IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Zafar Ahmed

Civil Revision No. 250 of 1997 Ramshinath Gowala

Petitioner

-Versus-

Bangladesh,  represented  by  the  Deputy Commissioner, Sylhet and others

Opposite parties

Mr. Jyotirmoy Narayan Deb, Advocate

...For the petitioner Ms. Shahida Khatoon, with

Mr. Sovan Mahmud and

Ms. Khandaker Asma Hamid, AAGs

... For the opposite parties

Heard on 05.11.2024 and 26.11.2024 Judgment on: 03.12.2024

Plaintiff No. 3 is the petitioner of the instant civil revision. Present  petitioner  and  others  filed  Title  Suit  No.  09  of  1978 impleading  the  government  and  Additional  Deputy  Commissioner (revenue), Sylhet as defendants in the Court of 1st Additional Sub- ordinate  Judge,  Sylhet.  The  suit  was  decreed  on  contest,  vide judgment and decree dated 15.05.1978 (decree signed on 12.08.1978).

The defendants filed Title Appeal No. 05 of 1979 which was allowed by the 3rd Court of Additional District Judge, Sylhet, vide judgment and decree dated 23.04.1995. Being aggrieved, the plaintiff No. 3 filed the instant revision and obtained Rule on 21.01.1997.

The plaintiffs filed the suit praying for declaration that the lands described in the schedule to the plaint and no share or part thereof are enemy, vested or non-resident property and that the defendants are not entitled to disturb the possession of the plaintiffs in the suit land with further  prayer  for  permanent  injunction  restraining  the  defendants from interfering with the plaintiffs’ possession in the same.

The  case  of  the  plaintiffs,  in  short,  is  that  the  suit  land measuring  an  area  of  30.14  acres  out  of  90.43  acres  recorded  in Khatian Nos. 529 and 143 of Mouza-Dharan and Mominchara under P.S.  Fenchuganj,  District-Sylhet  originally  belonged  to  Sahadeb Gowala who died leaving three sons, namely- Sudhir Gowala and Adhir Gowala (plaintiff Nos. 1 and 2) and Mahendra Gowala as his sole  heirs.  They  got  the  suit  land  in  equal  share  and  had  been possessing  the  same  since  then.  Settlement  record  of  rights  were accordingly  prepared  in  their  names.  Mahendra  Gowala  was  of wandering mind. He wanted to sell his share inherited by him and asked his two brothers (plaintiff Nos. 1-2) to purchase the same. At that time plaintiff No. 3 (son-in-law of plaintiff No. 1), who was residing at Fultala Tea Estate under P.S. Kulaura, wanted to purchase the share of Mahendra Gowala i.e. 30.14 acres of land and the price was  fixed  at  Tk.  2,000.  The  plaintiff  No.  3  paid  Tk.  1,000/-  to Mahendra on 28th Aswin, 1371 B.S. On the same date Mahendra executed a Shikritinama in favour of the plaintiff No. 3 and delivered possession of his share in favour of plaintiff No. 3. The parties agreed to  execute  and  register  the  sale  deed  after  obtaining  necessary permission  and  acceptance  of  balance  consideration  money.  After taking possession of the suit land the plaintiff No. 3 constructed a house on the said land and has been possessing and enjoying the same with the plaintiff Nos. 1-2. After applying for permission before the relevant  authority  for  execution  and  registration  of  the  sale  deed Mahendra Gowala went to pilgrimage in Falgun 1371 B.S. and did not return. Subsequently, the plaintiff No. 3 got a notice on 26.06.76 from

the defendant No. 2 demanding surrender of the possession of share of the schedule land claiming the same as vested property, failing which the plaintiffs would be evicted therefrom. Specific case of the plaintiffs is that the suit land is not enemy or vested property and there is no reason to treat the same as such.

The  defendant  No.  1  contested  the  suit  by  filing  written statement stating, inter alia, that the suit is not maintainable and the same is barred by limitation and is bad for defect of parties and as such, the plaintiffs are not entitled to any relief. The specific case of the defendant No. 1 is that the suit land belonged to Sudhir Gowala, Adhir Gowala (plaintiff Nos. 1-2) and Mahendra Gowala in equal share. Mahendra Gowala left this country for India about 11/12 years

ago and became Indian National and as such share of the suit land became enemy property and vested to the government. The plaintiff Nos. 1-2 were found unauthorised occupants of the share of Indian National Mahendra Gowala and accordingly, they were served notice by the defendant No. 2 in V.P. Case No. 155/1975-76 to vacate the same. On receipt of the notice, they filed petition before the defendant No. 2 on 15.07.76 for filing objection but they did not appear and accordingly, the S.D.O. Sadar was requested to evict unauthorised occupants from the vested property. The further case of the defendant is that the Mahendra never sold the suit land or any part thereof to plaintiff No. 3 and he never executed any Shikritinama and accepted no money from him. The plaintiffs have filed the suit to illegally grab the valuable government property and as such, the suit is liable to be dismissed with cost.

The appellate Court below held that the Shikritinama was a forged document and it was never executed by Mahendra Gowala. The appellate Court dismissed the appeal. The trial Court, on the other hand, held that the Shikritinama has been proved. The trial Court decreed the suit.

It is recalled that plaintiffs did not pray for declaration of title in the  suit  land  rather  they  prayed  for  the  declaration  that  the  suit property is not enemy or vested or non-resident property pursuant to the V.P. Case No. 155/1975-76.

In Aroti Rani Paul vs. Sudarshan Kumar Paul and others, 56 DLR (AD) 73, it is held that since the law of enemy property itself died with the repeal of Ordinance No. 1 of 1969 on 23.03.1974 no further vested property case can be started thereafter on the basis of the law which is already dead. The same view was taken in the case reported in 20 BLT (AD) 7. In this regard, this Court takes judicial notice of the fact that the suit property has not been mentioned in the gazette notification published by the government pursuant to Section 9  of  the  Arpito  Sompotti  Prottarpon  Ain,  2001.  The  said  gazette notification has been produced before us.

In the case in hand, admittedly the V.P. Case No. 155/1975-76 was initiated after 23.03.1974 and as such, the contesting defendant admitted the title of plaintiffs in the suit land but introduced a new case  that  since  Mahendra  (brother  of  plaintiff  Nos.  1-2)  left  the

country for India his share in the suit land has been vested in the government. Accordingly, V.P. Case No. 155/1975-76 was initiated and the impugned eviction notice was given in the said V.P. case. Judicial pronouncement has settled that after 23.03.1974, no V.P. case

can be initiated. Therefore, the V.P. case in question being barred by law, the eviction notice issued in the said V.P. case is also illegal. Therefore, the Rule succeeds.

In the result, the Rule is made absolute. The judgment and decree passed by the appellate Court below are set aside and those passed by the trial Court are upheld for the reasons discussed above.

Send down the L.C.R.

Arif, ABO