
Surendra Kumar Sinha J
Md. Abdul Wahhab Miah.J
Syed Mahmud Hossain. J
Muhammad Imman Ali. J
Md. Shamsul Huda. J

Judgment
18.07.2012
 
Rajdhani Unnayan Kartipakha (RAJUK)
---Appellant
-Versus-
Jonab Ali being dead his heirs: Eunus Ali and others.
---Respondents
 

Acquisition and Requisition of Immovable Property Ordinance (II of 1982)
Section 44
The suit cannot be proceeded with as soon as the L. A. case has been initiated for acquisition of the suit land in view of the clear embargo envisaged in Section 44 the Ordinance.
As soon as L. A. Case has been initiated for acquiring the suit land along with other lands, Title Suit No.464 of 1985 should not have proceeded with ads there is a clear bar in respect of such suit under section 44 of Acquisition and Requisition of Immoveable Property  Ordinance, 1982. ... (13)

Code of Civil Procedure (V of 1908)
Section 115
Since RAJUK has got direct interest in the suit  land it was quite competent to bring it to the notice of the Court that a decree which is a nullity was passed against it. In view of such a case of special nature, delay and procedural defect shall not stand in the way of getting the desired relief and hence the revisional application filed by RAJUK was quite competent.... (17)
 
For the Appellant : Mr. A. F. Hasan Ariff, Senior Advocate (with Mr. A.F.M. Meshbahuddin, Senior Advocate), instructed by Mr. M. Waliul Islam, Advocate-on-Record.

For Respondent Nos. l(a)-l(e) : Dr. Rafiqur Rahman, Senior Advocate, instructed by Mrs. Sufia Khatun, Advocate-on-Record.

Respondent No 2-7. : Not represented.

Civil Appeal No. 280 of 2010
 
JUDGMENT
Syed Mahmud Hossain J:

This appeal by the Rajdhani Unnayan Kartipakha (RAJUK) as the appellant following leave is directed against the judgment and order dated 14.10.2009 passed by the High Court Division in Civil Revision No.3994 of 2007 discharging the Rule.
 
The facts, leading to this appeal, are précised below:
The respondents herein as the plaintiffs flied Title Suit No.228 of 1979 in the First Court of the then Subordinate Judge, Dhaka, renumbered as Title Suit No.464 of 1985 in the Second Court of Subordinate Judge, Dhaka for declaration of title and recover of khas possession Their case, in short, is that the suit land mentioned in the schedule-A to the plaint originally belonged to Niamai Ali Khan in raiyoti jote and his name was daly recorded in C. S. khatian. After that, Niamat Ali died leaving behind a son, namely. Miah Kha and two daughters namely, Rakoat Bibi and Ojir Bibi. Miah Kha sold 70 decimals of land of plot No.77 to plaintiff No. 1 by a registered deed of sale dated 14.10.1958. Miah Kha further sold 13!/2 decimals of land to plaintiff No.l from the said plot No.77 by a registered deed of sale dated 08.12.1956 and in this way, plaintiff No. 1 acquired title to l.l8.50 acres of land in total. Ojir Bibi, the other daughter of Niamat Ali Kha, died leaving behind a son, namely, Kasim Uddin. By amicable partition, Kasim Uddin got 93  decimals of land who transferred 88 decimals of land to his wife Malika Banu by a registered deed dated 27.12.1947. After that, Kasim Uddin and Malika Banu, the husband and the wife respectively, jointly transferred 70 decimals of land of plot No.77 to Belat Ali Mathbor by registered deed dated 22.01.1949 and Belat Ali transferred the same to Malika Banu, wife of Kasim Uddin and their son Mafizuddin by a registered deed dated 03.05.1954. While in possession Malika Banu transferred 88 decimal of land to plaintiff No.l by a registered deed dated 07.10.1958. Thus, the plaintiffs acquired 16 annas title i.e. 2.12 acres of land in C. S. plot No.77. While the plaintiffs were in possession of the suit land, one Abdul Aziz Khan in the name of an industry trespassed into 96 decimals of land by creating some false documents. Consequ-ently, the plaintiffs filed Title Suit No.28 of 1967 for recovery of khas possession. Ultimately, the said suit was decreed and the plaintiff got delivery of possession on 08.07.1967 through executing Court. Since then the plaintiffs had possessed the entire suit land in C. S. plot No.77, S. A. and R.S. khatians have also been prepared in their names subsequently. The defendants, the sons of Miah Kha, having no title and interest trespassed into a portion of the suit plot as described in the schedule-B to the plaint. Hence Title Suit No.464 of 1985 has been filed for declaration of title and recovery of khash possession.

What is important to note there is that the defendants did not contest the suit. After a long lapse of time, the learned Subordinate Judge by the judgment and order dated 25.10.1995 decreed the suit ex parte. Against that ex parte decree, one Abed Khan as the petitioner filed Miscellaneous Case No.40 of 1996. On23.07.2001, the Court fixed the date of final hearing of miscellaneous case but the petitioner did not turn up and none was found upon repeated calls. After that, the learned Subordinate Judge by judgment and order dated 23.07.2001   dismissed Miscellaneous Case No.40 of 1996.

Against the order of dismissal dated 23.07.2001, the appellant herein prefer-red Miscellaneous Appeal No.212 of 2001 before the learned District Judge, Dhaka. On transfer, the appeal was heard by the learned Additional District Judge, Third Court, Dhaka, who by impugned judgment and    order dated 24.05.2004 dismissed the same.

Being aggrieved by and dissatisfied with the judgment and order 24.05.2004,   the appellant herein filed Civil Revision No. 3994 of 2007 before the High Court Division and obtained Rule. The High Court Division by the judgment an order dated   14.10.2009 discharged the Rule without any order as to costs.

Feeling aggrieved by and dissatisfied with judgment and order dated 14.10.2009 passed by the High Court Division, the appellant moved this Division by filing Civil Petition for Leave to Appeal No.2511 of 2009 in which this Division granted leave on 29.07.2010 resulting in the initiation of Civil Appeal No.280 of 2010.

Mr. A. F. M. Hassan Ariff, learned Senior Advocate (with Mr. A. F. M. Meshbahuddin learned Senior Advocate), appearing on behalf of the appellant, submits that the decree passed in Title Suit No.464 of 1985 of the Second Court of Subordinate Judge, Dhaka, is a nullity as L. A. Case No.02 of 1987-88 had been initiated during pendency of the suit for acquisition of the suit land and other land and that the High Court Division without looking into this legal aspect of the case discharged the Rule and as such, the impugned judgment should be set aside. He further submits that as soon as the plaintiffs came to know about initiation of L. A. Case No.2 of 1987-88 they should not have proceeded with the suit and that the decree obtained by them even after initiation of acquisition proceeding is a nullity and as such, the impugned judgment delivered by the High Court Division should be set aside.

Dr.   Rafiqur Rahman,   learned   Senior Advocate, appearing on behalf of respond-ent No. l (a)-l (e), supports the    impugn-ed judgment stating that the appellant did not have any locus standi to file the revisional application as it has not filed any case under Order IX rule 13 of the Code of Civil Procedure for setting aside the ex parte decree passed in Title Suit No.464 of 1985. He lastly submits that the High Court Division has addressed all the issues raised by the appellant before this Division and as such, the impugned judgment should not be interfered with.


We have considered the impugned judgm-ent, the submissions of the learn-ed Senior Advocates and the documents incorporated in the paper book.

To begin with, it is necessary to go through the submissions of the learned Advocate for the appellant, on which, leave was granted by this Division as under: They never received any summons of the title suit but the High Court Division observed in the judgment contrary to the materials of the case that summons was served upon the RAJUK inasmuch as from order sheets of the title suit shows that RAJUK was made pro-forma defendant No.4 by amendment vide order No.78 dated 17.08.1988 and before such amendment the suit land stood acquired on 16.06.1988 and as such, the amendment and making the RAJUK as pr-forma defendant thereof is a nullity.

As per section 44 of the Acquisition and Requisition of Immovable Property Ordinance, 1982, any suit challenging the acquisition of lands barred by law and since the suit land was acquired on 16.06.1988 the suit stood barred by law at seriously occasioned a failure of justice and the same is liable to be set aside.

The centering round a notice dated 30.04.2007 issued by RAJUK for vacating the land from unauthorized occupation, the respondents filed Writ Petition No.4609 of 2007 which was discharged on 03.02.2009 with clear finding that C.S. Plot No.77 measuring 2.12 acres of land stood totally acquired by L.A. Case No.02 of 1987-88 and the respondents received compensation money for .70 acres of land from the Deputy Commissioner, Dhaka and the rest of the compensation of the portion of 1.42 acres of land was received by Abid Khan and challenging this judgment, the respondents filed Civil Petition for Leave to Appeal No. 1016 of 2009 and upon hearing the parties, this Division dismissed the same on 24.11.2009 and in such circumstances, the High Court Division held that the suit land is not the acquired land in L.A. Case No.02 of 1987-88 but is situated outside the L.A. Case and this has occasioned failure of justice and hence, the same is liable to be set aside.

Admittedly, the plaintiffs filed Title Suit No.228 of 1979 in the First Court of the then Subordinate  Judge,  Dhaka, renumbered as Title Suit No.464 of 1985 in the Second Court of Subordinate Judge, Dhaka for declaration of title and recovery of khas possession in respect of the land appended in the schedule to the plaint. There is no gainsaying the fact that initially the appellant-RAJUK and the Deputy Commissioner, Dhaka were not made parties lo the suit. On 17.07.1988, the plaintiffs filed an application in the suit for adding the appellant-RAJUK and the Deputy Commissi-oner, Dhaka as defendant Nos.4 and 5 and the application was allowed on the same date.
The relevant portion of the application for addition of party is quoted below :
 
দেঃ কার্য্য বিধি আইনের আদেশ ১নং রুল-১০ ও ১৫১ ধারা মোতাবেক দরখাস্ত।
দরখাস্ত পক্ষে বাদীগণ।
মাননীয় আদালত সমীপে সবিনয় নিবেদন এই যেঃ-
১। বাদী উপরোক্তা মোকদ্দমা স্বত্ব ঘোষণা ও খাস দখলের জন্য বিবাদীগণের বিরুদ্দে দায়ের করিয়াছে বিবদীগণও উক্ত মোকদ্দমায় জবাব দিযাছে এবং আগামী তারিখে শুনানীর জন্য দিন ধার্য্য আছে।
২। নালিশী সম্পত্তি জিলা ঢাকার মিরপুর থানার অধীন বাইলজুরী মৌজায় অবস্থিত এবং বর্তমানে বৃহত্তর ঢাকা শহর উন্নয়ন কল্পে রাজউক নালিশী সম্পত্তি সহ অন্যান্য সম্পত্তি একায়ার করিবার জন্য সরজমিনে সার্ভে করিতেছে এবং জিলা ঢাকার ডিপুটি কমিশনার এল, এ, এবং এল, আর এর অফিসেও একটি এল, এ, কেইস রম্নজু হইয়াছে যাহার নম্বর-এল, এ, কেইস নং-২/৮৭-৮৮। কাজেই উপরোক্ত মোকদ্দমায় রাজউক ও ডিপুটি কমিশনার ও এল, এ, কে পক্ষভূক্ত করা একান্থ দরকার ন্যায় বিচারের স্বার্থে। কারণ বর্তমানে রাজউক ও ডিপুটি কমিশনার এল, এ, উপরোক্ত মোকদ্দমায় হবপবংংধৎু ঢ়ধৎঃু কাজেই ঢ়ৎড়ঢ়বৎ ধফলঁফরপধঃরড়হ এর জন্য তাহিদিগকে উক্ত মোকদ্দমার বিবাদী শ্রেণীভুক্ত করা একান্ত দরকার নচেৎ বাদীগণ উক্ত মোকদ্দমায় সঠিক ডিক্রি ও ন্যায় বিচার পাইবে না। (বসঢ়যধংরং ংঁঢ়ঢ়ষরবফ)
অতএব, হুজুর দয়া করিয়া ন্যায় বিচারের স্বার্থে আরজি ধসবহফসবহঃ করিয়া উপরোক্তা মোকদ্দমায় রাজউক ও ডিপুটি কমিশনার এল, এ, কে পক্ষভুক্ত করিবার আদেশদানে সুবচার করিতে আজ্ঞা হয়।
যে প্রকার আরজি সংশোধন হইবেঃ-
৪। রাজউক (ডি, আই, টি), ডি, আই, টি, বিল্ডিং, মতিঝিল বাণিজ্যিক এলাকা, ঢাকা।
৫। ডিপুটি কমিশনার, এল, এ, কালেকটরিয়েট বিল্ডিং, থানা-কোতযালী, ঢাকা।
-----বিবাদীগণ।

Having considered the application for addition of party, we find that though RAJUK and the Deputy Commissioner, Dhaka, was made parties to the suit, no relief was sought against them. In the application for addition of party, the plaintiffs stated in no uncertain terms that RAJUK initiated L.A. Case No.02 of 1987-88 for acquiring the suit land along with other lands and that with this end in view, RAJUK had been conducting survey.

Admittedly, gains a   notice   dated 30.04.2007 issued by RAJUK for vacating the land   from   unauthorized   occupation,   the respondents filed Writ Petition No.4609 of 2007 in which Rule Nisi was issued. On 03.02.2009, Rule was discharged with a clear finding that C.S. Plot No.77 measuring 2.12 acres of land stood totally acquired by L.A. Case No.02 of 1987-88 and that the respondents received compensation money for .70 acre of land from the Deputy Commissioner, Dhaka and that the rest of the compensation of the portion measuring 1.42 acres of land was received by Abid Khan. Challenging this judgment, the respondents filed Civil Petition for Leave to Appeal No. 1016 of 2009 and upon hearing the parties; this Division dismissed the same on 24.11.2009. Even then the High Court Division held that the suit land was not the acquired land in L.A. Case No.02 of 1987-88 but is situated outside that L.A. Case. Such a glaring erroneous finding contrary to admitted fact cannot sustain in law.

As soon as L. A. Case has been initiated for acquiring the suit land along with other lands, Title Suit No.464 of 1985 should not have proceeded with ads there is a clear bar in respect of such suit under section 44 of Acquisition and Requisition of Immoveable Property  Ordinance, 1982   (in   short,   the Ordinance). Section 44 of the Ordinance is quoted below:
"44.Save as otherwise expressly provided in this Ordinance, no Court shall entertain any suit or application against any order passed or any action taken under this Ordinance, and no injunction shall be granted by any Court in respect of any action taken or to be taken in pursuance. Of any power conferred by or under this Ordinance. "

From the section quoted above, it appears that no Court shall entertain any suit or application against any order passed or action taken under the Ordinance in respect of any action taken or to be taken or under this Ordinance.
In view of the clear bar in section 44 of the Ordinance, the decree passed in Title Suit No.464 of 1985 is a nullity.

The High Court Division came to a finding that after the ex prate, decree RAJUK did not take any step for setting it aside before the Court as per provision of law and that RAJUK failed to prefer an application under Order IX Rule 13 of the Code of Civil Procedure against the ex parte decree and therefore, RAJUK had no locus standi to file the instant civil revision by passing the appellate forum.

Admittedly, the suit land along with other lands was acquired in L.A. Case No.02 of 1987-88 and RAJUK is the requiring body thereof. Since RAJUK has got direct interest in the suit land it was quite competent to bring it to the notice of the Court that a decree which is a nullity was passed against it. In such a case of special nature, delay and procedural defect shall not stand in the way of getting the desired relief. Therefore, the revisional application filed by RAJUK before the High Court Division was quite competent to right the wrong.

The findings arrived at and the decisions made by the High Court Division are not based on proper appreciation of laws and facts and as such can not sustain in law.

Accordingly, the appeal is allowed as the decree obtained in Title Suit No.464 of 1985 was a nullity and consequently, the impugned judgment is set aside without any order as to costs.

Ed.