ABDUL KHALEK KHAN Vs. GOVERNMENT OF BANGLADESH

JUDGEMENT

(1.) This Second appeal is directed against the judgement and decree dated 18.2.65 passed by the learned Additional District Judge, 3rd Court, Barisal in title Appeal No. 89 of 1964 reversing those of dated 21.1.64 passed by the learned subordinate judge, 1st Court, Barisal in Title Suit No.7 of 1963.

(2.) The plaintiff appellant instituted the aforesaid suit for declaration of title in 5 acres of land described in schedule "A" to the plaint and also for a declaration that the order dated 3.10.1961 of the Board of Revenue cancelling the settlement of the said land was null and void on the allegations, inter alia, that the appellant came from a middle class family of cultivators and after reading up to I.Sc. class he joined as a clerk in the Bakerganj Collectorarte on 1.8.35; that subsequently he was promoted to the post of Treasurer; that as his salary was inadequate for maintenance of his large family he applied for settlement of Government khas land to khas Mohal Department on 13.4.55 that he was found eligible for getting settlement of Government khas land and was allotted the disputed 5 acres of land on usual conditions for payment of premium and rents; that as the premium was fixed at Rs.1125/- he was unable to pay the same and prayed for instalments which was allowed and he paid Rs.400/- and got a receipt thereof and he executed a kabuliyat in favour of the defendant on 4.7.55 which was duly accepted and possession of the land was delivered to him and rent-roll was prepared in his name; that as the prior permission for settlement was not obtained from the Divisional Commissioner, Dhaka the Additional Collector (Rev.), Bakerganj refused sanction of the allotment and he filed an appeal against the said order of the Additional Collector (Rev.) to the Commissioner, Dhaka Division, who by his order dated 10.9.57 approved the settlement; that he spent about Rs.3,000/- for the development of the land; that as subsequently the premium of the Government settlement land was reduced an order for refund of a part of the premium money deposited by him was made and the said amount by way of an adjustment was paid against future rents, cesses etc.; that he paid rents etc. upto 1961-62; that a relationship of landlord and tenant was established between him and the defendant; that subsequently a copy of the Government (Board of Revenue) Letter No. 319/AE dated 3.10.61 was sent to him on 9.1.1962 stating that the settlement with him was cancelled by the Additional Deputy Commissioner (Rev) Bakerganj; that his appeal to the defendant against the said order of cancellation was dismissed and he was directed to give up the possession and thus he was threatened with dispossession; that he was a rightful tenant under the defendant and the Collector of the district was the competent authority to grant settlement of the Government khas land and he did not violate any terms of the kabuliyat.

(3.) The suit was contested by the defendant by filing written statement denying all material allegations made in the plaint. The case of the defendant was that the settlement of the disputed land was not final and concluded one and the kabuliyat executed was not accepted or approved by the appropriate authority. It was also contended that the suit was not maintainable, bad for want of valid notice under Section 80 of the Code of Civil Procedure and the suit was barred under Section 42 of the Specific Relief Act as the appellant had neither title nor possession in the suit land; that the suit was not also properly valued and the plaint was not sufficiently stamped; that appellant who was a Govt. servant was not also a person legally entitled to get settlement of the Government khas land; that the appellant also failed to perform his duties as per terms and conditions of the kabuliyat and as such he had forfeited the alleged fight, title and interest in the demised land and the suit is also barred under Section 76(2) of the Stale Acquisition and Tenancy Act and that the procedure laid down for settlement of a Government khas land was not followed in the case as the same was initiated without any authority by the local office of the defendant; that the appeal of the appellant before the Commissioner, Dhaka Division was not also incompetent and void, that the allegation of Rs.3000/- for improving of the disputed land was false and fabricated; that no legal right, title and interest in the disputed land ever accrued to the plaintiff simply because he had paid a portion of the salami or for this name was entered into the Rent-Roil; that the Board of Revenue acted within its jurisdiction in not accepting the proposal for the settlement of the disputed land with the appellant who was an employee of the defendant and was not eligible to have settlement of Government khas land depriving the legitimate and just claims of other deserving bona fide landless, cultivators; that respondent had already taken possession of the disputed land and the appellant was not a bona fide cultivator and was not entitled to get settlement of Government khas land as he had more than 3 acres khas land in his possession prior to the proposal for settlement of the disputed land which he fraudulently suppressed.