SHEIKH ABUL HOSSAIN Vs. KHULNA DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) This petition for leave to appeal is directed against the judgment and order dated 05.01.2006 passed by the High Court Division in Civil Revision No. 2372 of 1993 making the Rule absolute and reversing the judgment and decree dated 27.03.1993 passed by the learned the then Subordinate Judge (now Joint District Judge), Second Court, Khulna in Title Appeal No.122 of 1990 affirming those dated 31.03.1990 passed by the learned Assistant Judge, Khulna in Title Suit No. 28 of 1989 decreeing the suit.

(2.) The facts, in short, are that the petitioners as plaintiffs instituted the Title Suit No. 28 of 1989 in the Court of learned Assistant judge, Khulna for a declaration that a letter under memo No.105/86-88-9420 dated 05.01.1989 issued by the defendant respondent No.1 herein refusing to return the land described in the schedule of the plaint to them is illegal, void etc. and that the plaintiffs are entitled to get back the schedule land @ Tk.712/- per katha at the maximum and for mandatory injunction for return of the schedule land to the plaintiffs and also for restraining the defendants from transferring the suit land in any way to any one other than these plaintiffs and other ancillary reliefs, stating, inter alia, that land measuring 88 decimals appertaining to present plot No.18.42 (former 1787) within Mouza Chhoto-Boyra, P.S. Sonadanga, District-Khulna belongs to late Parash Ullah, Yunus Sheikh, Nasaruddin Sheikh and plaintiff No.8 Sheikh Abdur Rahman was recorded in khatian No. 849 in the District Survey and 862 in S.A. Survey. Out of the above land 66 decimals of land are acquired for the construction of Mujgunni Main Road at the instance of the defendant respondent K.D.A. in L.A. Case No.2A/1965-66. Out of the total acquired land 17 decimals were used for the said purpose and the remaining 49 decimals kept unused. On 02.08.1986 the plaintiff filed an application to the respondent No.1 for return of the unused 45 decimals of land. The defendant respondents by letter dated 05.01.1989 refused to return the scheduled land for reason hat the said land having been acquired for development of plots for commercial purpose by the road side and also that the suit land cannot be said unused land. The plaintiffs claimed that they are entitled to get back the unused land by refusing the compensation money they had received together with development cost as per law. The land claimed by the plaintiffs bearing plot Nos. 15-20 is shown in a draft sketch map is annexed to the plaint and basing on those facts and circumstances the plaintiff petitioner filed the instant suit on 05.02.1989.

(3.) The defendant respondent No.1 contested the suit by filing written statement denying all the material allegations made in the plaint, contending, inter alia, that along with lands from different persons the plaintiffs suit land were acquired for the purpose of constructing Mujgunni Main Road and Commercial plots by the said of the said road. The compensation money was fully paid and accepted by the plaintiffs after complying with all legal formalities and thereafter possession of the acquired land was taken over fully by the respondent defendant No.1 the K.D.A. and now the authority after construction of the road also made development of the entire acquired land falling by the said of the said road and by raising and leveling the land converted the same into commercial plots and allotted to persons plot by plot through open tender as per prescribed rules of the authority. Now the plaintiffs only to get the suit land on a nominal value illegally to be more benighted and thereby wanted to define those commercial plots as unused lands and as such their suit is liable to be dismissed with heavy cost.