SHEIKH ABUL HOSSAIN AND OTHERS VS. KHULNA DEVELOPMENT AUTHORITY

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SHAWKAT ALI KHAN VS. AHMED ALI AND OTHERS

Case No: Civil Petition for Leave to Appeal No.1547 of 2006.

Judge: Md. Abdul Matin,

Court: Appellate Division ,,

Advocate: Mr. Mahbubey Alam,Chowdhury Md. Zahangir,,

Citation: VI ADC (2009) 79

Case Year: 2009

Appellant: Sheikh Abul Hossain and others

Respondent: Khulna Development Authority

Subject: Property Law,

Delivery Date: 2007-12-05

Sheikh Abul Hossain and others Vs. Khulna Development Authority
VI ADC (2009) 79

Supreme Court
Appellate Division
(Civil)

Present:
Md. Joynul Abedin J
Md. Abdul Matin J

Sheikh Abul Hossain and others …………..Petitioners
Vs.
Khulna Development Authority represent­ed by its Chairman, Upper Jessore Road, K.D.A. Building, Khulna and others………………Respondents

Judgment
December 5, 2007.

It appears that the petitioner himself applied for allotment of a plot acknowl­edging the ownership of the Government and therefore he cannot question the title of the Government and pray for a decree as prayed for. … (9)
It further appears that once the land is vested in the Government the original owner cannot get back the land only because the land remained unutilized. Section 78 of the K.D.A. is of no avail to the petitioners. …. (10)

Lawyers Involved:
Mahbubey Alam, Senior Advocate instructed by A.K.M. Shahidul Huq, Advocate-on-Record- For the Petitioners.
Chowdhury Md. Zahangir, Advocate-on-Record-For the Respondents.
Not represented-Respondent No. 2.

Civil Petition for Leave to Appeal No.1547 of 2006.
(From the judgment and order dated 05.01.2006 passed by the High Court Division in Civil Revision No. 2372 of 1993.)

Judgment

Md. Abdul Matin J.- This petition for leave to appeal is directed against the judgment and order dated 05.01.2006 passed by the High Court Division in Civil Revision No. 2372 of 1993 making the Rule absolute and reversing the judgment and decree dated 27.03.1993 passed by the learned the then Subordinate Judge (now Joint District Judge), Second Court, Khulna in Title Appeal No.122 of 1990 affirming those dated 31.03.1990 passed by the learned Assistant Judge, Khulna in Title Suit No. 28 of 1989 decreeing the suit.

2. The facts, in short, are that the petition­ers as plaintiffs instituted the Title Suit No. 28 of 1989 in the Court of learned Assistant judge, Khulna for a declaration that a letter under memo No.105/86-88-9420 dated 05.01.1989 issued by the defendant respondent No.1 herein refus­ing to return the land described in the schedule of the plaint to them is illegal, void etc. and that the plaintiffs are entitled to get back the schedule land @ Tk.712/- per katha at the maximum and for manda­tory injunction for return of the schedule land to the plaintiffs and also for restrain­ing the defendants from transferring the suit land in any way to any one other than these plaintiffs and other ancillary reliefs, stating, inter alia, that land measuring 88 decimals appertaining to present plot No.18.42 (former 1787) within Mouza Chhoto-Boyra, P.S. Sonadanga, District-Khulna belongs to late Parash Ullah, Yunus Sheikh, Nasaruddin Sheikh and plaintiff No.8 Sheikh Abdur Rahman was recorded in khatian No. 849 in the District Survey and 862 in S.A. Survey. Out of the above land 66 decimals of land are acquired for the construction of Mujgunni Main Road at the instance of the defen­dant respondent K.D.A. in L.A. Case No.2A/1965-66. Out of the total acquired land 17 decimals were used for the said pur­pose and the remaining 49 decimals kept unused. On 02.08.1986 the plaintiff filed an application to the respondent No.1 for return of the unused 45 decimals of land. The defendant respondents by letter dated 05.01.1989 refused to return the scheduled land for reason hat the said land having been acquired for development of plots for commercial purpose by the road side and also that the suit land cannot be said unused land. The plaintiffs claimed that they are entitled to get back the unused land by refusing the compensation money they had received together with develop­ment cost as per law. The land claimed by the plaintiffs bearing plot Nos. 15-20 is shown in a draft sketch map is annexed to the plaint and basing on those facts and circumstances the plaintiff petitioner filed the instant suit on 05.02.1989.

3. The defendant respondent No.1 contest­ed the suit by filing written statement denying all the material allegations made in the plaint, contending, inter alia, that along with lands from different persons the plaintiffs suit land were acquired for the purpose of constructing Mujgunni Main Road and Commercial plots by the said of the said road. The compensation money was fully paid and accepted by the plaintiffs after complying with all legal formalities and thereafter possession of the acquired land was taken over fully by the respondent defendant No.1 the K.D.A. and now the authority after construction of the road also made development of the entire acquired land falling by the said of the said road and by raising and leveling the land converted the same into commer­cial plots and allotted to persons plot by plot through open tender as per prescribed rules of the authority. Now the plaintiffs only to get the suit land on a nominal value illegally to be more benighted and thereby wanted to define those commer­cial plots as unused lands and as such their suit is liable to be dismissed with heavy cost.

4. Thereafter considering the materials and evidence on record the trial court decreed the suit in favour of the plaintiffs and against the defendant respondents by his judgment and decree dated 31.03.1990 passed in Title Suit No. 28 of 1989.

5. Being aggrieved by and dissatisfied with the aforesaid judgment and decree passed in the said title suit the defendant respondent No.1 preferred a Title Appeal No.122 of 1993 before the learned District Judge, Khulna which on transfer was heard and disposed of by the learned Subordinate Judge, Second Court, Khulna by dismissing the appeal and affirming the judgment and decree of the trial court by the judgment and decree passed in the said appeal dated 27.03.1993.

6. The order of the appellate court was accordingly challenged by the defendant-respondents before the High Court Division in revision and by the impugned judgment and order the High Court Division set aside the judgments of the courts below and made the rule absolute. Hence the petition for leave to appeal by the plaintiff-petitioners.

7. The learned Counsel for the petitioners submits that the learned Single Judge of the High Court Division most illegally made the Rule absolute and reversed the judgment and decree passed by the trial as well as the lower appellate court decreeing the suit without considering the facts, cir­cumstances and evidence on record and totally misdirecting himself in passing the impugned judgment in violation of Rule 78 of K.D.A.

8. Admittedly the land in question was acquired as per L.A. Case No. 2A/1965-66 and it vested in the Government free from all encumbrances.

9. It appears that the petitioner himself applied for allotment of a plot acknowl­edging the ownership of the Government and therefore he cannot question the title of the Government and pray for a decree as prayed for.

10. It further appears that once the land is vested in the Government the original owner cannot get back the land only because the land remained unutilized. Section 78 of the K.D.A. is of no avail to the petitioners,
The respondent being the owner has the discretion to allow or reject the appli­cation of the petitioner.

We find no merit in this petition which is accordingly dismissed.
Ed.

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