(Civil Revisional Jurisdiction)
Sharif Uddin Chaklader J
Khizir Ahmed Chowdhury J
Eastern Housing Ltd. ………Petitioner
vs
Ainuddin Haydar and others……Opposite-Parties
Judgment
September 3rd, 2015
Code of Civil Procedure (V of 1908)
Order VII, rule 11
In considering application for rejection of plaint, the statement made in the plaint is to be considered assuming all the averments made therein to be true without taking into consideration of the pleadings and documents submitted by the defendants. …… (9)
State Acquisition & Tenancy Act (28 of 1951) Sections 3 and 43
Any notice under Section 3 of the Act attained finality by issuance of notification under Section 43 of the Act on payment of compensation and preparation of compensation assessment roll. .. …. (12)
Code of Civil Procedure (V of 1908)
Section 151
Plaint can be rejected by invoking inherent jurisdiction under Section 151 of the Code if it is found that the suit is so preposterous and vexatious that its ultimate result is as clear as day light. ..(9)
Bangladesh vs Modongopal, 33 DLR (AD) 13; Abdul Kuddus vs Bangladesh, 33 DLR (AD) 53 and Bhawalraj Court of wards estate vs Rasheda Begum, 14 MLR AD 401 = 15 BLC (AD) 115 ref.
Mohammad Ali with Rabaiyat Hossnin, Advocates –For the Petitioner.
Abdul Baset Majllmder with Abdul Barek Chowdhury, Advocates-For the Opposite-Parties.
Judgment
Khizir Ahmed Chowdhury J: This Rule has been issued calling upon the opposite parties to show cause as to why the judgment and order dated 15-7-2013 passed by learned Joint District Judge, 2nd Court, Dhaka in Title Suit No. 769 of 2012 rejecting application filed by defendant No.2 petitioner under Order VII, rule 11 of the Code of Civil Procedure for rejection of plaint should not be set-aside and or pass such other or further order or orders as this court deems fit and proper.
2. Opposite party Nos. 1-2 as plaintiffs instituted the above noted suit in the court of Joint District Judge, 2nd Court, Dhaka impleading the present petitioner and opposite parties Nos. 3-26 as defendants praying for declaration that plaintiff No.1 is owner of ka schedule land, plaintiff No.2 is valid lessee of the Kha schedule land under Ainuddin Haider and Foyjunnessa waqf estate by virtue of lease deed No. 3377, declaration that defendant No.1 has not acquired title in the Ga schedule waqf land by virtue of sale deed Nos. 10532, 10533 and 10718 dated 20-10-1956 and the said deed be declared fraudulent, void and ineffective, declaration that defendant No. 2 has. not acquired title by virtue of deed of sale No. 351 dated 18-1-2004 and deed of sale No. 6935 dated 22-8-2006 and the said deeds be declared illegal, ineffective and void, deed of mortgage No. 4142 dated 9-8-2008 created by defendant No.3 during pendency of the suit regarding Uma schedule land be declared illegal, ineffective and void.
3. Defendant No.2 petitioner by filing a written statement averred that the suit is not maintainable, barred by Section 10 of the Code of Civil Procedure, Section 3 of the Slate Acquisition and Tenancy Act 1950 and PO 90 of 1972 and prayed for dismissal of the suit.
4. Thereafter, by filing an application under Order VII, rule 11 of the Code of Civil Procedure, the petitioner prayed for rejection of plaint with reference to paragraph No.6 of the plaint contending that the suit is barred under Section 3 of the State Acquisition and Tenancy Act, 1950 as the plaintiff claimed superior interest in the suit land which cannot be claimed under Section 3 of the State Acquisition and Tenancy Act.
5. By filing written objection against the prayer for rejection of plaint it is asserted by the plaintiffs that the suit has not been filed challenging any notification under Section 3 of the State Acquisition and Tenancy Act 1950, and, as such, it is not barred under PO 90 of 1972, rather the suit has been filed for declaration of title, cancellation of documents and for recovery of khas possession and, as such, the application for rejection of plaint is liable to be rejected.
6. Learned Joint District Judge, upon hearing, rejected the application by order dated 15-7-2013 holding that the suit has been filed for declaration of title, cancellation of documents and for recovery of khas possession and no provision of the State Acquisition and Tenancy Act has not been challenged in the suit. He further found that suit land along with other properties has been enlisted as waqf property vide Gazette Notification dated 17-6-2010 and the plaintiffs are claiming the suit land as waqf property. Challenging the publication of Gazette Notification defendants filed a writ petition in the High Court Division which is pending and they also filed Title Suit 438 of 2013 which is fixed for simultaneous hearing with plaintiffs suit, so those facts are mixed question of law and facts which is to be adjudicated at the time of hearing upon taking evidence.
7. Mr. AJ Mohammad Ali, learned advocate appearing for the petitioner submits that the suit is barred under Section 3 of the State Acquisition and Tenancy Act, 1950 as well as PO 90 of 1972 as the plaintiff in paragraph 6 of the plaint claimed superior interest in the suit land and filed the suit challenging Section 3 of the State Acquisition and Tenancy Act. He submits that although the motawali of the waqf property obtained decree regarding waqf property but said decree has been abated under PO 90 of 1972 and the property has been vested to the government by operation of law. In support of contention he referred the decision reported in 33 DLR (AD) 13, 33 DLR (AD) 53 and 14 MLR (AD) 401.
8. Per contra Mr. Abdul Baset Majumder learned advocate appearing with Mr. Abdul Barek Chowdhury for the opposite parties submits that the plaintiffs have filed the suit for declaration of title, cancellation of documents and recovery of khas possession which is quite maintainable. Plaintiffs did not challenge any provision of State Acquisition and Tenancy Act, PO 90 of 1972 and any other provision challenging taking over superior interest of the suit property. He further submits that the suit property being waqf property Gazette Notification has been published on 17-6-2010. Besides the defendant No.2 in the meanwhile filed Title Suit No. 438 of 2013 against the plaintiffs and both the suits have been set for simultaneous hearing and, as such, learned Joint District Judge rightly rejected the application.
9. We have perused plaint, written statement, application for rejection of plaint, written objection and other materials as well as relevant provisions of law. It is now fairly settled that in considering application for rejection of plaint, the statement made in the plaint is to be considered assuming all the averments made therein to be true without taking into consideration of the pleadings and documents submitted by the defendants. The application for rejection of plaint must come under Order VII, rule 11 of the Code of Civil Procedure. Apart from this plaint can be rejected by invoking inherent jurisdiction under Section 151 of the Code of Civil Procedure if it is found that the suit is so preposterous and vexatious that its ultimate result is as clear as day light.
10. In the above backdrop we shall consider whether the plaint is circumscribed by above hurdles. We find in the plaint following salient points along with other statements:
a) Waqf property has been enrolled in the waqf estate under EC No. 411/C
b) Name of Afser Uddin Haider and Mohiuddin Haider has been published in the Bangladesh Gazette dated 11-9-1974 as motawali of the Ainuddin Haider and Foyjunnessa waqf estate.
c) Upon an application dated 27-12-2011 filed by plaintiff land acquisition division of Deputy Commissioner Office, Dhaka informed that CS, SA Plot No. 417 and RS Plot No. 204 has not taken over by government.
d) On the application of plaintiff No.2 and on due recommendation by Waqf Administrator Bangladesh Ministry of Religious Affairs, People’s Republic of Bangladesh approved lease of 0.27 acres land including 0.2 acres out of kha schedule land by has been leased out in favour of plaintiff No.2 order dated 1-10-1997 and lease deed has been executed and registered on 31-5-1998.
e) Defendant No.2 as plaintiff instituted Title Suit No. 548 of 2009 in the court of Joint District Judge, 2nd Court, Dhaka against the present plaintiff.
11. So the aforesaid salient points and counter points can only be resolved and decided upon taking evidence on consideration of documents at the time of peremptory hearing of the suit. There is no summary or short cut procedure to address those issues.
12. In the application for rejection of plaint, the defendants by pointing paragraph No.6 of the plaint stated that the plaintiffs claimed that the then motawali filed Title Suit No. 75 of 1956 and 87 of 1956 challenging taking over of superior interest under Section 3 of the Stale Acquisition and Tenancy Act, 1950 which is barred under PO 90 of 1972. Although plaintiffs got decree in the suits but those have been abated by the provisions of law and the properties have been vested to the government. Such contention is not acceptable because any notice under Section 3 of the State Acquisition and Tenancy Act attained finality by issuance of notification under Section 43 of the State. Acquisition and Tenancy Act on payment of compensation and preparation of compensation assessment roll. In the instant case the defendants failed to produce issuance of notification under Section 43 of the State Acquisition and Tenancy Act which is point of finality of any notification commenced under Section 3 of the State Acquisition and Tenancy Act. In the case of Bangladesh vs Modongopal 33 DLR (AD) 13, Abdul Kuddus vs Bangladesh 33 DLR (AD) 53 and Bhawalraj Court of wards estate vs Rasheda Begum, 14 MLR AD 401 it has been consistently established that rent receiving interest is acquired upon publication of compensation assessment roll under Section 43 of the State Acquisition and Tenancy Act, 1950. In the present case no such plea has been raised by the defendants that notification has been published under Section 43 of the State Acquisition and Tenancy Act and, as such, the cited decisions are not applicable in the facts and circumstances of the present case.
13. Another important aspect is that the plaintiff claimed that government issued Gazette Notification declaring the suit property as waqf property, so these matters are to be resolved by laking evidence.
14. Considering the facts and circumstances, of the case we are of the view that learned Joint District Judge by judicious order rejected the application for rejection of plaint and, as such, we find no reason to interfere.
15. Accordingly, we find no merit in the rule. In the result, the rule is discharged without any order as to cots.
16. The order of stay granted earlier by this Court stands vacated.
Let a copy of this judgment be sent to the concerned Court at once.