Present:

Mr. Justice Md. Salim

CIVIL REVISION NO.2563 OF 2019.

Bimal Sardar @ Munda and others

..................... Defendant-Petitioners.

-VERSUS-

Alhaj  Sheikh  Md.  Wazed  Ali  and others

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

Mr. Al Faishal Shiddique, Advocate

.............. For the Petitioner. No one appears

....... For the Opposite Parties.

Heard on 28.10.2024 and 05.11.2024.

Judgment on 11.11.2024.

By this Rule, the opposite parties were called upon to show cause as to why the impugned judgment and decree dated 14.07.2019 passed by Additional District Judge, 1st Court, Khulna in Title Appeal No.26 of 2017, allowing the appeal  and  reversing  the  judgment  and  decree  dated 06.11.2016  passed  by  the  Senior  Assistant  Judge,  Koyra, Khulna in Title Suit No.69 of 2014 dismissing the suit should not be set aside and/or pass such other or further order or orders as to this Court may seem fit and proper.

Facts relevant in brief for disposal of the Rule are that the opposite parties, as plaintiffs, instituted Title Suit No.69

of 2014 before the Assistant Judge, Koyra, Khulna,  for a permanent  injunction  contending  inter-alia  that  the  land measuring 0.22 acres of S.A. Plot No.2371 appertaining to S.A. Khatian No.544 of Mouza Uttar Bedkashi under Police Station Koyra, District Khulna belonged to Gopinath Sardar; that Gopinath Sarder sold out said land in favor of Suratun Nessa, the predecessor of the plaintiffs through registered sale deed bearing No. 2068, dated 09.04.1970; that Suratun Nessa died leaving plaintiffs as her hairs and successor in interest;  that  on  04.07.2014  the  defendants  threatened plaintiffs to dispossess them from the suit land and hence the suit.

The defendants 1-4 contested the suit by filing a set of written statement contending inter-alia that the suit land measuring 0.22 acres of S. A. plot No. 2371 appertaining to S. A. Khatian No. 544 of Mouza-Uttar Bedkashi under Police Station- Koyra within District-Khulna belonged to Gopinath Sardar; that Gopinath Sarder sold out 0.12 acres of land out of  said  0.22  acres  in  favor  of  Bimal  Sardar  @  Munda (defendant  No.  1)  and Nirmal  Chandra  Kuli  through registered  sale  deed  No.  7951,  dated  10.09.1977;  that Gopinath Sardar also sold out 0.11 acres of land out of said 0.22 acres in favor of Bimal Sardar @ Munda (defendant No. 1) and Nirmal Chandra Kuli through registered sale deed

dated 31.03.1979; that said Nirmal Chandra Kuli sold out his said purchased land measuring 9.852 decimals in favor of Rukshini  Dasi  through  registrate   deed  No.  3786,  dated 03.04.1982; that Rukshini Dasi transferred said land, i.e., 9.852 in favor of defendant No. 1 by way of gift through registered deed No. 697, dated 20.12.1997; that the latest record of right has been prepared and published in the name of the defendant No. 1; that said Gopinath Sardar never sold out the suit land in favor of Suratun Nessa and the deed in favor of said Suratun Nessa is forged and fabricated one; that the plaintiffs have no title and possession in the suit land and the defendants never threatened them to dispossess from the suit land and thus the suit is liable to be dismissed.

During  the  trial,  the  Senior  Assistant  Judge  framed necessary issues.

Subsequently,  the  learned  Senior  Assistant  Judge, Koyra,  Khulna,  dismissed  the  suit  by  the  judgment  and decree dated 06.11.2016.

Being  aggrieved,  the  plaintiff,  as  appellant,  preferred  Title  Appeal  No.26  of  2017  before  District  Judge  Khulna. Eventually, the learned Additional District Judge, 1st Court, Khulna,  by  the  judgment  and  decree  dated  14.07.2019, allowed  the  appeal  after  setting  aside  the  judgment  and decree passed by the trial Court.

Being aggrieved, the defendant-respondent as petitioner filed an application under section 115 (1) of the Code of Civil Procedure before this Court and obtained the instant Rule.

Mr.  Al  Faishal  Shiddique,  the  learned  Counsel appearing on behalf of the petitioner, submits that the trial Court, upon proper examination of the evidence on record, found that the plaintiff has no exclusive possession in the suit land and the boundaries of the suit land as claimed in the plaint rather, the learned Judge of the appellate Court without  assessing  any  reason  decreed  the  suit  by  the impugned judgment and decree which resulted in an error of law  occasioning  failure  of  justice;  that  the  defendant  has succeeded to prove his prima-facie title and possession in the suit land for which he should not be restrained by way of the injunction but the appellate Court upon an erroneous view passed  the  decree  restraining  him  by  way  of  permanent injunction  which  resulted  in  an  error  of  law  occasioning failure of justice; that the suit property is not specifically and described adequately by its four boundaries, and from the evidence  of  the  plaintiff  witnesses,  it  is  found  that  the boundaries  are  not  correct  and  the  trial  Court  rightly dismissed the suit.

No one appears to oppose the Rule on behalf of the opposite parties.

I  have  considered  the  submission  of  the  learned advocate and perused the impugned judgment as well as oral and documentary evidence. It reveals that, considering the evidence of PWs and Dws, Exhibit Ka and Kha deed nos. 3110 and 2371, respectively, the learned judge of the trial court  dismissed  the  suit  chiefly  on  the  ground  that  the defendants who threatened to dispossess the plaintiffs have not been proved; that the plaintiffs failed to prove their title and  possession  of  the  suit  land;  that  the  plaintiffs  were unable  to  prove  his  title  as  there  involved  a  complicated question  of  title  of  both  the  party  so  the  suit  was  not maintainable.

The  appellate  court  considered  the  oral  and documentary  evidence,  which  says  that  plaintiffs  had successfully proved their prima facie title in the suit land. Moreover, plaintiffs established their exclusive possession and boundary in the suit land through their evidence and decreed the suit.

In a suit for a permanent injunction, the plaintiff must prove the exclusive possession of the suit land to get a decree. The Court may incidentally enquire into the prima facie title of  the  parties  unless  the  plaintiff's  possession  is  clearly established by the evidence that the plaintiffs cannot have any decree for a permanent injunction. 

In  the  instant  case,  I  have  perused  oral  and documentary evidence, i.e., exhibit ‘Ka’ deed no. 7951 dated 10.9.77;  Exhibit  ‘Kha’  deed  no.  3110  dated  31.3.79  and Exhibit ‘Cha’ rent receipt.  PW1-the plaintiff stated details of

the chain of the title of the suit land rather, he failed to give

the specification of the suit land and admitted in the cross- examination that- “GB LwZqv‡bi Rwg GRgvwj|”

PW 2 deed writer, PW3 Assistant deed writer.

PW4, this witness had not stated that when the defendants threatened the plaintiff to dispossess the suit land, he failed to give the specification of the suit land. Rather, he admitted in the cross-examination that- “†Kvb LwZqv‡bi, †Kvb `v‡Mi Rwg wb‡q gvgjv Zv Rvw bv| ev`xi †Kvb `v‡Mi Rwg †fvM `Lj K‡i Zv Rvwb bv| ILv‡b nvRx mv‡n‡ei †gvU KZUzKz Rwg Zv Rvwb bv| --------- -------------- weev`xiv ILv‡b KZ eQi †fvM `Lj K‡i Zv Rvwb bv|”

It  reveals  that  the  plaintiffs  claim  the  defendants threatened to dispossess them from the suit land, but none of

the witnesses supported his claim. Moreover, the plaintiff has failed to prove their exclusive possession over the suit land by giving oral and documentary evidence.

Notably, it is a settled proposition of law that if the dispute involves complicated questions of title, a simple suit

for a perpetual injunction must not be maintainable. In this

context, the case of Rafizuddin Ahmed vs. Mongla Barman

and others reported in 43DLR(AD) 215, it was held that-

‘‘If the dispute involves complicated questions of title,

the plaintiff must establish his title by filing a regular

suit  for  declaration  of  title.  A  simple  suit  for  a permanent injunction should not be allowed to be used

as a testing device to ascertain the title’’.

In the instant case, it reveals that the plaintiff and the defendant both the parties claimed the same suit land by producing their respective registered deeds. So, it reveals that

the dispute involves complicated question of title to the land

in question between the parties.

In view of the above, I am of the view that the trial Court

has elaborately discussed oral and documentary evidence and justifiedly  says  that  the  defendants  who  threatened  to dispossess  the  plaintiffs  have  not  been  proved,  that  the plaintiff failed to prove his title and possession of the suit

land, that the plaintiff was unable to prove his title as there involved a complicated title of both the party so the suit was

not maintainable. On the other hand, the learned judge of the appellate court reversed those findings of facts as a last court

of facts without considering oral and documentary evidence

and, very unfortunately, says that- “weÁ wePvwiK Av`vjZ gZvgZ cªKvk Kwiqv‡Qb †h, Dfqc‡¶i bvgxq `wjj Ges LvRbvi `vwLjv `vwLj K‡i AÎ gvgjvq hvnv Øviv GB gvgjvq wbi“cb Kiv hvq bv GKPz¨qvjx †K bvwjwk Rwg †fvM `Lj K‡i| D³ dvBwÛsm mwVK nq bvB| KviY GKRb wb›`y f`ª †jv‡Ki KvQ nB‡Z GKR gymwjg hLb †Kvb Kejv `wjjg~‡j Lwi`v `vwe K‡ib Ges †mB `wjj hZ¶b ch©š— Rj v cªgvwYZ bv nB‡Z‡Q, ZZ¶b ch©š— †mB `wjjwU mwVK Ges †mB `wj‡ji Rwg ¯^Z¡ `Lj †µZvi AbyK~‡j _vwK‡e BnvB ¯^vfvweK| Av‡jvPbvg‡Z ev`xc‡¶i ¯^Z¡ `Lj cªgvwbZ nIqvq ev`xc‡¶i AbyK~‡j wPi¯’vqx wb‡lavÁvi wWµx cª`vb‡hvM¨ wQj|” As a result, the learned Judge of the appellate Court committed an error of law resulting in an

error in decision occurring failure of justice.

In the result, the Rule is made absolute without any

order as to costs. The impugned judgment and decree dated 28.08.2017 passed by the learned Joint District Judge, 1st

Court, Khulna, in Title Appeal No.52 of 2012, is hereby set

aside  and  affirmed  the  judgment  and  decree  dated 06.11.2016  passed  by  the  Senior  Assistant  Judge,  Koyra, Khulna. So, the suit is dismissed.

Communicate  the  judgment  and  LCR  to  the  Courts

below at once.

……………………. (Md. Salim, J).

Kabir/BO