High Court Division :
(Civil Revisional Jurisdiction)
Mahmudul Hoque J
Fatema Khatun .........
Maszid-E-Fattah (Tablig Markas Maszid) .................. Plaintiff
July 17th, 2016
Transfer of Property Act (IV of 1882)
Whenever a notice under Section 106 of the Act is served upon the tenant to vacate the Premises, the tenant only has protection of law if she is not a defaulter. A defaulter tenant cannot seek protection of law under the premises Rent Control Act. The petitioner having failed to pay the rent to the opposite party after transfer of the property by the original landlord, she has become a defaulter. ....15
Intekhab Ahmed Khan vs Sabbir Ahmed Chowdhury, 5 ALR (AD) 13; Kanak Mala vs Md Saifuddin, 43 DLR, 38; Solairnan (Md) vs Sufia Akter Alam, 49 DLR 288; Ramjan Ali Mistry vs Md Hddayetullah, 31 DLR (AD) 183 and Zahur Ahmed vs Manik Sardar, 53 DLR (AD) 63 ref.
Ahmed Nowshed Jamil, Advocate-For the Petitioner.
Mustaq Ahmed, Advocate-For the Opposite-Party.
This Rule was issued calling upon the opposite party to show cause as to why the impugned judgment and decree dated 27-4-2014 passed by the Senior Assistant Judge, Khulna Sadar, Khulna, in SCC Suit No. 07 of 2012 decreeing the suit should not be set aside and/ or such other or further order or orders passed as to this Court may seem fit and proper.
2. Briefly stated, the facts of the case for disposal of this Rule, are that, the opposite party No.1 as plaintiff instituted SCC Suit No. 07 of 2012 in the Court of Senior Assistant Judge, Khulna Sadar for eviction of monthly tenant, realization of arrear rents and mesne profit, stating inter alia, that 0.08 acres of land out of 1.18 acres appertaining to CS Khatian No. 1964 of 2002 corresponding to SA Khatian No. 2098, CS Plot No. 3961 corresponding to SA Plot No. 4721 belonged to Mohammad Modasser Hossain. He executed a deed of gift dated 18-2-72 in favour of his two daughters but never delivered possession in their favour as a result the said deed remained ineffective. RS Khatian No. 8504 stands in the name of Mohammad Modasser Hossain. He along with his two daughters namely, Taslima Banu and Selima Banu executed a waqf deed in favour of the plaintiff on 25-8-2 and delivered possession thereof. Plaintiff was delivered with possession along with the existing tenants. Mohammad Modasser Hossain informed the defendant about the transfer and asked to pay rent to the plaintiff institution. But the defendant did not pay rent to the plantiff rather depositing the rent in the court of Premises Rent Controller. In the year 2002 monthly rent of the suit premises was Taka 200. Defendant is a habitual defaulter, moreover the suit land is required for the own the use and purpose of the plaintiff. The plaintiff issued notice under Section 106 of the Transfer of Property Action 13-9-12 which was duly served upon the defendan. The defendant replied to the same on 25-9-12. The defendant is an unauthorized occupant and, as such, liable to pay Taka 250 per day as compensation.
3. The sole defendant contested the suit by filing written statement denying the material allegations contending, inter-alia, that the suit is not maintainable in its present form and manner. The suit is barred by limitation and bad for defect of the parties. Further case of the defendant is that she is a tenant under Mohammad Modasser Hossain. Initial rent of the premises was Taka 35 and thereafter it was enhanced to Taka 200. The defendant has been depositing rent before the Court of Premises Rent Controller since 1989 and Mohammad Modasser Hossain has been withdrawing the same regularly. The landlord illegally tried to evict the defendant and then the defendant filed Title Suit No. 28 of 1991 for permanent injunction which was decreed ex parte. The defendant is not a defaulter and she did not receive any notice under Section 106 of the Transfer of Property Act. The plaintiff has no bonafide requirement of the suit premises. At the request of the landlord, defendant constructed safety tank and tin shed toilet in the suit land and made some repair of the structures therein by expending Taka 2 lacs but the plaintiff did not adjust the same in spite of promise. Defendant has been residing in the suit land since 1965. Plaintiff's suit is false and manufactured one, as such, liable to be dismissed with cost.
4. The plaintiff examined 1 witness and contesting defendant examined 1 witness and both the parties produced some documentary evidences in support of their respective claims. The trial Court after contested hearing and considering material evidences on record decreed the suit by judgment and decree dated 27-4-2014. At this stage, the defendant petitioner moved this Court by filing this application under Section 25 of the Small Causes Court Act and obtained the present Rule and order of stay.
5. The opposite party contested the Rule by filing a Counter-Affidavit and Supplementary-Affidavit almost reiterating the statements made in the plaint as well as the observations made by the trial Court in its judgment.
6. Mr Ahmed Nowshed Jamil, the learned Advocate appearing for the petitioner submits that the opposite party instituted the suit for eviction of the petitioner mainly on the ground of bonafide requirement of the premises and, as such, the landlord is under legal obligation to prove that they need the premises for bonafide requirement but in the present case the opposite party only pleaded in the plaint that they want to construct a six storied building on the suit plot for accommodation of Imam, Moazzin and guests who comes from home and abroad and also to establish a Madrasha to provide Islamic Education to the children.
He further submits that only those averments as made in the plaint as well as deposed before the court do not constitute itself bonafide requirement in accordance with the law. Merely on the averments of the plaintiff without any evidence regarding bonafide requirement the trial Court decreed the suit for eviction of the petitioner and, as such, the judgment and decree of the trial Court is not legal and sustainable in law.
It is also argued that as a condition precedent for passing a decree for eviction, the landlord has to establish his reasonable and bonafide requirement irrespective of the fact that they want to construct a building on the suit land. In the present case bonafide need is set out in the plaint only, no particulars of bonafide need have been pleaded and no material facts have been pleaded in the plaint. In support of his submissions he has referred to the cases of Intekhab Ahmed Khan vs Sabbir Ahmed Chowdhury reported in 5 ALR (AD) 13, and Kanak Mala vs Md Saifuddin reported in 43 DLR 38.
7. Mr Mustaq Ahmed, the learned Advocate appearing for the opposite party submits that the petitioner was inducted in the suit premises by the original owner Mohammad Modasser Hossain.
The petitioner had been paying rent to the said original owner of the property but at a point of time she started depositing rent in the Court of Rent Controller by filing a House Rent Control Case No. 127 of 1989. The said Mohammad Modasser Hossain and his two daughters namely, Taslima Banu and Selima Banu by a deed of waqf dated 25-8-2002 transferred the property to the Maszid-E-Fattah, Khulna. After execution and registration of the waqf deed the said Mohammad Modasser Hossain as well as the Maszid Committee informed the petitioner about the waqf and advised him to pay the rent to the Maszid Committee but the petitioner instead of making payment of rent to the opposite party continued to deposit the same with the rent Controller in the name of Mohamrnd Modasser Hosain and thereafter, in the name of his three daughters.
8. It is also argued that the petitioner being a defaulter and the property in question is being required for the Maszid to build a multistoried building thereon for accommodation of the Imam, Moazzin and residence for the guests who comes from home and abroad and also for establishing a Madrasha to provide Islamic Education to the children, the opposite party-plaintiff served a notice under Section 106 of the Transfer of Property Act upon the petitioner through registered post with acknowledgement due asking her to vacate the premises on and from 1-11-2012. The petitioner duly received the same on 19.09.2012 by putting her signature and upon receipt of the said notice sent a reply dated 25-9-2012 through his Advocate to the opposite party and, as such, the petitioner admitted the fact of receipt of the notice under Section 106 of the Transfer of Property Act but as per demand made by the said notice the petitioner failed to vacate the premises and surrender the vacant possession to the opposite party. The petitioner having failed to surrender the vacant possession, the opposite party has constrained to file SCC Suit No.7 of 2012 against the petitioner for a decree of eviction.
9. He further submits that as admitted by the petitioner she paid no rent for the premises to the opposite party though she was duly informed about transfer of the property to the opposite party by way of deed of waqf and, as such, the petitioner has become defaulter warranting her eviction from the suit premises. The trial court upon consideration of the facts and circumstances of the case rightly observed that the suit premises is required for the opposite party for the purpose as stated in the plaint as well as in the deposition and, as such, the trial court has committed no error in passing the impugned judgment calling for interference. In support of his submissions he has referred to a catenae of cases, Solaiman (Md) vs Sufia Akter Alam reported in 49 DLR (HCD) 288, Ramjan Ali Mistry vs Md Hddayetullah reported in 31 DLR (AD) 183 and Zahur Ahmed vs Manik Sardar reported in 53 DLR (AD) 63.
10. Heard the learned Advocate for the parties, gone through the application, judgment and decree, the plaint in suit, evidences both oral and documentary lying in the lower courts records.
11. In the present case, the petitioner only argued that the opposite party as plaintiff of the suit could not prove bonafide requirement by producing sufficient materials on record.
From a perusal of the judgment and the documents submitted by the plaintiff-opposite party in suit, this Court finds that the plaintiff-opposite party in fact, could not produce sufficient evidences in support of their plea of bonafide requirement but they asserted that the property in question is required for the purpose of providing accommodation for Imam, Moazzin and for the guests who comes to Tablig Jammat from home and abroad and for the purpose of providing Islamic Education to the children of the locality. To Support their such claim the opposite party has filed a letter issued by Khulna Development Authority dated 13-11-2012 and a letter from a consultant regarding soil. test along with the sketch map which are not sufficient to prove their bonafide that they took substatial initiative/step for construction of such building in the suit plot.
12. Mainly, the opposite' party raised the question of defaulter. In the present case, admittedly, the petitioner was a tenant under one Mohammad Modasser Hossain, in whose name and after his death, in the names of his daughters the petitioner has been depositing monthly rent with the Rent Controller in HRC Case No. 127 of 1989. The property in question was transferred by a deed of waqf dated 25-8-2002 by the said Mohammad Modasser Hossain and his two daughters in favour of the opposite party Maszid.
After transfer of the same by way of waqf the petitioner did not make payment of rent to the opposite party as landlord but she continued to deposit the rent with the Rent Controller as claimed by the petitioner in her written statement.
13. Now the question has come whether by depositing the rent with the Rent Controller in favour of original owner the petitioner can safe herself from the definition and or disrepute of defaulter. It appears that the petitioner was informed about the change of the ownership of the property by way of oral communication, thereafter, by a suit filed earlier in the year 2008 by the opposite party and finally by notice to quit put in spite of knowing fully well about transfer of ownership the petitioner continued to deposit the rent in the name of original owner who had no title in the property. To appreciate the knowledge of the petitioner about the transfer of the property to the opposite party the relevant portion of reply made by DW 1 in his cross-examination may be looked into which runs thus:
মোদা"েছদ সাহেব ও তার মেয়েরা মসজিদকে নালিশী জমি দিয়ে দিয়েছেন বলে শুনেছি। মোদা"েছর সাহেব তার সম্পত্তি মসজিদের অনুকূলে ওয়াকফ করে দিয়েছেন। তাই মসজিদ উহা দাবী করে।”
14. From the above statement, it is established that the petitioner had knowledge about the transfer of the property to the opposite party. Apart from this the petitioner also had knowledge from the plaint in Title Suit No. 1563 of 2008 and, thereafter, from the notice under Section 106 of the Transfer of Property Act. In the situation, the petitioner was under obligation to make payment of rent to the opposite party but instead of doing so the petitioner purposely continued to deposit the rent with the Rent Controller in the name of original owner making herself a worst type of defaulter. There is no earthly reason to believe from the aforesaid circumstances that the petitioner was not informed about the transfer of the property to the opposite party.
15. The present defendant-petitioner was a monthly tenant under the original owner Mohammed Modasser Hossain who is not legally competent to receive the rent after execution of deed of waqf. Whenever a notice under Section 106 of the Transfer of Property Act is served upon the tenant to vacate the premises, the tenant only has protection of law if she is not a defaulter.
In the present case, apart from bonafide requirement of the premises by the opposite party, the petitioner is a defaulter. A defaulter tenant cannot seek protection of law under the premises Rent Control Act.
The petitioner having failed to pay the rent to the opposite party after transfer of the property by the original landlord, she has become a defaulter and, as such, the judgment and decree passed by the trial court decreeing the suit for eviction of the petitioner calls no interference of this Court.
16. Taking into consideration the above and having regard to all the facts, this Court finds no merit in the Rule as well as in the submissions of the learned Advocate for the petitioner, calling interference of this Court.
17. In the result, the rule is discharged, however, there will be no order as to costs.
18. The order of stay granted at the time of Adalat issuance of the Rule stands vacated.
19. Communicate a copy of this judgment to the Court concerned.
Send down the lower court records at once.