SHAHIDUL HOQ @ MD. SHAHIDUL HOQ Vs. BANGLADESH

JUDGEMENT

(1.) This petition for leave to appeal arises out of the judgment dated 18.7.2004 of the High Court Division in Civil Revision No. 4555 of 2002 making the Rule absolute which was obtained against the judgment and decree dated 15.1.2001 of the learned Subordinate Judge (now Joint District Judge), 2nd Artha Rin Adalat, Comilla in Title Appeal No. 134 of 1991 reversing those of dated 4.4.1991 passed by the learned Senior Assistant Judge, Comilla in Title Suit No. 121 of 1990 decreeing the suit.

(2.) The respondent instituted the above Title Suit No. 121 of 1990 praying for declaration that the plaintiff i.e. the Government of the People's Republic of Bangladesh, is the owner of the suit land and that the ex parte decree dated 4.3.1975 passed by the learned Munsif (now Assistant Judge), 1st Court, Comilla in Miscellaneous Case No. 104 of 1974 is collusive, fraudulent, null and void stating, inter alia, that Mr. Kazi Golam Mohiuddin faruki (G.M. Faruki) was the original owner and possessor of the suit land along with other lands and Settlement Khatian No. 4 was prepared in the name of the Court of Wards on his .behalf; G.M. Faruki was permanently residing in Comilla and his house was known as "Faruki House", after partition of India in 1947 G.M. Faruki left Comilla and was living at Calcutta permanently and he also died there leaving behind no issue; one Syed Md. Barek, the predecessor of defendant No.1, was staying in the said "Faruki House" with his family and G.M. Faruki did not transfer any property to the said Syed Md. Barek; according to the provisions of the State Acquisition and Tenancy Act 1950 the entire property of the G.M. Faruki vested in the Government; some part of the suit land is used as local hat/bazar and some part of it is in the possession of the Government Tahsil Office and in Dag No. 564 there is a pond which is used by the staff of the Tahsil Office and also by the shopkeepers of local hat/bazar and the employees of respondent cultivates fishery in the said pond; the respondent had also been possessing some portion of the suit land by filing up the low land and thereby improving the hat/bazar; S.A. record was wrongly prepared in the name of G.M. Faruki instead of the respondent; thereafter one Mrs. Sahera Khatoon filed Miscellaneous Case No. 104 of 1974 praying for correction of the khatian and got exparte decree dated 4.3.1975 which clouded the title of the respondent in the suit land and hence the suit. The defendant petitioner contested the above suit by filing written statement contending that late Mr. Kazi Reaz Uddin Ahmed was the owner of the suit land and he died leaving his son Nawab Sir G.M. Faruki and 5 daughters namely (1) Rahela Khatun (2) Amena Khatoon (3) Fatema Khatoon (4) Halena Khatoon (5) Shahera Khatoon as his heirs; Rahela Khatoon died leaving her only one son Syed Md. Barek as her heir; Syed Md. Barek also died leaving his two sons Syed Abdur Rahim and Syed Md. Jafor Sadek as his heirs; thereafter the said Syed Abdur Rahim died without any issue and his share devolved upon Syed Md. Jafor Sadek and thus Syed Md. Jafor Sadek became the owner and possessor of the suit property; thereafter through amicable settlement the whole property was recorded in the name of Nawab Sir GM. Faruki along with other co-sharers of the property; a miscellaneous case filed for correction of record of right by Sahera Khatoon in which the respondent was made a party and notice of the said case was duly served upon the respondent but the respondent not being present at the time of hearing of the case on 4.3.1975, an ex parte order was passed for correction of the record and thereafter the record was duly corrected; that Syed Md. Abdur Rahim paid rent for the suit land and got receipts (Dakhilas); after the death of Syed Md. Abdur Rahinj his brother Syed Md. Jafor Sadek because the sole owner of the suit land; on 20.1.1987 the said Syed Md. Jafor Sadek transferred the suit land to Md. Shahidul Hoq, the defendant No.2 petitioner, by a registered sale deed and thus the defendant No. 2/ petitioner became the owner and possessor of the suit property and none else was/is in possession of the same on behalf of the respondent. The learned Senior Assistant Judge, Comilla after hearing, decreed the suit. On appeal the learned Subordinate Judge (now Joint District Judge) and Artha Rin Adalat after hearing, allowed the appeal, then the respondent moved the High Court Division whereupon Rule was issued in Civil Revision No. 4555 of 2002 and the High Court Division after hearing made the Rule absolute.

(3.) The learned counsel appearing for the defendant No. 21 petitioner submitted that the appellate court, the final court of facts, on consideration of the evidence and other materials on record allowed the appeal and the High Court Division failed to consider that the plaintiff respondent having failed to prove that the suit land is excess land of the landlord it cannot be said that the plaintiff respondent has right, title and interest in the suit land and as such the finding of the trial Court about the right and title of the plaintiff/respondent in the disputed land is not at all sustainable; the High Court Division also failed to consider that through amicable settlement, the suit land was recorded in the name of G.M. Faruki including other co-sharers of the property and that the respondent was made party to the Miscellaneous Case No. 104 of 1974 and notice was also served upon the respondent and the respondent not being present at the time of hearing of the case on 4.3.1975 an ex parte order was passed directing correction of the record of right and subsequently the records have been corrected.