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Status of abandoned property remains unchanged

Appellate Division
(Civil)
Md Fazlul Karim CJ
Md Muzammel Hossain J
SK Sinha J
Judgment May 24th, 2010
Amena Khatun ..........
............... Appellant
vs
Chairman, Court of Settlement and others. .......... Respondents
Abandoned Buildings (Supplementary Provisions) Ordinance (LIV of 1985)
Section 5(1)
Enlistment of a property under Section 5(1) of the Ordinance raises a presumption of law that the property is abandoned property under Section 5(2) and this presumption will continue until the claimant proves otherwise.
CQMH Md Ayub Ali vs Bangladesh, 47 DLR (AD) 71, Hosne Ara Begum vs Chairman, Court of Settlement, 46 DLR (AD) 9; Golam Rabbani vs Chairman, Court of Settlement, 13 MLR (AD) 345; Bangladesh vs Jalil 48 DLR (AD) 11, Hasina Khatun vs Bangladesh, 48 DLR (AU) 13  and Bangladesh vs Roushan Ara Begum, 57 DLR (AD) l67 ref
AK Badrul Huq, Senior Advocate, instructed by Md Nawab Ali, Advocate-on-Record-For the Appellant.
Ekramul Haque, Assistant Attorney-General instructed by B Hossain, Advocate-on-Record-For the Respondent No.2.
Not Represented-For Respondent No.1.
Judgment
SK Sinha J : Leave was granted to consider whether, the learned Judges of the High Court Division were justified in holding that the listing or the disputed property as abandoned property is not hit by proviso (a) to Section 5 of the Abandoned Buildings (Supplementary Provisions) Ordinance, 1985 (Ordinance No. LIV of 1985) since the appellant has obtained decrees in Title Suit Nos.1 0 13 of 1980, 408 of 1982 and 213 of 1985 from competent Civil Courts prior to the date of inclusion of the disputed property in the abandoned property list on 23rd September, 1986.
2. Facts relevant for the disposal of this appeal are that appellant entered into a contract for purchase of the disputed property on 22nd December, 1970 with the owner Jalal Uddin Khan and made part payment out of the consideration money, bur the owner did not execute the sale deed despite repeated demands in that regard. Consequently, the appellant instituted Title Suit No. 1013 of 1980 in the 1st Court of Subordinate Judge, Dhaka for specific performance of contract and got a decree, and in pursuance of an execution proceeding she obtained a sale deed on 19th November, 1982 executed and registered through Court. Thereupon she approached the Ministry of Works for mutation of her name but the Ministry directed her to establish her title over the property. Pursuant thereto the appellant instituted Title Suit No. 408 of 1982 in the 4th Court of Subordinate Judge, Dhaka for declaration of title in respect of the suit property and ultimately the suit was decreed exparte on 28th June, 1983. The government subsequently filed Miscellaneous Case No. 40 of 1986 for setting aside the ex-parte decree but the  said case was also dismissed on 22nd October, 1991 as being time barred.
3. Thereupon, the appellant renewed her prayer for mutation but she was informed that the property was already included in the list of abandoned property; she then instituted Title Suit No.213 of 1985 in the 1st Court of Assistant Judge, Dhaka for declaration that the disputed property is not an abandoned property and for direction upon the government for mutation of her name  in respect of the said property. The said suit was also decreed ex-parte on 3rd March, 1986. As the appellant's prayers were repeatedly unheeded, she instituted Settlement Case Nos. 21 and 22 of 1992 before the Court of Settlement, Dhaka. The Court of Settlement by judgment and order dated 28th April, 1992 rejected the application. The appellant thereupon unsuccessfully moved a writ petition in the High Court Division and then obtained leave from this Court to consider the above point.
4. Respondent No.2 contested the writ petition by filing an affidavit-in-opposition controverting the material averments made in the petition selling infer alia that the original lessee of the disputed property left this country during the War or Liberation keeping it uncared for. The property was found abandoned condition and the government treated it as abandoned property under PO No.16 of 1972 and has been managing the property through different tenants. Its further case is that since the property has already been declared as abandoned property any transfer of the same subsequent thereafter is void and barred under Article 6 of PO No.16 of 1972, and the appellant collusively obtained those decrees and that those decrees do not cover under  any of the clauses (a) or (b) of the proviso to Section 5 of the Ordinance.
5. The Court of Settlement on consideration of the documents including the decrees filed by the appellant in support of her title held that they did not establish her title, that she did not file the origina1 allotment letter and the contract for sale with Jamaluddin which should have been in her possession if she has entered into such contract for purchase, that she did not explain the cause for filing other two suits after obtaining the sale deed, that the appellant failed to satisfy that in those suits the inclusion of the property in the abandoned property list was an issue, and that she failed to prove her possession, and the original lessee Jamal Uddin was in this country in 1972.
6. The learned Judges of the High Court Division visited the judgment of the Court of Settlement and other materials on record, and held that the materials on record proved that from 22nd December, 1970 to 19th November, 1979 the appellant had no title over the disputed property as she failed to produce any legal document conferring her title of the disputed property by the real owner, that the contract for sale does not confer any title of the property upon the petitioner, that she failed to prove that Jamaluddin was in Bangladesh on 28th Febr