Appellate Division Cases
(Civil)
PARTIES
Ali Hussain Faraji and others………………. Petitioners.
-VS-
Abdul Ali pradha nia@Abul and another ………………………. Respondents.
JUSTICES
Md. Ruhul Amin C J
M.M. Ruhul Amin J
Md. Tafazzul Islam J
Md. Hassan Ameen J
Judgment Dated: 15th August 2007
Petition is dismissed
Possession in the suit land they on 30.5.1997 threatened to dispossess…………………(2)
As it appears the High Court Division discharged the Rule holding that it is settled principle of law that no injunction should generally be granted against co-owners as all co-owners retain rights over every inch of the land until the same is partitioned by metes and bounds but injunction can be given in appropriate cases where defecto partition for a recognizable period of time having been in existence through informal arrangement and thereby the land possessed by the injunction seeker can be easily identified……. (6)
Defence was based on exclusive ownership and possession but the claim of coownership was beyond the pleadings and no court can pass any order touching upon a point in favour of a party who did not agitate that point in its pleading and the observation of the trial court regarding possession of the defendant to the extent of .5660 acres can at the most be termed as obiter as those were no more than some passing remarks………. (6)
Nikalesh Datta, Advocate, instructed by Sufia Khatun, Advocate -on-Record ……………..For the Petitioners
Not represented………………………………………. Respondents
Civil Petition for leave to appeal
No. 1394 of 2003
(From the judgment and order dated 24th
June, 2003 passed by the High Court
Division in Civil Revision No. 28 of 2001.)
JUDGMENT
Md. Tafazzul Islam J: This petition for leave to appeal is directed against the judgment and decree dated 24.6.2003 of the Single Bench of the High Court Division passed in Civil Revision No. 28 of 2001 discharging the Rule.
2. The respondent, as plaintiff, filed Title Suit No. 35 of 1997 in the Court of Senior
Assistant Judge. Matlab, Chandpur seeking permanent injunction on the averments that 8.77 acres of land appertaining to C.S. Khatian No. 34. including the suit plot, belonged to Banga Chandra, Mohon Bashi, Noda Bashi and Hari Bashi in ejmali shares of whom Noda Bashi having died unmarried, the three surviving brothers got his share; 5.22 acres of land of plot No. 1222 of the suit khatian also belonged to the said three survining brothers in equal share of 1.74 acres each; from his 1.74 acres of land Banga sold 1.20 acres to Amir Hossain on 13.11.1928 and sold remaining .54 acres to Shamser Ali and
Serajuddin Bepari on 13.11.1928 who in turn sold 24 decimals of land to Dorajuddin in the year 1984; Shamser Ali and Serajuddin thereafter on 2.3.1948 executed a deed of gift/ Nadabipatra in favour of Dorajuddin in respect of .76 decimals of land and then 5.1.1995 Amir Hossain and his mother sold .80 acres to Dorajuddin and though the defendants
have no right, title, interest and possession in the suit land they on 30.5.1997 threatened
to dispossess the plaintiffs from the suit land and hence the suit.
3. The defendants Nos. 1-8, the petitioners herein, contested the suit by filing joint written statement stating that Banga, Mohan and Hari were the owners in ejmali shares; Banga sold 1.20 acres to Amir Hossain who on 25.11.53 and also sold .40 acres to ustam, Goman, Bachu and Rasu; then on 10.2.71 Goman sold his .10 acres to Khagendra; Banga on 13.11.28 also sold .40 acres to one Afzal Khan who then sold it to Cherag Ali on 3.4.57 and on 3.4.57 Cherag Ali Sold it to Noba Kumar; Bangla died leaving two sons Chandra Kumar and Joy Chandra; by dint of different transaction made by their predecessors the defendant Nos. 2-8 are possessing 1.60 acres of land in the suit land of which .70 acres of land was acquired for Meghna Dhaka Godabari Embankment; the defendant No.l claims to have purchased .30 acres of land from Priya Lai whose father
Gouranga purchased the same from Dhiraj and in this way they are owning and possessing 1.20 acres of land and that the defendants never threatened to dispossess the plaintiff from the suit land.
4. The learned Senior Assistant Judge, on consideration of the materials on record, though found that the plaintiffs failed to prove their prima facie title and possession
over 2.70 acres of land in plot No. 1222 but succeeded in proving their prima facie title and possession in 1.06 acres of land and the defendants succeeded in proving their prima facie title and possession only in .5660 acres of land but by the judgment and order dated 5.5.1999. decreed the suit for permanent injunction against the defendants for the entire suit land holding that both the parties should go for partition after establishment of their
title and that the decree for permanent injunction shall remain in force until the filing of the partition suit. On appeal the appellate Court after hearing affirmed the above judgment and decree. The defendants then moved the High Court Division and obtained Rule in Civil Revision No. 28 of 2001 and as stated earlier the High Court Division, after hearing, discharged the Rule.
5. The learned counsel for the petitioner submitted that the trial court as well as the
appellate Court though concurrently found that the defendants are in part possession
of the suit land but even on the face of the above finding decreed the suit and the High Court Division, in a misconceived way, discharged the Rule.
6. As it appears the High Court Division discharged the Rule holding that it is settled
principle of law that no injunction should generally be granted against coowners as all co-owners retain rights over every inch of the land until the same is partitioned by metes and bounds but injunction can be given in appropriate cases where defecto partition for a recognizable period of time having been in existence through informal arrangement and
thereby the land possessed by the injunction seeker can be easily identified and in the instant case, the Courts below having found that the respective lands of the plaintiffs and the defendants are divided by the Meghna Dhana Goda Barrage it was a proper case where decree for injunction could be granted and further the defendants did not agitate co-ownership in their pleadings nor did they adduce any evidence to that effect and their defence was based on exclusive ownership and possession but the claim of co- ownership
was beyond the pleadings and no court can pass any order touching upon a point in favour of a party who did agitate that point in its pleading and the observation of the trial court regarding possession of the defendant to the extent of .5660 acres can at the most be termed as obiter as those were no more than some passing remarks.
7.We are of the view that the High Court Division on proper consideration of the evidence and the materials on record arrived at a correct decision. The learned counsel could not point at any illegality or infirmity in the decision of the High Court Division so as to call for any interference. The petition is dismissed.
Source : V ADC (2008), 67