দায়বর্জন বিবৃতি (DISCLAIMER)

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Microsoft Word - CR_1758_2023_ABSOLUTE

IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

             Present:

Mr. Justice S M Kuddus Zaman

CIVIL REVISION NO.1758 OF 2023

In the matter of:

An application under Section 115(4) of the Code of Civil Procedure.

And

Abdur Rahim and others

... Petitioners

-Versus-

Amina Bewa and others

... Opposite parties

None appears

.... For the petitioners.

Mr. Md. Mizanur Rahman, Advocate

…. For the opposite party Nos.1-4. Heard and Judgment on 21.11.2024.

This Rule was issued calling upon the opposite party Nos.1-8 to show  cause  as  to  why  the  impugned  judgment  and  order  dated 17.11.2022  passed  by  the  learned  Additional  District  Judge, Mymensingh in Civil Revision No.05 of 2021 reversing the judgment and  order  dated  06.012021  passed  by  the  learned  Senior  Assistant Judge, Sadar Court, Mymensingh, in Other Class Suit No.276 of 2018 allowing the application under Order 1 Rule 10(2) read with Section 151 of the Code of Civil Procedure should not be set aside and or pass such other or further order or orders as to this Court may seem fit and proper.


1

Facts in short are that the opposite party as plaintiff instituted above suit for a decree of perpetual injunction for 0.1862 ajutangsho land claiming title by adverse possession.

In above suit 11 persons filed a joint petition under Order 1 Rule 10  of  the  Code  of  Civil  Procedure  for  being  added  as  defendants alleging that they are living in the dwelling house in above land for a long  time  claiming  title  against  the  true  owners  and  their  above possession has matured into valid title by adverse possession.  

On  consideration  of  facts  and  circumstances  of  the  case  and materials on record the learned Senior Assistant Judge allowed above petition.

Being aggrieved by above judgment and order of the trial Court above plaintiff as petitioner preferred Civil Revision No.5 of 2021 to the District  Judge,  Mymensingh  which  was  heard  by  the  learned Additional District Judge who allowed above revision, set aside the judgment and order of the trial and rejected the petition under Order 1 Rule 10 of the Code of Civil Procedure.

Being aggrieved by and dissatisfied with above judgment and order  of  the  Court  of  Appeal  below  above  opposite  parties  as petitioners moved to this Court and obtained this Rule.

No one appears on behalf of the petitioners when the Rule was taken  up  for  hearing  although  this  matter  appeared  in  the  list  for hearing on several dates.

Mr. Md. Mizanur Rahman, learned Advocate for opposite party Nos.1-4 submits that the opposite party as plaintiff instituted above suit for  a  decree  of  perpetual  injunction  against  the  defendants  who threatened  the  plaintiffs  with  forcible  dispossession.  The  opposite parties as plaintiff filed a suit for specific performance of contract for the disputed land which was dismissed on contest and above judgment and decree was upheld by the Appellate Division. The opposite party as plaintiff filed another suit challenging the legality of enlistment of the  disputed  land  as  enemy  property  which  was  abetted.  The petitioners do not have any rightful claim over the disputed property nor the plaintiff impleaded them as defendants since they did not threat the opposite party with forcible dispossession. The petitioners were not necessary party in this suit for permanent injunction and the learned Additional District Judge rightly allowed the Civil Revision and set aside the flawed judgment and order of the trial Court and rejected above petition under Order 1 Rule 10 of the Code of Civil Procedure which calls for no interference.

I have considered the submissions of the learned Advocate for the opposite party Nos.1-4 and carefully examined all materials on record.

It  is  admitted  that  disputed  land  comprises  a  pucca  dwelling house which belonged to Monmothonath Guhu and for above dwelling house and land the opposite party as plaintiffs filed Title Suit Nos.112 of 1969 for specific performance of contract which was dismissed and above judgment and decree was upheld by the Appellate Division. In above suit plaintif claimed possession in above property pursuant to part performance of above contract.

The petitioners have filed above petition under Order 1 Rule 10 of the Code of Civil Procedure for addition as defendants in above suit claiming that they are in possession in the above house for a long time and  there  above  possession  has  matured  in  to  title  by  adverse possession.  It  turns  out  from  plaint  that  the  opposite  parties  has admitted possession of the petitioner in the above house. The opposite parties claims that the petitioners were their monthly tenants in above house without written tenancy agreement.

It is true that in a suit for permanent injunction only those persons are necessary parties who threatened the plaintiff with dispossession. But in this suit the opposite parties do not have any lawful title and the petitioners are possessors in above house and the petitioner do not recognize the opposite parties as owners.

Since the petitioners claimed to be in physical possession of the dwelling house and further claimed that their possession had matured into title by adverse possession the learned Judge of the trial Court rightly allowed their petition so that they could contest the claim of the plaintiff.

The learned Judge of the Court of Appeal below have failed to appreciate above aspect of the case and materials on record and most illegally allowed the revision and set aside the lawful judgment and order of the trial Court and rejected above petition under Order 1 Rule 10 of the Code of Civil Procedure which is not tenable in law.

In above view of the materials on record I find substance in this revisional  application  under  Section  115(4)  of  the  Code  of  Civil Procedure and the Rule issued in this connection deserves to be made absolute.

In the result, the Rule is hereby made absolute.

The impugned judgment and order dated 17.11.2022 passed by the learned Additional District Judge, Mymensingh in Civil Revision No.05 of 2021 is set aside and the judgment and order dated 06.012021 passed  by  the  learned  Senior  Assistant  Judge,  Sadar  Court, Mymensingh, in Other Class Suit No.276 of 2018 is restored.

However, there is no order as to costs.

Send down the lower Courts records immediately.

MD. MASUDUR RAHMAN     BENCH OFFICER