Sabera Khatun and others Vs. Sena Kalyan Sangstha and others, 2 LNJ (2013) 591

Case No: Civil Revision No. 2788 of 2006

Judge: Sheikh Abdul Awal,

Court: High Court Division,,

Advocate: Mr. Mahbubey Alam,Mr. Zainul Abedin,,

Citation: 2 LNJ (2013) 591

Case Year: 2013

Appellant: Sabera Khatun and others

Respondent: Sena Kalyan Sangstha and others

Subject: Remand of a Case,

Delivery Date: 2013-02-07

HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
 
Sheikh Abdul Awal, J.
            
Judgment
7.02.2013
and 12.02.2013
 
Sabera Khatun and others
..... Petitioners.
-Versus-
Sena Kalyan Sangstha and others
….Defendant-opposite parties.
 
 
Code of Civil Procedure (V of 1908)
Order XLI, Rule 31
The Appellate Court, without discussing the evidence on record, had abruptly reversed the findings of fact arrived at by the trial court on the point of maintainability of the suit is not a proper judgment of reversal.
 
On perusal of the judgment of the appellate Court and trial Court below as well it appears that trial Court had considered the material evidence in detail in coming to its finding of title and possession in favour of the plaintiffs, but the appellate Court, without discussing the evidence, had abruptly reversed the findings of fact arrived at by the trial Court on the point of maintainability of the suit. Thus it appears that the impugned judgment of the appellate Court was not a proper judgment of reversal. ....(30)
 
Code of Civil Procedure (V of 1908)   
Order XLI, Rules 27 and 37
In order to determine the real question in controversy the defendant, Sena Kalyan Sangstha is permitted to exhibit registered deed dated 4.10.1980 in accordance with law. The court of appeal shall consider all aspects of the case and decide the appeal afresh. Accordingly, the case is sent back on remand to the Appellate Court...(31 and 32)
 
27 DLR 170; 40 DLR (AD) 116; 28 DLR 27; 5 BLC (AD) 76; AIR 1946 All 389; 8 BLT (AD) 185; 3BLT 245; PLD 1952 Lahore 545; 10 DLR (WP) 14 = PLD 1957 Lahore 574; AIR 1956 (Andhra) 250; AIR 1957 Nagpur 15; 53 DLR (AD) 110; AIR 1991 SC 2027 (Para2); 7 BLT 195 ref.
 
Mr. Zainul Abedin with
Mr. A.T. M. Alamgir with
Ms. Sadia Arman, Advocates
….For the petitioners.

Mr. Mahbubey Alam with
Mr. Md. Mozammel Hossain with
Mr. Toufique Anwar Chowdhury, Advocates.
….For the opposite party Nos. 1 and 2.
 
Civil Revision No. 2788 of 2006
 
JUDGMENT
Sheikh Abdul Awal, J.
 

This Rule was issued calling upon the opposite party Nos. 1 and 2 to show cause as to why the judgment and decree dated 30.7.2006 (decree signed on 6.8.2006) passed by the learned Additional District Judge, 1st Court, Chittagong in Other Class Appeal No. 552 of 2002 allowing the appeal and reversing those dated 10.11.2002 passed by the learned Joint District Judge, Commercial Court No.2, Chittagong in Other Class Suit No.5 of 2002 decreeing the suit should not be set-aside.
 
The petitioners as plaintiffs brought the aforesaid Other Class Suit No. 68 of 2000 in the Court of Joint District Judge, Commercial Court No.2, Chittagong impleading the opposite parties as defendants for declaration of title and confirmation of possession in the suit land and for further declaration that the B.S record of right is wrong and that the suit land is not the abandoned property. The suit was subsequently renumbered  as  Other Class Suit No. 5 of 2002. The case of the plaintiffs in short is that the suit land originally belonged to Fayezulla and others and it was recorded accordingly in their names in R.S. record of  right,  who sold the suit land to Yusuf Abdul Karim and handed over possession along with all papers of the suit land to Yusuf Abdul Karim and accordingly the suit land has been recorded in his name being P.S. Khatian No. 17; that Yusuf Abdul Karim while in possession orally gifted the suit land to his faithful and dutiful personal driver Md. Abdur Rahman in 1965, who by spending huge money repaired  the building standing on the suit land and extended it by constructing 4 rooms. Later on, Yusuf Abdul Karim by swearing an affidavit on 9.3. 1970 confirmed his oral gift to Md. Abdur Rahman. The present plaintiff-petitioners are the heirs of Abdur Rahman (now deceased) and they  acquired the suit land by inheritance; that Abdur Rahman, the predecessor of the plaintiffs due to his serious illness could not take step for recording the suit land in B.S. record of right. The plaintiff No. 1 ( wife of  Abdur Rahman)  being a women also could not take any appropriate step for recording the suit land in their name though she  learnt from  her close relation that the suit land was recorded in the name of Abdur Rahman and so believing it took no other steps but they have been in possession in the suit land for more than 12 years from the time of their predecessor and  the defendants did not put any obstruction so long in the long possession of the suit land by the plaintiffs; that on 2.3.2000 the plaintiff No.3,  Md. Fakrul Islam learnt from defendant No.2 that the suit land has been recorded in the name of  the defendant No.1 in the B.S. Khatian and so they would be evicted from the suit land and then  the plaintiffs procured a certified copy of the B.S Khatian on 3.4. 2000 from the local revenue office and came to know  about it; that the defendants have got no title, interest and possession in the suit land, who  on the basis of wrong record of right are trying to evict the plaintiffs from the suit land and hence,  the suit. 
 
The defendant Nos. 1 and 2 contested the suit by filing a joint written statement denying most of the allegations of the plaint and contending, inter-alia, that the suit building is a part of Enesel Manson of  Chattaswrin Road which is the property of  Enesel Textile Mills Limited.  According to the memorandum of articles of Nur Sons Ltd. Yusuf Abdul Karim, Rashid, A. Karim, Hamid A. Karim and M. A. Sattar were shareholder directors of it, who   left this country during liberation war leaving the suit property as uncared  position and thereupon, the Government under the provisions of P.O. 16 of 1972 declared the suit property as abandoned property; that the Government by a circular on 14.12. 1972 handed over  the suit property along with other 18 industries to the defendant No.1,  who took possession therein and accordingly B.S. Khatian in respect of suit property has been recorded in the name of defendant No.1 correctly and the defendant No.1 paid rent to the Government up-to 1406 B.S; that Abdur Rahman was driver of Nur Sons Ltd. and he used to reside in the suit building and after the death of Abdur Rahman  on humanitarian ground the family of Abdur Rahman was permitted to reside therein; that when the defendant Nos.1 and 2 asked the plaintiffs to vacate the suit land  the plaintiffs by creating a false document dated 9.3.1970 instituted the suit falsely and as such  the suit is liable to be dismissed.
 
The learned Assistant Judge on the pleadings of the parties framed the following issues for determination:-
 
(i)   Whether the suit is maintainable in its present form and manner?
(ii)  Whether the suit is barred by limitation?
(iii) Whether the suit property is Enesel Textile Mills Ltd.?
(iv) Whether the suit property was rightly declared as an  abandoned property?
(v)  Whether the plaintiff has right, title and possession in the suit land?
(vi) Whether the plaintiff is entitled to get a decree?
(vii) Whether the plaintiff is entitled to get any other relief?
 
At the trial plaintiff side examined in all 4 witnesses and defendant side examined in all 5 witnesses and both the parties also exhibited some documents to prove their respective cases. The trial Court on consideration of the facts and circumstances of the case and evidence on record found the claim of the plaintiffs true and decreed the suit as sought for by judgment and decree dated 10.11.2002.
 
The defendant Nos.1 and 2,  thereupon,  preferred Other Class Appeal No.552 of 2002 before the learned District Judge, Chittagong challenging the legality of the judgment and decree dated 10.11.2002 which was ultimately heard  by the learned Additional District Judge, 1st Court, Chittagong,  who was pleased to  allow  the appeal and set-aside the judgment and decree dated 10.11.2002 by his judgment and decree dated 30.7.2006 on the ground of maintainability of the suit.
 
Being aggrieved by the aforesaid judgment and decree dated 30.7.2006 passed by the learned Additional District Judge, 1st Court, Chittagong in Other Class Appeal No.552 of 2002 the present petitioners have come before this Court and obtained the present Rule.
 
Mr. Zainul Abedin, the learned Advocate appearing for the petitioners in the course of his argument after placing the judgments of two Courts below, deposition of witnesses and other materials on record submits that the learned Judge of the appellate court below  misconceived the facts of the case and the judgment of the learned Assistant Judge as well and wrongly set-aside the same. He further submits that the learned Joint District Judge erred in law in reversing the judgment of the Trial Court without properly considering the vital aspect  of the case that the suit land as described in the plaint   was  not enlisted as an abandoned property and the case made out by the plaintiff-petitioners and the same has occasioned failure of justice. Finally, Mr. Zainul Abedin with all seriousness    criticized the observation of the appellate Court below that  the appellate Court below as last court of fact, without adverting the material findings of the trial Court and without properly considering the facts of the case and the case made out by the petitioners had abruptly reversed the findings of fact arrived at by the trial Court  on the point of maintainability of the suit in a summary manner and the same has occasioned failure of justice.
 
Mr. Mahbubey Alam, the learned Advocate appearing for the defendant-opposite parties, on the other hand, submits that the original owner of the suit property Yusuf Abdul Karim left Bangladesh before liberation leaving the suit property with uncared  condition and   after liberation the property in question was found abandoned inasmuch as the whereabouts of the  owner of the suit property, Yusuf Abdul Karim was  not known to the Government and so it was taken over by the Government declaring  as an abandoned property and thereafter, the Government transferred the suit property by a registered deed of sale dated 4.10.1980 to Sena Kallyan Sangstha. Mr. Mahbubey Alam further submits that it is apparent from the record that  the property in question transferred by the Government to Sena Kallyan Sangstha in 1980 and long  twenty years after the heirs of Abdur Rahman filed the instant suit claiming the property on the basis of a plea of  oral gift without any legal basis whatsoever.
 
Referring  to the affidavit dated 9.3.1970 Mr. Mahbubey Alam submits that it is  the positive case of the plaintiff-petitioners that Yusuf Abdul Karim by swearing an affidavit on 9.3. 1970 confirmed his oral gift to Md. Abdur Rahman (now deceased), the predecessor of the petitioners which appears to be a forged  document inasmuch as the alleged affidavit dated 9.3. 1970 clearly shows that stamp purchased in the name of  Guru Mia on 20.10.1962  and the same has been done by small letter in a congested manner to complete the document in one page by forging the signature of Yusuf Abdul Karim.  He further submits that there is nothing on record to suggest that the so-called oral gift was all acted upon inasmuch as admittedly the plaintiffs or their  predecessor,  Abdur Rahman neither did pay any rent to the Government nor took any attempt for mutating their name over a period of 30 years and in that view of the matter the learned Additional District Judge was perfectly justified in reversing the judgment and decree of the trail Court on the clear finding that the suit is an abandoned property  and as such the suit is  not maintainable. Mr. Mahbubey Alam further submits that the Government of People's Republic of Bangladesh has transferred Plot Nos.11,13 and 17 of Mouza-Joypahar to Sena Kallyan Sangstha on 4.10.1980 by a registered deed treating the same as abandoned property whereas the plaintiffs produced alleged deed of gift claiming the ownership in P.S Plot No. 21  without having any valid document whatsoever and the appellate Court below  after discussion of evidence on record has rightly come to the conclusion that the  trial Court committed wrong in decreeing the suit.
 
Finally, Mr. Mahbubey Alam points out that PW-1, Md. Fakhrul Islam,  son of Abdur Rahman in his cross-examination admitted that P.S. Plot No.21 corresponds  to B.S. Plot No.17 and since Sena Kallyan Sangstha purchased Plot No.17  in the year 1980 and thus,  the  claim of the plaintiff-petitioners that holding No.281  does not correspond to the suit land is not at all relevant for deciding the instant suit.
 
Ms. Sadia Arman, the learned Advocate appearing for the petitioners to refute the argument of Mr. Mahbubey Alam that the appellate court  below committed no wrong in holding that the suit is not maintainable   upon referring  to the order of the trial Court dated 4.6.2002 submits that after filing written statement the defendant-opposite parties filed an application under Order 7, Rule 11 of the Code of Civil Procedure for rejection of the plaint on 4.6.2002  on the ground that the suit is not maintainable as the suit property is an abandoned property, the trial court below rejected the said application against which the defendants did not prefer any appeal or revision. Ms. Sadia Arman, thereafter, upon   referring  to the schedule of the plaint and  gazette notification submits that the land in question mentioned in the gazette notification is not the suit and there is nothing on record to show that the Government formed an opinion as to why the suit land should be declared abandoned property and in that view of the matter the findings of the appellate Court below on the point of maintainability is perverse being contrary to law, evidence and materials on record.
 
I have heard the learned Advocates of both the sides and perused the record including the plaint, the deposition of the witnesses and the impugned judgment as well as judgment of the trial Court.  Now, to deal with the contentions raised by the  learned Advocates for the respective parties it would be convenient for me  to decide first of all the maintainability of the suit.
 
On perusal of the record, it appears that the petitioners   as plaintiff instituted Other Class Suit No.68 of 2000  in the Court of Joint District Judge, Commercial Court No.2, Chittagong for declaration of title and confirmation of possession in the suit land measuring  4 gandas of land along with further declaration that the suit land is not an abandoned property and the B.S. record of right in respect of the suit land is wrong.  It further appears that the defendant-opposite parties after filing written statement filed an application under Order 7, Rule 11 of the Code of Civil Procedure for rejection of the plaint on 4.6.2002 stating that: বিবাদী তাহার লিখিত বর্ননায় নালিশী সম্পত্তি পরিত্যওু সম্পত্তি হয় ও অত্র মোকদ্দমা পি, ও, ১৭/৭২ মতে বারিত বলিয়া আপত্তি উথুাপন করে। ......এমতাবস্থায় পরিস্থিতিতে অন্যান্য  issue শুনানীর জন্য গৃহীত হওয়ার পূর্বে মোকদ্দমায় রক্ষনীয়তা সম্পর্কে  issue  পূর্বে শুনানীর জন্য গ্রহন করা প্রয়োজন। অন্যথায় বিবাদীর সমুহ ক্ষতি হইবে। The trial Court below upon hearing the said application by its order No. 51 dated 4.6.2002 rejected the application and admittedly the defendant-opposite parties did not prefer any appeal or revision against that order dated 4.6.2002.
 
At the trial both the parties led evidence to prove their respective cases. The Trial Court after closing of the evidence and hearing argument of the parties decreed the suit, holding that the plaintiff- petitioners have been able to prove unbroken possession in the suit property for the last  36/37  years and the suit is not barred by any law.  In appeal, the learned Joint District Judge, Commercial Court No.2, Chittagong by the impugned judgment and decree dated 30.7.2006 set-aside the judgment and decree dated 10.11.2002  mainly on 3 (three)  counts that : (i) the suit itself is not maintainable as the suit land is an abandoned property  (ii) the plaintiffs could not prove their oral gift as well as affidavit with regard to declaration of oral gift and (iii) the plaintiffs did not pay any rent, tax and bill to the Government in respect of the suit land over a period of 32 years i.e. 1970-2002.
 
Now, to justify the finding of the Court of appeal below  that the suit  itself is not maintainable since the suit property is an abandoned property, I  feel it  necessary  to quote hereunder the schedule of the plaint for having a better view of the dispute in question which reads as follows:
Schedule to the plaint.

            জেলা- চট্রগ্রাম, থানা- কোতয়ালী, মৌজা- জয়পাহাড়, আর, এস, খতিয়ান নং- ৩২ এর অধীনে আর, এস ১৫ দাগের অন্দর ও তৎসামিলের পি, এস, খতিয়ান নং- ৯৭ এর অধীনে পি, এস, ২১ নং দাগের অন্দর তৎসামিলে বি, এস, খতিয়ানে নং- ৩৬ এর অধীনে বি, এস, দাগ নং- ১৭ এর ২০১২ শতক ভূমির অন্দর ৮০০ শতক বা ৪(চার) গন্ডা ভূমি অতিদসিহত তদসিহত সেমি পাকা দালানগৃহ ও খালি জায়গাসহ চিহিুত মতে দখলীয় বটে।
            চক নং- উত্তরে ইউছুপ আব্দুল করিম এর অবশিষ্ট জায়গা, দক্ষিনে- এন, জি, মোবারক ও ডাঃ তৌহিদুল আলম, পূর্বে- সিটি কর্পোরেশনের ড্রেন, পশ্চিমে- জনসাধারনের জন্য সিটি কর্পোরেশনের পথ।
 
Ms. Sadia Arman, the learned Advocate upon referring Ext.5,  tax receipt  submits that the suit property as described in the plaint is not an abandoned property inasmuch as  the property in question as described in Bangladesh Gazette dated 23.9.1986 does  not suggest that the suit property is an abandoned property whatsoever. She adds that Ext.5 tax receipt of City Corporation clearly shows that holding No.1380/1503 is the suit property belonged to the plaintiff-petitioners.
 
In order to consider whether the suit property  as descried in  schedule of the plaint let me quote the property in question as described in Bangladesh Gazette dated 23.9.1986 which runs  as follows:

ক্রমিক নং- ৮৬                     
হোল্ডিং নং ৮৩৫/৯৩৭, বাগমনিরাম (আলফরিদ চেম্বার) ২৮১, চট্বেশ্বরী রোড, চট্রগ্রাম।
 
On comparison  of the above schedule of the plaint, Ext.5, tax receipt of City Corporation  and the holding of the property in question as described in Bangladesh Gazette dated 23.9.1986 it appears to me that the suit property as described in the plaint and Ext.5   and the property in question as described in the list of the abandoned property of Bangladesh Gazette dated 23.9.1986 are not same and similar. Therefore, I find no difficulty whatever in holding that the Court of appeal  below was plainly wrong in setting-aside the judgment and decree of the trial court on the ground that the suit was not maintainable since  the suit property enlisted as  an abandoned property. My view is, therefore, that  the  finding of  the Court of appeal  below is a product of non application of judicial mind and suffers from patent illegality.
 
Having realized the difficulty,  Mr. Mahbubey Alam, the learned Advocate at the fag end of the hearing  upon placing an application under Order 41,  Rule 37 of the Code of Civil Procedure for allowing the opposite parties to adduce additional evidence submits that after commencement of hearing of the instant case Sena Kallyan Sangstha on search found the original copy of the registered sale deed dated 04.10.1980 and  the main question now raised before this Court is as to whether the land mentioned in the gazette notification is the suit land or not and for determination of the said issue the sale deed dated 04.10.1980 is required to be admitted as additional evidence.
 
On the contrary, Ms. Sadia Arman, the learned Advocate submits that the revisional court may in appropriate  cases consider additional evidence,  but in the instant case the suit land of the plaintiffs is not abandoned for the allowing reasons:

(a) The plaintiff petitioners are citizens of Bangladesh who came into ownership and possession of the suit land before the PO 16 of 1972 was passed.
(b) The Government formed no opinion as to why the suit land should be declared abandoned.
(c) There is no clear order declaring the suit land as abandoned property.
d) There is no demarcation or description of the property that has been declared to be abandoned on any of the documents produced by the defendants.
(e) Although the documents mention Enesel (N.S.L.) Mansion as abandoned, there is no evidence to show that the suit land was ever a part of Enesel Mansion.
f) The plaintiff petitioners received no notification from the Government that the suit land has been declared abandoned and, for these reasons it is needless to admit the sale deed dated 04.10.1980 as additional evidence.
 
Ms. Sadia Arman has also emphatically urged another aspect before me that the  deed dated 09.03. 1970 is more than 30 years old and therefore the Court is entitled to presume that it is a genuine document. More so, under Muslim law, the gift has been made beyond recall, and there was no need to register the gift under the law of those times, when registration was not mandatory as it is today. The learned Advocate also forcefully agitated that even if the said Deed is defective and unregistered, the plaintiffs have been in possession beyond the statutory period of limitation to the complete ouster of the defendants and thus their imperfect title has been perfected by the passage of time.
 
To this,  Mr. Mahbubey Alam, upon referring a decision reported in  51 DLR (AD) 141 submits that since the document was executed on 04.10.1980 and in the meantime 30(thirty) years time has been passed this Court can admit the same into evidence under Section 90 of the Evidence Act, considering the fact that same was executed on behalf of the president in favour of a statutory organization. He further contends to create an  ambiguity regarding identification of the suit land the plaintiffs are  now submitting  before this Court for the first time that the suit plot has not been made an abundant property though it is apparent from the record that the suit Plot No. 21 was recorded as B.S Plot No.17 which includes land of some other plots showing an area of .2018 acre which has been recorded in the name of Sena Kallyan Sangstha and sale deed dated 04.10.1980 clearly shows the sale of Plot No. 17 along with other plots of Mouza Joypahar and it has been  mentioned in the schedule of the plaint B.S. plot No. 17 with an area of .2012 acre which clearly corresponds to the sale deed dated 04.10.1980 and exhibit Kha B.S. Khatian of B.S. plot No. 17 and as such to resolve the dispute whether the land mentioned in the gazette notification is the suit land or not and for determination of the said issue the sale deed dated 04.10.1980 is required to be admitted as additional evidence.
 
Finally,  Mr. Mahbubey Alam, the learned Advocate submits that the trial Court below decreed the suit on the finding that the enlistment of the suit property in the list of the abandoned property was illegal and defective and the plaintiffs  against that  finding did not file any revision or appeal before the higher Court and  now, it does not lie in the mouth of the plaintiffs  that the suit property has been enlisted as an abandoned property.
 
In reply, Ms. Sadia Arman submits that  in the facts and circumstance of the case the application under Order 41,  Rule 37 of the Code of Civil Procedure filed by the defendant-opposite parties  is plainly misconceived and not tenable in law inasmuch as the defendant-opposite parties had ample opportunity to produce the so-called deed at the trial stage, or even at the appellate stage, and make it an exhibit, but they did not produce any such document and as such they cannot be allowed to produce such document before this Revisional Court.  She further contends  that the defendant-opposite parties did not even produce their deed when the instant  Civil revision was filed, six years ago in 2006 and the opposite parties with the sole purpose of delaying the judgment and defeating the ends of justice have produced such document at the judgment stage when all submissions have already been made.
 
It appears that  the trail Court  after discussion of evidence on record has come to the conclusion that admittedly the plaintiffs as successor of Abdur  Rahman are in possession of the suit land over a period of 36/37 years and the suit is not  barred by any law and as such the plaintiff are entitled to get decree, as prayer for. In coming to this conclusion the trial Court has noticed that the suit property has not been specifically mentioned  in exhibit-ka (gazette of the abandoned property).
 
On a query by me  Ms. Sadia Arman admits that  the trial court below committed wrong in observing that the suit property was illegally included in the list of abandoned property. She next submits that from the materials on record it appears that the materials on record justify the judgment and decree of the trial court but the appellate court below without adverting any of the material findings of the trial Court abruptly in a sleep-short manner set-aside judgment of the trial court and the same has occasioned failure of justice.
 
Ms. Sadia Arman further submits that the so-called deed of the opposite parties does not show anywhere that any land answering to the description of the suit land was transferred by the Government, either with reference to the holding number, or by any other reference and therefore the photocopy of the purported deed is quite redundant to prove any point. The other point agitated by Ms. Sadia Arman  that there is no reason to send the case back on remand to the lower appellate Court since evidence on all material points are there on record. Ms. Sadia Arman   to fortify her lengthy argument has relied on the decisions  reported in 27 DLR (1975) 170, 40 DLR (AD) 116, 28 DLR (1976) 27, 5 BLC (AD) 76, AIR(33) 1946 Allahabad 389, 8 BLT (AD) 185, 3 BLT 245, PLD 1952 Lahore 545, 10 DLR (WP) 14 = PLD 1957 Labore 574, AIR 1956 (Andhra) 250,  AIR 1957 ( Nagpur )15, 53 DLR (AD) 110, AIR 1991 Supreme Court 2027 (Para 2), AIR 1956 (Andhra) 250,  AIR ( 33) 1946 (Allahabad) 389, 7 BLT (1999)195.
 
On a close perusal of the entire evidence and materials on record, it appears that the plaintiff-petitioners  for the first time raised before this Court as to whether the land mentioned in the gazette notification is the suit land or not. It further appears that DW1,  deposed on behalf of the Sena Kalyan Sangstha who  filed a photocopy of the aforesaid deed and stated as follows: "বাংলাদেশ সরকার কর্তৃক সেনা কল্যান সংস্থাকে প্রদত্ত নালিশী সম্পত্তি সংত্রুামত original deed Hl photocopy জমা দিলাম। But the same was not marked as Exhibit.  It also appears that defendant, Sena Kalyan Sangstha  stated in  its written statement that "" সরকার ৪/১০/১৯৮০ ও ৩২১৯৮ নং দলিল মূলে এনিসেল ম্যানসেনে তথা মিউনিসিপ্যাল হোল্ডিং নং ২৮১ এবং ১০২৫ আর, এস ১৭/৪৬/১১৯/১২০ খতিয়ানের জমি ও গৃহে সার্ভেন্ট কোয়ার্টার, দারোয়ান কোয়াটার ও ড্রাইভার কোয়ার্টার সহ সেনা কল্যান সংসহার বরাবরে হসতামতর করে।''
 
It is also found  that  the Government of Bangladesh being defendant No.3 in the suit did not appear and contest the suit claiming the suit property as abandoned property by producing any paper. Furthermore, the admitted evidence  on record both oral and documentary suggests that the  suit land has a distinct holding number and there is  no demarcation or description of the suit land as described in the plaint  has been declared  to be an  abandoned  property.
 
On perusal of the judgment of the appellate  Court and trial Court below as well it appears that trial Court had considered the material evidence in detail in coming to its finding of title and possession in favour of the plaintiffs, but the appellate Court, without discussing the evidence, had abruptly reversed the findings of fact arrived at by the trial Court  on the point of maintainability of the suit. Thus it appears that the impugned   judgment of the appellate Court was not a proper judgment of reversal.
 
In view of all the facts noticed above I am of the view that the case should be decided by taking into consideration the case of the plaintiffs and defendants  as well and for the said purpose the defendant, Sena Kalyan Sangstha will be permitted to exhibit  registered deed dated 4.10.1980 in accordance  with law for determining the real question in controversy.  The Court of appeal below shall consider all aspects of the case and decide the appeal afresh. Since the defendant opposite parties are themselves to blame for their predicament but now they are getting a favourable order, they should bear the cost of the plaintiffs in the case.
 
In the result, the Rule is made absolute. The impugned judgment and decree dated 30.7.2006 passed by the learned Additional District Judge, 1st Court, Chittagong in Other Class Appeal No.552 of 2002 is set-aside and the case is remanded to the appellate court for deciding the appeal afresh in the light of the observation made above.
 
However, in the facts and circumstance of the case the defendant opposite party No.1, Sena Kallyan Sangstha is restrained by an order of injunction not to disturb with the peaceful possession of the plaintiff-petitioners in any manner till disposal of the appeal.
 
Let a copy of this judgment along with the lower Court's record be sent down at once.
 
Ed.