Mohammad Fazlul Karim J
Md. Abdul Matin J
Shah Abu Nayeem Mominur Rahman J
ABM Khairul Haque J
Walilullah being dead his heirs: Hassan Jahid (Babu) and others ………..Appellants
Hasina Begum and others……………..Respondents
July 27, 2009.
Rafique-ul Huq, Senior Advocate instructed by Mrs. Sufia Khatun, Advocate On-Record-For the Appellant.
Mahmudul Islam, Senior Advocate instructed by Md. Aftab Hossain, Advocate-On-Record-For the Respondent No.8.
Not represented- Respondent Nos.1-7.
Civil Appeal No. 192 of 2003.
(From the Judgment and order dated 27.08. 2002 passed by the High Court Division in Civil Revision No. 3727 of 2002).
ABM Khairul Haque J.- This appeal by leave is directed against the judgment and order dated 27.8.2002, passed by a Single Judge of the High Court Division, in Civil Revision No. 3727 of 2002, discharging the Rule and affirming those dated 24.7.2002, passed by the District Judge, Dhaka, in Miscellaneous Appeal No. 177 of 1977, and those dated 9.7.1977, passed by the Senior Assistant Judge, Third Court, Dhaka, in Miscellaneous Case No. 62 of 1995.
2. The facts in short are that the appellant instituted a suit being Title Suit No. 261 of 1963 in the Third Court of Assistant Judge, Dhaka, on 5.9.1968, praying for a decree for eviction of the defendant as licensee. The suit was decreed ex parte on 27.2.1975 and thereafter Execution Case No. 14 of 1975 was filed. The defendant on 4.3.1975, instituted a miscellaneous case being Miscellaneous Case No. 54 of 1975 under Order IX rule 13 of the Code of Civil Procedure, praying for setting aside the aforesaid ex-parte decree and by an order dated 27.3.1975 the operation of the ex parte decree was stayed but the appellant in spite of the aforesaid order of stay, evicted the defendant from the suit property. Thereafter, on the application of the defendant, the Court by its order dated 30.8.1980, directed the appellant to hand over possession of the suit property to the defendant within 24 hours.
3. Being aggrieved, the appellant filed an appeal being Miscellaneous Appeal No.400 of 1980 before the District Judge, Dhaka. After hearing, the said appeal was dismissed by a judgment and order dated 29.9.1980. Thereafter, a revisional application under section 115 of the Code was preferred by the appellant being Civil Revision No.1321 of 1980. The High Court Division by its Judgment and order dated 26.2.1991, set aside the judgment and order dated 29.9.1980, passed by the appellate Court and directed the learned Assistant Judge to dispose of the Miscellaneous Case No.54 of 1975, within one month from the date of receipt of the record. The said Miscellaneous case was allowed by the judgment and order dated 09.09.1991 and the ex parte decree dated 27.2.1975 passed in Title Suit No. 261 of 1968 was set aside. Thereafter the defendants filed an application on 28.10.1991 under section 144 of the Code read with Section 151, praying for restitution of possession of the suit property. This petition was registered as a miscellaneous case being miscellaneous case No. 69 of 1991. This miscellaneous case was rejected by an order dated 19.11.1992 on the ground that the necessary documents were not furnished in support of the prayer for restitution.
4. Thereafter, a review petition was filed on 2.1.1993 being Review Miscellaneous Case No. 62 of 1995, contending inter alia that the papers and documents in support of the possession of the defendant had been filed earlier in Court.
5. The learned Assistant Judge also found the necessary documents in the record of the suit. Thereafter, by his judgment and order dated 9.7.1997, allowed the review miscellaneous case and directed restitution of possession of the suit property.
6. As such, the plaintiff filed an appeal being Miscellaneous Appeal No. 177 of 1977 before the District Judge, Dhaka. This was also dismissed by the Judgment and order dated 24.7.2002 with partial modification. Thereafter, the appellant filed a revisional application under section 115 of the Code before the High Court Division being Civil Revision No. 3727 of 2002.
7. The learned Single Judge of the High Court Division, on hearing found that the ex parte decree of eviction was passed in respect of the suit premises. The suit premises as described in the plaint, comprised of schedules A, B, and C properties and consequently the defendant Md. Sekander Ali was evicted therefrom in execution of the decree and since the decree recorded in Title Suit No.261 of 1968 stood set aside, the legal heirs of the deceased defendant are entitled to restitution of possession in respect of A, B and C schedule properties. Being aggrieved, by the aforesaid judgment and order passed by the High Court Division, the plaintiff filed the instant appeal before this Division.
8. Leave was granted to consider, firstly, what was the suit property and whether the respondents are entitled to restitution of the properties mentioned in schedules A, B and C or only the property as mentioned in schedule-C in the plaint.
9. Mr. Rafique-ul Huq, the learned Senior counsel appearing on behalf of the plaintiff-appellants submits that the property mentioned in schedule C to the plaint is the suit property and the decree was passed to evict the defendants from the said property alone. Accordingly, in pursuance of the Execution Case No. 14 of 1975, the defendant was evicted from the C schedule property only but not from either A or B schedule properties as mentioned in the plaint.
10. He further submits that the learned Judge in the High Court Division erred in law as well as in facts in not appreciating that the defendants were not evicted other than the suit property which is mentioned in schedule C to the plaint, as such, illegally directed restitution in respect of all the properties described in schedules A, B and C to the plaint.
11. Mr. Mahmudul Islam, the learned senior counsel, appearing on behalf of the defendant-respondents, submits that the defendants were evicted from the properties mentioned in schedules A, B and C in pursuance of the ex parte decree and the subsequent execution case. He points out that the plaint, the decree and the petition for execution case, all those documents contained the above 3(three) properties. Besides, referring to the additional paper-book filed on behalf of the respondents, he submits, the warrant to the bailiff received by him on 22.8.1980, contained all those three properties and after execution by delivery, the plaintiff himself received the khas possession of all the properties mentioned in schedules A, B and C in the said warrant, by putting his signature on 23.8.1980, in presence of the witnesses.
As such, he submits, all the Courts below rightly directed restoration in respect of all three properties.
12. We have heard the learned advocates of both the sides and perused the papers kept in the paper-books.
13. It appears that the plaintiff-petitioner filed a suit praying for eviction of the defendants from the suit premises. The plaint contains three schedules. The prayer made in the plaint are as follows:
a) a decree for eviction of the defendants in favour of the plaintiff and against the defendants,
b) delivery of vacant possession of the suit land and the suit hut thereon in favour of the plaintiff after removing all obstacles and obstructions therefrom;
14. The prayers do not specify the suit land but the plaint contains three schedules. Besides, the decree, the petition for execution, the warrant to the bailiff all contains the three schedules. As such, apparently it would appear that the prayer for decree for eviction would be in respect of all three properties mentioned in the schedules A B and C.
15. But from the plain reading of paragraph 8 and 9 of the plaint it would appear that the plaintiff has his building in the schedules A and B properties and the defendants are admittedly living in schedule C property. The relevant portion of paragraph 8 and 9 of the plaint reads as follows:
“8…………………….the plaintiff again brought the defendants back and allowed them to live as licensee in another but standing on the ‘C’ schedule land hereinafter called the suit property.
9. ……….The defendants had to live in a rented house outside the A and B schedule land as stated in paragraph No.8 above.”
16. The above averments made in the plaint show that the purpose of the suit was to evict the defendants from the C schedule property alone.
17. In due course, the decree was passed to evict the defendants from the suit property. As such, it would be presumed that the decree was passed in respect of the C schedule property alone.
18. It appears that the plaint contains all three schedules. The A schedule mentions C.S. Plot nos. 18 and 19 while the B schedule mentions C.S. Plot no. 17 and nothing much, but the C schedule describes the concerned property on the north-western corner of ‘A’ schedule of C.S. Plot No. 19 with the S.A. and R.S. plot members. Besides, the Municipal holding number has also been given with the description of the huts and structures thereon.
19. As such, it appears that the ‘C’ schedule property is the suit property.
20. It is true that the plaintiff wrote in the back of the warrant to the bailiff that he received the possession of the properties mentioned in Schedules A, B and C but this mere endorsement cannot alter the fact that the suit property is only to the extent of property mentioned in Schedule C to the plaint.
21. Under such circumstances, the respondents are entitled to restoration of C schedule property only.
22. There is, however, no legal impediment to recover the properties, in accordance with law, if the defendants were earlier dispossessed in excess of the property mentioned in Schedule C to the plaint.
23. With this modification of the Order passed by the High Court Division in its Judgment and Order dated 27.8.2002 passed in Civil Revision No. 3727 of 2003, this appeal is disposed of without any order as to cost.
The concerned Senior Assistant Judge is directed to restore possession of the property mentioned in schedule C to the plaint in favour of the defendants within the period of 1 (one) month from the date of receipt of this Order.