Present:

    MR. JUSTICE S.M. EMDADUL HOQUE       CIVIL REVISION NO. 2990 OF 2023.

IN THE MATTER OF:

An  application  under  Section  115(1)  of  the  Code  of  Civil Procedure.

- AND -

IN THE MATTER OF:

Abu Bakar Talukder and others.

….Plaintiff-petitioners.

-Versus –

Belayet Hossain Talukder and others.

….Defendant-opposite parties.

Mr. Alok Kumar Bhowmik, Advocate.

…..  For the petitioners.

Mr. Md. Shahidul Islam, Advocate with

Mr. Md. Riaz Hossain Sikder, Advocate with Mr. S.M. Zakir Hossain, Advocate.

…..  For opposite parties.

Heard and Judgment on 05.03.2024.

On an application of the petitioners Abu Bakar Talukder and others

under section 115 (1) of the Code of Civil Procedure the Rule was issued calling upon the opposite parties to show cause as to why the impugned judgment and order dated 02.11.2022 passed by the learned Joint District Judge,  2nd  Court,  Jhalokathi  in  Miscellaneous  Appeal  No.  01  of  2022 dismissing the miscellaneous appeal and thereby affirming the judgment and order dated 15.12.2021 passed by the learned Senior Assistant Judge, Rajapur, Jhalokhati in Title Suit No. 211 of 2021 rejecting the application under  Order  XXXIX  Rule  1  read  with  section  151  of  the  Code  of  Civil Procedure should not be set aside.

Facts  necessary  for  disposal  of  the  Rule,  in  short,  is  that  the petitioners as plaintiffs instituted Title Suit No. 211 of 2021 before the Senior  Assistant  Judge,  Rajapur,  Jhalokhati  against  the  defendant  for partition of “ka” schedule land.

Thereafter, the plaintiff petitioner filed an application for temporary injunction under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure against the defendant Nos. 1-5 and 17 on 04.11.2021.

The defendant Nos. 1-2 enter appeared and filed written objection against the said application for temporary injunction.

The trial court after hearing the parties and considering the facts and  circumstances  of  the  case  rejecting  the  said  application  by  its judgment and order dated 15.12.2021.

Against  the  judgment  and  order  of  the  trial  court  the  plaintiff petitioner  preferred  Miscellaneous  Appeal  No.  01  of  2022  before  the learned District Judge, Jhalokathi.

The  appeal  was  heard  by  the  Joint  District  Judge,  2nd  Court, Jhalokathi who after hearing the parties and considering the facts and circumstances  of  the  case  as  well  as  the  papers  and  documents  as available on record dismissing the appeal and affirming the judgment and order of the trial court by its judgment and order dated 01.11.2022.

Being aggrieved by and dissatisfied with the impugned judgment and order of the courts below the plaintiff-petitioners filed this revisional application  under  Section  115(1)  of  the  Code  of  Civil  Procedure  and obtained the present Rule.

Mr. Md. Shahidul Islam, the learned Advocate along with Mr. Md. Riaz Hossain Sikder and Mr. S.M. Zakir Hossain, Advocate enter appeared on behalf of the defendant-opposite-party Nos. 1-6 through vokalatnama and also filed a counter affidavit.

Mr.  Alok  Kumar  Bhowmik,  the  learned  Advocate  appearing  on behalf of the defendant-petitioners submits that both the courts without considering  the  material  facts  of  the  case  erroneously  passed  the impugned judgment. He submits that the courts below did not consider that the petitioners succeed to prove their right, title and interest of the suit land and also specifically mentioned that the defendant Nos.1-5 and 7 trying to grab the said property of the plaintiffs by illegal way and the defendants threatened them that they would establish a Madrasah in the suit  land  thus  the  plaintiffs  are  constrained  to  file  this  application  for injunction but both the courts did not consider the said material facts, erroneously passed the impugned judgment. He prayed for making the Rule absolute.    

On the contrary Mr. Md. Shahidul Islam, the learned Advocate appearing on behalf of the opposite-parties submits that plaintiffs filed a partition suit and in the plaint as well as the application they specifically mentioned that the suit land was gifted land for establishing a Madrasah and accordingly a “Nirupon potro” was executed and Madrasah. He further submits that in the application the plaintiff petitioners mentioned that no existence of the said Madrasah for 15-20 years and the plaintiffs claimed the said land stating that the “Nirupon potro” has already been revoked by the act of the defendants thus it is clear that the plaintiffs admitted that the said land was gifted for establishment of a Madrasah and the name of the Madrasah was also mentioned as ÔÔg`xbvZyj Djyg ‡KivZyj †KviA vb KIgx gv`ªvm vÕ Õ in such a case no scope to obtain any temporary injunction and both the courts rightly passed the impugned judgment. He further submits that the application is misconceived one since in the

application the plaintiffs admitted that their predecessor gifted the land

and claimed that the said “Nirupon potro” is no more in existence and in

such  a  case  the  plaintiffs  ought  to  have  obtained  an  order  from  a competent court that the said “Nirupon potro” is no more in existence by

the act of the defendants, as such no question of temporary injunction

and both the court rightly passed the impugned judgment. He prayed for discharging the Rule.  

I have heard the learned Advocates of both the sides, perused the impugned judgment and order of the courts below and the papers and documents as available on the record.

In the instant case the plaintiffs instituted Title Suit No. 211 of 2021

for partition of the “ka” scheduled land. Thereafter, the plaintiffs filed an application for temporary injunction under Order XXXIX Rule 1 and 2 read

with section 151 of the code of civil procedure. I have carefully examined

the  said  application,  fromwhere,  it  is  found  that  the  plaintiff  side specifically mentioned that their predecessor gifted the said property for establishing a Madrasah and also a Mosque and Eidgah as well as the aforesaid Madrasah is situated in the said land. The said“Nirupon potro”

was executed and registered by the predecessors of the plaintiffs in favour

of the secretary of the “Modinatul Ulum Keratul Quran Karim Madrasah”

on 15.06.1989. The plaintiffs stated the facts to the effect: ÔÔH 4816 `v‡Mi

c~e© cv‡k¦© m iK vix cvK v iv¯—v, 4816 `v‡Mi j vM D Ëi cv‡k¦© 480 1/489 9 /480 0 `v‡M ev`xM‡bi

I 1/2 bs weev`xi c~e©eZx© Ms Zvj yK `vi evo xi R v‡g g m wR ` eûc~‡e© wbgv©b K ‡ib, H gm wR ‡`i K ZK m ¤úwË c~e© cv‡k¦© cvK v iv¯—vq wMqv‡Q| gm wR ‡` eZ©gv‡b †`v-Zj v wm wo i D ch~³ m ¤úwË

bvB| gm wR `wU 50 (cÂvk) dzU j ¤¦v 3 5 (cquwÎk) dzU PI o v m ¤§yL fv‡M m vgvb¨ m ¤úwË C`Mvn wnm v‡e I R vbvR vi R b¨ e¨envi nBqv Avwm ‡Z‡Q| ZvB gv`ªvm v weivb nI qvq, bv Pj vi K vi‡b H

4816 `v‡M AÎ ev`xM‡bi As‡ki m ¤úwË Zvj yK`vi evo xi HwZn¨evnx gm wR ‡`i †`v-Zj vi

wm wo i i“g, AR y Lvbv I ev_i“g K ivi R b¨ †h cwigvb m ¤úwË ev`xiv cvB‡eb Zvnv m g¨K gm wR ‡` `vb K wievi B”Qv cÖK vk K ivq 1/2 bs weev`x D nv R vwb‡Z cvwiqv Ab¨ `v‡M Zvj yK `vi evo xi GR gvj x m ¤úwˇZ `vi“j D j ~g K I gx gv`ªvm v cÖwZôvZv 1bs weev`x cwiPvj bvq K vh©¨ ïi“

K wiqv ev`x‡`i †K vb gZvgZ ev m ¤§wZ bv wbqv †e-AvBwbfv‡e †R vo c~e©K wbi“cb c‡Îi kZ© g‡Z i`-iwnZ nI qv m ‡Ë¡I ev`xM‡bi As‡ki m ¤úwË AvZ¥m vr K ivi gvb‡l †R vo c~e©K `Lj K ivi cvqZviv K wi‡Z‡Q|ÕÕ

From  the  aforesaid  statements  it  appears  that  the  plaintiff  side stated that since the defendants did not continue the said Madrasah as such the earlier “Nirupon potro” has been revoked and thus they have taken decision to transfer the said land in favour of the Mosque for the purpose  of  making  washroom  and  for  other  purpose  and  then  the defendant Nos. 1 and 2 disclosed that they will construct a building in the said portion thus the plaintiffs filed this application for injunction. From their statement it is clear that their predecessor gifted the said land for establishment of Madrasah and accordingly executed a “Nirupon potro”. In the written objection the defendant Nos. 1-2 claimed that the said Madrasah is running one. Furthermore, the defendant No.1 himself is the Hafiz-E-Quran and has been teaching the students in the said Madrasah

since 2011.

However, in a partition suit there is no bar to allow the application for temporary injunction on an application of either party if they could make out a prima-facie case of possession of the suit land and any threat received by other side for dispossession.

It is admitted fact that the predecessor of the plaintiffs gifted the said land for establishment of a Madrasah and accordingly executed a “Nirupon  potro”  and  plaintiff  claimed  that  no  existence  of  the  said Madrasah for a long time and when they took a decision to gift the said portion of land in favour of Mosque then the defendant side threatened them that they will construct a building for the Madrasah and thus prayed for injunction. On the other hand the defendant side claimed that the said Madrasah is running one.

Furthermore, no case that the “Nirupon potro” has been revoked by the plaintiffs side, and no case that they have taken possession of the land which has already been gifted by their predecessor long before.

Thus it is my view that both the court rightly passed the impugned judgment and no error in law in the judgment, thus I find no merit in the Rule.

However, considering the facts and circumstances of the case it is my view that all the matter should be considered by the trial court at the time of disposal of the suit considering the evidence on record and in accordance with law.

In the result the Rule is discharged without any order as to cost.

The  order  of  status-quo  granted  earlier  by  this  court  is  hereby recalled and vacated.

Communicated the order at once.

M.R.