Appellate Division Cases
(Civil)
PARTIES
Md. Alauddin and others……………… Petitioners
-Vs-
Abdul Hakim and others………………. Respondents
JUSTICES
Md. Ruhul Amin CJ
M.M. Ruhul Amin J
Md. Tafazzul Islam J
Md. Hassan Ameen J
Judgment Dated: 16th April 2007
The decree for permanent injunction was prayed for restraining the defendants from disturbing possession of the plaintiff in the land described in the schedule attached to the plaint……………………. (2)
Evidence held that plaintiffs are in exclusive possession of the land in suit and on consideration of the evidence lead from the side of the defendants arrived at the finding that defendants “do in fact prove possession” as regard the land taking settlement by them, that on perusal of the document relating to Title Suit No.150 of 1976 it is seen that the defendants filed the said suit relating to the land of plot Nos.3/4381 and 3/4382 and that Title Suit No.150 of 1976 does not relate to the land in suit, that Ext. T certified copy of the writ of delivery of possession issued in Title Execution Case No.3 of 1998 which was filed on the basis of the decree obtained in Title Suit No.66 of 1986 “shows that possession was delivered in respect of Plot Nos.3/4381, 3/4382” and thereupon held that said Ext. ‘Na” clearly shows that defendants took possession of the land other than the land of the plots in suit, that khatian B/790 (Ext. “Kha’) shows that the land taken settlement by the defendants’ predecessor was recorded therein and the said khatian shows that the defendants have possession of the land of the plot listed therein and that the land so listed in Ext. “ Kha” is not the subject matter of the suit filed by the plaintiffs ……………….(8)
S.R. Khoshnabish, Advoeate-on-record………………… For the Petitioners
Respondents…………………. Not represented
Civil Petition For Leave To Appeal No. 1548 of 2003.
(From the Judgment and Order dated June 24, 2003 passed by the High Court Division
in Civil Revision No.1623 of 2001)
JUDGMENT
Md Ruhul Amin J: This petition for leave to appeal has been filed against the judgment dated June 24, 2003 of a Single Bench of the High Court Division in Civil Revision No. 1623 of 2001. The High Court Division by the aforesaid judgment made absolute the Rule obtained against the judgment and decree dated January 30. 2001 of the 2nd Court of Subordinate Judge (now Joint District Judge) Gazipur in Title Appeal No.56 of 2000 reversing the judgment and decree dated March 30, 2000 of the 1st Court of Senior Assistant Judge, Gazipur in Title Suit No. 127 of 1999 decreeing the same. The appellate
Court upon reversing the judgment of the trial Court dismissed the suit.
2. The suit was filed seeking a decree for permanent injunction in respect of the land of Plot Nos.3/3315, 3/3317 and, 3/3319 comprising 7.25 acres of land of khatian No.B/286. The decree for permanent injunction was prayed for restraining the defendants from disturbing possession of the plaintiff in the land described in the schedule attached to the plaint.
3. Facts averring which the suit was filed, in short, that plaintiff No. 1 took settlement
of 7.25 acres of land from Court of Wards of Bhawal Jamindar estate and that in respect of the land so taken settlement Khatian No..B/286 was opened in the name of the plaintiff No.l, that plaintiff, No.l upon constructing a dwelling house on the southern plot of the suit land was living there with the members of his family for long time, that rest of the land is being possessed by the plaintiff No.l by cultivating and planting fruit bearing
trees, that plaintiff No.l .Abdul Hakim being an illiterate man was unaware of necessity of getting the land recorded in his name in S.A. khatian and R.S. khatian and as such S.A. and R.S. khatian in his name were not prepared in respect of the land in suit, that taking advantage of wrong record of right defendants tried to K dispossess the plaintiffs and thereupon plaintiffs filed case in the Court of Magistrate under Section 144 of the Code
of Criminal Procedure, that defendants held threat to the plaintiffs to dispossess them from the land in suit on May 11, 1999 and that plaintiffs resisted said attempt with the assistance of the local people. Hence the suit seeking decree for permanent injunction for restraining the defendants from disturbing possession of the plaintiffs in respect of the land in suit.
4. Defendant Nos.1-4 contested the suit stating, inter alia, that Abbas Ali, father of the defendant Nos.1-3 took settlement of .14.20 acres of land of plot No.3/4381 and 3/4382 of Khatian No.B/790 14.20 acres from the Court of wards of Bhawal Estate in the year 1343 B.S. and they are in possession thereof upon constructing dwelling house in a portion and the rest by cultivating and planting fruit bearing trees, that at the time of S.A. survey land was correctly recorded in the name of Abbas Ali but Forest Department having had claimed the land taken settlement by Abbas Ah, he filed Title Suit No. 150 of
1976 In the 1st Court of Subordinate Judge (now Joint District Judge), Dhaka seeking declaration of title and obtained decree, that appeal preferred by the Government against the judgment and decree in Title Suit No. 150 of 1976 was dismissed for default on January 4. 1996. It was also the case of the defendants that 16 persons including the plaintiffs having had forcibly entered in the land taken settlement by Abbas Ali, he filed Title Suit No.66 of 1988 seeking declaration of title and recovery of possession and the said suit was decreed ex-parte on January 8, 1989, that the decree so obtained in Title
Suit No.66 of 1988 was put into execution by filing Execution Case No.3 of 1998 and
in the said execution case the defendants took delivery of possession on May 10, 1999. It was contended by the defendants that the plaintiffs have no right, title and possession in the land in suit.
5. The trial Court decreed the suit on the findings that the plaintiffs have proved their prima facie title in the land in suit and also their exclusive possession therein.
6. On appeal the appellate Court reversed the judgment and decree of the trial Court on the finding that plaintiffs could not prove their case and thereupon reversed the judgment and decree of the trial Court and dismissed the suit. The plaintiffs as against the judgment of the appellate Court moved the High Court Division in revisional jurisdiction and obtained Rule. It was contended before the High Court Division on behalf of the plaintiff-petitioners that defendants did not claim the land of the plots in suit and that they
claimed land of some other plots which are not the subject matter of the suit. It was also submitted that the Court of appeal below being the final Court of fact did not consider the oral evidence as regard possession of the parties inspite of the fact that in a suit for permanent injunction the question of possession is a material one.
7. On behalf of the defendant opposite parties it was submitted that evidence of P.Ws.3 and 4 clearly shows that the plaintiffs are not in possession of the land in suit. It was also submitted that in the criminal case filed by the plaintiffs, they admitted that they were dispossessed by the defendants and thus plaintiffs as are not in possession of the land in suit the suit so filed seeking a decree for permanent injunction was not maintainable and that plaintiffs were not entitled to a decree for permanent injunction. It was lastly submitted that defendants having had obtained possession of the land in Title
Execution Case No.3 of 1998 on May 10, 1999 as evidence by Ext. V and thus it being clear that the plaintiffs are not in possession of the land in suit the appellate Court was quite correct in reversing the judgment and decree of the trial Court and dismissing the suit.
8. The High Court Division made the Rule absolute on the findings that plaintiffs prayed for a decree for permanent injunction in respect of the land of plot Nos.3/3315, 3/3317 and 3/3319 comprising 7.25 acres of land of khatian No.B/286, that plaintiffs in support of their claim of taking settlement of the land in suit from court of wards of Bhawal
Estate submitted the amalnama (Ext. 1), rent receipts (Ext.2, Ext.2(ka) and 2(khaj) and the khatian B/286 (Ext.3) and the said documents clearly show that plaintiffs took settlement land of the plot Nos.3/3315, 3/3317 and 3/3319 and thus proved their prima facie title to the land in suit. The High Court Division also observed that it was the case of the contesting defendants that their predecessor took settlement of land of plot Nos.3/4381 and 3/4382 comprising 14.20 acres of land of khatian No.B/790 from the Court of Wards of Bhawal Jamindar Estate and thus “the defendants do not claim the suit plots, as mentioned in the schedule to the plaint. The trial Court has noticed this aspect of
the pleadings of the parties and concluded that the admitted landlord, Court of Wards of Bhawal Estate granted settlement of 7.25 acres and 14.20 acres of land out of total land of 404.50 acres in respect of separate and distinct khatians and plots and there was no dispute of separate and distinct khatians and plots and there was no dispute with regard to the properties taken settlement by the plaintiffs and the predecessor of the defendants”. The High Court Division has also observed that trial Court on consideration of the evidence held that plaintiffs are in exclusive possession of the land in suit and on consideration of the evidence lead from the side of the defendants arrived at the finding that defendants “do in fact prove possession” as regard the land taking settlement by
them, that on perusal of the document relating to Title Suit No. 150 of 1976 it is seen that the defendants filed the said suit relating to the land of plot Nos.3/43 81 and 3/4382 and that Title Suit No. 150 of 1976 does not relate to the land in suit, that Ext. V certified copy of the writ of delivery of possession issued in Title Execution Case No.3 of 1998 which was filed on the basis of the decree obtained in Title Suit No.66 of 1986 “shows that possession was delivered in respect of Plot Nos.3/4381, 3/4382” and thereupon held that said Ext. “Na” clearly shows that defendants took possession of the land other than the land of the plots in suit, that khatian B/790 (Ext. “f”) shows that the land taken settlement by the defendants’ predecessor was recorded therein and the said khatian
shows that the defendants have possession of the land of the plot listed therein and that the land so listed in Ext. “1” is not the subject matter of the suit filed by the plaintiffs.
9. The learned Advocate-on-record submitted that the trial Court wrongly marked the document filed by the plaintiff as Exts. and on the basis thereof trial Court having had passed the decree, the appellate Court was quite correct in setting aside the decree passed by the trial Court. The submission so made is of no substance, since it is seen from the evidence of P.W.I that while he deposed in support of his case, he filed the documents in question in the course of his deposition and the number those of mentioned in the deposition but on the conclusion of the deposition inadvertently exhibit numbers were not put on the documents so proved by P.W.I. The plaintiffs having had noticed that inadvertent mistake of the Court filed an application and the trial Court on March 23, 2000 passed necessary order (order No.45) to put the exhibit number on the documents.
The application filed by the plaintiffs to put the Exhibit mark on the documents produced by the P.W.I was not opposed and thereupon exhibit numbers were noted in the documents without objection. The learned Advocate-on-record submitted that defendants took delivery of possession of the land in suit in Execution Case No.3 of 1998 and in that state of the matter trial Court was in serious error in decreeing the suit for permanent injunction while undoubtedly because of the Ext. “Na” plaintiffs are not in possession. This submission is also of no merit, since the High Court Division on perusal of the Ext.
“Na” held that the same relates to the land of plotNos.3/4381 and 3/4382 which are not the plots in suit. It was the case of the defendants that their predecessor took settlement of the land of plot Nos.3/4381 and 3/4382. In that state of the matter it is clear that defendants have no claim in respect of the land of Plot Nos.3/3315, 3/3317 and 3/3319 which are the plots in suit. In the background of the said fact we are of the view the High Court Division as well as the trial Court were quite correct in decreeing the suit which was for a decree for permanent injunction.
10. In the background of the discussion made hereinabove we find no substance in the petition.
11. Accordingly the petition is dismissed.
Source : V ADC (2008),503