MD. NASIRUDDIN Vs. MD. MIZANUR RAHMAN

JUDGEMENT

(1.) The petitioner, Md. Nasiruddin, seeks leave to appeal against the judgment and order dated 26.02.2006 passed by the High Court Division in Civil Revision No. 1238 of 2004 making the Rule absolute setting aside the judgment and decree dated 07.03.1998 passed by Senior Assistant Judge and S.C.C. Judge, Sadar, Joypurhat in S.C.C. Suit No.3 of 1998 dismissing the same.

(2.) The respondent as plaintiff instituted the aforesaid S.C.C. Suit No. 3 of 1998 in the Court of Senior Assistant Judge, exercising Small Cause Courts Jurisdiction, Sadar, Joypurhat, impleading the petitioner praying for ejectment of the defendant from the suit premises alleging, inter alia, that the Plaintiffs father, Md. Yakub Ali Sarder, was the owner of the suit premises and the defendant was inducted as a monthly tenant therein and the said Md. Yakub Ali Sarder transferred the suit land by a registered deed of heba-bil-ewaj dated 06.09.1988 in favour of the plaintiff and his brothers namely, Mamunur Rashid, Mahbubur Rashid and Mahfuzur Rahman. Subsequently by a deed of partition the said four brothers made partition of the entire property received by them from their father and the suit premises along with other properties fell in the saham of the plaintiff and the defendant ultimately attorned the plaintiff as his landlord in respect of the shop premises being shop Nos.3 and 4 at monthly rental of 300+300=600.00 in total and paid monthly rents to the plaintiff for the month of January and February, 1998 but stopped payment of monthly rents from the month of March, 1998 and thereby became a defaulter. The plaintiff also claimed that he had bonafide requirement of the suit premises for starting business therein and accordingly served a notice under Section 106 of the Transfer of Property Act to the defendant terminating the tenancy and asking him to vacate the suit premises but the defendant did not hand over the possession of the suit premises in favour of the plaintiff, on the contrary informed the plaintiff through his learned Advocate that he paid rent in Court in House Rent Case No. 7 of 1994. The plaintiff alleged that he was not made a party in the said House Rent Case No. 7 of 1994 and was not aware about the house rent case. The plaintiff, therefore, claimed that the defendant was a habitual defaulter in payment of monthly rents and the plaintiff bonafide required the suit premises and accordingly instituted the suit.

(3.) The defendant contested the suit by filing a written statement contending that he was tenant under late Md. Yakub Ali Sarder who became sick and his son Mahbubur Rashid used to collect rent and during the said period landlord Md. Yakub Ali took TK. 8,000.00 from the defendant for repairing shop No.13 and after necessary repair shop No. 13 was renumbered as shop No.4. The defendant further alleged that the landlord Md. Yakub Ali took TK. 60,000.00 from the defendant by selling possession of suit premises No. 9 on 25.06.1987 on the basis of an agreement and that after the death of Md. Yakub Ali, his son Mahbubur Rashid refused to received rent of the suit shop No. 3 and 4 and at the request of the said Mahbubur Rashid rent from the period from 1993 and 1994 was sent by money order and the said Mahbubur Rashid received the said money order and that rent for the month of February, 1994 in respect of the shop Nos. 3 and 4 was sent by money order but was refused to receive by the said Mahbubur Rashid and when this was communicated to the said Mahbubur Rashid he advised the defendant to sent the rent in favour of Mizanur Rahman and accordingly, the defendant sent the rent for the month of February and March, 1994 to Mizanur Rahman which came back and ultimately the defendant deposited the rent for the month of February, 1994 in House Rent Case No. 7 of 1994 and he has deposited all the rents upto date in the said House Rent Case No. 7 of 1994 and there was a solenama filed on 21.01.1998 in House Rent Case No. 7 of 1994 in which it was decided that the plaintiff shall receive rent at the rate of TK. 300.00+300.00 as landlord in respect of suit shop Nos. 3 and 4 within the 1st week of the month and if he neglects to receive rent same shall be deposited in the aforesaid House Rent Case No. 7 of 1994. The defendant alleged that he is neither a habitual defaulter nor a defaulter in the suit premises and that the plaintiff does not bonafide require the suit premises as alleged by him. The plaintiff is an agriculturist and he is in no way connected with any business and that the plaintiff and his brothers have got other shop premises and instituted the present suit to make unlawful gain and prayed for dismissal of the suit.