MD. BADRUDDIN KHAN Vs. BANGLADESH

JUDGEMENT

(1.) This appeal by way of special leave arises out of a judgment and decree dated the 31st of August, 1982 passed by a Division Bench of the High Court Division, Dhaka in First Appeal No. 157 of 1976 setting aside the judgment and decree dated 30.7.74 passed by the learned Subordinate Judge, 1st Court, Mymensingh, in Other Class Suit No. 88 of 1973.

(2.) It was a suit for specific performance of contract and recovery of possession from the defendant No. 1 Aziza Bibi. The Government of Bangladesh and the Sub-Divisional Officer, Sadar (South), Mymensingh were impleaded as defendant Nos. 2 and 3. The plaintiff filed a suit contending that the suit land originally belonged to two sisters, namely Aziza Bibi and Hazera Bibi in equal shares and while they had been in possession of the same, Hazera Bibi sold her share of the suit land to Aziza Bibi by a registered sale deed dated 24.2.1970 and thus Aziza Bibi became 16 annas owner of the property. The said Aziza Bibi while in peaceful possession of the suit property contracted to sell the suit land, its building thereon to the plaintiff for a consideration, of Taka 12,000 and on receipt of the entire consideration money executed a Bainapatra in his favour on 15.1.71 and handed over the possession of the suit property to the plaintiff. It was stipulated that Aziza Bibi would execute the sale deed after obtaining Income Tax Clearance Certificate. In early part of February, 1971 said Aziza Bibi left for Dhaka and she did not return to Mymensingh. As such the sale deed was not executed but the plaintiff continued to possess the suit land. Thereafter on 2.9.72 the Sub-Divisional Officer, Sadar (South), Mymensingh issued a notice upon the plaintiff to vacate the suit premises claiming it to be an abandoned property. His objection petition was rejected by the S.D.O. and the plaintiff brought Other Class Suit No. 103 of 1973 in the Court of Munsif, Mymensingh and filed an application for temporary injunction. The learned Munsif issued a show cause notice upon the respondents and the S.D.O. but notwithstanding the said show cause the plaintiff filed the suit for specific performance of contract and recovery of possession against the defendant.

(3.) The Government of Bangladesh contested the suit contending, inter alia, that the alleged Bainapatra was ante-dated and collusive and no consideration was passed that the suit property was abandoned property and that the same was declared as abandoned property under P.O. No. 16 of 1972.