IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Moinul Islam Chowdhury

CIVIL REVISION NO. 5579 OF 2001

IN THE MATTER OF:

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

-And-

IN THE MATTER OF:

Md. Zarzis

--- Defendant-Petitioner. -Versus-

Moulana Md. Idris alias Md. Idris Ali {died leaving behind his legal heirs: 1(a)-1(f)} and subsequently  O.P  No.  1(e).  Most.  Zakera Khatun died leaving behind her legal heirs: 1(e)(i)- 1(e)(vi).

--- Plaintiff- Opposite Parties. Mrs. Fara Mahmuda, Advocate

--- For the Defendant-Petitioner. Mr. Golam Rabbani, Advocate

--- For the Plaintiff- Opposite Parties.

Heard  on:  07.06.2023,  20.08.2023, 29.08.2023,  30.10.2023,  31.10.2023  and 09.11.2023.

Judgment on: 22.11.2023.

At  the  instance  of  the  present  defendant-appellant- petitioner, Md. Zarzis, this Rule was issued upon a revisional application  filed  under  section  115(1)  of  the  Code  of  Civil Procedure calling upon the opposite party to show cause as to why the judgment and decree dated 30.09.2001 passed by the

learned Subordinate Judge, Court No. 2, Nilphamari in the Other Appeal No. 34 of 2001 should not be set aside.

The relevant facts for disposal of this Rule, inter-alia, are that the present opposite party, Moulana Md. Idris alias Md. Idris Ali (now deceased and his legal heirs have been substituted) as the plaintiff filed the Other Class Suit No. 70 of 1997 in the court of  the  learned  Senior  Assistant  Judge,  Saiadpur,  Nilphamari praying  for  a  decree  of  permanent  injunction  restraining  the defendant from entering into the disputed land described in the schedule “Ka” of the plaint and also for khas possession after being dispossessed from the said land measuring 0.01 acre of land described as schedule “Kha” of the plaint after removing the structure of dwelling house (Ol) of the defendant. The further claim of the plaintiff is that he has made Darul Ulum Madrasha upon the land measuring 4.12 acres of land gifted by Riaz Uddin who was the Mutwalli thereof. It is further claimed that the said Riaz Uddin filed earlier Other Class Suit No. 11 of 1953 in the court of the then learned Subordinate Judge, Rangpur which was decreed and an appeal being No. 64 of 1964 was dismissed on contest  and  thereafter  2nd  Appeal  No.  75  of  1967  was  also dismissed.  During  pendency  of  this  suit  an  application  for

amendment of the plaint was filed after being dispossessed from 21 1 decimals of land mentioned as the schedule “Kha” of the

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plaint in violation of the order of injunction/status quo.

The petitioner as the defendant contested the suit by filing a  written  statement  contending,  inter  alia,  that  the  plaintiff dispossessed the defendant No. 1 who was recorded C. S. Plot No.  410  and  Khatian  No.  439  and  Bibhuti  Bhushan Bondopadhya  had  been  the  Superior  Landlord  thereof  under whom the tenants Syed Md. Zakaria, Syed Md. Saleh and Syed Md. Idris Ali who were possessing the land as subjects and R. S. Record of Right was in their names. The total land measuring

21 1  +  1  =  22 1  decimals  was  recorded  in  the  name of  the

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defendant on 21.06.1990 and the defendant is in possession by constructing dwelling house thereof. It is further contended that there was no Wokf property in the said land. The suit property was never possessed by the said Md. Riaz Uddin. The plaint was amended on 05.06.2000, as such, an additional written statement was filed.

After  receiving  the  above  case,  the  learned  Senior Assistant  Judge,  Saiadpur,  Nilphamari  heard  the  parties  and considering the evidence adduced and produced by the parties dismissed the suit by the judgment and decree dated 16.04.2001. Being aggrieved the present plaintiff-opposite party,  Moulana Md. Idris alias Md. Idris Ali preferred the Other Class Appeal No.  34  of  2001  in  the  court  of  the  learned  District  Judge, Nilphamari which was heard by the then learned Subordinate Judge, Court No. 2, Nilpahmari who after hearing the parties and considering the evidence allowed the appeal on 30.09.2001 by reversing the judgment of the learned trial court.

Being aggrieved this revisional application has been filed by the defendant-petitioner under section 115(1) of the Code of Civil  Procedure  challenging  the  legality  of  the  impugned judgment passed by the learned lower appellate court and this Rule was issued thereupon.

Mrs. Fara Mahmuda, the learned Advocate appearing on behalf  of  the  defendant-appellant-petitioner  submits  that  the Superior Landlord Bibhuti Bhushan Bondopadhya settled the suit land in favour of 3 sons of Riaz Uddin who transferred the suit land to the said plaintiff Madrasha and he was the Motwalli of the said Madrasha property which was a Wakf property, as such, his son Moulana Md. Idris alias Md. Idris Ali filed the present suit for a permanent injunction and a recovery of khas possession but the learned trial court dismissed the suit without properly appreciation of the evidence produced by the plaintiff, as such, committed  an  error  of  law.  However,  lower  appellate  court allowed the appeal and decreed the suit on contest after properly examining the documents passed the impugned judgment and decree by committing an error of law, as such, this Rule should be made absolute.

The learned Advocate further submits that having regard to the facts that the defendant is a co-sharer in possession in respect of specific portion of the properties and there having been no document to show that the properties have ever been included in any Waqf the learned appellate court erred in law by reversing the judgment of the trial court resulting in miscarriage of justice, therefore, the Rule should be made absolute.

The present Rule has been opposed by the present opposite parties who are substituted.

Mr. Golam Rabbani, the learned Advocate, appearing for the present opposite parties submits that the plaintiff-opposite party, Moulana Md. Idris alias Md. Idris Ali as a plaintiff filed the  suit  on  behalf  of  the  said  Madrasha  which  was  a  Wakf property  but  the  learned  trial  court  misread  the  evidence produced by the parties and came to a wrongful conclusion by dismissing the suit. However, the learned appellate court below came to a lawful conclusion to decree by reversing the judgment of the learned trial court on the basis of the possession in favour of the Madrasha but the present petitioner obtained the present Rule by misleading the court which is liable to be discharged.

The  learned  Advocate  further  submits  that  the  present petitioner Md. Zarzis as a son of one of the 3 brothers, namely, Moulana Zakaria filed the present revisional application whereas his  father  transferred  the  property  as  he¡jc¡l  in  the  said Madrasha  who  was  in  possession  of  the  suit  land  by dispossessing  the  present  petitioner  which  was  enlisted  as  a Waqf  property,  as  such,  the  present  petitioner  failed  to substantiate his claim, as such, the learned appellate court below committed no error of law and the Rule is, therefore, should be discharged.

Considering the above submissions made by the learned Advocates  appearing  for  the  respective  parties  and  also considering the revisional application filed under section 115(1) of the Code of Civil Procedure along with the annexures therein, in particular, the impugned judgment and decree passed by the learned appellate court below and also perusing the important documents adduced and produced by the respective parties by way of depositions as PWs and DWs in the learned courts below which have been included in the lower courts records, it appears to me that the Superior Landlord settled the land to 3 brothers, namely, Syed Md. Zakaria, Syed Md. Saleh and Syed Moulana Idris alias Md. Idris Ali who are the sons of Riaz Uddin who transferred the suit land in favour of the plaintiff-opposite party being the said Madrasha. The said Moulana Md. Idris Ali filed the  present  suit  claiming  the  entitlement  of  the  property  as described in the schedule of the plaint. On the other hand, the present plaintiff-opposite party claimed that the said Riaz Uddin was the he¡jc¡l, thus, he could transfer the land in favour of the said Madrasha and handed over possession upon the suit land

measuring 22 1 decimals. The present opposite party was a C. S.

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recorded owner who is the son of Riaz Uddin but the present defendant-petitioner, namely, Md. Zarzis prayed for seeking a permanent  injunction  on  the  basis  of  the  transfer  deed  by executing in the year 1926 in favour of the said Madrasha.

In view of the above factual and legal aspects, this court has to take a decision as to whether the plaintiff could prove its own case by providing sufficient evidence.

I have carefully examined the judgment and decree passed by the learned Senior Assistant Judge, Saiadpur, Nilphamari who dismissed  the  suit  filed  by  the  plaintiff  for  a  permanent

injunction upon the suit land measuring 22 1 decimals of land

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and the original plaint was amended when there was a change by dispossession of the plaintiff, as such, the decree was sought by the plaintiff for a permanent injunction upon the said suit land. The  settled  principle  is  that  for  filing  a  suit  praying  for  a permanent injunction of the possession is an important matter to be decided by the court. The evidence produced by the plaintiff and also amended the plaint the plaintiff could not prove as to the possession upon the suit land and also the dispossession of 1 decimal of land during the pendency of the present suit. The learned trial court in this regard came to a wrongful conclusion that the plaintiff was in possession of the suit land. The learned trial court dismissed the suit by misreading the evidence as to the possession and decided that in a suit for a permanent injunction, the  plaintiff  must  prove  the  prima  facie  title  and  absolute possession. The plaintiff failed to prove an absolute possession, therefore,  prayed  for  the  recovery  of  khas  possession  by amending the plaint and the plaintiff failed to pay an appropriate court fee for recovery of khas possession from which he was in possession, as such, the learned trial court dismissed the suit. However, the learned appellate court below came to a lawful conclusion to reverse the judgment of the learned trial court by decreeing  the  suit  in  favour  of  the  present  plaintiff-opposite party.

I  have  carefully  examined  the  judgment  passed  by  the learned  courts  below  and  I  found  that  the  learned  Senior Assistant  Judge,  Saiadpur,  Nilphamari  misread  the  evidence adduced and produced by the parties and came to a wrongful conclusion  by  dismissing  the  suit  filed  by  the  plaintiff (Madrasha). The learned trial court came to a conclusion and dismissed the suit on the basis of the following findings which reads as follows:

…“h¡c£ fr j¡jm¡ Qm¡L¡m£e 211/2 naL pÇf¢š qC­a
®hcMm qJu¡l Lb¡ h¢mu¡ Rez 06.06.2000 Cw a¡¢lM qC a 15 ¢c el j dÉ ¢hh¡c£ Ol-h¡s£, ¢VEhJ um J f¡uM¡e¡ ®kM¡ e ÙÛ¡fe L¢lu¡­Rez ¢L¿º Eš² 06.06.2000 Cw a¡¢l­Ml ®L¡e pju h¡c£- ¢hh¡c£ LaѪL 211/2 naL qC a ®hcMm qCu¡ Re a¡q¡l ¢e¢cÑÖV pju E­õM L­le e¡Cz Ef­l¡š² fkÑ¡­m¡Qe¡l B­m¡­L h¡c£fr j¡jm¡ Qm¡L¡m£e ¢c el h¡ l¡ al ®L¡e pj u 06.06.2000 Cw ¢hh¡c£ LaѪL

211/ naL qC a ®hcMm qCu¡ Re a¡q¡ p¤Øfø J p¤¢e¢cÑøi¡ h E õM

2

e¡ Ll¡u, pÇf§ZÑ 221/2 na®Ll SeÉ h¡c£fr M¡p cM­ml ¢Xœ²£l fË¡bÑe¡

e¡ Ll¡u Hhw pÇf§ZÑ 221/2 na®Ll SeÉ h¡c£fr M¡p cM­ml ¢Xœ²£l

fË¡bÑe¡ e¡ Ll¡u Hhw pÇf§ZÑ 221/ na®Ll Efl HX i m¡l¡j ®L¡VÑ ¢g

2

h¡c£fr fÊc¡e e¡ Ll¡u Hhw B¢SÑ pw n¡de£l clM¡ Ù¹ M¡p cM ml

¢Xœ²£l fË¡bÑe¡ e¡ Ll¡u h¡c£fr fË¡bÑ£a j­a M¡p cM­ml ¢Xœ²£ f¡C­a f¡ le e¡z”…

However,  the  learned  appellate  court  below  came  to  a lawful conclusion to reverse the judgment of the learned trial court  on  the  basis  of  the  following  findings  which  reads  as follows:

…“So, it is easy to say that pltf side was in the  possession  in  the  suit  land  just  before  their dispossession from the ‘Kha’ scheduled land. The ld. Trial court has enquered in the PWs whether the pltf has any possession now or not. But such idea is not correct as the plaint shows that pltf side has

been finally dispossessed from the remaining 21 1 2

decimals of the ‘Kha’ schedule during the pendency of the original suit. However, it is found from the depositions that pltf side has been disposed by the

defd from the suit land in the two phares from one decimal before the filing of the suit and from 21 1

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decimals during the pendency of the suit.”…

In view of the above conflicting decisions in a suit for permanent injunction absolute possession must be provided but the plaintiff could not prove his possession absolutely, therefore, committed an error of law by rejecting the application by the learned trial court. However, the learned appellate court below came to a lawful conclusion as to the possession by setting aside and thereby reversing the judgment of the learned trial  court which was filed for a permanent injunction, therefore, I am not inclined to interfere upon the impugned judgment and decree passed by the learned appellate court below.

Accordingly, I do not find merit in the Rule.

In the result, the Rule is hereby discharged.

The  impugned  judgment  and  decree  dated  30.09.2001 passed  by  the  then  learned  Subordinate  Judge,  Court  No.  2, Nilphamari in the Other Class Appeal No. 34 of 2001 allowing the appeal and thereby reversing the judgment and decree of the learned trial court dated 16.04.2001 in the Other Class suit No. 70 of 1997 is hereby upheld.

The  interim  order  passed  by  this  court  at  the  time  of issuance  of  this  Rule  staying  the  operation  of  the  impugned judgment  and  decree  dated  30.09.2001  passed  by  the  then learned Subordinate Judge, Court No. 2, Nilphamari in the Title Appeal No. 34 of 2001 is hereby recalled and vacated. 

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