Wali Miah Sodagor Jame Masjid and Madrasha Vs. Abdul Hoque and others

Appellate Division Cases

(Civil)

PARTIES

Wali Miah Sodagor Jame Masjid and Madrasha……………. Plaintiff-petitioner.

-VS-

Abdul Hoque and others……………… Defendant- respondents.

Mohammad Fazlul Karim J

Md. Joynul Abedin J

Judgment Dated: 21st Mav 2007

For permanent injunction…………………… (2)

The learned Counsel for the petitioner though submitted touching the merit of subject matter of the Rule but it is too early in the day to make any comment unless there is full dressed hearing of the matter before the High Court Division on merit. The High Court Division in his wisdom upon preliminary hearing deemed it proper to issue a Rule to examine the impugned order challenged before it and it is too early in the day to make any comment on the submissions which have made touching merit of the Rule…………… (8)

Khondker Mahbubuddin Ahmed, Senior Advocate, instructed by Md. S.R. Khoshnabish, Advocate-on-Record ………………..For the Petitioner.

Mahmuda Begum, Advocate-on-Record For Respondent Nos. I and 2 ……………………For respondent No. 3 None represented.

Civil Petition for Leave to Appeal No. 1415 of 2005

(From the order dated the 31 st August, 2005 passed by the High Court Division in Civil

Revision No. 3529 of 2005).

JUDGMENT

Mohammad Fazlul Karim J: This petition for Leave to Appeal is directed against the order dated 31.08.2005 passed by a Single Bench of the High Court Division in Civil Revision No. 3529 of 2005 issuing Rule and calling upon the respondent to show cause as to why the judgment and order dated 09.05.2005 passed by the Additional District Judge, 2nd Court, Noakhali in Civil Revision Case No. 82 of 2004 reversing those dated

05.09.2004 passed by the Senior Assistant Judge, Chatkhil, Noakhali in Title Suit No.43 of 2003 should not be set aside or such other or further order or orders passed as may seem fit and proper.

2. The petitioner as plaintiff filed Title Suit No. 148 of 2003 in the Court of Senior Assistant Judge, Noakhali on 04.05.2003 which on transfer was registered as Title Suit No. 43 of 2003 in the Court of Senior Assistant Judge, Sadar, Noakhali against the defendant Nos. 1 and 2 for permanent injunction.

3. The case of the plaintiff is that one Abdul Latif Mia while owning and possessing his properties including the suit property distributed his properties amongst his heirs vide registered Nirdeshpatra dated 06.03.1944. Accordingly Diara Khatian Nos. 77 and 78 of Sonapur Mouza, District-Noakhali were prepared and recorded in their names. Mostafizur Rahman, proforma defendant purchased 0.57 acres of land from PlotNos.466, 467, 468 and 469 from different recorded tenants between 1991 and 1.995. While owning, possessing and enjoying the said purchased land, Mostafizur Rahman and Mst. Monowara Begum built 6(six) feet high boundary wall around 0.30 acres of land of Plot No. « 467. Separate Khatian No. 644 regarding 0.45 acres of land was opened vide

Mutation and Separation Case No. 731 of 1994-1995 and Khatian No. 722 regarding

0.12 acres of land was opened vide Mutaion and Separation Case No. 945 of 1999-2000 in their names. Mostafizur Rahman and his wife Mst. Monwara Khanam made an oral git of said 0.12 acres of land from Plot No. 466, 0.30 acres of land from Plot No. 467 and 0.03 acres of land from Plot No. 469 in favour of the petitioner, Wali Mia Sodagor Jame Masjid and Madrasha for establishing a Masjid, Madrasha and Etimkhana declaring

Mostafizur Rahman as the Motwalli. Land from Plot No. 467 was given for mosque,

land from Plot No. 466 was given for building shops rent of which will be the source of income for the Mosque, Madrasha and Etimkhana and land from Plot No. 469 was given for grave yard for general public of the locality. After settling aforesaid properties in this way, Mostafizur Rahman went to perform Haj no 27.01.2003. On return from Haj, when

he started completion of unfinished work of said Mosque, Madrasha and Etimkhana, the defendant Nos. 1 and 2 claimed that they are the owners of the said property vide Deed of Exchange and started disturbing him and threatening him to dispossess him from the said property and openly declared that they would not let the plaintiff build any Mosque or

Madrasha on the said land. In this circumstances, the plaintiff as Mutwalli of Wall

Mia Sodagar Jame Masjid and Madrasha filed the aforesaid suit for permanent

injunction against the defendants-respondents.

4. Khondker Mahbubuddin Ahmed, learned Counsel, appearing for the petitioner submits that the fact of making a gift of the suit property to Wali Mia Sodagar Jame Masjid and Madrasha by Mostafizur Rahman and his wife Mosammat Monowara Khanam and

Mostafizur Rahman being the Mutwalli having been clearly stated in the plaint and

he having filed the suit in the name of Wali Mia Sodagar Jame Masjid and Madrasha as its Mutwalli the finding of the trial Court that nothing is said in the plain about waqf before and amendment would give rise to new cause of action which would be inconsistent with the original plaint is wrong and liable to set aside; That the proposed amendment will only incorporate the fact of enlistment of the waqf estate Wali Mia Sodagar Jame Masjid and Madrasha with the Administrator of Waqf (E.C. No. 19284),

a fact subsequent to the filing of the suit and inclusion of few words which are in the deeds but not mentioned in the plaint and this amendment will neither change the nature and character of the plaint/suit nor give rise to any new cause of action. As such the learned Senior Assistant Judge, Chatkhil, Noakhali was wrong in rejecting the application for amendment of the plaint and the learned Additional District Judge, 2nd Court, Noakhali was right in setting aside the said order of the learned Senior Assistant Judge and allowing the amendment of the plaint and the High Court Division erred in issuing rule and staying the order allowing amendment; that the proposed amendment of the

plaint shall not cause any change in the cause of action or schedule of the property,

or period of limitation or the prayer in the plaint and the High Court Division erred in issuing rule and staying the order allowing amendment.

5. The learned Advocate finally submits that in compliance of the order of the learned additional District Judge, 2nd Court, Noakhali the plaint having been already amended no 16.07.05 and issues having been framed on 24.08.05 and 08.09.05 having been fixed for taking steps under section 30 of the C.P.C all orders passed in presence of the defendants,

filing and moving the Civil Revisional application before the High Court Division 31.08.05 (last working day before the long vacation) by the defendants was malafide and the High Court Division erred in issuing the rule and staying the order allowing the amendment of the plaint.

6. It appears that the petitioner, herein, has challenged the impugned order dated 31.08.2005 issuing Rule and calling upon the opposite parties-respondent to show

cause as to why the judgment and order dated 08.05.2005 passed by the Additional

District Judge, 2nd Court, Noakhali in Civil Revision No. 82 of 2004 reversing those dated 05.09.2004 passed by the Senior Assistant Judge, Chatkhil, Noakhali in Title Suit No. 43 of 2003 should not be set aside and /or pass such other or further order or orders as to this Court may seem fit and proper.

7. Pending hearing of the aforesaid Rule the High Court Division also stayed the further proceeding of Title Suit No. 43 of 2003 in the Court of the Senior Assistant Judge, Chatkhil, Noakhali making the Rule returnable within 6(six) weeks.

8. The learned Counsel for the petitioner though submitted touching the merit of subject matter of the Rule but it is too early in the day to make any comment unless there is full dressed hearing of the matter before the High Court Division on merit. The High Court Division in his wisdom upon preliminary hearing deemed it proper to issue a Rule to examine the impugned order challenged before it and it is too early in the day to make any comment on the submissions which have made touching merit of the Rule.

9. In view of the matter, we do not find any cogent reason to interfere with the order issuing the Rule and the ad-interim order passed while issuing the Rule.

10. The parties may approach the High Court Division for early disposal of the Rule, if they so desire.

11. Accordingly, the petition is dismissed.

Source : V ADC (2008), 234

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