MD. HARUN-OR-RASHID Vs. BANGLADESH

JUDGEMENT

(1.) This appeal upon leave is directed against the judgment and order of the High Court Division dated 05-11-1998 in Writ Petition 5629 of 1996 discharging the Rule holding that the petitioner failed to prove by adducing any material that the case property, is not an abandoned property.

(2.) The appellant's case, in brief, is that the case land originally belonged to A. M. Nasiruddin, son of A. M.A. Wadud, who sold out the same to one S.M. Sami Alam son of Late Moulovi S.M. Hossain by registered kabala dated 28-12-1965 and handed over the possession of the said property to him. S.M. Sami Alam constructed a tin-shed house on the case land, started living there with the members of his family and mutated it in his name in the Office of Bogra Pourashava and Circle Office (Revenue), Bogra Sadar and paid rents and taxes regularly and while in possession sold the same to the petitioner by kabala dated 04-04-1973 and delivered possession of the said property to him. The appellant having purchased the property mutated his name paid rents and taxes to the authority and inducted monthly tenant in the property in question and shifted to Dhaka with the members of his family and started living at 23/13 Block-F, Joint Quarter, P. S: Mohammadpur, Dhaka. Thereafter, the appellant was informed in 1976 by his relative Abdul Barek Howlader that one A.F.M. Abdul Jobbar, respondent No. 3 entered into the land in question by evicting his monthly tenant and took possession of the said property illegally. The appellant went to Bogra and made a complain to Bogra P. S. but it was revealed to the police that respondent No.3 took possession of the property in question by obtaining an allotment letter from District Management Board of Abandoned House, Bogra and Police expressed their inability to do anything. Thereafter, the petitioner applied to the Deputy Commissioner, Bogra on various dates to get possession of the property and asserted that the property was not abandoned property within the meaning of President Order No. 16 of 1972.

(3.) The appellant instituted Title Suit No.493 of 1983 in the First Court of Munsif, Dhaka against respondent Nos.1-2 and Executive Engineer and Sub-divisional Engineer, Abandoned Building Division, Bogra for declaration of his title in the case land and the suit was decreed ex parte on 17-03-1985. Thereafter, the appellant again applied to Deputy Commissioner, Bogra along with the certified copy of the decree of Title Suit No.493 of 1983 for delivery of possession of the property in question but without any result. In the meantime, respondent No.1 published a list of abandoned building in the Bangladesh Gazette, extraordinary on 23-09-1986 but the petitioner's house was not included in the said list. Later on, the respondent No.1 also published so many lists of abandoned buildings in the Bangladesh Gazette but the appellant's house was not included in any of the said Gazette. The Deputy Commissioner, Bogra instead of handing over the possession of the case land instituted Other Suit No.753 of 1987 in the Court of Assistant Judge, First Court, Bogra against the appellant and others for setting aside the ex parte decree passed in Title Suit No.793 of 1983. The learned Assistant Judge returned the plaint of the suit by order dated 12-06-1989. Then an appeal being Other Appeal No. 107 of 1989 was filed by the Deputy Commissioner before the Court of District Judge, Bogra, who upon hearing both sides dismissed the appeal by his judgment and order dated 10-06-1990. Thereafter, the appellant instituted a suit being Title Suit No.296 of 1989 in the Court of Assistant Judge, Bogra against the respondent No.1 and others for recovery of possession of the case land and same was transferred to the Court of Assistant Judge, Second Court, Bogra and renumbered as Title Suit No.119 of 1990, which was dismissed for default. Thereafter, the appellant filed Miscellaneous Case No.50 of 1990 under Order 9, Rule 4 of the Code of Civil Procedure to set aside the dismissal order but the said Miscellaneous case was dismissed for default. The petitioner then instituted Title Suit No.314 of 1991 in the Court of Assistant Judge, First Court, Bogra on the same cause of action and ultimately prayed for withdrawal of the same and the Court by order dated 13-11-1997 allowed the prayer for withdrawal of the suit. Thereafter, the appellant came to know on 01-12-1996 that the property has been sold by the Additional Deputy Commissioner (Revenue), Bogra to respondent No.3 by the, registered sale deed and after obtaining certificate copy moved the High Court Division by filing aforesaid writ petition and obtained Rule. The learned Judges of the High Court Division thereafter on hearing both sides discharged the Rule holding that the appellant failed to prove by adducing any material evidence that the case property is not an abandoned property.