Shahin Reza and others Vs. Abdul Hamid

Appellate Division Cases

(Civil)

PARTIES

Shahin Reza and others……………………. Petitioners.

-Vs-

Abdul Hamid & others……………… Respondents.

JUSTICES

Md. Ruhul Amin J

M.M. Ruhul Amin J

Judgment Dated: 15th October 2006

Praying for declaration of title by adverse possession to the suit land and for further declaration that the exparte judgment and decree dated 09.08.1990 passed in Title Suit No. 167 of 1990 was illegal, inoperative and not binding upon the plaintiff………… (2)

It is not disputed that the plaintiff was not a party to the decree passed in Title Suit No.167 of 1990. The High Court Division accordingly held that the plaintiff has no locus-standi to bring the present suit. The learned Advocate-on-Record submits that the plaintiff proved that his interest was adversely affected by the judgment and decree passed in Title Suit No.167 of 1990. It is needless to mention here that the plaintiff not being party to the decree in question, the same is not automatically binding on him. Since the plaintiff could not prove that his interest was adversely affected by the decree, he is not required to avoid the decree by obtaining a declaration from the court. …………(7)

Md. Nawab AH, Advocate-on-Record. ………….For the Petitioners

Subash Chandra Biswas, Advocate-on-Record………………………. For the Respondents

Civil Petition For Leave To Appeal No. 1089 of 2005

(From the judgment and order dated 26.07.2005 passed by the High Court Division in Civil Revision No.4786 of 1999.)

JUDGMENT

M. M. Ruhul Amin J: This petition for leave to appeal is directed against the judgment and order dated 26.07.2005 passed by a Single Bench of the High Court Division in Civil Revision No.4786 of 1999 discharging the Rule.

2. Short facts are that the petitioner as plaintiff instituted Title Suit No.22 of 1998 in the 4th Court of Assistant Judge, Dhaka praying for declaration of title by adverse possession to the suit land and for further declaration that the exparte judgment and decree dated 09.08.1990 passed in Title Suit No. 167 of 1990 was illegal, inoperative and not binding upon the plaintiff contending, inter alia, that the suit land was allotted to one Musleem Miah, a refugee on 04.06.1963. The said Musleem Miah paid the entire money as per terms of allotment and lived in the suit land with other members of his family. The said

Musleem Miah borrowed Tk.3000/- from the father of the plaintiff and allowed him to stay in the land as a permissive possessor. After the war of liberation, Musleem Miah decided to migrate to Pakistan forever and handed over all the title papers in respect of the suit land in favour of the plaintiffs father. On 30.10.1973 Musleem Miah executed a transfer deed in favour of the plaintiffs father and that transfer deed was signed by Sirajul Islam, the full brother of Musleem Miah. Since the plaintiffs father was in possession till his death, a good title by way of adverse possession was created in his favour in the suit land. The further case of the plaintiff is that the defendants were inducted into possession

in a room in 1982 under the plaintiffs father as a monthly tenant. The plaintiffs father died in 1993. The defendant stopped paying rent from the last part of 1988 and disclosed about a bainanama from Musleem Miah in respect of the suit property and also claimed the ownership of the suit homestead. The further case of the plaintiff is that the defendant No.l managed to get a survey report on 31.03.1983 showing his possession in the suit homestead. Musleem Miah went to Pakistan in 1973 and died there. The plaintiff got a letter from the defendant No.2 on 26.04.1994 and came to know about the exparte decree in question. Thereafter, he further came to know about the kabala dated 25.07.1991. Hence is the suit.

3. The defendant No.l contested the suit by filing a written statement contending, inter alia, that the suit property was allotted to Musleem Miah. While in possession the said Musleem Miah entered into a contract on 11.01.1972 for transfer of the suit property in favour of the defendant No.l. The consideration was fixed at Tk. 12,000/- out of which the defendant No.l paid Tk.11,500/- as earnest money and on 11.01.1972 Musleem Miah executed a bainanama in favour of the defendant  No.l. Musleem Miah banded over possession in favour of the defendant No.l on that date and the latter began to possess

the same. Since Musleem Miah delayed to execute and register the kabala, the defendant filed Title Suit No.35 of 1986 for Specific Performance of Contract.

4. The further case of the defendant is that he has established a silk factory upon the suit land and is in possession.

5. The trial court decreed the suit in part declaring the exparte decree dated 09.08.1990 passed in Title Suit No. 167 of 1990 to be illegal, inoperative and not binding upon the plaintiff by judgment and decree dated 31.03.1998. On appeal, Title Appeal No. 126 of 1998, the appellate court allowed the appeal and dismissed the plaintiffs suit. Being aggrieved the plaintiff moved the High Court Division in revisional jurisdiction and the High Court Division discharged the Rule as noticed earlier.

6. We have heard Mr. Md. Nawab Ali, the learned Advocate-on-Record for the petitioner

and perused the judgment of the High Court Division and other connected papers.

7. It is not disputed that the plaintiff was not a party to the decree passed in Title Suit No. 167 of 1990. The High Court Division accordingly held that the plaintiff has no locus-standi to bring the present suit. The learned Advocate-on-Record submits that the plaintiff proved that his interest was adversely affected by the judgment and decree passed in Title Suit No. 167 of 1990. It is needless to mention here that the plaintiff not being party to the decree in question, the same is not automatically binding on him. Since the plaintiff could not prove that his interest was adversely affected by the decree, he is not required to avoid the decree by obtaining a declaration from the court.

8. In the facts and circumstances, we are of the view that the High Court Division upon correct assessment of the materials on record arrived at a correct decision. There is no cogent reason to interfere with the same.

9. Accordingly, the petition is dismissed.

Source : V ADC (2008),682