Hazi Abdul Mannan and others Vs. Amena Begum and others

Appellate Division Cases

(Civil)

PARTIES

Hazi Abdul Mannan and others……………… Petitioners

-Vs-

Amena Begum and others …………….Respondents

JUSTICES

Md. Ruhul Amin J

Md.Tafazzul Islam J

Judgment Dated: 30th July 2006

The suit was filed seeking a decree for permanent injunction…………. (1)

It appears that the appellate Court did not consider the evidence of all the P.Ws. and D.Ws.” and that the appellate Court misread the evidence of P.W.2 relating to the matter of possession of the land in suit by plaintiff and his predecessor in interest. The High Court Division on consideration of the evidence on record arrived at the finding that the plaintiff proved her possession in the land in suit and the defendants did not produce any paper relating to payment of rent. On the aforesaid findings the High Court Division made the Rule absolute…………………… (5)

Syed Mahbubar Rahman, Advocate-on-record……………… For the Petitioners

Nurul Islam Bhuiyan, Advocate-on-record ……………..For the Respondents

Civil Petition For Leave To Appeal No.236 of 2005

(From the Judgment and Order dated March 8, 2004 passed by the High Court Division

in Civil Revision No.60 of 1995)

JUDGMENT

Md Ruhul Amin J: This petition for leave to appeal is against the judgment dated March 8, 2004 of a Single Bench of the High Court Division in Civil Revision No.60 of 1995 making absolute the Rule upon reversing the judgment and decree dated September 5, 1984 of the 3rd Court of Subordinate Judge (now Joint District Judge) Khulna in Title Appeal No. 186 of 1990 allowing the appeal and thereby setting aside the judgment and decree dated June 23, 1990 of the Court of Assistant Judge, Dacope, Khulna in Title Suit No.36 of 1998 decreeing the same. The suit was filed seeking a decree for permanent

injunction.

2. It was the case of the plaintiff that the land measuring 31.51 acres originally belonged to Bhagirath Mondal and others and the record of right was prepared in their names, that Bhagirath Mondal transferred his share to Abdul Wadud and others and they transferred the land so purchased on July 20, 1970 to Abdus Salam on December 10, 1970 and possession was delivered to Abdus Salam and he mutated his name, that Abdus Salam by the kabala dated February 19, 1986 transferred the land acquired from Abdul Wadud and others to the plaintiff and she mutated her name, that the defendants on 15th Sraban, 1395 B.S. threatened the plaintiff to dispossess her from the land in suit. Hence the suit.

3. The suit was contested by the defendant No.3 and defendant Nos.4-6 by filing separate

sets of written statement denying the material averments made in the plaint and stating, inter alia, that the land in suit belonged to Sonatan Mondal, Tusta Roy Mondal, Kripa Nath Roy Mondal, Suraj Mohani Bewa and Satya Mohani Moyee Bewa and the C.S. record was prepared in their names each having share to the extent of 3 annas 4 gondas, that by successive devolutions Satya Mohani Moyee Bewa’s interest devolved upon Rajmoni and she transferred her share to Golap Dasi and Ananta Kumar who purchased

the same in the benami of Dulal Gain who executed and registered a Muktipatra on July 29, 1944 in favour of Golap Dasi and Ananta Kumar in respect of 4.36acres of land, that Golap Dasi executed a Power of Attorney in favour of defendant No.3 in 1987 and the said defendant was possessing the land on behalf of Golap Dasi, that defendant No.3 transferred 2.33 acres of land on February 17, 1988 to the defendant Nos.4-6 and the said defendants are in possession of the land they got by purchase.

4. The trial Court on consideration of the materials on record arrived at the finding that the plaintiff has better title in the land in suit and she is in possession of the land in suit and thereupon decreed the suit.

5. The contesting defendants went on appeal The appellate Court reversed the

finding of the trial Court as to possession of the land by the plaintiff and thereupon allowed the appeal and set aside the judgment and decree of the trial Court. The High Court Division on consideration of the materials on record arrived at the finding “It appears that the appellate Court did not consider the evidence of all the P.Ws. and D.Ws.” and that the appellate Court misread the evidence of P.W.2 relating to the matter of possession of the land in suit by plaintiff and his predecessor in interest. The High Court Division on consideration of the evidence on record arrived at the finding that the plaintiff proved her possession in the land in suit and the defendants did not produce any paper relating to payment of rent. On the aforesaid findings the High Court Division made the Rule absolute.

6. We have heard the learned Advocateon-record. The learned Advocate-onrecord could not point out that the consideration of evidence made by the High Court Division was not correct or that the said Division has mis-read the evidence or left the material evidence out of consideration. In a suit for permanent injunction question of title is gone into incidentally. The primary matter in a suit for permanent injunction, required to be proved by the party seeking decree of permanent injunction is the possession of the land in suit. In the instant case the plaintiff has proved his prima facie title as well as possession in

the land in suit.

7. The learned Advoca’te-on-record failed to show that findings arrived at by the High Court Division is contrary to the materials on record. We do not find any ground to interfere with the judgment of the High Court Division.

8. Accordingly the petition is dismissed.

Source : V ADC (2008),676

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