MD. NURUL ISLAM Vs. ABUL MALEK

JUDGEMENT

(1.) This appeal arises from Second Appeal No. 45 of 1963 decided by a Single Judge of the High Court Division (Mr. Justice M.H. Rahman) on 16th February 1982.

(2.) Appellants' predecessor instituted Other Suit No. 74 of 1960 in the court of Munsif 2nd Court, Sadar, Chittagong, for a declaration that the sale of Noabad jote No. 5 held by the Collector on 24th June 1953 and sold to the defendant-respondent was done without jurisdiction and was, therefore, void, invalid and inoperative. The sale did neither confer any right upon the defendant-respondent nor did it affect the plaintiff-appellants' interest in Schedule 2 lands.

(3.) In brief, appellant's case is that the suit, jute comprised 28, 35 acres of lands and out of this area 6.37 acres were tenanted with an annual rent exclusive of cesses of Tk. 49/8/- payable in two instalments, one in August and another in January, Appellant's predecessor purchased 11.75 acres of lands as detailed in Schedule 2 which is a part of Schedule 1 lands by a kabala dated 12th May 1936, His name was mutated in Mutation Case No. 176 of 1936-37. Zakir Hossain and Zahid Hossain were the purchasers of the remaining part of Schedule land. It was arranged that plaintiff appellant would pay Tk. 12/4/- and other two co-sharers would pay Tk. 37/4/- Plaintiff-appellant was in specific possession of Schedule 2 lands by demarcation and fencing all around since his purchase. Due to non-payment of the due share of rent of the aforesaid co-sharers for the instalment of January 1953 the jute, wrongly described at Mahal No. 5 Tafur Ali," was sold on 24th January 1953 without issuing and serving any notice under lections 5, 6 and 7 of Bangal Laud Revenue Sales Act (Act XI of 1859) upon the plaintiff and the recorded owners of the jute or even in the locality and kutchery of the Malgujar in the manner required by law, result being that properties worth Tk. 40.000/- were sold at a shockingly low price of Tk. 400/- Defendant-respondent in collusion with other co sharers made the purchase without the knowledge of the plaintiff and the public in general. Plaintiff came to know about the tale on 24th June 1953 and moved an appeal before the Commissioner, Chittagong which was dismissed on 18th November 1953 on the ground of limitation. His revisional application before the Board of Revenue was also dismissed on 7th December 1954 Plaintiff was therefore, obliged to file the suit.