GOVERNMENT OF BANGLADESH Vs. MD. YAKUB MIA

JUDGEMENT

(1.) This appeal by leave arises out of the judgment and order dated 23.11.1999 passed by the High Court Division in Writ Petition No. 2060 of 1993 making the Rule absolute.

(2.) The respondent No.1 filed the above writ petition calling in question the judgment and order dated 10.11.93 passed by the 1st Court of Settlement, Dhaka in Settlement Case No. 10 of 1988 by which the enlisting of House No. 11/5, Block-F Joint Quarter, Mohammadpur, Dhaka in the "Ka" list of the abandoned building, was upheld. In the writ petition it was stated, inter alia, that the above building was allotted to Md. Shafi by a registered lease deed dated 19.4.62; while in peaceful possession of the building Md. Shafi, on 08.01.1970 entered into an agreement with the respondent No.1 for sale of the building at a total consideration of Tk. 9,750/- out of which the respondent No.1 paid to Md. Shafi a sum of Tk. 7,000/- as earnest money and on the same very day Md. Shafi handed over possession of the said building to him; Md. Shafi did not comply with his part of the contract though the respondent No. 1 complied with his part of the contract and so he filed Title Suit No. 138 of 1976 against Md. Shafi seeking specific performance of the contract in the 1st Court of Subordinate Judge (now Joint District Judge) Dhaka and he after obtaining decree on 26.6.78 put the said decree in execution by filing a Title Execution Case No. 37 of 1978 and got the sale deed executed and registered in his favour, the Government then filed Miscellaneous Case STO. 248 of 1986 under Order 9, Rule 13 of the Code of Civil Procedure praying for setting aside the aforesaid ex parte decree which was allowed on condition that the Government will pay Tk. 30,000/- and in case of default the said miscellaneous case shall and dismissed; the Government having died to comply with the said condition the Miscellaneous case stood dismissed for default the respondent No.1 had been in possession of the disputed building since the date of agreement dated 8.1.70 and being in possession he got his name mutated and has been paying municipal taxes and other bills but even then above building was listed as an abandoned property by the Gazette Notification published on 23.9.86; the Court of Settlement by judgment and order 10.11.93 dismissed the above case. The respondent No. 1 of the writ petition, who is the appellant herein, contested the said writ petition without filing any affidavit-in-opposition. The High Court Division after hearing made the Rule absolute.

(3.) Leave was granted to consider the submissions that the High Court Division not being the court of appeal erred in law in interfering with the findings of fact arrived at by the Court of Settlement and that during the relevant period the whereabouts of the original owner of the above building not being known and the said original owner also having failed to look after and possess the building, the Court of Settlement rightly found that the above building duly vested in the government and the High Court Division erred in law in shifting the onus on the Government to show that the suit property is an abandoned property even though the enlisting of the above building in the Gazette Notification published on 23.09.1986 itself is proof of its abandoned character.