District: Patuakhali

In the Supreme Court of Bangladesh

High Court Division

(Civil Revisional Jurisdiction)

  Present:-

Mr. Justice Md. Zakir Hossain

Civil Revision No. 3445 of 2022

Dr. Dheran Nath Pal

 ............ Defendant No.7-Respondent-Petitioner

-Versus-

Md. Shohidul Islam and others

....... Plaintiff-Appellant-Opposite Parties

Mr. Md. Zahir Uddin Limon, Advocate

...... For the petitioner

Mr. Md. Nazir Ahmed Hossain, Advocate

....For the opposite parties

Heard On:28.03.2023 & 30.05.2023       Judgment On: 21.04.2024

Md. Zakir Hossain, J:

 At the instance of the petitioner, the Rule was issued by this Court with the following terms:

“Let a Rule be issued calling upon the opposite

party No. 1 to show cause as to why the judgment

and order dated 07.06.2022 passed by the learned

District Judge, Patuakhali in Miscellaneous

Appeal No. 20 of 2022 reversing the judgment and

order dated 23.03.2022 passed by the learned

Senior Assistant Judge, Sadar, Patuakhali in Title

Suit No. 1224 of 2021 shall not be set aside

and/or such other or further order or orders

passed as to this Court may seem fit and proper.”

Facts leading to the issuance of the Rule are inter alia that the opposite party No. 1 being plaintiff instituted Title Suit No. 1224 of 2021 before the Court of the learned Senior Assistant Judge, Sadar,

Patuakhali for partition and separate saham in respect of 0.03 acre of land. The petitioner also filed an application for temporary injunction. The defendant No. 7  i.e. the instant petitioner by filing a written objection denied the material allegations set forth in the said injunction petition. Upon hearing, the learned Senior Assistant Judge was pleased to reject the petition for temporary injunction. Being aggrieved by and highly dissatisfied with the judgment and order of the learned Senior Assistant Judge, the plaintiff being appellant preferred Miscellaneous Appeal No. 20 of 2022 before the Court of the learned District Judge, Patuakhali. Upon hearing, the learned District Judge was pleased to direct the parties to maintain status quo in respect of the suit land and as such, set aside the judgment and order of the learned Senior Assistant Judge. Impugning the judgment and order of the learned District Judge, the petitioner moved this Court and obtained the aforesaid Rule and stay therewith.

Heard the submissions advanced by the learned Advocates of the petitioner and the opposite parties at length and perused the materials on record with due care and attention and seriousness as they deserve. The convoluted question of law embroiled in this case has meticulously been waded through for a just decision.

It appears from the record that the learned Senior Assistant Judge rejected the petition for temporary injunction with the following observation:

Òmvwe©K ch©v‡jvPbvq ev`xcÿ KZ…©K AvbxZ A¯’vqx wb‡lavÁvi `iLv‡¯Íi ¯^c‡ÿ Prima-facie good arguable case ‡bB

g‡g© cÖZxqgvb nq| AwaKš‘ Av‡jvP¨ A¯’vqx wb‡lavÁvi `iLv¯Í gÄyi bv n‡j ev`xc‡ÿi Ac~iYxq ÿwZ nIqvi KviY Av‡Q e‡j

cwijwÿZ nq bv| mvgwMÖK we‡ePbvq myweav I Amyweavi

fvimvg¨I A¯’vqx wb‡lavÁvi `iLv‡¯Íi cÖwZK~‡j we‡ewPZ nq| GQvovI weev`xi feb wbg©vY KvR †h‡nZz Pjgvb Ges Zdwmj we‡ivaxq f~wg mywbw`©ó bq I we‡ivaxq f~wg †cŠi GjvKvq Aew¯’Z myZivs G‡ÿ‡Î A¯’vqx wb‡lavÁv cÖ`vb mgxPxb bq g‡g©

Av`vj‡Zi wbKU cÖZxqgvb nq| GB cÖm‡½ Moffazzal Hossain vs. Mainuddin reported in 3 BLC (AD) (1998) 78 ‡gvKÏgvq DwjøwLZ ch©‡eÿY ÒThe plaintiffs have neither a prima facie nor arguable case and defendants cannot be restrained from making construction on the suit land taking the risk that a portion of it will be liable to be demolished if the plaintiffs get a decree in future as has been rightly found by the High Court Division, the refusal of injunction was not either illegal, improper or

inequitable.” we‡klfv‡e AbymiY‡hvM¨| myZivs Dc‡iv³

Av‡jvPbv  I we‡køl‡Y,  we‡eP¨  welq  3wU  ev`xc‡ÿi cÖwZK~‡j wb®úwË Kiv n‡jv|Ó

The learned District Judge turned down the order of the learned Senior Assistant Judge with following observation:

Òev x-Avcxj¨v‡›Ui cÖv_x©Zg‡Z D³ m¤úwˇZ Bs 21/03/2022

Zvwi‡L cwi`k©b nq| Zv‡Z wi‡cv‡U© ejv nq 03 kZvs‡ki

†PŠnwÏi g‡a¨ 0.0225 kZK Lvwj Rwg‡Z wbg©vY mvgMÖxi fv½v BU, evjy, cøv÷vi Gi eviwZ Ask †`Lv hvq| cwi`k©b f~wgi g‡a¨

wbg©vY Kivi Rb¨ gvjvgvj R‡ov Kiv Ae¯’vq †`Lv hvq| ¯^xK…Z

†h, ev`x Ges weev`x DfqcÿB ‡iKWx©q gvwj‡Ki Iqvwik‡`i

KvQ †_‡K we‡ivaxq m¤úwË Lwi` K‡i‡Qb Ges m¤úwË kn‡ii

Valuable property| we‡ivaxq m¤úwË Av`vjZ‡hv‡M KL‡bv

eÈb Kiv nqwb| ev`xi `L‡j weNœ m„wó nIqvq ev`x †gvKÏgv wb®úwËKvjxb ch©šÍ A¯’vqx wb‡lavÁvi Av‡`k cÖv_©bv K‡i‡Qb|

ev x-Avcxj¨v›Uc‡ÿi AÎ A¯’vqx wb‡lavÁvi `iLv‡¯Íi †cÖwÿ‡Z Prima-facie Ges arguable †Km _vKvq ev`x A¯’vqx wb‡lavÁvi Av‡`k †c‡Z cv‡ib| weÁ wePvwiK Av`vjZ G‡ÿ‡Î wm×všÍ MÖn‡Y AvBb I NUbvMZ fzj K‡i‡Qb| GgZve¯’vq, weÁ wePvwiK Av`vjZ KZ…©K cÖ`Ë weMZ Bs 23/03/2022 Zvwi‡Li A¯’vqx wb‡lavÁvi cÖv_©bvq AvbxZ iLv¯Í bv-gÄy‡ii Av‡`k i` I

iwnZ‡hvM¨| b¨vq wePvi wbwð‡Zi j‡ÿ¨ A¯’vqx wb‡lavÁvi `iLv‡¯Íi Zdwm‡j ewY©Z Rwg‡Z †gvKÏgvi wePvi mv‡c‡ÿ w¯’Zve¯’v eRvq ivLvB h_v_© n‡e|Ó  

It appears from the schedule to the plaint that the suit land has not been  properly been identified i.e. the schedule to the suit land is vague and indefinite. It is admitted position that the defendant No. 7 i.e. Dr. Dheran Nath Pal purchased 3 decimals of land from the plaintiff on 20.05.1975. In this respect, the defendant No. 7 is a bona fide purchaser and it is undisputed that the plaintiff is also the owner of 3 decimals of land but the same has not been indentified properly. It cannot be denied that the order of status quo is tantamount to injunction. If the injunction is granted in an unspecified land, it will cause serious prejudice to the defendant and as such, he will be prevented from doing any construction in the suit land which is admittedly situated in the urban area.

Admittedly, the plaintiff and defendant are co-sharers in the suit land. When a co-sharer is in exclusive possession of any land of the ejmali property and when the land is well refined and separate from other lands, he can get protection of the Court from onslaught of other co-sharer who got no possession. On consideration of the plaint of the suit it does not appear that the plaintiff is in exclusive possession of the suit land.

In this respect, I am of the view that since the plaintiff has got no prima facie arguable case, he cannot restrain the defendant from making construction  on  his  own  land  measuring  3  decimals.  Therefore,  the impugned judgment and order of the learned District Judge is liable to be struck down to secure the ends of justice. The Rule has got merit and as such, the same deserves to be made absolute.

In the result, the Rule is made absolute. The earlier order of stay granted by this Court, thus, stands recalled and vacated. The impugned judgment and order passed by the learned District Judge is hereby set aside and that of the learned Senior Assistant Judge is restored. The learned Senior Assistant Judge is directed to dispose of the original suit within 06 (six) months from the date of receipt of the copy of this judgment.  No  unnecessary  adjournment  petition  shall  be  entertained from either side.

Let a copy of this judgment be sent down to the Court below at once.              

(Md. Zakir Hossain, J)

Naser. P.O