NURUZZAMAN SARKAR Vs. SERAJ MIA

JUDGEMENT

(1.) In this appeal by special leave the question raised is whether the plaintiff-appellant's suit for declaration that Vested Property Case No. 66 of 1978-79 is collusive and void has been dismissed on correct appreciation of law and fact involved therein. The order impugned is the order of a learned Single Judge of the High Court Division dated 8 August 1985 in Civil Revision No. 147 of 1984 (Comilla).

(2.) The suit, T. S. No. No. 301 of 1979 in the Second Court of Munsif, Chandpur, was filed by the appellant alleging the following facts: The suit land measuring .31 decimals of an acre, recorded in C.S. Khatian No. 51 and comprising Plots Nos. 427 and 429, originally belonged to three brothers, Jugal Chand, Kala Chand and Adhar Chand in equal share. One Radhaballav Pal, proprietor of a business firm, purchased the suit land in auction in Money Suit No. 273 of 1937 of the Second Court of Munsif, Chandpur. Jadhulal Banikya, son of Jugal Chand, purchased the land as benamdar of the plaintiff by a registered kabala dated 12 August 1947 and went into possession. The land was under requisition by the Government from 1949 to 1976; part of the requisitioned land was de-requisitioned in 1971 and its possession was delivered to the plaintiff, and the remaining part, on de-requisition, was also delivered to him in 1976. Plaintiff filed T.S. No. 314 of 1976 in the Second Court of Munsif, Chandpur, against the heirs of Jadhulal for a declaration that Jadhulal was his benamdar in respect of the suit land and obtained a compromise decree and in pursuance of the said decree the plaintiff mutated his name by filing Mutation Case No. 6 of 1970-71. But at the instance of some interested persons who made unsuccessful attempts to establish their claim to the land the Additional Deputy Commissioner and other officers in-charge of Enemy Property (defendants Nos. 1, 2 and 3) started the Vested Property Case in 1979, as stated above, declaring the suit land an enemy and vested property and issued a notice upon the plaintiff asking him to vacate it. In these circumstances, the plaintiff filed the suit for declaration that the Vested Property case was collusive, void and also for a permanent injunction restraining the defendants from disturbing his full possession.

(3.) Two sets of defendants contested the suit by filing separate written statements. Defendants Nos. 1-3 are Additional Deputy Commissioner, Assistant Custodian, Vested Property, Comilla and Sub-Divisional Officer; in this appeal they are respondent Nos. 7, 8 and 9. Their case is that in the auction-sale m 1937 only 1/3rd share of the suit land was purchased by Radha Ballav which was the share of Jugal Chand, one of three original owners. This 1/3rd share was purchased back by Jugal Chandra's son Jadhulal himself by the registered kabala dated 12 August 1947 with his own money and for his own benefit; he was not a benamdar of the plaintiff who was never the real purchaser but he fraudulently put up this claim to grab the property taking advantage of the absence of the original owners and their heirs who migrated to India before 1965. The suit land being enemy property was rightly treated as such and the Vested Property Case No. 66 of 1978-79 was filed accordingly to take possession of the property. Case of the other set of the Defendants, Nos. 4-9, (who are respondents Nos. 1-6 in this appeal) is practically the same as that of defendants Nos. 1-3 except in respect of 7 decimals of the suit land. This small portion of the suit land defendants, 4-9, claimed to have purchased from the heirs of Kala Chand and Adhar Chand, two of the original owners; excepting this portion they supported the claim of the Vested Property officials that the suit land is an enemy property for the recovery of which, the Vested Property Case has been rightly filed.