MD. SHAMSUL HUDA Vs. BANGLADESH

JUDGEMENT

(1.) This appeal by leave at the instance of defendant No. 1 - appellant is against the judgment and order dated 16.7.91 passed by a Division Bench of the High Court Division in First Appeal No. 22 of 1981 allowing the appeal on setting aside the judgment and decree passed by the learned Subordinate Judge, First Court Mymensingh in O.C. Suit No. 102 of 1973.

(2.) The plaintiff- the People's Republic of Bangladesh - respondent instituted O.C. Suit No. 102 of 1973 against defendant No. 1, Md. Shamsul Huda and defendant No. 2 Benode Lai Roy for declaration that the ex parte decree passed in O.C. Suit No. 35 of 1969 for specific performance of contract and the deed of transfer obtained on the basis of the said decree are illegal null and void on the averments, inter alia , that the suit property belonged to one Lala Ram Sankar who died unmarried and sarna Kumari was a maid servant of Lala Ram. After the death of Lala Ram she used to look after his properties through her servant defendant No. 2 Ronade Lai Roy. On her death defendant No.2 in collusion with defendant No. 1 created a fraudulent and ante-dated bainapatra purported to have been executed by Sarna Kumari on 17.12.63 and after the death of Sarna Kumari defendant No. 1 filed O.C. suit No.35 of 1969 for specific performance of contract for the suit property snowing defendant No.2 as heir of Sarna Kumari and on the basis of the said bainapatra got an ex parte decree. The plaintiff was in possession of the suit properties through tenants and title of the plaintiff - Government to the property in Suit was clouded by the said decree and the sale deed. Hence the suit.

(3.) Defendant No. 1 contested the suit. His case was that the suit properties are self-acquired properties of Sarna Kumari Roy and she was in possession therein for more than 12 years. She entered into a contract on 17.12.63 for sale of the property in suit for Tk. 39,000/- with defendant No. 1 and on receipt Tk. 38,100/- She delivered possession of a portion of the property to him. It was stipulated in the bainapatra that Sarna Kumari would take clearance from Income Tax Authority for transferring the property. In the meantime she died leaving behind defendant No. 2, her mother's sister's son as a sole heir. On refusal of defendant No.2 the aforesaid O.C suit No. 35 of 1969 was instituted impleading defendant No. 2 and the plaintiff obtained an ex parte decree which was sought to be set aside by the Government-respondent by filing O.C. Suit No. 102 of 1973. After obtaining the ex parte decree the plaintiff of O.C. Suit No. 35 of 1969 started other Execution Case No.22 of 1969 and obtained a kabala executed Through Court on 31.7.72 and also got his name mutated in the record of right and on payment of rent got dakilas and also realised rents from the tenants of the suit property.