IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Moinul Islam Chowdhury

CIVIL REVISION NO. 3903 OF 2009

IN THE MATTER OF:

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

-And-

IN THE MATTER OF:

Md. Golam Rabbani

--- Defendant-Petitioner. -Versus-

Md. Fokruddin

---Plaintiff-Opposite Party. Mr. Md. Dawood Khan Zubair with

Mr. Md. Mahabubur Rashid, Advocates

--- For the Defendant-Petitioner. Mr. Uzzal Kumar Bhowmick with

Mr. A. Z. M. Morshed Al Mamun and

Ms. Salina Akter, Advocates

---For the Plaintiff-Opposite Party.

Heard  on:  28.05.2023,  21.06.2023, 24.07.2023 and 30.07.2023.

Judgment on: 30.07.2023.

At the instance of the present defendant-petitioner, Md. Golam  Rabbani,  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 in the petition moved in Court should not be set aside.

The relevant facts for disposal of this Rule, inter-alia, are that the present opposite party as the plaintiff filed Other Class Suit No. 90 of 2006 in the court of the learned Assistant Judge, Gouripur, Mymensingh under section 9 of the Specific Relief Act claiming that the present defendant-petitioner on 20.05.2006 dispossessed him from the plot No. 90 and 142 land measuring 18  decimals  at  Mouza-  Beheratola,  Police  Station-  Gouripur, District-  Mymensingh  praying  for  the  recovery  of  khas possession.

After  receiving  the  above  plaint,  the  learned  Assistant Judge, Gouripur, Mymensingh passed the impugned judgment and decree on 17.09.2009 by allowing the application filed under section  9  of  the  Specific  Relief  Act  for  recovery  of  khas possession.  Being  aggrieved  the  present  defendant-petitioner filed this revisional application under section 115(1) of the Code of  Civil  Procedure  challenging  the  legality  of  the  judgment passed by the learned Assistant Judge, Gouripur, Mymensingh and the Rule was issued thereupon.

Mr.  Md.  Dawood  Khan  Zubair,  the  learned  Advocate, appearing along with the learned Advocate Mr. Md. Mahabubur Rashid for the defendant-petitioner, submits that the learned trial

court  committed  an  error  of  law  by  misreading  and  non- considering the evidence and statement of the witnesses of the defendant  and  the  plaintiff  failed  to  proved  his  claim  of dispossessing  from  the  land  because  there  was  no  matter  of dispossessing under section 9 of the Specific Relief Act but the learned trial court committed an error of law by decreeing the title suit, therefore, the Rule should be made absolute bcause there  was  sufficient  evidence  produced  by  the  defendant- petitioner  that  the  suit  land  in  question  was  inherited  and purchased long before the alleged day of dispossessing and the learned trial court committed an error to consider the Exhibit- “Ka” being C. S. Record of Right and also Exhibit- “Kha” being R.  S.  Record  of  Right  as  well  as  Exhibit-  “Cha-1”  dated 30.07.2006 as to the alleged dispossession, thus, the Rule is valid in the eye of law.

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

Mr.  Uzzal  Kumar  Bhowmick,  the  learned  Advocate, appearing  along  with  the  learned  Advocate  Mr.  A.  Z.  M. Morshed Al Mamun on behalf of the plaintiff-opposite party, submits that the learned trial court being the learned Assistant Judge,  Gouripur,  Mymensingh  properly  examined  the documents, in particular, regarding the alleged dispossession and thereby came to a lawful conclusion which the plaintiff-opposite party could prove that the plaintiff without any legal proceeding dispossessed  the  plaintiff  on  20.05.2006  from  the  suit  land measuring total 18 decimals of land.

The  learned  Advocate  also  submits  that  there  were sufficient  reasons  for  filing  the  case  under  section  9  of  the Specific Relief Act, as such, the learned trial court allowed the case and decreed the suit in favour of the plaintiff-opposite party. After examining the evidence it was approved that there was dispossession by the defendant and the suit was filed within 6 (six) months by the plaintiff under the required law.

Considering the above submissions made by the learned Advocates appearing on behalf of the respective parties and also considering  the  revisional  application  filed  by  the  present defendant-petitioner 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 trial court decreeing the suit and directed the defendant-petitioner to hand over the possession of the suit land to the plaintiff as well as perusing the essential documents available in the lower court records, it appears to me that the plaintiff-opposite party filed a suit  against  the  present  defendant-petitioner  for  dispossessing from the paddy field on 30.07.2006 land measuring 16 + 2 = 18 decimals. It further appears that the plaintiff filed the suit under section  9  of  the  Specific  Relief  Act  which  requires  a dispossession from the land without lawful authority. The law also requires that a suit must be filed within 6 (six) months from the date of dispossession. The law further requires that no appeal can be filed against the said dispossession.

In the instant case, the plaintiff could prove that he was dispossessed from the paddy filed by cutting paddy situated in the said land described in the plaint of the suit measuring 18 decimals of land.

I  have  carefully  examined  the  evidence  adduced  and produced by the parties, in particular, the depositions of DWs- 2 and 3, namely, Abu Sayed and Shamsul Hoque who consistently deposed  that  the  defendant-petitioner  took  possession  by  the decision of local  Salish (n¡¢mp). Any dispossession from land other  than  in  due  course  of  law  dispossession  from  any

immovable property attracts section 9 of the Specific Relief Act in due course of law.

The learned trial court has considered the evidence and came to a conclusion to decree the suit in favour of the present plaintiff-opposite party on the basis of the following findings:

…“¢hh¡c£ f­rl ¢h‘  ®L±öm£ ®hcM­ml Ru j¡­pl j­dÉ

j¡jm¡ L­le¢e h­m c¡h£ L­l a¡j¡¢c­a Aœ ®j¡LŸj¡ h¡¢la h­m c¡h£

Ll­mJ a¡l fËj¡Z EfÙÛ¡fe ¢hnÄ¡p­k¡NÉi¡­h Ll­a e¡ f¡l¡u Aœ ®j¡LŸj¡ a¡j¡¢c­aJ h¡¢la eu j­jÑ fËa£uj¡Z quz Ef­l¡š²

B m¡Qe¡l ®fË¢r a Eiu f r EfÙÛ¡¢fa pLm c¡¢m¢mLJ ®j±¢ML

p¡rÉ¡¢c J e¢b fkÑ¡ m¡Qe¡u H j jÑ ¢ÙÛl ¢pÜ¡¿¹ Nª¢qa qm ®k, h¡c£ e¡¢mn£ i¨¢j q a ¢hh¡c£ LaѪL ®hcMm q u¢Rmz”…

The  learned  trial  court  clearly  mentioned  about  the requirement of filing a suit within a period of 6 (six) months from the date of dispossession. The defendant-petitioner raised questions about the limitation period but could not prove that the plaintiff-opposite party filed the suit within 6 (six) months. As such, the learned trial court properly considered the facts of the case and came to a lawful decision to decree the suit. As such, the learned trial court committed no error of law. So, I do not

consider that this is a proper case for interference by this court anymore.

Accordingly, I do not find merit in the Rule.

In the result, the Rule is hereby discharged.

The order passed by this court on 31.05.2016 staying the proceeding of the Decree Execution Case No. 1 of 2010 which is now  pending  before  the  learned  Assistant  Judge,  Gouripur, Mymensingh  and  also  a  direction  passed  by  this  court  on 07.09.2016 for maintaining status quo by the respective parties concerning  the  possession  and  position  of  the  suit  land  till disposal of this Rule are hereby recalled and vacated.

The judgment and decree dated 17.09.2009 passed by the learned  Assistant  Judge,  Gouripur,  Mymensingh  in  the  Other Class Suit No. 90  of 2006 decreed the suit and directed the defendant-petitioner to hand over the possession of the suit land to the plaintiff is hereby affirmed.

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 Assistant Judge, Gouripur, Mymensingh immediately.