IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice S M Kuddus Zaman

CIVIL REVISION NO.1255 of 2002. In the matter of:

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

And

Md. Abu Jafor Mollah @ Abu Fajor and another

                 ...Petitioners

-Versus-

Sree Subash Chandra Sarker and others

             ...opposite parties

No one appears

        ...For both the parties.

Heard & Judgment on 03.11.2024.

This rule was issued calling upon the opposite parties  No.1-10  to  show  cause  as  to  why  the judgment and decree dated 29.11.2001 of the learned Joint District Judge, Chandpur in Title Appeal No.139 of 1999 setting aside those dated 29.07.1999 of the learned Assistant Judge, Saharasti Chandpur in Title Suit No.52 of 1997 should not be set aside and/or pass such other order or orders as to this Court may seem fit and proper.

Facts in short are that the petitioners as plaintiffs instituted above suit for recovery of possession of .7035 acres land as described in “Ga” schedule to the plaint after demolision of the

extended building of Dr. Sohidullah Memorial High School unlawfully constructed in above land.

It was alleged that the plaintiffs were lawful owners and possessors of the disputed land and the defendants  without  any  lawful  authority  most illegally trespassed into above land and extended the school building on 15.03.1995. The plaintiffs requested the defendants on several occasions to remove above unlawfully constructed school building and hand over vacant possession of above land to the plaintiffs but he refused to do so.

Defendants contested above suit by filing a written statement alleging that the plaintiffs gave consent to construct extended school building in the disputed land by executing a Saronartho Lipi and Ongikarnama.

 At trial plaintiff examined three witnesses and  the  documents  produced  and  proved  by  the plaintiff were marked as Exhibit Nos.1-5 series. On the other hand defendants examined five witnesses and documents produced and proved by the defendants were marked as Exhibit No.Ka.

On consideration of facts and circumstances of the  case  and  evidence  on  record  the  learned Assistant Judge decreed the suit. But instead of passing a decree for eviction of the defendants and delivery  of  possession  to  the  plaintiffs  the learned  Judge  asked  the  defendants  to  pay Tk.15000/- as compensation for above land.

Being aggrieved by above judgment and decree plaintiffs preferred Title Appeal No.139 of 1999 to the District Judge, Chandpur which was heard by the learned  Joint  District  Judge  who  allowed  the appeal, set aside the judgment and decree of the trial court and remanded the suit back to the trial court of retrial.

Being aggrieved by above judgment and decree of the court of appeal below appellants as petitioners  moved to this court and obtained this rule.

No one appears on behalf the petitioners or the opposite parties at the time of hearing of this revision although the revision appeared in the list for hearing for several dates.

It is admitted that the plaintiffs are the lawful owners and possessors of the disputed land and the defendant constructed the extended building of Dr. Sahidullah Memorial High School in the above land.

It has been alleged by the defendants that above school building was constructed with the consent of the plaintiffs accorded by executing a Saronartho Lipi and Ongikarnama. But the learned

Judge of the trial court held that the defendants failed to prove due and lawful execution of above two  documents.  I  have  carefully  examined  the evidence on record and found that above findings of the learned Judges of the courts below are based on evidence on record.

As such the plaintiffs have succeeded to prove that the defendants have constructed the extended building of Dr. Sahidullah Memorial High School in their land without any lawful authority.

As mentioned above the plaintiffs instituted this suit only for recovery of khas possession of the “Ga” schedule land after demolition of the unlawfully constructed extended building of above school. The plaintiffs did not seek any relief as to their title in the above land. As such it is crystal clear that this is a suit under Section 9 of the Specific Relief Act, 1877 and not a suit under section 8 of the above Act. It is well settled that the period of limitation for filing a suit under section 9 of the Specific Relief Act is six months from the date of dispossession. At paragraph No.7 of the plaint it has been stated that the defendants dispossessed the plaintiff from above land by constructing above extended building on 15.03.1995. Plaintiff Nos.2 Fatema Begum while giving evidence as P.W.1 reiterated above claim as to the date of dispossession and stated that the defendants  forcibly  dispossessed  them  from  the disputed land on 15.03.1995 by constructing an extended building of the school.

It turns out from the record that this suit for recovery of possession under section 9 of the Specific Relief Act, 1877 was filed on 01.12.1997 after  more  than  two  years  from  the  date  of dispossession.  As  such  the  instant  suit  was hopelessly barred by limitation.

But the learned Judges of both the courts below have failed to appreciate above aspect of this suit and most illegally the trial court decreed above sit and the court of appeal below instead of setting aside above judgment and dismissing the suit most illegally remanded the suit for retrial which is not tenable in law.      

In above view of the materials on record I find substance in the civil revision and the rule issued in this connection deserves to be made absolute.

In the result, the rule is made absolute.

The  impugned  judgment  and  decree  dated 29.11.2001 passed by the learned Joint District Judge, Chandpur in Title Appeal No.139 of 1999 setting aside those dated 29.07.1999 of the learned Assistant Judge, Saharasti Chandpur in Title Suit No.52 of 1997 is set aside and above suit is dismissed on contested without cost. 

Let the lower courts’ records be transmitted down at once.

Md. Kamrul Islam

A.B.O