Decided on March 25,2009

Shaid Hamid Appellant
Nilufar Momtaz Respondents


MOHAMMAD FAZLUL KARIM, J. - (1.) This Petition for Leave to Appeal is directed against the judgment and order elated 09,08.2008 passed by the High Court Division in Writ Petition No.5291 of 2006 making the Rule absolute.
(2.) The facts of the case, in short, are that the respondent No.1 and the petitioner, Shaid Hamid, were married on 19.02.1999. During the subsistence of marriage, petitioner on 11.03.2005 made oral gift of flat A-4(4th Floor) of House No.188, Road No.2 at DOHS at Mohakhali in Dhaka in favour of the respondent No.1 and on 21.03.2005 also made a declaration on such oral gift, which was duly notarized. The present petitioner handed over possession of the flat to the respondent No.1 on the date of gift. Having accepted the gift, the respondent No.1 possessed the same. The respondent No.1 then rented out the flat to one Rezanul Kabir by a monthly deed of agreement executed on 01.04.2005. Thereafter, the present petitioner on 30.04.2005 made an application to the office of respondent No.6, the Military Estate Officer, for mutation of the flat in the name of the respondent No.1. The Respondent No.1 also on the same date made an application for mutation of the said flat on the basis of gift in her name.
(3.) Upon receipt of the application, respondent No.6 wrote a letter asking the petitioner for furnishing certain information to which the petitioner did not respond. On 16.02.2006 the respondent No.1 filed another application for mutation. Thereafter, the said respondent No.6 by his letter dated 26.02.2006 informed the respondent No.1, inter alia, that as there was existence of two gifts of the same property and an affidavit was filed canceling the gift in faovur of the respondent No.1 that in view of the objection of the donor and that in the absence of proof of absolute title thereon, it was not possible to order mutation. The office has got no jurisdiction to prove or declare title of the demised property which is a matter of decision by a Civil Court. On 07.04.2006 both the respondent No.2 and the petitioner appeared for counseling before the president of the reconciliation committee, who, however, expressed his opinion in their presence, evidenced by a letter issued in the month of April, 2006, that reconciliation for restoration of the family life failed and they were requested to settle their disputes in the family Court. He also asked to settle their dispute over the flat in Court. He, however, requested them to maintain law and order in Mohakhali DOHS area and take care to see that no unpleasant occurrence should take place. Then, the respondent No.1 on 02.07.2006 was constrained to institute Title Suit No.10 of 2006 in the 2nd Court of Joint District Judge at Dhaka for declaration of her title in the flat and also obtained an ad interim order for maintaining status quo pending disposal of the suit.;

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