IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

                            Mr. Justice Md. Mozibur Rahman Miah

        And

           Mr. Justice Md. Bashir Ullah

Civil Revision No. 509 of 2006

                              IN THE MATTER OF:

An application under Section 115 of the Code of the Civil Procedure.

And

IN THE MATTER OF:

Md. Ahsanul Islam (Ritu)

         ... Defendant-Respondent-Petitioner

-Versus-

Sree Gouranga Barman and others

... Plaintiffs-Appellant-Opposite parties. None appears for either party.

Judgment on: 21.08.2024

Md. Bashir Ullah, J

At the instance of defendant no.1 in Other Class Suit No.  153  of  2004,  this  Rule  was  issued  calling  upon  the opposite party no. 1 to show cause as to why the judgment and order dated 17.01.2006 passed by the District Judge, Kurigram in Miscellaneous Appeal No. 10 of 2005 allowing the Miscellaneous Appeal and reversing those of the order dated 28.02.2005 passed by the Assistant Judge, Sadar Court, Kurigram in the aforesaid suit rejecting an application under

Order 39 Rule 1 read with section 151 of the Code of Civil Procedure should not be set aside and/or such other or further order or orders passed as to this Court may seem fit and proper.

At the time of issuance of the Rule, this Court also directed both the parties to maintain status quo in respect of the possession of the suit land.

The short facts, relevant for the disposal of the instant Rule are:

The opposite party no. 1 as plaintiff filed a suit being Other Class Suit No. 153 of 2004 before the Assistant Judge, Sadar Court, Kurigaram for declaration of title. After filing the  suit,  the  opposite  party  no.1  as  the  plaintiff-applicant filed an application on 25.11.2004 under order 39, rule 1 read with section 151 of the Code of Civil Procedure praying for temporary injunction.

It is stated in the application that, the scheduled land belonged to one, Khudiram Barman and S.A. Khatian was recorded in his name. The plaintiff is the only heir of the said Khudiram Barman as the grandson of one Hagura Barman who was the son of the brother of the grandfather of the Khudiram Barman. After completion of the funeral prayer of Khudiram Barman, the plaintiff got possession of the suit land. The homestead of Khudiram Barman was situated in plot No.1952 which is now a Puza Mandap. The defendant nos. 2 to 5 executed a fabricated deed dated 26.07.2004 in favour of the defendant no.1, where defendant nos. 2 to 5 are not  the  heirs  of  Khudiram  Barman.  Subsequently,  the defendant no. 1 threatened the plaintiff to dispossess and claimed rice/paddy which was cultivated in the suit land.

The petitioner as defendant contested the suit filing a written objection. The case of the defendant is that, the suit land belonged to one Khudiram Barman, son of Rajmohan Barman. He was single and died leaving behind two cousins namely, Bimal Chandra Roy and Hariram Roy. Hariram Roy died leaving behind three sons namely, Kishore Kumar Roy, Swapan Kuram Roy and Tapon Kumar Roy. Thus Bimal Chandra Roy, Kishore Kumar Roy, Swapan Kuram Roy and Tapon Kumar Roy became the owners of the suit land as heirs of Khudiram Barman. Defendant no.1 purchased the suit  land  from  the  above-mentioned  heirs  of  Khudiram Barman and he has been owning and enjoying the possession of the suit land. So, the application for temporary injunction will be rejected.

Upon hearing the parties, the Senior Assistant Judge, Kurigram  Sadar,  Kurigram  rejected  the  application  for temporary injunction on 28.02.2005.

The  plaintiff  as  appellant  then  filed  Miscellaneous Appeal No. 10 of 2005 before the District Judge, Kurigram challenging the above-mentioned rejection order. However, upon  hearing  the  parties,  the  learned  District  Judge, Kurigram allowed the appeal on 17.01.2006.

Being aggrieved by and dissatisfied with the judgment and  order  dated  17.01.2006  the  plaintiff-appellant  as petitioner filed the instant civil revision before this Court.

The instant revision has been sent to this Court by the Honourable Chief Justice for disposal, but none appeared to support  or  oppose  the  rule  though  the  matter  has  been appearing in the list for several days with the names of the learned counsels.

We  have  perused  the  Civil  Revision,  impugned judgment and order and other materials on record.

It  is  admitted  by  both  parties  that,  the  suit  land belonged  to  Khudiram  Barman  and  S.A.  Khatian  was recorded in his name. He was single and hence he had no offspring.  The  plaintiff-appellant-opposite  party  no.  1  is claiming that he is the grandson of Hagura Barman who was

the  son  of  the  brother  of  the  grandfather  of  Khudiram

Barman and thus he is the only heir of Khudiram Barman.

When  the  defendant-respondent-petitioner  claimed

ownership of the suit land showing a registered deed then the plaintiff-appellant-opposite party no. 1 instituted Other Class

Suit No. 153 of 2004 and filed an application under Order

39, Rule 1 of the Code of Civil Procedure for temporary

injunction.  The  Senior  Assistant  Judge,  Kurigram  Sadar

Court,  Kurigram  rejected  the  application  for  temporary

injunction holding that:

“e¡¢mn£ S¢j Eiu f−rl ü£L«a j−a r¥¢cl¡j hjÑ−el A¢SÑaz

1 ew ¢hh¡c£ E−õM L−le ®k, r¥¢cl¡j hjÑe j¡l¡ ®N−m a¡q¡l ®L¡e BaÁ£u e¡ b¡L¡u ¢fa¡jq ®i¡m¡e¡b hjÑ−el p−q¡cl ï¡a¡ i¥c¤l¡®jl f¤œ q¡…s¡ hjÑ−el ®c±¢qœz h¡c£ nÐ¡Ü J f¡l−m±¢LL ¢œ²u¡c£ pÇfæ L¢lu¡ Eš² S¢j Q¡o¡h¡−c cMm−i¡N L¢lu¡−Rez 1ew ¢hh¡c£ Bf¢š c¡¢Mm L¢lu¡ E−õM L−le ®k, r¥¢cl¡−jl jªa¥Él fl a¡q¡l ¢fa«L¥−ml ®L¡e Ju¡¢ln e¡ b¡L¡u j¡a«L¥−ml

j¡j¡a i¡Cl¡ Eš² pÇf¢šl Ju¡¢ln Hhw Eš² Ju¡¢ln−cl ¢eLV

qC−a ¢hh¡c£ Efk¤š² feh¡q¡u e¡¢mn£ i¥¢j M¢lc L−lez ... ®L

L¡q¡l  Ju¡¢ln a¡q¡  j¤m  ®j¡LŸj¡l p¡rÉ  fÐj¡−el hÉ¡f¡lz

p¡rÉ NËqZ R¡s¡ p¢WL Ju¡¢ln ¢eZÑu Ll¡ pj£¢Qe e−q j−jÑ Bf¡aax cª−ø fÐa£uj¡e quz ...a¡C h¡c£f−rl fСCj¡−gp£ B…Ñ−uhm ®Lp ¢hcÉj¡e B−R ¢Le¡ a¡q¡ p¡rÉ fÐj¡e R¡s¡

p−¾cq¡a£a i¡−h fÐj¡¢ea e¡ qJu¡u AÙÛ¡u£ ¢e−od¡‘¡l clM¡Ù¹ M¡e¡ e¡-j”¤l Hl ¢pÜ¡¿¹ NËqZ Ll¡ qCmz”

Being aggrieved, the plaintiff preferred Miscellaneous

Appeal before the District Judge, Kurigram. Learned District

Judge  as  appellate  Court  allowed  the  appeal  wherein  the

Court observed that:

“ü£L«a j−a e¡¢mn£ pÇf¢š r¤¢cl¡j hjÑ−el ¢Rmz ®p j¡l¡ ®N®m a¡q¡l ®L¡e Ù»£ h¡ f¤œ Abh¡ ¢fa¡-j¡a¡, i¡C-®h¡e ¢Rm

e¡z B−l¡ ü£L«a ®k, afp£m h¢ZÑa pÇf¢š−a ¢q¾c¤ pÇfÐc¡−ul j¢¾cl B−Rz k¡q¡−a f¤S¡ J L£aÑe qCu¡ b¡−Lz Bf£mL¡l£/h¡c£/clM¡Ù¹L¡l£ ¢e−S−L r¤¢cl¡j hjÑ−el ¢fa¡jq ®i¡m¡e¡b hjÑ−el p−q¡cl ï¡a¡ i¥¾c¤l¡j hjÑ−el f¤œ q¡…s¡ hjÑ−el −c±¢qœ  ¢qp¡−h c¡h£ L¢lu¡ r¥¢cl¡j Hl Ju¡l£n ¢q−p−h a¡q¡l ®c−ql pvL¡l Llax Ju¡¢ln ¢qp−h e¡¢mn£ pÇf¢š fСç qCu¡−R h¢mu¡ c¡h£ L¢lu¡−Rz Afl¢c−L 1 ew ¢hh¡c£l hš²hÉ ®k, 1 ew ¢hh¡c£ a¡q¡l ï¡a¡l f¤œ 2-5 ew ¢hh¡c£l ¢fa¡ q¢ll¡j l¡u r¤¢cl¡j hjÑ−el j¡j¡−a¡ i¡C ¢qp¡−h

e¡¢mn£ pÇf¢š fСç qCu¡ Na 26/07/2004 Cw a¡¢l−M Lhm¡j¤−m a¡q¡l ¢eLV ¢hœ²u L¢lu¡−Rz”

The record shows that, both the parties are claiming

that  they  are  owning  and  possessing  the  suit  land.  The

plaintiff claimed that he is the only heir of the deceased

Khudiram Barman. On the other hand, defendant no. 1 is

claiming that, he purchased the suit land from the original heirs  of  Khudiram  Barman.  In  such  a  claim  and  counter claim it is not possible to ascertain the ownership of the suit land  without  evidence.  It  is  also  difficult  to  arrive  at  a decision  in  respect  to  the  balance  of  convenience  and inconvenience and that of prima facie case of the parties to the suit.

It also appears that, the instant rule and the order of status quo were issued and passed on 26.02.2006. The record also shows that, the opposite party no. 1 of this revision appeared on 20.07.2006. Meanwhile, around 18 years have passed  but  the  opposite  party  did  not  file  any  counter affidavit nor challenged the said order of status quo in any forum which tantamounts that, he conceded such order of status quo. In such a position, it is our considered view that, justice will be best served if the order of status quo in respect of the possession of the suit land continues till disposal of the suit and the suit is disposed of expeditiously. 

In the result, the Rule is disposed of.

The  parties  are  directed  to  maintain  status  quo  in respect of possession of the suit land till disposal of the Other Class  Suit  no.  153  of  2004  pending  before  the  Assistant Judge, Sadar Court, Kurigram.

The trial Court is directed to dispose of the suit as expeditiously as possible preferably within 6(six) months, if it is not disposed of.  

Let a copy of this judgment be communicated to the concerned court forthwith.

Md. Mozibur Rahman Miah, J.

I agree.

Md. Ariful Islam Khan Bench Officer