Appellate Division Cases
(Civil)
PARTIES
Atiqullah alias Atik…………….. Petitioner
-VS-
Mohammad Safiquddin being dead his heirs: Rashida Begum and others
…………………….. Respondents
JUDGMENT DATED: 23rd August 2006
Petition is dismissed
Md. Ruhul Amin J
Md. Tafazzul Islam J
The suit was filed seeking a decree for permanent injunction in respect of the land described. ………………………. (1)
Only because the defendant has produced certain documents and claimed title to the suit land cannot disentitle the plaintiffs to a decree for permanent injunction if the plaintiffs are successful in proving prima facie title and exclusive possession, if the exclusive possession of the plaintiffs is established, suit for granting a decree for permanent injunction shall lie and a party not in possession may resort to the remedy available to him by law but that should not be a ground for dismissing a suit for permanent injunction. ……………………………………. (8)
The High Court Division noticed that the plaintiff in respect of his land got the record of right prepared in his name and is paying rent and the plaintiff also lead oral evidence in support of his title and possession in the land in suit. The High Court Division on consideration of the documents filed by the plaintiff held “The said documentary evidence therefore proved plaintiff’s prima facie title to the suit land”………………….(8)
It can therefore be concluded that the final court of fact arrived at the finding on possession upon misreading the oral evidence and totally ignoring the documentary
evidence indicating plaintiff’s exclusive possession in the suit land” and the High Court Division further held that the appellate Court “without properly assessing the evidence in the light of the pleadings of the parties and also ignoring the ocumentary evidence which has resulted in an error in the impugned decision occasioning failure…………….(8)
The settled principle of law is that in a suit seeking a decree for permanent injunction the plaintiff is required to establish his prima facie title in the land as regard to which he is claiming a decree for permanent injunction and exclusive possession of the land as to which the relief of permanent injunction is sought……………………. (10)
Md. Aftab Hossain, Advocate-on-record …………………For the Petitioner
Syed Mahbubur Rahman, Advocate-on record ………………For Respondent Nos. 2,3,8
Respondent Nos. 1, 4-7 & 9-11…. Not represented
Civil Petition for Leave to Appeal No. 768 of 2005
(From the Judgment and Order dated May 4, 2005 passed by the High Court Division in Civil Revision No. 1227 of 1999)
JUDGMENT
Md. Ruhul Amin J : This petition for leave to appeal has been filed against the judgment of May 4, 2005 passed by a Single Bench of the High Court Division in Civil Revision No. 1227 of 1999 making the Rule absolute upon setting aside the judgment and decree dated March 21.1999 of the 3rd Court of Additional District Judge, Dhaka in Title Appeal No. 272 of 1982 allowing the same upon reversing the judgment and decree dated
October 31. 1992 of the 3rd Court of Munsif (now Assistant Judge) Dhaka in Title Suit No. 577 of 1980 decreeing the same and thereby restraining defendants permanently from entering into the ‘B’ schedule land or to dispossess the plaintiff therefrom or to interfere with the possession of the plaintiff in the land shown in ‘B’ schedule. The suit was filed seeking a decree for permanent injunction in respect of the land described in schedule ‘B’
attached to the plaint.
2. Plaintiffs case is that land in suit belonged to Chaitan Sheikh who died before the C.S. operation leaving 4 sons and a daughter, that the plaintiff has purchased 85 decimals of land from one of the sons of said Chaitan Sheikh (Naimuddin Sheikh son of Chaitan Sheikh) and possessing the same. It is the contention of the plaintiff that defendant
No.l claiming to have purchased land from the heirs of Chaitan Sheikh having
had tried to disturb his possession, he is constrained to file the suit seeking the relief of a decree for permanent injunction.
3. Defendant No.l contested the suit by filing written statement stating, inter alia, that the land in suit belonged to Chaitan Sheikh who died leaving 4 sons and a daughter, that he has purchased 1.07 acres of land from the sons (Hakimuddin and Sheikh Salim) of haitan Sheikh and is possessing the same and that also using a pond in the suit plot, that the plaintiff has created false document in respect of the land claimed by him but he did not get the possession, that the plaintiff has filed the suit making untrue statements and as such the suit is liable to be dismissed.
4. The trial Court decreed the suit on the finding that plaintiff has proved his prima facie title in the land in suit and also has established his exclusive possession in the land in suit.
5. The contesting defendant No.l went on appeal. The appellate Court reversed the judgment and decree of the trial Court on the finding that plaintiff has failed to prove his exclusive possession in the land in suit and that suit is not maintainable as both the parties have claimed title to the land in suit.
6. At one stage of the proceeding, in all probability at the appellate stage, plaintiff having had died his heirs moved the High Court Division in revisional jurisdiction and obtained Rule. It was contended before the High Court Division that the appellate Court on mis-reading of the evidence of the parties decreed the suit and that finding of the appellate Court that plaintiff failed to prove his exclusive possession is based on mis-reading of the evidence as well as non-consideration of the material evidence, that the appellate Court
upon misconception of laow held that the suit is not maintainable.
7. As against the aforesaid contention of the petitioners it was contended on behalf of the opposite party No.l that the suit as framed was not maintainable since complicated question of title was involved and as such appellate court was quite correct in dismissing the suit, that in the absence of ascertainment of the respective shares of the heirs of Chaitan Sheikh and consequent thereupon in the absence of ascertainment of the share of the plaintiff and the defendant No.l in the land purchased by them from the heirs of Chaitan Sheikh the suit for permanent injunction was not maintainable, the appellate Court has committed no error in dismissing the suit.
8. The High Court Division on consideration of the materials on record, particularly the documents produced by the plaintiff and the defendant No. 1. arrived at the conclusion
“Only because the defendant has produced certain documents and claimed title to the suit land cannot disentitle the plaintiffs to a decree for permanent injunction if the plaintiffs are successful in proving prima facie title and exclusive possession, if the exclusive possession of the plaintiffs is established, suit for granting a decree for permanent injunction shall lie and a party not in possession may resort to the remedy available to him by law but that should not be a ground for dismissing a suit for permanent injunction”. The High Court Division noticed that plaintiff claimed .85 acre of land out
of 1.27 acres of land on the basis of the kabala dated May 5. 1953 and the defendant
No.l claiming the land which belonged to Chaitan Sheikh on the basis of the kabalas which are mostly subsequent to plaintiffs’ kabala of 1953. The High Court Division also noticed that defendant No.l produced 2 kabalas which are of prior years than the kabala of the plaintiff and that by the said kabalas defendant No.l has purchased .47 acre of land out of 1.27 acres of land. The High Court Division noticed that the plaintiff in respect of his land got the record of right prepared in his name and is paying rent and the plaintiff also lead oral evidence in support of his title and possession in the land in suit. The High Court Division on consideration of the documents filed by the plaintiff held “The said documentary evidence therefore proved plaintiffs prima facie title to the suit land”. The High Court Division in the background of the materials on record and on consideration thereof observed that the appellate Court mis-read the oral evidence and mis-construed the pleading of the parties and ignored the vital peace of evidence i.e. the S.A. khatian
prepared in the name of the plaintiff and the rent receipt showing payment of rent by the plaintiff and thereupon held that the appellate Court on mis-reading and mis-construing the evidence made the finding that the plaintiff has not proved his exclusive possession, that upon reading of the schedule of Exts. K (plaintiffs document) and D (defendant’s document) it is seen that the plaintiffs claim of possession is more acceptable than that of the defendant and the aforesaid 2 documents support the prima facie title of the plaintiff in the land of C.S. plot No. 306. The High Court Division observed that this vital
documents were not considered by the appellate Court and in the background of the aforesaid state of the matter the High Court Division held “It can therefore be concluded that the final court of fact arrived at the finding on possession upon misreading the oral evidence and totally ignoring the documentary evidence indicating plaintiffs exclusive possession in the suit land” and the High Court Division further held that the appellate Court “without properly assessing the evidence in the light of the pleadings of the parties and also ignoring the documentary evidence which has resulted in an error in the impugned decision occasioning failure of justice”.
9. Since the consideration of the evidence by he lower appellate Court was not a proper one or in other words as observed by the High Court Division there was non-consideration and mis-reading of the evidence by the lower appellate Court, the High Court Division scrutinized the evidence of the P.Ws. and D.Ws and thereupon
noticed that the D.Ws. 1,2 and 3 supported the possession of the plaintiff in the
land in suit and that particularly D.W.2 in his cross-examination stated that the pond
in plot No. 306 is possessed by the plaintiff. The High Court Division also noticed
that D.W. 1 admitted that no record of right was prepared in his name and that he did
not pay any rent in respect of the land in suit and thereupon held that the said fact shows that “the defendants have no possession in the suit land”. On the aforesaid findings the High Court Division made the Rule absolute.
10. We have heard the learned Advocateon-record. The settled principle of law is that in a suit seeking a decree for permanent injunction the plaintiff is required to establish his prima facie title in the land as regard to which he is claiming a decree for permanent injunction and exclusive possession of the land as to which the relief of permanent injunction is sought. The trial Court decreed the suit on the finding that plaintiff has prima facie title in the land in suit and he is in exclusive possession. The judgment of the trial Court is based on consideration of the documentary as well as oral evidence of the parties. The appellate Court, as it is seen, has reversed the judgment and decree of the trial Court on mis-reading of the evidence, aw well as on non-consideration of the vital evidence. In that state of the matter the High Court Division instead of sending back the case to the appellate Court for disposal on consideration of the evidence on record had
quite in accordance with law considered the evidence of the parties which was sufficient
to dispose of the suit and thereupon held that the plaintiff has prima facie title in the land in suit and he is in exclusive possession of the land in suit. The learned Advocate-on-record failed to point out that the consideration of evidence made by the High Court Division in the background of non-consideration and misreading of the evidence by the appellate Court was erroneous in any respect and the said Division was in error in arriving at the finding as to title and possession of plaintiff and thereupon in setting aside the judgment of the appellate Court.
11. In that state of the matter we do not find any substance in the petition.
12. Accordingly the petition is dismissed.
Source : V ADC (2008), 36.