The New Nation - Internet Edition

Appellate Division

(Civil)

Mohanunad Fazlul Karim-J

Amirul Kabir Chowdhury-J.

Md. Joynal Abedin-J.

CIVIL PETITION FOR LEAVE TO APPEAL NO. 258 OF 2005

(From the judgment and order dated 14th December, 2004 passed by the High Court Division in Civil Revision No.1931 of 2000).

Md. Rabiul Awal @ Sohel Miah

ttttt. Petitioner.

Vs.

Md. Abdur Rab @ Abdur Rab .

tttttt Respondent.

For the Petitioner- Mr. Mahbubey

Alam, Senior Advocate, instructed by Mr. Chowdhury Md. Zahangir, Advocate-on-Record.

For the Respondent: None Represented.

Judgment: 29 April, 2007

Premises Rent Control Act, 1991-Section 18- Tenant when challenges the title of his landlord forfeits his right to stay in premises-'

Power of attorney- When· the original deed is net produced and proved cannot be sustained as valid-

The power of attorney was never produced in Court. A copy of said power of attorney was however, produced by the Ministry but no evidence was adduced to prove execution of said power of attorney by Nasim Razzak. In the absence of any proof of the power of attorney, the transfer by Habibullah to Rabiul Awal does not convey any title of original allottee Nasim Razzak to Rabiul Awal in the suit, the appellate Court therefore most illegally declared title of Rabiul Awal in the suit property tt..(Para 12)

Now with regard to possession, we cannot shut our eyes to exhibit-'Ka-5' dated 10.7.1986 and Exhibit-'Dha' dated 3.10.1987 whereby Abdur Rab admitted to be a tenant under Habibullah. He made out a case that defendant No.5 obtained his signature by force on blank white papers. Though we find a CD entry lodged with reference to dated 3.10.1987, we could not find any CD entry or criminal proceeding with regard to any incident dated 10.7.1986. Abdur Rab in fact, failed to prove that his signature on those documents were taken by force. Exhibit 'Ka-5' is a deed of monthly tenancy and Exhibit-'Dha' is an application to the Ministry of Works. If Abdur Rab entered into the suit land on the basis of monthly tenancy the moment he challenged the title of his landlord he became liable to be ejected therefrom and to vacate the premises first since his right to stay as a monthly tenant stood forfeited. He is therefore obliged to vacate the premises in favour of Habibullah. On his own admission Habibullah had got better right than/him to get back possession ttttt. (Para 14)

In such view of the matter, direction for handing over possession by Abdur Rab cannot be taken any exception. The impugned judgment and decree declaring the title of Rabiul Awal in the suit property however cannot be sustained in law which no doubt, occasioned failure of justice and accordingly, Civil Revision No. 1931 of 2000 is made absolute in part but discharged the Rule in Civil Revision No.2197 of 2000 but direction to hand over possession is maintained unless ejected in due process of law. Impugned decree passed in allowing Title Appeal No. 153 of 1999 is upheld in part and Title Suit No.51 of 1997 is accordingly decreed in part that Abdur Rab is directed to hand over possession of the suit property in favour of Habibullah within sixty days. Impugned decree passed in dismissing Title Appeal No.207 of 1999 is upheld and Title Suit No.52 of 1997 is accordingly dismissed tt..(Para 15).

JUDGMENT

MOHAMMAD FAZLUL KARIM-J:

Delay of 2 days is hereby condoned. This application under Article 103 of the Constitution of the People's Republic of Bangladesh is directed against the judgment and order dated 14.12.2004 passed by the High Court Division in Civil Revision No.1931 of 2000 (heard analogously with Civil Revision No.2197 of 2000) reversing judgment dated 30.1.2000 passed by the Additional District Judge, Court No.7, Dhaka in Title Appeal No. 153 of 1999 affirming those dated 08.03.1999 passed by the Subordinate Judge, Arbitration Court, Dhaka in Title Suit No.51 of 1997decreeing in part.

2. One Abdur Rab as plaintiff on 17.11.1990 instituted Title Suit No. 388 of 1990 in the First Court of Assistant Judge at Dhaka against Abdul Jalil and others for a decree of declaration including one that the power of attorney being No.700S dated 02.07.80 and 8008 dated 30.12.89 executed and registered by defendant No.2 in favour of defendant No.5 Rabiul Awal was forged, collusive and of no legal effect.

3. The case, in short, is that the suit property measuring about 131 square yards with a house and structures thereon fully described in the schedule to the plaint was originally allotted to one Nasim Razzak by the Ministry of Works by a deed of lease being No.1701 dated 06.03.69. During the war of liberation, said Nasim Razzak left for Pakistan with his family leaving behind the possession of the suit property to one Md. Idris Ali. Thereafter, whereabouts of said Nasim Razzak could not be ascertained. While Idris Ali was thus in possession by payment of municipality taxes, rates etc. he on 12.08.85 transferred the possessory right to the plaintiff at a consideration of Taka 70,000.00 only by way of a registered power of attorney dated 12.08.85. Plaintiff has since then been living with family in the suit property,

4. The plaintiff unsuccessfully tried to mutate his name. Being asked by said Ministry of Works, the plaintiff submitted all papers in support of his possession. Number of inquiries was held in respect of possession of the suit property by said Ministry.

5. Lastly, on 13.12.89 the plaintiff finally prayed for allotment in the aforesaid Ministry of Works whereupon Assistant Commissioner (Settlement) ordered for another inquiry. Then, he came to know that defendant No.2 already obtained

permission from said Ministry on 12.08.1989, and executed and registered a sale deed being No. 8008 in favour of defendant No.5.

6. The further case of the plaintiff is that on 31.08.1987 defendant No.2 obtained his signatures forcibly on some blank papers and the plaintiff on 06.10.1987 lodged a GD Entry with the Mirpur Police Station and also informed said Ministry. On 02.07.1990, defendant No.5 also beat the plaintiff and looted away his goods and the plaintiff lodged Mirpur P.S. Case No.74(7)90 against defendant No.5. The case ended in conviction of defendant No.5 and sentenced to two years rigorous imprisonment. The plaintiff also instituted Criminal Proceedings under Section 107 being Criminal Case No. 16 of 1997 against defendant No.5.

7. Defendant No. 6, Basir Ali also claimed the suit property by way of purchase from Nasim Razzak by a registered sale deed being No. 17536 dated 14.05.1980. The plaintiff came to know that both sale deeds were forged and collusive. The suit was ultimately on transfer to the court of Subordinate Judge and Arbitration Judge at Dhaka renumbered as Title Suit No. 52 of 1997,

8. On 15.02.1992 said defendant No. 5 Rabiul Awal of earlier suit as plaintiff also instituted Title Suit No. 22 of 1992 against said Abdur Rab in the Second Court of Subordinate Judge, at Dhaka for a decree of declaration of his title in the selfsame property and also for recovery of possession.

9. Mr. Mahabubey Alam, learned Counsel, appearing for the petitioner submits that since the petitioner after being substituted as lessee in place of the original lessee in respect of the suit premises and he having been. accepted as such on receipt of rent from him and on mutation of his name, the High Court Division erred in not decreeing the suit as prayed for; that since the Government having not contested the suit by denying the claim of the petitioner, the High Court Division erred in decreeing the suit in part.

10. Lastly Mr. Alam farther submits that the title of the petitioner having been established in respect of the suit premises by accepting him as owner of the suit property, the High Court Division erred in not declaring the title of the plaintiff in the suit land.

11. The High Court Division found no material on record that Nasim Razzak left Bangladesh for Pakistan with his family leaving behind the possession of the property to one Idris Ali who also never came before the Court. His case is that by, 1 power of attorney dated 12.08.1985 said Idris Ali transferred the possessor right in a consideration of Tk.70,000.00 to Abdur Rab and in his turn Abdur Rab possessed the suit property since then.

The case of Rabiul Awal, the plaintiff of subsequent suit, is that Nasim Razzak appointed defendant No.2 Habibullah as his duly constituted attorney on 02.07.1986. Thus empowered, Habibullah took permission from the Ministry of Works on 02.08.1989 and transferred the suit property by a sale deed being No.8008 dated 13.07.1989 to the plaintiff Rabiul Awal. Since then the plaintiff Rabiul Awal demanded possession from Abdur Rab. Over such demand of possession, there were various litigations including criminal cases between Abdur Rab and Rabiul Awal.

12. The power of attorrney was never produced in Court. A copy of said power of attorney was however, produced by the Ministry but no evidence was adduced to prove execution of said power of attorney by Nasim Razzak. In the absence of any proof of to power of attorney, the transfer by Habibullah to Rabiul Awal does not convey any title of original allottee Nasim Razzak to Rabiul Awal. Thus, the appellate Court therefore most illegally declared title of Rabiul Awal in the suit property.

13. Similarly, Abdur Rab failed miserably to prove the power of Idris Ali to transfer any right of the original allottee. By the so-called power of attorney dated 12.08.1985 Abdur Rab therefore, acquired no right in the property. Accordingly, the Courts below therefore concurrently dismissed the suit of said Abdur Rab. Similarly Rabiul Awal having failed to prove his title in the suit property, he was not entitled to any declaration of title in his suit.

14. Now with regard to possession, we cannot shut our eyes to exhibit-'Ka-5' dated 10.07.1986 and exhibit-'Dha' dated 03.10.1987 whereby Abdur Rab a admitted to be a tenant under Habibullah. He made out a case that defendant No.5 obtained his signature by force on blank white papers. Though we find a GD entry lodged with reference to dated 03.10.1987, we could not find any GD entry or criminal proceeding with regard to any incident dated 10.07.1986. Abdur Rab in fact. failed to prove that his signature on those documents were taken by force. Exhibit 'Ka-5' is a deed of monthly tenancy and Exhibit 'Dha' is an application to the Ministry of Works. If Abdur Rab entered into the suit land on the basis of monthly tenancy the moment he changed the title of his landlord he became liable to be ejected therefrom and to vacate the premises first since his right to stay as a monthly tenant stood forfeited. He is therefore obliged to vacate the premises in favour of Habibullah. On his own admission Habibullah had got better right than him to get back possession.

15. In such view of the matter, direction for handing over possession by Abdur Rab cannot he taken any exception. The impugned judgment and decree declaring the title of Rabiul Awal in the suit property however cannot be sustained in law which no doubt, occasioned failure of justice and accordingly, Civil Revision No. 1931 of 2000 is made absolute in part but discharged the Rule in Civil Revision No.2197 of 2000 but direction to hand over possession is maintained unless ejected in due process of law. Impugned decree passed in allowing Title Appeal No. 153 of 1999 is upheld in part and Title Suit No.51 of 1997 is accordingly decreed in part that Abdur Rab is directed to hand over possession of the suit property in favour of Habibullah within sixty days. Impugned decree passed in dismissing Title Appeal No.207 of 1999 is upheld and Title Suit No.52 of 1997 is accordingly dismissed.

16. In view of the above, we find no substance in the submissions of the learned Counsel appearing for the petitioner.

17. Accordingly, the petition is dismissed without any order as to costs.