Government of the People's Republic of Bangladesh, Represented by the Deputy Commissioner, Jessore Vs.

IN THE SUPREME COURT OF BANGLADESH
(HIGH COURT DIVISION)

Civil Revision No. 4387 of 2003

Decided On: 18.12.2008

Appellants: Government of the People’s Republic of Bangladesh, represented by the Deputy Commissioner, Jessore
Vs.
Respondent: Rahima Begum and others

**Hon’ble Judges:**Syed Md. Ziaul Karim, J.

Counsels:
For Appellant/Petitioner/Plaintiff: Sheikh Abdullah, Advocate

For Respondents/Defendant: Arun Kumar Bhattacharya, Advocate - For Opposite Party Nos. 1-10

Subject: Land Laws

Catch Words

Mentioned IN

**Acts/Rules/Orders:**Code of Civil Procedure, 1908 (CPC) - Section 115(1)

Citing Reference:

Affirmed

 2

Discussed

 1

Mentioned

 1

Case Note:
Property - Title - Enemy Property - Whether initiation of vested property proceedings casts a cloud upon title of plaintiff? - Held, according to defendant/petitioner, property was enlisted as vested property and to that effect proceedings were initiated in relevant year -Although petitioner could not produce any single document in support of vested property, even then, let consider whether initiation of vested property proceedings in relevant year was maintainable - Defense of Pakistan Ordinance and Rules came in earlier relevant year - Defense of Pakistan Ordinance and Rules were repealed - So, after repeal of Ordinance, authority was not competent to start such vested property proceedings in eye of law - It is settled that Mere claim of Assistant Custodian that property of deceased testator is an enemy property in respect of which an enemy property case was started in relevant year is not sufficient for coming to a conclusion that property is an enemy property - Findings arrived at by Court of appeal below having rested upon consideration and discussions of legal evidence and materials on record and also on a correct and proper analysis of legal aspects involved in case and findings being findings of fact are not liable to be disturbed by High Court Division - Therefore, grounds urged and contentions for petitioner are not correct exposition of law - So, same stand rejected having been devoid of any substance - In view of above, impugned judgment and decree of Court of appeal below suffers from no legal infirmity which calls for no interference by this Court - Thus Rule having no merit fails - In result, Rule is discharged without any order as to cost - Impugned judgment and decree passed by lower appellate court in Title Appeal is hereby affirmed. [16],[17],[18], [21],[22]

JUDGMENT

Syed Md. Ziaul Karim, J.

1. This Rule, calls in question the legality and propriety of the Judgment and decree dated 18-9-2002 passed by the learned Additional District Judge, Third Court, Jessore, allowing Title Appeal No. 90 of 1998 by reversing those of dated 31-5-1998 passed by the learned Assistant Judge, Bagharpara, Jessore dismissing Title Suit No. 548 of 1985. Short facts leading to this Rule are that, on 19-6-1983, Altaf Hossain, predecessor of the opposite party Nos. 1-10 as plaintiff, instituted Title Suit No. 254 of 1983 in the Third Court of Munsif, Jessore, impleading the petitioner and opposite party Nos. 11-16 as defendants for declaration of title and confirmation of possession in respect of 0.82 acres of land described in the schedule of the plaint. On transfer the suit was renumbered as Title Suit No. 548 of 1985.

2. The plaintiff’s case, put in a nutshell, is that 0.76 acres of land described in Schedule ‘Ka’ of the plaint belonged to Raja Promotho Bhuson Deb Roy Bahadur (briefly as Raja) who settled 0.11/2 acres of land from plot No. 254 to Ovimannaya Malo who subsequently transferred the same to the plaintiff by a registered kabala deed dated 26-4-1948. On 7th Chaitra 1356 BS the plaintiff took pattan of total 0.741/2 acres of land from Plot Nos. 254, 230 and 236/754 from Raja, and got possession. The plaintiff also took settlement of 0.06 acres of land from ‘Kha’ schedule of property from the original recorded tenant in the month of Chaitra, 1355 BS and after paying rent he is in possession in 0.82 acres of land described in two schedules. The plaintiffs are in possession in the suit property for more than twelve years and the said property was never enlisted as vested property. The property was never declared as Khas land and the original recorded tenant Raja never left Pakistan and settled in India. He died in this country before 1965. The heirs of Raja used to collect rent from the plaintiff by issuing rent receipts. Therefore, initiation of the vested property proceedings in 1985 in respect of plot No. 254 is illegal. The plaintiff also transferred 0.26 acres of land from plot Nos.236/754 in favour of Khajura High School by way of gift dated 26-6-1986 and also delivered possession thereof. Initiation of the vested property proceedings casts a cloud upon the title of the plaintiff. Hence the suit.

3. The defendant Nos. 1, 5-6 and 7 therein petitioner, opposite party Nos. 11, 15 and 16 contested the suit by filing separate written statements denying all material allegations made in the plaint. The case of the defendant Nos. 1, 5-6 are that the suit property described in plot No. 254 originally belonged to Raja who settled in India leaving his property, which was ultimately listed as the enemy property. The property was never settled to plaintiff and the kabala deed dated 26-4-1948 was never acted upon. 0.15 acres of land out of 0.34 acres of Plot No. 254 was leased out to Bandobila Union Mukti Joddha Sangsad in VP Case Nos.4 BP of 1985 and they are in possession by paying rent to the Government. Some portion of the land of plot No. 254 was given to Khajura Hat for its extension. The suit property stands in the name of the defendant No. 1. Thus the suit is liable to be dismissed.

4. The case of the defendant No. 7 herein opposite party No. 16 is that the suit property described in ‘Kha’ Schedule originally belonged to Raja. Ultimately on 6-4-1956 successors of the said land transferred 0.15 acres of land of Plot No. 255/742 and 0.72 acres of land of plot No. 257, Total 0.87 acres to the defendant No. 7 and delivered possession thereof, Thus he acquired Title in respect of 0.87 acres of land by way of adverse possession. The plaintiff created some fictitious deeds claiming title to the property, therefore, the suit is liable to be dismissed.

5. On the pleadings different issues were settled including the issue of maintainability, and whether the plaintiff has right, title and possession in the suit property.

6. After trial the learned Assistant Judge, by the judgment and decree dated 11-11-1987 decreed the suit in part. Against which the plaintiff preferred Title Appeal No. 73 of 1987 and defendant Nos. 5-6 preferred Title Appeal No. 147 of 1987 before the District Judge, Jessore, which was ultimately heard by the learned Subordinate Judge, Second Court, Jessore, who by the judgment and decree dated 29-1-1995 allowed both the appeals and remanded the suit for fresh trial.

7. After fresh trial the learned Assistant Judge, Bagharpara, by the judgment and decree dated 31-5-1998 dismissed the suit. Against which the plaintiff preferred Title Appeal No. 90 of 1998 before the District Judge, Jessore, which was ultimately heard by the learned Additional District Judge, Third Court, Jessore, who by the judgment and decree dated 18-9-2002 allowed the appeal and reversed those of the trial Court.

8. During pendency of the appeal appellant Altaf Hossain died and his heirs herein opposite party Nos. 1-10 were substituted.

9. Feeling aggrieved, the defendant No. 1 as petitioner preferred the instant application and obtained the present Rule.

10. Mr Sheikh Abdullah, the learned Advocate appearing for the petitioner, seeks to impeach the impugned judgment and decree on the two-fold arguments. Firstly, the learned Judge of the trial Court after considering the evidence on record came to a definite findings that the plaintiff failed to prove his right, title and possession in the suit land but without reversing those findings of facts the learned Judge of the Court of appeal below, decreed the suit, thereby committed an error of law, resulting in an error in the decision occasioning failure of justice. Secondly, the learned Judge of the Court of appeal below failed to consider that the suit property has assumed the character of vested property in the period between 6-9-1965 to 16-2-1969 and comes within the definition of “Enermy Property” occurring in Rule 169(4) of the Defence of Pakistan Rules, 1965, and in any way the same cannot be transferred.

11. Mr Arun Kumar Bhattacharya, the learned Advocate appearing for the opposite party Nos. 1-10, opposes the Rule and submits that the plaintiff has proved his right, title and possession by producing the rent receipts and registered kabala deed before the trial Court and it is the definite findings of the Court of appeal below that those documents were proved by evidence. He adds that the learned Judge of the trial Court without considering those documents came to an erroneous finding that the plaintiffs could not produce a single document in support of settlement as well as purchase of the land by registered kabala. He adds that the DW 8, Abdur Rashid, Vested Property Tahsilder, did not utter a single word that the land was enlisted in the census list of the vested property. So, from the evidence on record it appears that the property is not a vested property. Moreover, the initiation of the vested property proceedings in 1985 is illegal. In support of his contention, the learned Counsel refers the case of Laxmi Kanta Roy vs Upazila Nirbahi Officer reported in 46 DLR 136 wherein it has been held:

Since the law on enemy property itself died with the repeal of Ordinance No. 1 of 1969 on 23-3-1974, no further vested property case can be started thereafter on the basis of the law which is already dead.

12. The learned Counsel lastly submits that after considering materials on record the Court of appeal below rightly reversed the judgment of the trial Court which calls for no interference by this Court.

13. In order to appreciate the submissions advanced by the learned Counsels, I have gone through the revisional application, pleadings, evidences, all exhibits, other materials on record, impugned judgment and decree of the Courts below, and given my anxious consideration to their submissions.

14. Now the question calls for consideration is, whether the learned Judge of the Court of appeal below committed any error of law resulting in an error in the decision occasioning failure of justice in passing the impugned judgment and decree.

15. On going to the materials on record, it transpires that admittedly the suit land originally belonged to Raja, plaintiff claimed that he took pat-tan of 0.741/2 acres of land from originally recorded tenant Raja and purchased 0.011/2 acres of land from Ovimannaya Malo by registered kabala deed from ‘Ka’ schedule property. The plaintiff also took settlement of 0.06 acres of land from ‘Kha’ schedule property from the original recorded tenant. Thereby the plaintiff acquired 0.82 acres of land described in the schedules of the plaint. The contesting defendants disowned such fact, their claim is that the original recorded tenant Raja left Pakistan before 1965 and settled in India leaving the schedule property. Eventually the same was listed in the census list of the vested property and the vested property authority are now maintaining the suit land. Some portion of the land was settled to Mukti Joddha Sangsad in VP Case No. 04 BP of 1985 and some portion of land of Plot No. 254 was given to a hat for its extension. On the other hand, the defendant No. 7 claimed that he also took settlement of 0.87 acres of land from the schedule property. The trial Court dismissed the suit holding that the plaintiff could not prove the oral settlement and the kabala deed in favour of him. The Court of appeal below after considering the evidence on record came to a definite findings that the plaintiff is in continuous possession in the suit land since 1950 and he proved his settlement in respect of “Ka” and “Kha” schedule land by producing dakhilas before the trial Court which were exhibited and marked as Exhibits 1, 1A, 1E and 1B, 1C, 1D respectively. Registered kabala deed dated 26-4-1948 was also proved by evidence and exhibited and marked as Exhibit 2. Moreover, the plaintiff transferred 0.26 acres of land to a school by a registered deed dated 26-6-1986 and the said deed was exhibited as marked Exhibit 4. I have gone through all exhibits and it transpires that the plaintiff proved, the rent receipts of the settlement issued by the original recorded tenant Exhibits 1 series by evidence. These are documents in settlement taken by the plaintiff. Exhibit 2 is a registered kabala deed dated 26-4-1948 by which the plaintiff got 0.11/2 acres of land from Ovimannaya Malo. It reveals that the plaintiff is in possession in the suit land since 1949. It appears that during trial contesting defendants examined concerned Tahsilders as DW 1 and DW 8. DW 1 Lutfor Rahman did not depose about the enlistment of the property as vested property and he failed to state the identity of the land, then he was declared hostile. Subsequently, contesting defendants also examined the local Tahsilder Abdur Rashid as DW 8, he stated that the property described in plot No. 254 was enlisted in the census list of the vested property but in support of his statement he failed to produce any document. I have examined the depositions of all DWs and in support of maintenance of the property by the defendant-petitioner as vested property do not furnish any corroboration by any other independent witnesses. So, the same are vulnerable to me credibility. Moreover, the evidence in respect of right, title and possession of the plaintiff in the suit land are consistent, uniform and corroborative with each other. There is absolutely no reason to disbelieve those competent witnesses. Therefore, the same are invulnerable to the credibility.

16. According to the defendant-petitioner, the property was enlisted as vested property and to that effect proceedings was initiated in 1985. Although the petitioner could not produce any single document in support of vested property, even then, let us consider whether the initiation of vested property proceedings in 1985 was maintainable. The Defence of Pakistan Ordinance and Rules came in the year 1965. The Defence of Pakistan Ordinance and Rules were repealed in the year 1969, but by Ordinance No. 1 of 1969 promulgated by the then Central Government of Pakistan, some of the Provisions of the Defence of Pakistan Rules were kept alive and continued. Thereafter by Act No. XLV of 1974, the Ordinance No. 1 of 1969 was repealed on 23-3-1974. So, after the repeal of Ordinance No. 1 of 1969 by Act No. XLV of 1974 on 23-3-1974, the authority was not competent to start such vested property proceedings in the eye of law. In the case of Nittya Gopal Roy Barman vs Pran Gopal Nandi reported in 32 DLR 11 wherein it has been held:

Mere claim of the Assistant Custodian that the property of the deceased testator is an enemy property in respect of which an enemy property case was started in 1978 is not sufficient for coming to a conclusion that the property is an enemy property.

17. I am in respectful agreement with the view of his Lordship expressed in the aforesaid decision and also with the decision reported in 46 DLR 136 as referred by the learned Counsel for the opposite party Nos. 1-10.

18. It further transpires to me that the findings arrived at by the Court of appeal below having rested upon consideration and discussions of legal evidence and materials on record and also on a correct and proper analysis of the legal aspects involved in the case and the findings being findings of fact are not liable to be disturbed by the High Court Division in exercise of the power under section 115(1) of the Code of Civil Procedure.

19. In the case of Akrab Ali vs Zahiruddin Kari reported in 30 DLR (SC) 81 wherein it has been held:

High Court Division not competent to interfere with finding of facts arrived at by the lower appellate Court which is based on appreciation of evidence, however wrong the same may appear in the absence of error of law or procedure, affecting merit of the case.

20. This view receives support in the cases reported in 43 DLR (AD) 82, 51 DLR (AD) 57, Abdul Mutalib vs Md Mostakin Ali 1999 BLD (AD) 156 - 51 DLR (AD) 228 and 38 DLR (AD) 201.

21. Moreover, the impugned judgment and decree of the Court of appeal below in its entirety are well founded in the facts and circumstances of the case. Therefore, grounds urged and the contentions advanced by the learned Counsel for the petitioner are not the correct exposition of law. So, the same stand rejected having been devoid of any substance. On the contrary, the submissions advanced by the learned Counsel for the opposite party Nos. 1-10 prevail and appear to have a good deal of force.

22. In view of discussions made above and the preponderant judicial views emerging out of the authorities referred to above, I am of the view that the impugned judgment and decree of the Court of appeal below suffers from no legal infirmity which calls for no interference by this Court. Thus the Rule having no merit fails. In the result, the Rule is discharged without any order as to cost. The impugned judgment and decree dated 18-9-2002 passed by the learned Additional District Judge, Third Court, Jessore, in Title Appeal No. 90 of 1998 is hereby affirmed.

Office is directed to send down the records of this case at once with a copy of judgment for information and necessary action.