SURUJIT BOSE (RAJU) Vs. BANGLADESH

JUDGEMENT

(1.) This Petition for Leave to Appeal is directed against the judgment and order dated the 2nd day of August, 2009 passed by the High Court Division in Writ Petition No.3418 of 2008 discharging the Rule.

(2.) The facts involved in the case, in short, are that the property in C.S. Plot No.65 is a Debutter property created by Roy Bahadur Karuna Das Bose by a registered deed of Arpannama dated 01.05.1914 wherein the ancestors of the petitioner have given details regarding the management of the property in deity by Managing Shebayet. After transfer of C.S. Plot No.65 to the deity Sree Sree Laxmi Narayan, the heirs of Roy Bahadur Karuna Das Bose have been managing the property of the deity as Shebayets and scheme for the proper management of the property was declared by decree passed by Subordinate Judge, 1st Court, Dhaka in Title Suit No.56 of 1944 and since then the said property is being run by the Shebayets. The C.S. record was rightly prepared and published in the name of Roy Bahadur Karuna Das Bose on behalf of the deity Sree Sree Laxmi Narayan Jew. The Managing Shebayet started possessing the land of C.S. Plot Nos.94 and 95 by erecting some sheds and kuccha rooms upon case plot No.65 and letting out the same. Thereafter, the Managing Shebayet Ranendra Nath Bose went to India permanently and according to the terms of Arpannama the father of the petitioner suit Kumar Bose was appointed Managing Shebayet on behalf of Bigraha and he was looking after the said Debutter property properly while the said Mamnoor Rashid was monthly tenant under the said Debutter property he transferred his land in C.S. plot Nos.94 and 95 in 1963 to one Faikuzzaman and handed over the possession. Thereafter, the said Mamnoor Rashid handed over the possession of case land i.e. C.S. plot No.65 to the Managing Shebayet. Thereafter in 1964 the said Faikuzzaman intended to take on rent the same as monthly tenant and the Managing Shebayet let out said Debutter property to him as monthly tenant and he has been paying rent to the Managing Shebayet of the said Debutter property. The tenant Faikuzzaman died in 1978 and the respondent No.7 Fazle Elahi Sharfuzzaman started possessing the case land as monthly tenant under the petitioner and started paying rent at the rate of TK.2000.00 per month to the petitioner as accepting him as Managing Shebayet of the said Debutter property and in 1985 the monthly rent was increased from TK.2000.00 to 5000.00 for the cause of increasing the cost of maintenance of the Bigraha but on request the petitioner's rent was being realizing at the rate of TK.2000.00 per month till 2005 and from 2005 respondent No.7 did not pay any rent. The respondent No.7 assured to pay the unpaid rent but did not pay and trying to grab the property of the petitioner. The respondent No.7 has no right and title in the case land i.e. in C.S. Plot No.65 but in 2007 he started construction in C.S. Plot No.65 and on 08.08.2007 the petitioner requested the respondent No.7 to stop the illegal construction in the case plot No.65 and to vacate the case land. The respondent No.7 denied the title of the petitioner and disclosed that RAJUK approved the plan for construction of multistoried commercial cum-residential building came to know from RAJUK that the respondent No.7 along with other 8 persons obtained approval of plan and clearance from RAJUK for construction of high rise building by submitting deed of other plots and then the petitioner as Managing Shebayet of the said Debutter property requested the local respectable persons to stop the illegal construction of the respondent No.7 in the land of the said Debutter property and the local people requested to stop the construction in the case land but the respondent No.7 did not stop the construction in the case land as yet. The respondent No.7 and his brothers have no right, title and possession in C.S. Plot Nos.94 and 95. The superior predecessor of Bhuban Mohan Ghose purchased the land measuring 1.05 acres of land by a sale deed being No.22615 dated 04.07.1928 from one Elahi Box Driver and the said vendor Bhuban Mohan Ghose as plaintiff filed a suit being Title Suit No.1537 of 1929 against the vendor Elahi Box Driver and 3 others in the 3rd Court of Munsif, Dhaka praying for declaration of title and recovery of khas possession of the suit land the plaintiffs case was that the defendants sold to him on 19th Ashar, 1335 B.S. C.S. Plot No.94 and part of plot No.95 and showed him the land in the locality plaintiff got the western portion of the C.S. Plot No.94 in his possession but the defendants did not deliver possession in the western portion of the said plot and dispossessed the plaintiff from the plot No.94.

(3.) The respondent No.7 contested the Rule submitted affidavit-in-opposition denying the material statement contending, inter alia, that the land measuring 1.11 acres in plot No.65 appertaining to C.S. Khatian No.6947 of mouza Shahar Dhaka under Police Station Kotwali belonged to Karuna Das Bahadur transferred 8 bighas of land including C.S. Plot No.65 to one Sheikh Shefatullah. Sheikh Shefatullah transferred the same in Elahi Box Driver by dint of registered sale deed on 3rd Magh, 1326 B.S. Elahi Box Driver owned and possessed that land and subsequently on 04.07.1928 transferred 3(three) pakhis of land with specific boundary of Bhuban Mohan Ghose vide registered deed No.2615. Bhuban Mohan Ghose as plaintiff filed Title Suit No.1537 of 1929 against Elahi Box and others in the 3rd Court of Munsif, Dhaka for declaration of title and recovery of 'Kha' possession so far it relates to C.S. Plot No.94. In that suit Elahi Box filed written statement contesting the suit land eventually the suit was dismissed by the trial Court on 23.03.1931 but the findings of possession was in favour of the plaintiff as regards to C.S. Plot No.65.