Jobayer Hossain and others VS. Noor Hafez and another

Appellate Division Cases

(Civil)

PARTIES

Jobayer Hossain and others ………………………….Appellants

-vs-

Noor Hafez and another……………………………..Respondents
 

Permanent injunction for restraining the defendants from interfering with the possession of the plaintiff in the suit land.

The Court cannot disentitle the plaintiff of a decree for permanent injunction if he can prove possession unless in due process of law and could exercise his right of possession restraining everybody including the real owners. In a suit for permanent injunction the Court need not enter into disputed title except to the extent that it would help the Court in Finding which of the parties have prima facie title and exclusive possession. (8)

Khandakar Mahbubuddin Ahmed, Senior Advocate, (Abdus Salam Khan, Senior Advocate within him), instructed by Md. Nawab AH, Advocate-on-Record ………………………………………….. For the Appellants

Mahmudul Islam, Senior Advocate (Abdul Quavum, Advocate with him), instructed by Md. Aftah Hossain, Advocate on-Record…………………. Respondent No. 2

Ex-parte ………………………..Respondent No. 1

JUDGMENT

1. Mohammad Fazlul Karim J: – This appeal by leave is directed against the judgment and order dated 5 July 1998 passed by the High Court Division in Civil Revision No. 3266 of 1997 making the rule absolute and setting aside the concurrent decrees of the Courts below dismissing the suit for permanent injunction for restraining the defendants from interfering with the possession of the plaintiff in the suit land.

2. The plaintiff's case, in short, inter alia, is that the disputed land appertained to C.S. Khatian No. 208 of Mouza Jinnahgar measuring 7.39 acres originally belonged to Jalal Ahmed Chowdhury, Chand Mia, Hazi Abdur Rahman and others. A dispute having arisen as to their right in the holding all the said owners made a reference to the arbitrators for effecting partition of the ejmali land. The arbitrators gave an award on 27th March 1954, in terms whereof Jalal Ahmed Chowdhury got the disputed land in the 8 annas share allotted to him. He thus came to possess the disputed land exclusively. The plaintiffs purchased this land from him by a registered kabala dated 18th February 1987 and have since been in possession thereof. During the S.A. operation the suit land was wrongly recorded in the name of Chand Mia. After his demise, the defendants in collusion with his heirs created some documents in respect of the suit land and have been trying to interfere with the possession of the plaintiffs.

3. The respondents contested the suit denying the said claim of the plaintiffs. Their case briefly is that Chand Mia was the sole owner of the disputed land and they have become the owners whereof by purchase from the heirs of Chand Mia. They also claim that they have possession in the disputed land.

4. The trial Court decreed the suit holding, inter alia, that Jalal Ahmed acquired title to the disputed land on the basis of registered award and that the plaintiffs have been in possession thereof. An appeal at the instance of the respondents was also dismissed but the revision at their instance was allowed making the rule absolute by the High Court Division. Thereafter leave was granted by this Division to consider the submissions that in a suit for permanent injunction the main issue was the factum of possession but the learned Single Judge without determining this primary and vital issue, decided the title and merit of the suit in its revisional jurisdiction and wrongly reversed the decision of the Courts below and that both the trial Court and the appellate Court upon proper appreciation of the evidence, oral and documentary, concurrently found that plaintiffs are in possession of the suit land, but the High Court Division set aside the decrees of the Courts below without reversing the said finding on possession and thus committed an error of law in passing the impugned judgment.

5. Mr. Khondaker Mahbubuddin Ahmed, the learned Counsel for the plaintiff appellant taking us to the judgments of the Courts below submitted that the suit for permanent injunction being essentially a suit for possession the High Court Division without determining the factum of possession has proceeded to decide the title affecting merit of the suit for permanent injunction. The learned Counsel has submitting that the Courts below has erred in law in disturbing the concurrent finding of fact arrived at by the Courts below holding that the claim of title on the basis of the award over the suit land have no legal value creating any title and interest over the suit land and that the plaintiff on the basis of alleged purchase from Jalal Ahmed have been able to prove the title and possession over the suit land.

6. Mr. Mahmudul Islam, the learned Counsel appearing for the respondents, submits that none of the Courts below applied their mind upon evidence on record as to possession of the suit land but relying on Ext.4 the award which is merely a dead letter having no force of law in the absence of it being made a rule of the Court and without considering that since the property is recorded in the name of Chand Miah the suit for permanent injunction against the transferee by the heirs of Chand Miah was misconceived,

7. 3 P.Ws. deposed in support of plaint case and 2 D. Ws. in support of defense case, On perusal of the judgment of the Courts below it appears that the Courts have put emphasis on the award as the basis of the title in respect of the suit land in favour of the plaintiff without considering the evidence of possession of the parties. The High Court Division, however, held that the plaintiff's claim of title on the basis of award over the suit land have got no legal value since the same has not been made the rule of the Court and that Chand Miah died during the pendency of the arbitration proceeding and before passing of the award and thereby no title could pass to the plaintiffs on the basis of purchase from Jalal Ahmed who alleged to have acquired title in the suit land on the basis of the award. The High Court Division as well has not considered the question of possession on consideration of the evidence on record in this regard.

8. All the Courts below have considered the legality or otherwise of the award by which the plaintiff's claim title to the suit land but without considering evidence on record as to possession both the trial Court and the Court of appeal below decreed the suit for permanent injunction. The High Court Division as well without considering the evidence as to possession dismissed the suit for permanent injunction. The suit being a suit for permanent injunction in which the question of title may be gone into incidentally but decision of title in a suit for permanent injunction ought not to have been the guiding principle. The Court cannot disentitle the plaintiff of a decree for permanent injunction if he can prove possession unless in due process of law and could exercise his right of possession restraining everybody including the real owners. In a suit for permanent injunction the Court need not enter into disputed title except to the extent that it would help the Court in finding which of the parties have prima facie title and exclusive possession.

9. We have ourselves perused the evidence on record to see the evidence as to possession but the evidence on record are not sufficient to arrive at any finding as to actual and exclusive possession of the suit land.

10. Since the Courts below have dwelt mainly on the title of the plaintiff on the basis of the award which should not have been the sole consideration in a suit for permanent injunction and in order to enable the Court to arrived at the findings as to actual and exclusive possession of the suit land on the basis of evidence on record, we feel that ends of justice would be best served if the suit is remanded to the trial Court for disposal in accordance with law. The trial Court shall allow the parties to amend the plaint and lead evidence afresh, if they so desire.

11. Accordingly, the judgments and decrees of the Courts below and the impugned judgment are set aside and the suit is remanded to the trial Court for disposal in accordance with law.

12. In view of the above, the appeal is allowed without any order as to costs. Accordingly the suit is remanded to the trial Court for disposal in accordance with law and in the light of the observations made above.

Ed.

Source : III ADC (2006), 34.

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