Appellate Division Cases
Md. Mahmud Ali. ……………….Defendant No. 1-Petitioner.
Md. Abrus Ali and another…………….. Respondents.
Mohammad Fazlul Karim J
M.M. Ruhul Amin J
Judgment Dated: 16th September 2007
The Specific Relief Act, Section 9
but in the purchased deed the description of the land was incorrect which belonged to other person; that the plaintiff was in abroad and occasionally visited the mother land and purchased the land; that subsequently at the time of mutation of land in his name the wrong description was detected and he claimed correction but the defendant No.2 refused to do so, then the plaintiff obtained correct deed by a judgment and decree dated 21.08.1997 of the Senior Assistant Judge…………………… (2)
The High Court Division on consideration of materials on record held that the trial Court has on consideration of the evidence on record arrived at a finding of fact that the laintiff was dispossessed from the suit land as alleged and accordingly ordered for a decree for recovery of possession………………….. (7)
A. J. Mohammad Ali, Senior Advocate, instructed by Zainul Abedin, Advocate-on-Record………………….. For the Petitioner
A.K.M. Shahidul Huq, Advocate-on-Record ……………..For Respondents.
Civil Petition For Leave To Appeal No.601 of 2005
(From the judgment and order dated the 22nd March, 2005 passed by the High Court
Division in Civil Revision No.2846 of 2001).
Mohammad Fazlul Karim J: This application at the instance of the petitioner is directed against the judgment an order dated 22.03.2005 passed by the High Court Division in Civil Revision No.2846 of 2001 discharging the Rule affrming the judgment and decree dated 25.04.2001 of the Senior Assistant Judge, Balaganj, District-Sylhet in Title Suit No.21 of 2000 under Section 9 of the Specific Relief Act decreeing the suit.
2. The respondent No.l as plaintiff on 04.06.2000 filed Title Suit No.21 of 2000 in the Court of Assistant Judge, Balaganj praying for recovery of possession of the suit land after evicting the defendant No.l from the said suit land under Section 9 of the Specific Relief Act claiming that the defendant No.2 being the original owner by inheritance on 15.02.1988 by registered kabala sold the suit land to the plaintiff and delivered possession and the plaintiff used to grow drops thereon, but in the purchased deed the description of the land was incorrect which belonged to other person; that the plaintiff was in abroad and occasionally visited the mother land and purchased the land; that subsequently at the time of mutation of land in his name the wrong description was
detected and he claimed correction but the defendant No.2 refused to do so, then the
plaintiff obtained correct deed by a judgment and decree dated 21.08.1997 of the Senior Assistant Judge Sylhet Sadar, in Title Suit No. 148 of 1991 against the defendant No.2 that the defendant No.2 preferred Title Appeal No.222 of 1997 before the District Judge but ultimately on 04.05.1999 dismissed the appeal for want of steps; that the plaintiff filed mutation proceeding but the defendants being cousin and influential person collectively on 2nd Baishak, 1407 B.S. in the morning entering into the suit land and started cultivation without plaintiffs permission and the plaintiff failed to recover possession as the defendant No.l gave no heed to plaintiffs request, rather, threatened him which constrained him to filed the suit.
3. The defendant No.l contested the suit by filing written statement stating, inter alia, that the suit land along with other land originally belonged to Akramullah, the father of the defendant No.2 who died leaving being 3 sons named Abedullah, Ershadullah and Abdul Gofur and 2 daughters named Soreja Bibi and Ruyeza Bibi; that Akramullah during his life time made wakf of 0.04 acres of land in suit plot and on 09.07.1973 Abid Ali and
Ershadullah sold 0.12 acres of land to Kamrunnessa Khatun as her dower money of Kabinnama while she married Ershad Ali; that Kamrunnessa and heirs of 2 daughters of Akramullah with defendant No.2 intended to sell their shares and by registered kabala dated 17.04.1995 the defendant No.l purchased the suit land; that the plaintiff never purchased on 15.02.1988 or acquired title by decree dated 21.08.1997 in Title Suit No. 148 of 1991; that the decree in Title Suit No. 148 of 1991 is not binding upon the heirs of
Akramullah as they were not made party to that suit and since the plaintiff never got
possession, no question of dispossession arose, the suit is liable to be dismissed.
4. Mr. A. J. Mohammad Ali, learned Counsel, appearing for the petitioner submitted that the trial Court while decreeing the suit overlooked that the suit was under Section 9 of the Specific Relief Act having a limited ambit to consider regarding possession. Though when a person is dispossessed from his immovable property he may file a suit to recover possession thereof and the question of title will not be a matter of decision in that suit but in the instant case the trial Court beyond the ambit of Section 9 about observed the title
of plaintiff vide Exhibit-1 series and Exhibit-2 series of judgment and decree of Title Suit No. 148 of 1991 in which neither the defendant No.l nor his vendor was party.
5. The learned Counsel further submitted that the defendant No.l filed the photo copy of the parcha of suit land which was also admitted by the plaintiff and marked Exhibit-‘Ga’ without any objection but the trial Court did not consider this Exhibit, a piece of evidence of possession in a suit under Section 9 of the Specific Relief Act rather relied all the P.W.’s who were relatives and interest witnesses and took positive view in favour of plaintiff on the basis of evidence of D.W.2 and D.W.4 which are not corroborative evidence to support plaintiffs possession. That though the High Court Division failed to consider the evidence on record but affirmed the findings of the trial Court in holding that the trial Court considered properly the evidence and other materials on record although there is error of law by the trial Court in not considering the Exhibit-‘Ga’ and misreading of evidence of D.W.2 and D.W.4 and as such the impugned judgment and order is liable to be interfered.
6. Section 9 of the Specific Relief Act is related to only possession and dispossession.
The petitioner and the respondent No.2 belonged the same residence and the suit land was contiguous to their homestead and far away from the homestead of respondent No.l. Abdul Gafur. respondent No.l contested the Title Suit No. 148 of 1991 which was decreed by the trial Court finding plaintiffs title and possession over the land. The plaintiff being aggrieved by the dispossession put of the suit land filed the suit for recovery of possession and the trial Court accordingly considering the evidence on record order for recovery of possession.
7. The High Court Division on consideration of materials on record held that the trial Court has on consideration of the evidence on record arrived at a finding of fact that the plaintiff was dispossessed from the suit land as alleged and accordingly ordered for a decree for recovery of possession.
8. In view of the above, we find no substance in the submissions of the learned Counsel for the petitioner.
9. Accordingly, the petition is dismissed.
Source : V ADC (2008),685