The New Nation - Internet Edition

Appellate Division

(Civil)

Md. Ruhul Amin-J.

M.M. Ruhul Amin-J.

Civil Petition for leave to appeal No.30 of 2002.

(From the judgment and order dated 21.10.2001 passed by the High Court Division in Civil Revision No.80 of 1996.)

Abdul Majid Molla

tttttt.Petitioner.

Vs.

Biswajit Chandra (minor) & others

ttttttttt..Respondents.

For the Petitioner Mr. A. J.

Mohammad Ali, Senior-Advocate instructed by Mrs. Sufia Khatun, Advocate-on Record.

For the Respondent: Mr A.S.M.

Khalequzzaman. Advocate

on-Record.

Judgment: 11 February 2004

Defence of Pakistan Rules,

1965-

Property of a person who did not leave the country cannot be treated as enemy property (now vested property)-

The Defence of Pakistan Rules, 1965 was repealed on 16th February 1969 and as such, no property can be enlisted as enemy property after 16th February 1969.

When no basis could be produced and on the contrary it is established that the property of the plaintiff cannot be treated as enemy property. Report of a Magistrate without his examination by the court is not admissible in evidence.

It appears that the first order was passed on 09.07.1970 in the lease Case No.X1I-E-129/.1969-70. It further appears that there was no evidence to show that census list was produced before the Court to substantiate that property in suit was enemy property (Para 5)

It is needless to mention here that no property can be enlisted. afresh after 16th February, 1969. It further appears as back as in the year· 1973 Biraj took objection against the lease granted in favour of defendant No.1. From 'record it further appears that Manitara personally appeared before' the local Tahshil Office in 1970 and paid rent for the suit land. Record further shows that the appellate Court mainly relied on the report of a Magistrate 1st Class, Exts. B(I) dated 10.02.1973 in coming to the conclusion that the land in suit is enemy property. It 'appears that the Magistrate in the report stated. that some old men who were examined by him stated before him that Manitara, mother of Biraj left for India about 4 years back i.e. on or about 10.05.1969. If this report of the Magistrate is taken as it is for argument's sake then also it is clear that Manitara left this country after 16th February, 1969 and from this point also the suit land could not be enlisted as enemy property. The trial Court took into consideration inquiry report without examining the Magistrate which was not legal and it was an inadmissible evidence. It also appears that the homestead of Monitara has not been declared enemy property up till nowttttt(Para 6)

It further appears that the '-High Court Division on correct assessment and proper consideration of the evidence on record arrived at the conclusion regarding possession of the plaintiff. The High Court Division also considered the documentary evidence namely Exhibit l a certificate regarding nationality of the plaintiff and Exhibit 2 the voter list of the locality prepared in 1973 and came to the finding that Biraj was a national of this country and the plaintiffs are in possession

ttt (Para 7)

Judgment

M.M. Ruhul Amin, J:- This petition for leave to appeal is directed against the judgment and order dated 21.10.2001 passed by a Single Bench of the High Court Division in Civil Revision No.80 of 1996 reversing the judgment and decree dated 12.09.1995 passed by the learned Subordinate Judge. (now Joint District Judgege). 1st Court.' Madaripur in Title Appeal No.63 of 1991 and restoring the judgment and decree dated 23.04.1991 passed by the learned Senior Assistant Judge. Sadar Madaripur in Title Suit No.' 53 of 1986 decreeing the suit.

2. Short facts are that the plaintiff instituted the suit for declaration of title. confirmation of possession and for further declaration that the lease granted in favour of defendant No.1 in lease Case No.XII-E-129/1969-70 is illegal. void and without jurisdiction on the assertions. inter alia, that the suit land described in the schedule-l to the plaint belonged to Manitara Chanda and the schedule-II land belonged to Biraj Mohan Chanda, son of Manitara. Chanda. Manitara and Biraj Mohan had been in possession of schedule-I and II lands and during the War of Liberation. Manitara died on the way to India. and Biraj Mohan came back in this country after the liberation of the country and died leaving behind the plaintiffs as his successive heirs. The plaintiffs have been possessing the suit land through borgaders including the defendant No. 1 who did not give borga crop to the plaintiffs regularly. Subsequently. defendant No. 1 in collusion with the Enemy Property Authority managed to obtain an order of lease in respect of some portion of the suit land as enemy property. Neither Manitara nor Biraj left this country in 1965 after the promulgation' of the' Defence of Pakistan Rules. 1965. So the suit property is not enemy property (now vested property).

3. Defendant Nos. l.2 & 3 contested the suit by filing separate written statements. They denied the material allegations made in the plaint. Their cases are almost similar and hence these are discussed together. They contended that Kali Charan. Biraj, Satish Chandra and Jogeshar in two groups were the owners of the Suit land. Manitara left this country and Biraj also left this country in 1947 Manitara never returned to this country and she died in India as Indian National The suit land was enlisted as enemy property and Abdul Latif Molla who was borgader applied for lease and was granted lease by the Government on 9.7.1970. After the liberation of the country Biraj came back to Bangladesh and filed objection against the lease granted in favour of defendant No.1 but his objection was rejected by the then Sub-Divisional Officer and hence the suit is liable to fail.

4. We have heard Mr. A J, Mohammad Ali, the learned Counsel for 1he petitioner and perused the record.

5. It appears that the first order was passed on 9.7.1970 in the lease Case No.XII-E-129/1969-70. If further appears that there was no evidence to show that census list was produced before the Court to substantiate that property in suit was enemy property.

6. It is needless to mention here that no property can be enlisted afresh after 16th February. 1969. It further appears as back, as in the year 1973 Biraj took objection against the Lease granted in favour of defendant No.1. From record it further' appears that Manitara personally appeared before the Local Tahshil Office in J 970 and paid rent for the suit land. Record further shows that the appellate Court mainly relied on the report of a Magistrate 1st Class, Exts. B(l) dated 10.2.1973 in coming to the conclusion that the land in suit is enemy property. It appears that the Magistrate in the report stated that some old men who were examined by him stated before him that Manitara. mother of Biraj) left for India about 4 years back i.e. on or about 10.5.1969. If this report of the Magistrate is taken as it is for argument's sake then also it is clear that Manitara left this country after 16th February. 1969 and from this point also the suit land could not be enlisted as enemy property. The trial Court took into consideration inquiry report without examining the Magistrate which was not legal and it was an inadmissible evidence. If also appears that the homestead of Monitara has not been declared enemy property up till now.

7. If further appears that the High Court Division on correct assessment and proper consideration of the evidence on record arrived at the conclusion regarding possession of the plaintiff. The High Court Division also considered the documentary evidence namely, Ext. I a certificate regarding nationality of the plaintiff and Ext.2 the voter list of the locality prepared in 1973 and came to the finding that Biraj was a national of this country and the plaintiffs are in possession.

8. The learned Advocate for the petitioner could not point out any legal infirmity in the judgment of the High Court Division.

9. Accordingly. the leave petition is dismissed.