1. M. R. KHAN, J.----This second appeal arises out of Title Suit No. 76 of 1959 of the Ist Court of Subordinate Judge, Sylhet and has been preferred by the Province of the East Pakistan.
2. The subject-matter of the suit is a market known as Jarulia Bazar which was undeniably established by the plaintiff after the Independence. The officer of the Province of East Pakistan wanted to take over this market after the acquisition of rent-receiving interests under the provisions of the East Bengal State Acquisition and Tenancy Act, 1951. This gave rise to a cause of action. Accordingly, the plaintiff brought the suit for a declaration that he is entitled to continue possession of the disputed Jarulia Bazar and that his occupancy interest in the land on which the Bazar stands has not been acquired under the State Acquisition Act. He also prayed for a permanent in--junction restraining the Province of East Pakistan from taking over the market and disturbing the plaintiff's possession.
3. The main plea taken on behalf of the Province of East Pakistan in this case is that the plaintiff was a rent receiver and that the disputed market stood acquired with the acquisition of rent-receiving interests under the State Acquisition Act and the same vested in the Provincial Government.
4. The trial Court found that the plaintiff was not a rent --receiver and that his tenancy right in the land on which the market stands remained unaffected. Accordingly, the trial Court decreed the suit.
5. The Province of East Pakistan preferred an appeal. Agreeing with the trial Court, the lower appellate Court found on the basis of the evidence on record that the defendant did not succeed in proving that the plaintiff was a rent-receiver: Accordingly, the appeal was dismissed.
6. Mr. Nasiruddin Chowdhury, learned Advocate for the plaintiff-respondent submits that he will not be in a position to oppose this appeal if the Government succeeds in proving that Compensation Assessm ent Roll in respect of the disputed Jarulia Bazar has since been finally published in accordance with the provisions of the said Act. Mr. Siddique Ahmed Chowdhury, learned Asstt.
7. Government Pleader does no more attempt to prove the defence contention that the plaintiff was a rent-receiver. He, however, has produced a Gazette Notification, being Notification No. S. A. 16/62- P.T./I/1175 dated 1st June 1962 published in the Dacca Gazette dated the 7th June 1962, to show that compensation Assessm ent Roll has since been published in respect of Mouza Jarulia including the disputed Bazar. In view of the provision of sections 43 and 44 of the State Acquisition and Tenancy Act, a tenant's non-retainable land like Bazar vests in the Government on the publication of a Notification in the official Gazette under subsection (2) of section 43. The Notification referred to herein before is a Notification under subsection (2) of said section 43. This Notification relates to a number of villages including Jarulia in which the disputed Bazar situates. Subsection (2) of section 43 of the said Act provides that Notification under that subsection shall be a conclusive proof of its publication and its date thereof. Since the Notification relates to a number of villages including the whole of the village Jarulia and as the disputed Bazar lies within that village, it should be taken that the compensation Assessm ent Roll published in this case is also relatable to the disputed Jarulia Bazar. Thus the disputed Jarulia Bazar vested in the Provincial Government during the pendency of this appeal.