IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Moinul Islam Chowdhury

CIVIL REVISION NO. 981 OF 2016

IN THE MATTER OF:

An  application  under  section  115(1)  of  the Code of Civil Procedure. (Against Order)

-And-

IN THE MATTER OF:

Md. Amir Hossain alias Amirul

--- Defendant-Appellant-Petitioner. -Versus-

Mst. Moymon Nessa Bewa and others

--- Plaintiff-Respondent-Opposite Parties. No one appears

--- For the Defendant-Appellant-Petitioner. Mr. Md. Monowar Hossain, Advocate

---For the Plaintiff-Res.-Opposite Parties.

Heard  on:  11.07.2023,  25.07.2023  and 06.08.2023.

Judgment on: 06.08.2023.

At  the  instance  of  the  present  defendant-appellant- petitioner, Md. Amir Hossain alias Amirul, this Rule was issued upon a revisional application filed under section 115(1) of the Code of Civil Procedure calling upon the opposite party Nos. 1-6 to show cause as to why the impugned judgment and order dated 02.02.2016  passed  by  the  learned  Additional  District  Judge, Court No. 1, Rangpur in the Miscellaneous Appeal No. 46 of 2010 dismissing the appeal and thereby affirming the judgment

and  order  dated  29.07.2010  passed  by  the  learned  Assistant Judge,  Kaunia,  Rangpur  in  the  Other  Suit  No.  31  of  2010 allowing the application for temporary injunction should not be set aside.

The relevant facts in short for disposal of this Rule, inter- alia, are that the present opposite party Nos. 1-6 as the plaintiffs filed the Other Suit No. 31 of 2010 in the court of the learned Assistant  Judge,  Kaunia,  Rangpur  for  partition  of  the  land described in the schedule ‘Ka’ of the plaint claiming Shaham of

.85 3 acres of land out of total land measuring (1.14 + 3.35) =

4

4.49 acres and also for declaration of confirmation of possession in respect of the land measuring .40 acres of land out of aforesaid ‘Ka’ schedule of land described in schedule ‘Kha’ of the plaint. In the said suit the opposite parties as the plaintiffs filed an application  for  a  temporary  injunction  on  07.06.2010  under Order XXXIX (39) rule 1 read with section 151 of the Code of Civil Procedure with a prayer that the plaintiffs are the owners of

the land measuring .42 3 acres and also the land measuring .29 3 4 4

acres by different deeds out of total land measuring .05 acres of land. The plaintiffs described that they are cultivating some of the above land and they have been the owner of some fisheries land but some portion of the fisheries land has been merged with the land of the Water Development Board (WDB) which was acquired  by  the  Water  Development  Board  (WDB)  and  also Tista Flood Control Dam. The plaintiffs also trying to get a lease and they prayed on 09.07.1997 before the Executive Engineer, Rangpur  Cannel  Division.  Defendndant  No.  2  directed  the District  Fishery  Officer  to  give  a  lease  out  the  land  to  the plaintiffs permanently but could not, because of no power to give permanent  lease  which  belonged  to  WDB.  Thereafter  on 21.10.1997  they  prayed  getting  lease  to  the  State  Minister, Ministry of Fishery and Livestock of the Government of the People’s Republic of Bangladesh and they have established the Fishery Project “Borobit” (“h l¡¢hV”).

The  present  opposite  party  No.  3  as  the  defendant contested the suit by filing a written objection on 13.07.2010 contending inter alia that the defendant No. 3 as the president of 18  members  local  beneficiary  of  the  “Borobit”  (“h l¡¢hV”)  / Fishery  Re-excavation  /  Fresh  Excavation  Project  under  the approval  of  the  relevant  Authority  of  the  Government.  The

Government as the defendant appeared and contested the suit without filing any written objection to the temporary injunction.

After  hearing  the  parties  the  learned  Assistant  Judge, Kaunia,  Rangpur  allowed  the  application  for  a  temporary injunction by the judgment and order dated 29.07.2010. Being aggrieved the present petitioner as the defendant No. 3 preferred the Miscellaneous Appeal No. 46 of 2010 in the court of the learned District Judge, Rangpur which was heard by the learned Additional District Judge, Court No. 1, Rangpur who dismissed the appeal by affirming the judgment and order dated 29.07.2010 by his judgment and order dated 02.02.2016.

This revisional application has been appearing in the daily cause list for a long period of time but no one appears to support the Rule at any stage of hearing.

The  Rule  has  been  opposed  by  the  present  plaintiff- opposite parties.

Mr.  Md.  Monowar  Hossain,  the  learned  Advocate, appearing on behalf of the present plaintiff-respondent-opposite parties submits that the learned courts below have considered the case filed by the plaintiffs and also considered the prayer for an interim  order  of  temporary  injunction  after  considering  the evidence and documents adduced and produced by the parties the learned  trial  court  passed  the  judgment  and  order  granting  a temporary  injunction  in  favour  of  the  plaintiff-opposite  party Nos. 1-6, as such, no interference from this court is called for.

The  learned  Advocate  also  submits  that  the  plaintiff- opposite parties filed the partition suit of the cultivating land as well as the watering land by impleading the Government but the Government could not adduce any evidence or documents in support of the claim of the Government upon the suit land, as such,  the  impugned  judgment  and  order  dismissing  the miscellaneous appeal by affirming the judgment and order of the learned trial court committed no error of law by passing the impugned  judgment  and  order  which  requires  no  further consideration from this revisional court.

Mr. Md. Humayun Kabir, the learned Assistant Attorney General appearing for the Government opposed the Rule without providing any substantial assistance to the court in support of the Government.

Considering the above submissions made by the learned Advocate appearing for the plaintiff-respondent-opposite parties and  also  considering  the  revisional  application  filed  by  the present  petitioner  under  section  115(1)  of  the  Code  of  Civil Procedure along with the annexures therein, in particular, the impugned judgment and order passed by the learned appellate court below and also perusing the relevant documents exhibited by the parties which are available in the lower courts records, it appears to me that the opposite parties as the plaintiffs filed the other suit for partition of the suit land described in the schedules of the plaint along with an application for an interim order of a temporary injunction upon the suit land. The learned Assistant Judge, Kaunia, Rangpur being the learned trial court heard the application for a temporary injunction and allowed the temporary injunction  upon  the  land  by  restraining  the  defendant  not  to interfering or dispossessing the plaintiffs from the suit land.

Being  aggrieved  the  present  petitioner  as  the  appellant preferred  the  miscellaneous  appeal  which  was  heard  by  the learned appellate court below  and the learned appellate court below disallowed the appeal by affirming the judgment and order of the learned trial court.

In an application for a temporary injunction, the learned courts below are obliged and inclined to allow the application for

a temporary injunction and inconvenience the parties as well as the possession of the suit land including the title thereupon.

I am surprised to see from the record that the necessary steps would have taken by the Government in such a case where the land is under the control of the Water Development Board as to the “Tista Flood Control Dam” and other necessities under the authority of the Government have not taken proper steps in the learned trial court as well as in the learned appellate court below. I am also surprised that the concerned Deputy Commission of the said area and all other relevant authorities have failed to assist the court upon this kind of case which can not be considered as absolute negligence and indifference by the Government as to this suit land. I therefore desired the learned Attorney General's Office  to  provide  sufficient  submissions  regarding  the  land which they could not provide at all.

I have carefully examined the judgment and order passed by the learned trial court by describing in detail the claim of the plaintiffs, in particular, I have examined the judgment and order of the learned trial court passed on 29.07.2010 and came to a conclusion  to  pass  the  temporary  injunction  by  following findings:

…“L¡ SC e¡¢mn£ S¢j a h¡c£l ü¡bÑ pw¢nÔøa¡ fËa£uj¡e qu

Hhw Aœ AÙÛ¡u£ ¢e­od¡‘¡ clM¡­Ù¹ h¡c£l AaÉ¿¹ n¢š²n¡m£ J k¤¢š²NË¡qÉ ®j¡LŸj¡ ¢hcÉj¡e B­Rz Afl¢c­L, ®k qa¥ e¡¢mn£ pÇf¢š­a f¡E­h¡

Hl p¢qa h¡c£-fË¡b£Ñl S¢j p£j¡e¡ fªbL ¢Q¢q²a qu e¡Cz ¢Lwh¡ ®L¡e

Q¨s¡¿¹ h¾Ve qu e¡Cz Hhw ®k­qa¥ H¢V HL¢V h¾V­el ®j¡LŸj¡ L¡­SC Hja¡hÙÛ¡u Aœ AÙÛ¡u£ ¢e­od¡‘¡l clM¡Ù¹ j”¤l L¢l­m fË¢af­rl

®kl©f Ap¤¢hd¡l r¢al Bnˆ¡ l¢qu¡­R Aœ clM¡Ù¹ e¡ j”¤l L¢l­m h¡c£l-fË¡b£Ñl r¢al Bnˆ¡ a¡l Q¡C­a A­eL …­Z ®h¢nz ®Lee¡,

f¡E h¡ Hhw jvpÉ A¢dcç ll HL¡¢dL ac¿¹ fË¢a hce J pÈ¡lL qC a

H Lb¡ p¤Øfø ®k, h¡c£-fË¡b£Ñl e¡¢mn£ S¢j a a¡q¡l ¢eS S¢j pq

HL£i¨a L¢lu¡ jvpÉ Q¡o L¢lu¡ B¢p a Rez L¡ SC, e¡¢mn£ pÇf¢šl

Q¨s¡¿¹ h¡ V¡u¡l¡ Hhw fªbL p£j¡e¡ ¢Q¢q²a e¡ qJu¡ fkÑ¿¹ e¡¢mn£ S¢j a

a«a£u ®L¡e fr L Ae¤fË hn L¢l a ¢c m h¡c£-fË¡b£Ñl Af§lZ£u r¢al

Bnˆ¡ B­R h¢mu¡ Bc¡m­al ¢eLV f¢lm¢ra quz”…

The  learned  appellate  court  below  also  considered  the documents produced by the parties and came to a conclusion by affirming the judgment and order of the learned trial court on the basis of the following findings:

…“¢h‘ ¢ejÀ Bc¡m­al e¢b fkÑ¡­m¡Qe¡u BlJ ®cM¡ k¡u ®k, e¡¢mn£ ®S¡ al S¢j h¡c£-®lpfe X¾VNZ Lhm¡ c¢mmj§ m fË¡ç q u ®i¡NcMm L­lez f¡¢e Eæue ®h¡­XÑl h¡­dl Ešl Aw­n h¡c£-fË¡b£ÑNZ ®i¡NcMm£u 14 c¡ Nl S¢jl Aw n j¡R Q¡ ol SeÉ Mee f§hÑL ®i¡N- cMm Ll¡ L¡­m Eš² S¢j h¡­dl eueS¢ml p¡­b HL£i¨a q­u k¡uz

h¡ dl A¢dNËqZL«a 60 naL S¢j Hhw h¡c£ cl ®i¡NcMm£u 40 naL S¢j HL£i¨a q­u HL¢V Sm¡n­ul pª¢ø quz Eš² Sm¡nu¢V f§ex Mee

L l ¢hh¡c£-Bf£mÉ¡¾Vfr a¡ a j¡R Q¡o Ll¡l E cÉ¡N NËqZ

L l¢R mez ¢L¿º f¡¢e Eæue ®h¡ XÑl ¢ehÑ¡q£ fË L±nm£ Hhw jvpÉ ¢hi¡ Nl EdÑÅae LjÑLa¡NZ LaѪL ¢h¢iæ a¡¢l­M ®fËl£a fœ J pÈ¡lL

pj§q fkÑ¡ m¡Qe¡u ®cM¡ k¡u ®k, f¤ex Mee fËL Òfl L¡S ÙÛ¢Na Ll¡l SeÉ p¤¢e¢cÑø ¢e cÑne¡ fËc¡e Ll¡ q u¢Rmz e¡¢mn£ S¢jl p£j¡e¡ p¤-

¢Q¢q²a e¡ b¡L¡l L¡l­Z Eš²l©f B­cn fËc¡e Ll¡ q­u­R j­jÑ ®cM¡

k¡uz”…

In  view  of  the  above  discussions  and  findings  of  the learned courts below I am of the opinion that the learned courts below, particularly, the learned appellate court below committed no error of law and there is no nonconsideration and misreading by passing the impugned judgment and order by affirming the judgment of the learned trial court.

In such a situation, I consider that this is not a proper case for interference by this court upon the impugned judgment and order.

Accordingly, I do not find merit in the Rule.

In the result, the Rule is hereby discharged.

The  interim  order  passed  by  this  court  at  the  time  of issuance  of  the  Rule  staying  the  operation  of  the  impugned judgment  and  order  dated  02.02.2016  passed  by  the  learned Additional District Judge, Court No. 1, Rangpur for a period of 6 (six) months and subsequently the same was extended from time to time are hereby recalled and vacated.

The  impugned  judgment  and  order  dated  02.02.2016 passed by the learned Additional District Judge, Court No. 1, Rangpur in the Miscellaneous Appeal No. 46 of 2010 dismissing the appeal and thereby affirming the judgment and order dated 29.07.2010  passed  by  the  learned  Assistant  Judge,  Kaunia, Rangpur in the Other Suit No. 31 of 2010 is hereby upheld.

The concerned section of this court is hereby directed to send down the lower court records along with a copy of this judgment and order to the learned courts below immediately.