PRESENT:
(From the judgment and order dated 13.03.2017 passe d by this Division in Civil Petition for Leave to Appeal
No.2767 of 2015).
Government of the Peoples Republic of : ....Appellants. Bangladesh, represented by the
Secretary, Ministry of Land, Ban gladesh
Secretariat, Dhaka and others.
-Versus-
Md. Abdul Malek and others. : ....Respondents.
For the Appellants. : Mr. A. M. Amin Uddin, Attorney
General (with Mr. Mohammad Saiful
Alam, Assistant Attorney General),
instructed by Mr. Haridus Paul , Advocate-on-Record.
For the Respondents. : Mr. Bivash Chandra Biswas ,
Advocate-on-Record.
Date of Hearing. : The 11th May, 202 3.
Date of Judgment. : The 11 th May, 2023.
This civil appeal by leave granting order
dated 10.01.2019 in Civil Review Petition No.691 of 2017 is directed against the judgment and order dated
13.03.2017 passed by this Division in Civil Petitio n for
1
Leave to Appeal No.2767 of 2015 disposing of the ci vil petition.
Background of the case is that the suit land
comprising an area of 114.50 acres in C.S. Plot No. 4 under C.S. Khatian No.360 and S.A. Khatian No.494/1 of Mouza-Jagohati within the Police Station-Kotwali,
District-Jashore was known as Jagohati Baor belon ged to Raja Krishna Das Laha. After abolition of Zamindary
system said Baor became khas land of the Government and the people of the area have been using the suit lan d i.e. the Baor for various purposes including fishing. One Abadi Paroi and others instituted Title Suit No.110 of 1969 for declaration of title and confirmation of
possession in the suit land and also for declaratio n that the soleh decree in Rent Suit No.217 of 1956 passed by the 3 rd Munsif Court, Jashore, is forged and not binding
upon the plaintiffs and the suit was dismissed on c ontest by the learned Subordinate Judge, Jashore vide judg ment and decree dated 25.08.1970. Being aggrieved, the
plaintiffs of the suit preferred First Appeal No.16 0 of 1981 before the High Court Division which was also
dismissed vide judgment and decree dated 28.06.2000 . Since then, Government remained owner of the suit l and.
Thereafter, one Serajul Islam and 49 others filed a n application being numbered as Miscellaneous Case
No.12/XIII of 2004-2005 to the respondent no.6 Addi tional Deputy Commissioner (Revenue), Jashore praying to r ecord the suit schedule Baor as khas khatian in light o f the judgment and decree passed in Title Suit No.110 of 1969 and First Appeal No.160 of 1981 and settle the same in their favour to rear fish and doing business. The
opposite parties contested the miscellaneous case b y filing a written objection, stating interalia, that S.A. Khatian not prepared in the name of the Government rather prepared in the name of their predecessor and they
inherited the same and also possessing the land on
payment of rents.
After contested hearing the Additional Deputy
Commissioner (Revenue), Jashore allowed the said
miscellaneous case vide order dated 19.03.2008 and
declared the suit land as khas land of the Governme nt and directed to record it in Khatian No.1. Against the order opposite parties of the miscellaneous case as appel lants filed Miscellaneous Appeal No.227 of 2008 before th e respondent no.4 Additional Divisional Commissioner,
Khulna Division, Khulna, who by order dated 10.11.2 008 dismissed the miscellaneous appeal. Then the appell ants filed Appeal Case No.5-139 of 2008 (Jashore) before the respondent no.2 Land Appeal Board, Dhaka, which was also dismissed vide order dated 07.01.2009 with the foll owing observation:
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No.110 of 1969 †Z weÁ Av`j‡Zi findings mn judgment
and decree envj ivLv n‡q‡Q| gnvgvb¨ nvB‡Kv‡U©i D³ Av‡`k DaŸ©Zb Av`vjZ KZ…©K evwZj/i` iwnZ bv nIqv ch©šÍ P~ovšÍ wnmv‡eY ¨ M| Kv‡RB bvwjkx m¤úwˇZ ev`x ev weev`x †Kvb c‡ÿiB ¯^Z¡ cÖwZwôZ bv nIqvq †Rjv cÖkvmb KZ…©K ivóªxq AwaMÖnY I cÖRv¯^Z¡ AvBb Gi 92 avivi weavb g‡Z bvwjkv m¤úwˇK miKvwi
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The appellants as writ-petitioners invoked
jurisdiction under Article 102 of the Constitution
challenging the order dated 07.01.2009 passed by th e Land Appeal Board in Appeal Case No.05-139 of 2008 (Jash ore).
Upon hearing the writ-petitioners, a Division Bench
of the High Court Division issued a Rule Nisi upon the respondents to show cause.
After contested hearing, a Division Bench of the Hi gh Court Division made the Rule absolute and declared the order dated 07.01.2009 passed by the Land Appeal Bo ard in Appeal Case No.5-139 of 2008 (Jashore) to have been passed without lawful authority and is of no legal effect vide judgment and order dated 22.01.2014.
Being aggrieved, the writ-respondents as petitioner s preferred Civil Petition for Leave to Appeal No.276 7 of 2015 before this Division invoking Article 103 of t he Constitution.
Upon hearing the learned Advocate for the respectiv e parties, this Division disposed of the Civil Petiti on for Leave to Appeal No.2767 of 2015 vide judgment and o rder dated 13.03.2017 holding that:
We have considered the orders passed by the Member f~wg Avcxj †evW©, the Additional Divisional Commissioner, Khulna, the Additional Deputy Commissioner (Revenue), Jashore and the materials filed with the leave petition. We
maintain the judgment and order passed by
the High Court Division so far as it relates
to the nature of the land in question and we
further hold that the nature of the land in
question shall have nothing to do with the
title of the parties therein.
With the above observation this petition is disposed of.
Feeling aggrieved, writ-respondent-petitioner as
petitioners preferred Civil Review Petition No.691 of 2017 before this Division invoking under Article 10 5 of the Constitution.
After hearing learned Advocates for the parties, th is Division granted leave vide order dated 10.01.2019.
Consequently, instant civil appeal arose.
Mr. A. M. Amin Uddin, learned Attorney General
appearing for the appellants submits that the order s passed by the respondent no.6, the respondent no.4 and finally by respondent no.2 Land Appeal Board pursua nt to judgment and decree of Title Suit No.110 of 1969 an d First Appeal No.160 of 1981 dismissing the suit as well as the appeal, both in civil jurisdiction, and as s uch there is no scope to decide the nature of the case land and title thereof in writ jurisdiction but the High Court Division has not considered the same and therefore the appeal may be allowed. He next submits that the
Additional Deputy Commissioner (Revenue) found the suit
land as Baor and said order have been affirmed by the Additional Deputy Commissioner and Land Appeal Boar d respectively but the High Court Division in writ
jurisdiction illegally decided classification of th e case land as agricultural land relying upon the decision in Miscellaneous Case No.18 of 1964-1965 filed by Sudh ir Kumar Roy for mutation of 4.79 acres of land, which was not a proceeding to decide classification of the sa id land and therefore this Division committed an error
apparent on the face of the record in Civil Petitio n for Leave to Appeal No.2767 of 2015 upholding the judgm ent and order of the High Court Division and as such th e judgment and order passed by this Division required to be reviewed and the appeal may kindly be allowed.
On the other hand Mr. Bivash Chandra Biswas, learne d Advocated-on-record appearing on behalf of the
respondents supports the impugned judgment and orde r.
Heard the learned Advocate for the appellants and t he respondents. Perused the papers/documents contained in the paper book.
It appears from record that one Abadi Paroi and
others instituted Title Suit No.110 of 1969 against
Sudhir Kumar and others before the learned Subordin ate Judge, Jashore for declaration of title and confirm ation of possession over the suit land and also for decla ration that the soleh decree in Rent Suit No.217 of 1956 p assed by the 3 rd Munsif Court, Jashore is forged and not binding
upon the plaintiffs. The suit was dismissed on meri t vide judgment and decree dated 25.08.1970 by the learned
Subordinate Judge, Jashore. Against the said judgme nt and decree, plaintiffs as appellants preferred First Ap peal No.160 of 1981 before the High Court Division which was also dismissed on contest vide judgment and decree dated 28.06.2000. None of the parties of said suit moved before the Appellate Division against the judgment and dec ree passed by the High Court Division in First Appeal N o.160 of 1981. Thereafter, one Serajul Islam and others praying before the respondent no.6 Additional Deputy Commis sioner (Revenue), Jashore to record the suit schedule Bao r as khas khatian in light of the judgment and decree pa ssed in Title Suit No.110 of 1969 and First Appeal No.16 0 of
1981 and settle the same in their favour to rear fi sh and doing business, which was registered as Miscellaneo us Case No.12/XIII of 2004-05. Some of the writ petiti oners as opposite parties contested the said miscellaneou s case. The Additional Deputy Commissioner (Revenue),
Jashore allowed the said miscellaneous case and dec lared the suit land as khas land of the Government and th ereby directed to record it in khatian no.1 vide order da ted 19.03.2008. Against the said order, the writ petiti oner- opposite parties as appellants filed an appeal bein g Appeal No.227 of 2008 under Section 147 of the Stat e Acquisition and Tenancy Act, 1950 before the respon dent no.4, Additional Divisional Commissioner, Khulna
Division, Khulna. After contested hearing, Addition al Divisional Commissioner, Khulna Division, Khulna
dismissed the appeal vide order dated 10.11.2008.
Thereafter, the writ-petitioners as appellants pref erred an appeal being Appeal No.5-139 of 2008 before resp ondent no.2 Land Appeal Board, Dhaka, who dismissed the sa id appeal vide order dated 07.01.2009.
1
It also transpires from the record that Abdul Malek
and others as petitioners invoked writ jurisdiction under Article 102 of the Constitution challenging the ord er dated 07.01.2009 passed by the Land Appeal Board in
Appeal Case No.5-139 of 2008(Jashore) and after con tested hearing a Division Bench of the High Court Division made the Rule absolute vide judgment and order dated
22.01.2014, which is impugned herein. It is pertine nt here to mention that the suit schedule land of Titl e Suit No.110 of 1969 and subject matter of the writ petit ion from which instant civil appeal arose is same and
identical.
On perusal of the memo of writ petition it is evide nt that the basis of the claim of writ petitioners is that they had purchased the suit land from Sudhir Kumar and others. Said Sudhir Kumar was the defendant no.1 of the Title Suit No.110 of 1969 filed before the learned
Subordinate Judge, Jashore which was decided on mer it by the trial court as well as by the High Court Divisi on in First Appeal. Thus it appears that the writ petitio ners are litigating in this case under the title of said
Sudhir Kumar and others relating to a portion of la nd for which a previous suit was instituted and same was d ecided on merit between the parties both by the trial cour t and the High Court Division in civil jurisdiction. The trial court dismissed Title Suit No.110 of 1969 with a fi nding that the dhakilas produced by the defendants are cr eated and forged and the defendants failed to establish t heir
title and possession over the suit land holding tha t:
From the discussions made above I find both the parties have no interest and legal possession in the suit land.
(Sic)
The High Court Division while affirming the judgmen t and decree of Title suit No.110 of 1969 in First Ap peal No.160 of 1981 vide judgment and decree dated 28.06 .2000 observed that:
The impugned judgment is an elaborate and speaking judgment. The trial court has discussed the evidence on record in great details and we are not inclined to repeat
the same all over again.
All that we find that the basis of claim of
title and possession of the plaintiff- appellants is that they had taken settlement
of the suit property from the landlord but they have failed to prove the same.
Therefore, the findings of the trial court
that the plaintiffs have failed to prove their case is factually and legally correct
and we are not inclined to interfere with the findings of the court below. The findings are based on evidence on record and legally sound. The suit has correctly been decided. The plaintiff-appellants are not entitled to get a decree, as prayed for and
the trial court has correctly dismissed the suit.
(Sic) By now it is settled that the parties litigating o ver
the self-same land are bound by the decision of a
previously instituted suit/case in civil jurisdicti on and application under Article 102 of the Constitution i s not maintainable relating to title of the parties which was decided in civil jurisdiction.
Again, it is also settled that there should be
finality of litigation and if a decided matter is b rought before the court again and again that will create
multiplicity of proceedings as well as chance to ar rive at a conflicting decision which is neither desirabl e nor permissible in law.
The Supreme Court of India in the case of K. Jayaram and Ors. vs. Bangalore Development Authority and Or s. , reported in (2021) 9 SCR 359, held:
The finding of the High Court has attained finality and the writ court cannot sit in an appeal over the judgment passed by the High Court in the appeal. The conclusions reached by the court in the appeal are binding on the Appellants.
Again, The Supreme Court of India in the case of
Udyami Evam Khadi Gramodyog Welfare Sanstha and Ors . vs. State of Uttar Pradesh and Ors. , reported in (2008) 1 SCC
560, held:
This court has reiterated that the writ remedy is an equitable one and a person approaching a superior court must come with
a pair of clean hands. Such person should not suppress any material fact but also should not take recourse to legal proceedings over and over again which amounts to abuse of the process of law.
Further to avoid the conflicting decision of the
court, the Apex Court of India in the case of India Household and Healthcare Ltd. vs. LG Household and
Healthcare Ltd. , reported in (2007) 5 SCC 510, observed:
The doctrine of comity or amity required a court not to pass an order which would be in conflict with another order passed by a competent court of law.
From the above discussions and the principle
enunciated in the cited cases, we are of the view t hat the decision of competent court of civil jurisdicti on shall be final in the case of declaration of title and confirmation of possession as well as classificatio n of the land and the High Court Division under writ
jurisdiction cannot sit as an appellate forum again st the judgment and decree passed by the High Court Divisi on in civil jurisdiction and if does so that will amount to abuse of the process of law which will create
multiplicity of proceedings as well as chance to ar rive at a conflicting decision.
Thus it appears that as the writ petitioners
litigating under the title of Sudhir Kumar who was
defendant no.01 in previously instituted Title Suit
No.110 of 1969 and in that title suit the very clai m of Sudhir Kumar was not established both in trial cour t as well as in the High Court Division in first appeal and none of the parties of that title suit moved before the Appellate Division as such the decision passed by t he trial court in Title Suit No.110 of 1969 which was
affirmed by the High Court Division in First Appeal
No.160 of 1981 has attained finality and the petiti oners of the writ petition is bound by that decision inas much as they are litigating over the self-same matter. B ut the High Court Division as well as this Division withou t considering this legal and factual aspect made the Rule absolute in Writ Petition No.2405 of 2019 and dispo sed of the Civil Petition for Leave to Appeal No.2767 of 2 015 respectively, which calls interference by this Divi sion.
Under the facts and circumstances of the case and the discussions made hereinabove, we are inclined to al low the appeal.
Accordingly, this appeal is allowed.
The impugned judgment and order dated 22.01.2014 an d 13.03.2017 passed by the High Court Division in Wri t Petition No.2405 of 2010 and by this Division in Ci vil Petition for Leave to Appeal No.2767 of 2015 respec tively are hereby set-aside.
No order as to costs.
J.
J.
J. J. J. J.
The 11 th May, 2023 . Jamal/B.R./Words-*2729*