SHAFIQUR RAHMAN Vs. IDRIS ALI

JUDGEMENT

(1.) This appeal arises from First Appeal No. 63 of 1963 passed by the High Court Division on 1-8-79.

(2.) Plaintiff-appellant on enquiry came, to learn that defendant-respondent in collusion with Jogesh Chandra Das created an ante-dated kabala on January 20, 1958 in respect of the properties auction purchased by him and got the kabala registered through one Ahmed Khan alleged to be the attorney of Jogesh Chandra Das. Plaintiff appellant asserted that as Jogesh Chandra Das was a rent-receiver he was required to take prior permission for transfer of the properties which he did not do, his application for permission having been rejected. According to plaintiff-appellant, the intended transfer by the aforesaid kabala is, therefore, hit by the provisions of section 9 of the Sate Acquisition and Tenancy Act rendering the same null and void. Plaintiff-appellant acquired perfect lawful right and interest in the suit properties and was entitled to recovery of khas possession thereof.

(3.) Defendant-respondent contested the suit in the written statement it was stated that Jogesh Chandra Das, a senior Pleader of Sylhet, having suffered a stroke of paralysis left for Calcutta for better treatment. During his illness he incurred some debt. As he was required to clear off the debts he transferred his residential house along with other lands measuring 1 bigha for a consideration of Tk. 15,000/- to defendant-respondent and executed a kabala on January 30, 1958. For affecting the transfer he executed a power of attorney in favour of Ahmed Khan on January 28, 1958. Properties in question were purchased by the defendant-respondent before the institution of the plaintiff's money suit. He, therefore, acquired a lawful interest in the suit properties. After purchase he constructed a pucca boundary wall which was not in existence before his purchase. The trial Court dismissed the suit on finding that Ext. A, the kabala executed by Jogesh Chandra Das in favour of the defendant-respondent, was genuine and bona-fide document, not collusive and ante-dated as alleged by plaintiff-appellate. Further, though Jogesh Chandra Das was a rent-receiver, the transfer in question by Ext. A was not hit by section 9 of the State Acquisition and Tenancy Act as amended, because plaintiff-appellant did not succeed to establish that Jogesh Chandra Das transferred more than 10 standard bighas of land either agricultural or non-agricultural before the execution of the kabala, Ext. A. Plaintiff-appellant preferred First Appeal No. 63 of 1963 before the High Court Division which dismissed the appeal.