District: Cumilla

IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

   Present

Mr. Justice Sardar Md. Rashed Jahangir

Civil Revision No. 6148 of 2001 In the matter of :

Abdul Khaleque and another

… Petitioners

-Versus-

Abdur Rahaman and others

…Opposite parties

Mr. Mohammad Mostafa, Advocate with Mr. Mohammad Masud Parvez, Advocate

     …For the petitioners Mr. Mohammad Ali Zinnah, Advocate

        …For the opposite parties

Heard on: 28.10.2024, 26.11.2024 and 01.12.2024 Judgment on: 08.12.2024

Rule was issued under section 115(1) of the Code of Civil Procedure calling upon the opposite parties to show cause as to why the judgment and decree dated 16.08.2001 passed by the Sub-ordinate Judge, Second Court, Cumilla in Title Appeal No. 187 of 1999, reversing those of dated 26.09.1999 passed by the Senior Assistant Judge, Chandina, Cumilla in Title Suit No. 85 of 1994 dismissing the suit should not be set aside and/or

such other or further order or orders as to this Court may seem fit and proper.

The present opposite party Nos. 1-3 as plaintiffs filed Title Suit No. 185 of 1994 before the Court of Senior Assistant Judge, Chandina, Cumilla for permanent injunction impleading the predecessors of the present petitioners as defendants.

The  case  of  the  plaintiffs  briefly  are  that  the  .486 decimals of land of the disputed joth was originally belonged to Jafar  Ali,  who  died  intestate  leaving  behind  2(two)  sons, Roshan Ali and Abdul Hamid Ali and a daughter Saberunnessa as his legal heirs. During the State Acquisition Settlement, in the year 1960, the name of Roshan Ali, Abdul Hamid and their sister were duly recorded and finally published in S.A. Khatian No. 412. The land measuring an area of .105 decimals of plot No.  1303  is  part  and  parcel  of  the  aforesaid  land  of  S.A. Khatian No. 412. The said property of .105 decimals is viti-land and through amicable partition Roshan Ali, predecessor of the plaintiffs got .18 decimals of land adjacent to the south of the graveyard, comprising of .15 decimals of land at the northern side of plot No. 1303. Abdul Hamid got .18 decimals of land to the adjacent south of Roshan Ali and thereafter, Roshan Ali again got .6 decimals at the adjacent south of Abdul Hamid. Accordingly, Roshan Ali’s .18 decimals, Abdul Hamid’s .18 decimals  and  Roshan  Ali’s  further  6  decimals  in  total measuring an area of .42 decimals situated at the northern part and adjacent south of the graveyard. While Abdul Hamid was in enjoyment of the aforesaid .18 decimals of land transferred the same to plaintiff Nos. 1 and 2 through registered kabala dated 03.01.1977. The plaintiffs being heirs of late Roshan Ali got his aforesaid share (.18+.6) in total .24 decimals of land and by  purchase  got  .18  decimals,  and  in  this  way  they  have acquired title and possession over the aforesaid .42 decimals of land. The defendants have residence adjacent western side of the disputed plot. The sons of Abdul Hamid also sold out their

The defendant Nos. 1 and 2 contested the suit by filing written statement contending, inter alia that the disputed 4.86 acres of land was originally belonged to Khodabakshwa, who died intestate leaving behind 2(two) sons, namely Gafur Ali and Ala Bakshaw. The sons of Khodabakshwa acquired the said

property by way of inheritance, measuring an area of 2.43 acres each, at ejmaily. Munsur Ali, son of Ala Bakshaw got 2.43 acres  of  land  from  his  father  and  while  was  in  exclusive possession transferred .101  decimals of land including .19  decimals of plot No. 1303 to his 3(three) sons, Samsul Haque, Moslehuddin and Keramat Ali on 24.05.1983. Munsur Ali on the same day also transferred .101  decimals of land to his

another  son  Ali  Azam  including  .19 decimals  from  the northern side of the disputed plot. Jafar Ali died leaving behind 2(two) sons, namely Roshan Ali and Abdul Hamid and one daughter Saberunnessa. Accordingly, Roshan Ali acquired .97

decimals of land by way of inheritance out of his ancestral property of 2.43 acres. Roshan Ali died leaving behind 3(three) sons, the plaintiffs who got his left property. Abdul Hannan, one of the heirs of Abdul Hamid transferred .1 decimals of  land to Abu Taher and Abu Taher subsequently transferred the same to defendant No. 1. Defendant Nos. 1 and 2 by way of purchase acquired .42 decimals of land situated at the adjacent south of the graveyard. The plaintiffs have possession over the land of southern side of the land of those of the defendants. The plaintiffs have no possession over the scheduled property, thus the question of dispossession does not at all arise and thus, they prayed for dismissal of the suit.

The plaintiffs examined 4(four) witnesses and adduced documentary evidences as Exhibit-‘1’ to ‘3’ and the defendants also  examined  4(four)  witnesses  and  adduced  documentary evidences as Exhibit-‘Ka’ to ‘Umah’.

On conclusion of hearing, learned Senior Assistant Judge by his judgment and decree dated 26.09.1999 dismissed the suit.

The plaintiffs having been aggrieved took Title Appeal No. 187 of 1999 before the District Judge, Cumilla. On transfer the said appeal was heard by the Sub-ordinate Judge, Second Court,  Cumilla  and  by  his  judgment  and  decree  dated 16.08.2001 passed in Title Appeal No. 187 of 1999 allowed the appeal, reversing the judgment and decree of the trial Court and thereby decreed the suit.

Learned Advocate Mr. Mohammad Mostafa along with Mr. Mohammad Masud Parvez, learned Advocate appearing for the  petitioners  submits  that  the  original  suit  was  filed  for permanent injunction and subsequently by way of amendment the  plaintiffs  amended  the  prayer  and  thereby  sought  for recovery of khash possession under section 9 of the Specific Relief Act, 1877 and in such situation, he continues to submit that the suit at it’s present form is not maintainable, because, the suit under section 54 of the Specific Relief Act, seeking a decree  of  permanent  injunction  altogether  has  a  different proceeding  and  procedure  than  of  a  suit  for  recovery  of possession under section 9 of the said Act i.e. a suit section 9 has  a  summary  proceeding,  the  only  question  is  to  be adjudicated therein, the plaintiff’s possession and subsequent dispossession by the defendants and no appeal shall lie against the judgment and decree of the suit under section 9 of the Specific Relief Act. On the other hand, the judgment and decree under section 54 of the Specific Relief Act is an appealable one. Thus, a suit cannot be permitted to proceed together with the aforesaid 2(two) different nature of prayers and procedures. He next submits that the defendants have title and possession in the scheduled property in ejmaily with the plaintiffs and others, thus,  the  present  suit  without  a  prayer  of  partition  is  not maintainable.  He  further  submits  that  the  trial  Court categorically found that the plaintiffs miserably failed to prove

On  the  other  hand,  Mohammad  Ali  Zinnah,  learned Advocate for the opposite parties submits that the  plaintiffs have title and exclusive possession over the .42 decimals of land  of  plot  No.  1303  and  which  has  been  specifically demarcated  by  boundary  through  the  plaint.  The  appellant Court below after considering the evidences on record and after controverting the each and every findings of fact of the trial Court arrived at the positive findings that the plaintiffs have title and exclusive possession over the .42 decimals of land at the  northern  part  of  plot  No.  1303  adjacent  south  of  the graveyard of .15 decimals. He next submits that since the Court of appeal below arrived at the positive findings upon assessing the evidences on record properly, thus, there remains no scope to interfere with the findings of fact of the Court of appeal below.

Heard learned Advocates of both the parties, perused the revisional  application,  the  supplementary  affidavits  filed  by both the parties; having gone through the cited judgments.

It appears that the plaintiffs filed a suit for permanent injunction for restraining the defendants from interfering into their  peaceful  possession  in  the  suit  land.  In  a  suit  for permanent injunction, the prime consideration is whether the plaintiffs have successfully proved their exclusive possession over the suit property and in such suit prima facie title of the plaintiffs may also be taken into consideration.

In the said suit, subsequently by way of amendment the plaintiffs  incorporated  the  fact  that  subsequently  they  were dispossessed by defendants from .3 decimals of land out of the scheduled  .42  decimals  of  land  and  thereby  incorporated  a prayer for recovery of khash possession.

Now let us see, what is the findings of fact of the Court of appeal below regarding exclusive possession of the plaintiffs over the suit land.

The Court of appeal below categorically found that the S.A. Khatian No. 412 was prepared in the name of Roshan Ali, Abdul Hamid and Saberunnessa, the sons and daughter of Jafar Ali and also found that the D.W. 1 admitted that there is no evidence  that  Ala  Bakshaw  or  his  son  Monsur  Ali  ever challenged the aforesaid recording in the S.A. Khatian. The ppellate Court also found that the predecessor of the plaintiffs namely, Roshan Ali being son of original C.S. recorded tenant, Jafor Ali have got .18 decimals of land at the northern part of plot No. 1303 adjacent south to the graveyard of .15 decimals of land and Abdul Hamid, another son of Jafor Ali also got .18 decimals of land adjacent south of Roshan Ali’s aforesaid .18 decimals.  The  said  Abdul  Hamid  through  registered  kabala dated 03.01.1977 transferred his said .18 decimals of land to the plaintiffs,  the  deed  has  been  exhibited  as  Exhibit-‘2’  and Roshan Ali again got .6 decimals at the adjacent south of the aforesaid land. The appellate Court also found that the P.W. 2, 3 and 4 in their evidences categorically supported the claim of P.W. 1 as to the plaintiffs’ possession into the suit land and prior to them, their father and uncle (Abdul Hamid) were in exclusive possession over the said land. The appellate Court below  while  considering  the  balance  of  convenience  and inconvenience for granting injunction, categorically found that admittedly  no  khatian  was  prepared  in  the  name  of  Ala Bakshaw, the predecessor-in-interest of defendants and it is also found that the defendants did not claim the property by way of

The  defendants  claimed  that  sons  of  Abdul  Hamid transferred 6  decimals of land through several deeds to the defendnats  on  08.06.1988,  20.11.1989,  09.06.1988  and

20.11.1988 (Exhibit-‘Kha’, ‘Kha-1’, ‘Kha-2’ and ‘Kha-3’), but the defendants did not deny that the father of their vendors, Abdul Hamid transferred .18 decimals of land to the plaintiffs long  before  11  and years  of  their  purchase.  Thus,  the defendants or their venders cannot claim that they transferred their 6 decimals of land out of the aforesaid .18 decimals, acquired and possessed by the plaintiffs through purchase from Abdul Hamid. It is found by this Court herein before as well as

the  Court  of  appeal  below  that  the  said  transferred  of  6 decimals of land situated at the very southern part of plot No. 1303, which in no manner can be the part of the plaintiffs claimed .42 decimals of land situated at the northern side of plot No. 1303. Thus, this Court does not find any infirmity in the findings of fact of the appellate Court below.

The appellate Court also found that the plaintiffs have also proved that they have been dispossessed by the defendants from .3 decimals of land after filing of the suit. Thus, they are entitled to get the relief as sought for in Title Suit No. 85 of 1994.

So  far  the  contention  of  Mr.  Mohammad  Mostafa, learned  Advocate  for  the  petitioner  that  the  suit  is  not maintainable with the prayer of permanent injunction together with  recovery  of  khash  possession  under  section  9  of  the Specific Relief Act. This Court already found that the suit was initially instituted for permanent injunction and subsequently, the prayer for recovery of khash possession was incorporated in the said suit, since the plaintiffs dispossessed from .3 decimals of land out of .42 decimals of the suit land.

From  the  record,  I  do  not  find  anything  that  the defendants  ever  tried  to  resist  the  aforesaid  amendment  or challenged the proceedings of the suit before the trial Court or before the Court of appeal below. Thus, the suit was allowed to proceed with the aforesaid prayer. This Court has already found that the plaintiffs by adducing adequate evidences have been able to prove that they are in exclusive possession in the suit land and their subsequent dispossession from .3 decimals of land out of the aforesaid .42 decimals, and as such, they are legally entitled to get the decree as prayer for.

Mr.  Mohammad  Mostafa,  learned  Advocate  for  the petitioner cited the case of Munshi Kamal Hossain Vs. Shamsul Hoque  reported  in  14  BLD  385,  wherein  although  a  single Bench of this Division maintained the decree of the suit partly, but did not come to a conclusion that the suit filed with the aforesaid  2(two)  prayers  is  not  maintainable.  In  numerous cases, our Apex Court as well as this Division held that the mufassil pleas should be construed liberally and for the fault of mufassil pleader in preparing the pleadings, the parties should not be deprived from their entitlement of getting relief. From the  record,  it  further  appears  that  the  plaintiffs  could  have prayed for mandatory injunction or status-quo ante with the fact of dispossession. Even the Court of law is not powerless to grant proper remedy on the fact of dispossession and may pass order  under  section  151  of  the  Code  of  Civil  Procedure, restoring the plaintiffs into the possession in a proper case. In such  circumstances,  this  Court  does  not  find  any  reason  to deprive the plaintiffs from the remedy as sought for, since the evidences and materials are available on the record to grant them the relief as sought for. Thus, in allowing the appeal and reversing the judgment of the trial Court the appellate Court below having not occasioned any failure of justice.

I do not find any merit in the Rule.

 In the result, the Rule is discharged without any order as

to cost.

However, regarding the submission of Mr. Mohammad Mostafa that it is settled by the Apex Court as well as by this Division that in proper cases, the plaintiffs are entitled to get a relief  to  maintain  their  exclusive  possession  against  the disturbance of defendant-cosharers until the property is being partitioned and the defendants have adequate scope to sought for partition of the ejmaily property before the Court of law. The defendants have already filed Partition Suit No. 67 of 2001 before the Court of Assistant Judge, Chandina, Cumilla. Thus, the  plaintiffs  can  maintain  their  exclusive  possession  till disposal of that suit.

The ad-interim order passed earlier is hereby recalled. Communicate the judgment and order at once.

Obaidul Hasan/B.O.