P L D 1971 Dacca 166 (PLP)

Before I proceed to deal with the merits of the case the history of the plaintiff's estate requires to be stated. It appears that the plaintiff's estate was under the Court of Wards from 1934 to 1956. The State Acquisition Act came into force in 1951. Under section 3(1), as it then stood, the Government by Gazette Notification dated 1st of April 1952 acquired all the property of the plaintiff's estate which is known as Bangla Bazar Court of Wards Estate. The Notification was to the following effect Notification No. 316 L. R. January 1952.‑In exercise of the power conferred by subsection (1) of section 3 of the East Bengal State Acquisition and Tenancy Act, 1950 (East Bengal Act No. XXVIII of 1951), it is hereby notified, for the information of all concerned, that the Governor is pleased to acquire, with effect from the 14th April 1952, all interest of the rent‑receiver named in column 1 of the Schedule below in the estates and taluks and tenures, the particulars whereof are given in column 2 of the Schedule against his name, including all his interest in all sub‑soil and rights to mineral in such estates and taluks and tenures." It clearly states that all interest of the. rent‑receiver named in column 1 of the Schedule including all his interest in the sub‑soil etc. were acquired by the Government with effect from 14th April 1952. Thereafter on 15th of August 1952 the Government by another notification entitled Erratum dated 11th August 1952 published in the Dacca Gazette on Friday the 15th August 1952, corrected the previous notification by exluding the Lakhiraj Touzi No. 48133 from acquisition. This Touzi seems to consist 9f 13 properties within the Municipality of Dacca and includes the suit property. The evidence of the plaintiff is to the following effect: "My estate had been under Court of Ward for the period of 1934 to 1956 year. My estate has been acquired by the Government of East Pakistan in 1952 but my some khas land and all some khas properties were released to me." Mr. D. C. Bhattacharjee, appearing on behalf of the defendant‑respondent has argued that the suit property was a vacant land and it would amount to non‑agricultural land and as such even if it was exempted by the notification of 11th August 1952 on which date by a series of notifications under the amended section 3 of the State Acquisition Act all the rent receiving interest of all rent‑receivers of the province was sought to be acquired. The notification of the 2nd April 1956 reads to the following effect :‑ "Notification No. 4839‑L.R. dated the 2nd April 1956 :‑ In exercise of the power conferred by subsection (2) of section 3 of the East Bengal State Acquisition and Tenancy Act, 1950 (East Bengal Act XXVIII of 1951) as amended by the East Bengal State Acquisition and Tenancy (Amend ment) Ordinance, 1956 (East Bengal Ordinance III of 19156), it is hereby notified, for the information of all concerned, that the Governor is pleased to acquire, with effect from the 14th April 1956, all lands in the khas possession of all rent‑receivers situated in the district of Dacca other than the classes of lands coming under clauses (a) and (b) of section 20 and other than such lands as have already been acquired by, and have already vested by said Act." The notification of 2nd April 1956 clearly refers to all rent receivers situated in the district of Dacca in this case. That means rent‑receivers who were rent‑receivers on 2nd April 1956 and could not have any reference to a rent‑receiver whose interest has already been acquired prior to the said notification. So far as the estate of the petitioner is concerned it must be remembered that it was under the management of the Court of Wards. As soon as the State Acquisition Act had come into force the Government acquired some of the big Zemindaris and all the estates which were being managed by the' Court of Wards. So far as the plaintiff' is concerned his estate stood acquired with effect from 14th April 1952. Thereafter the notification exempting the town properties of Dacca was published. The plaintiff has claimed that they were released to him as they were found to be khas land presumably retainable khas land. There is no cross‑examination of his claim as given by him in his examination‑in‑chief. Therefore I hold that on the date the notification of 1956 the plaintiff was not a rent‑receiver whose estate could be made subject to the said notification. So far as the plaintiff is concerned the acquisition under the State Acquisi tion Act was completed by the last order passed with regard to his estate that is the notification published on 15th August 1952. Rightly or wrongly the Government who alone can acquire the estate under the State Acquisition Act exempted these specified properties from acquisition under the State Acquisition Act If the Government has to acquire the same again it has to issue a specific notification for the purpose. I cannot agree with Mr. Bhattacharjee's argument that if any rent‑receiving interest had been omitted to be acquired through some mistakes before the notification of 2nd April 1956 this interest would stand acquired by the notification of 2nd April 1956. Sequestration of property, as held by the Supreme Court, is a serious matter and cannot be a question of inference. The Government, namely, the acquiring body, has been pleased to exempt the property from the acquisition. It does not call for the defendant to make any complaint. If there had been any mistake it is to be corrected only by the Government by a specific notification. In these circumstances I think that the plaintiff has his prima facie title as evidenced by the second notification of 1952 namely the notification dated 11th August 1952 exempting the suit property from acquisition. In a rent suit the Court should not go behind the prima facie title. So far as the question of construction of the but is concerned it is admitted by both the parties that the construction is present on the suit land from a long time. The plaintiff has filed the register relating to the ledger maintained by the Court of Wards for the house properties. The earliest one which has been filed is Exh. I(b) Register No. III for house rents for the year 1349 B. S. corresponding to 1942 which shows that the defendant Hatem Bepari owes rent for 4 months at the rate of Rs. 9 amounting to Rs.

36. Exh. 1(a) which is called a ledger for House Rent (being Register No. 11‑A, Form 2‑a under rule 71 of the Court of Wards Rules) shows that Hatem Bepari was a tenant with respect to house property in the town of Dacca at the monthly rent of Rs.

9. There is a note that the tenant had claimed in Court that he was a tenant with regard to the Bhitti. Exh. 1(e) is the Register for permanent and semi‑permanent buildings and structures of the Estate and shows that Hatem Bepari was a tenant‑at‑will with regard to the suit premises and the measure ment of the structure both square and cubic area is given. Exh. 1 is ledger of house rent showing that the defendant is a tenant with regard to a shop 67, Pyari Das Road, Dacca. This is dated 1953. All these ledgers which were kept by the Court of Wards are prima facie evidence that the tenancy was with respect to the premises that is the land along with the structures. It is admitted that the rent was payable monthly. Therefore the lease was a monthly lease. In these circumstances section 2, subsection (23) of the State Acquisition Act makes the plaintiff not a rent‑receiver as contemplated by the State Acquisition Act so far as this property is concerned. Mr. Bhattacharjee tried to meet this point with reference to Exh. D that is a deed of gift made by the father of the present defendant to the defendant in 1927. First of all on a clear reading of the deed itself it will appear that the business carried on in the said premises mentioned in the Schedule was being gifted by Haji Abdul Khaleqe the father of the defendant to his son Hatem Bepari. Mr. Bhattacharjee referred to the Schedule to the deed which is to the following effect: In the body of the deed there is no recital that the structures were built by the donor. On the other hand it is clear that the donor is making a gift of his business in the said premises to his son. Read in this light the Schedule would only mean that the business is situated in the said premises of which a full description is given. Secondly, this is a document inter partes that is between the father and the son and it cannot bind the plaintiff unless it is shown that he had notice of this document. Moreover, as I have shown from the above that the document was a gift of the business carried on by the donor to his son and the Courts below misinterpreted the document to indicate that the donor was giving away the premises by the said deed of gift. Another factor which has weighed with the trial Court is that the property in question was repaired by the defendant and there is no evidence that the plaintiff repaired the same. Mr. Asrarul Hossain argued that the rent being so low, that is Rs. 9 per month for the premises in the city of Dacca the defendant would be eager to carry on the repairs with his own cost in order to maintain possession in the suit premises. Another fact which had weighed with the Courts. below is that the plaintiff could not produce any document to title. In the case when the land is recorded in the name of the plaintiff I do not understand what other document of title the plaintiff was required to produce. The plaintiff himself has given evidence that the structures were built by his father as a stable and was an annexure to the main building. The records maintained by the Court of Wards show that the premises, that is, land plus the structures on it, was the subject‑matter of the tenancy. Lastly the act of the Government in excluding this premise along with the other premises by the notification of 11th August 1952 clearly p show that these were treated as retainable khas land of the plaintiff. "Khas land" has been defined in subsection (15) of sec tion 2 of the State Acquisition Act and reads as follows: "(15) , "Khas land" or `land in khas possession', in relation to any person, includes any land let out together with any building standing thereon and necessary adjuncts thereto, otherwise than in perpetuity ;". In this case there is ample evidence to show that the land in question had the structures on it and the plaintiff was realising rent and the lease was not a lease in perpetuity. Mr. Bhattacharjee then referred to the judgment in the case filed by the defendant under section 19 of the State Acquisition Act. In that decision (Exh. K) it is true that there is a finding in favour of the defendant but then it remains a finding of a Settlement Officer and is subject to the findings of a civil Court. It is not apparent whether any other proceedings subsequent to the judgment under section 19 was filed by the plaintiff nor has the records been finally published. The point for determination before the Settlement Officer would be actually who is in possession and it is not disputed that the defendant before me and his father before him was in possession of the disputed plot of land. On the question of who was the owner of the premises the decision cannot be final and binding on civil Courts who will decide the matter on evidence in the case. Considering all the circumstances of the case I hold. that the Courts below have misdirected themselves in holding that the defendant was the owner of the premises and have done so by misinterpreting the evidence adduced in this case both oral and documentary. The appeal is therefore allowed and the judgment and the decree of the Courts below is set aside and the suit is decreed for the sum of Rs. 364.50 paisa with interest from the date of the institution of the suit. There will be no order as to costs. Leave under clause 15 of the Letters Patent as asked for by Mr. Bhattacharjee is granted as the case involves some important question of public importance. A.R. Appeal allowed.