Abdul Gafur Vs. Mariom Bibi and others, VI ADC (2009) 591

Case No: Civil Petition for Leave to Appeal No. 467 of 2008

Judge: Md. Abdul Matin,

Court: Appellate Division ,,

Advocate: Syed Amirul Islam,Mr. Abdul Jabbar,,

Citation: VI ADC (2009) 591

Case Year: 2009

Appellant: Abdul Gafur

Respondent: Mariom Bibi and others

Subject: Declaration of Title, Injunction,

Delivery Date: 2009-3-12

 
Supreme Court
Appellate Division
(Civil)
 
Present:
MM Ruhul Amin CJ
Md. Tafazzul Islam J
Md. Abdul Matin J
Md. Abdul Aziz J
 
Abdul Gafur being dead his heirs, Md. Mujibur Rahman
………………….Petitioner
Vs.
Mariom Bibi and others
............................Respondents
 
Judgment
March 12, 2009.
 
Code of Civil Procedure (V of 1908)
Section 153
For declaration of title, confirmation of possession and also for permanent injunction. It appears that the appellate court being the last court of fact believed the auction purchase of Ismail Mia in certificate case No. 55921 of 1960-61 and the plaintiff could not challenge his right and title. The finding of the last court of fact has been affirmed by the High Court Division.
 
Lawyers Involved:
M. A. Jabbar, Senior Advocate instructed by Md. Nawab Ali, Advocate-on-Record-For the Petitioner.
Syed Amirul Islam, Senior Advocate instructed by Mrs. Sufia Khatun, Advocate-on-Record-For Respondent Nos.1-10.
Nor represented- Respondent Nos.11-33.
 
Civil Petition for Leave to Appeal No. 467 of 2008.
(From the judgment and order dated 05.12.2007 passed by the High Court Division in Civil Revision No. 4099 of 1997)
 
JUDGMENT
 
Md. Abdul Matin J.
 
This petition for leave to appeal is directed against the judgment and order dated 05.12.2007 passed by the High Court Division in Civil Revision No. 4099 of 1997 dis­charging the Rule and thereby affirming the judgment and decree dated 11.06.1997 passed by the learned Additional District Judge, 1st Court, Brahmanbaria in Title Appeal No.78 of 1995 reversing the judgment and decree dated 18.01.1996 passed by the learned Subordinate Judge, 1st Court, Brahmanbaria in Title Suit No.03 of 1993.
 
2. The facts, in short, are that the prede­cessor of the petitioner, Abdul Gafur as plaintiff instituted Title Suit No. 3 of 1993 impleading the principal respon­dent Nos.1-10 and others as defendants for declaration of title, confirmation of possession and also for permanent injunction in respect of 2nd schedule land within the 1st schedule property of the plaint asserting, inter alia, that the suit schedule land originally belonged to Koilash Chandra Dey and others, that by amicable partition Alangamohan Deb Nath became the absolute owner of the suit schedule land. Being owner-in-possession Alangamohand died leaving his wife Gongabanshi as his sole heir and as such while owning an possessing the suit land, exclusively, Gongabanshi sold the 2nd schedule land to the petitioner on 30.10.1962 and delivered physical possession but because of Sudden death of Gonga Bangshi registration of the sale deed could not be completed. Besides, in the body of sale deed although khatian number was omitted and the area was written 2.99 acres in place of 3.99 acres but in the schedule of the kabala itself the number of khatian and the area of 2nd schedule land was correctly and properly mentioned.
 
3. Being the owner-in-possession by purchase the petitioner has been pos­sessing the suit land peacefully and con­tinuously since 30.10.1962 within the knowledge of all concerned. Some por­tion of the 2nd schedule land is being used for agricultural purpose by the peti­tioner after constructing deep tube well thereon. In other portion, the petitioner has dug a pond and has been rearing fishes. Besides, some portions of the suit schedule land are being used as grave­yard. Moreover, the petitioner also sold some land to defendant Nos. 23-29 and handed over possessing to them who constructed pucca houses and other structures and have been residing there­in with the members of their family.
 
4. The predecessor-in-interest of the principal defendant appellants opposite party Nos.1-10 filed the suit for specif­ic performance of contract. In that suit Ismail Miah the predecessor-in-interest Ahad predecessor-in-interest of defen­dant No.10 were the defendant Nos.19-21 and the petitioner and his son Ful Miah were the defendants. The suit was decreed on 20.09.1968 but on appeal that decree was set aside. Ultimately the High Court Division in 2nd appeal set aside the decree of the lower appellate court and confirmed that of the trial court.
 
5. In the aforesaid Title Suit No.1 of 1967 the petitioner's case as defendant's was that the share of Hiran Bala Dey and Narendra Bala Dey was auction sold but the share of Gong a Banshi Dey i.e. the 2nd schedule land of the plaint was never sold in auction and the alleged auction purchaser Ismail Miah and Abdul Ahad did not auction purchase and got the possession of the 2nd sched­ule land. So the right, title, interest and possession of the petitioner in respect of the 2nd schedule land was not affected in any way. The petitioner's Title Suit No.1 of 1967 related to Certificate Case No. 55922 but, in fact, no such property was sold in auction in Certificate Case No.55922. After final disposal of Title Suit No.1 of 1967 by the Appellate Division the plaintiff filed an applica­tion under Section 152 read with Section 153 of the Code of Civil Procedure before the learned Subordinate Judge, Comilla for amendment of the plaint by substituting Certificate Case No.55921 in place of Certificate Case No. 55922 as mentioned in the plaint itself and the learned Subordinate Judge, 2nd Court, Comilla allowed the amendment on 21.01.1986 although on that date he had no territorial jurisdiction to do so because long before that date the jurisdiction was given to the learned Subordinate Judge, Brahmanbaria District.
6. On the other hand before the afore­said amendment the plaintiff of Title Suit No.1 of 1967 has already put the decree into execution in Title Execution Case No.18 of 1984 with a view to obtain necessary kabala in pursuance of the decree. In the said execution pro­ceedings the judgment debtor filed a written objection upon which the further proceedings of title execution case was stayed, That the decree holder filed a revision before the High Court Division and the High Court Division by order dated 25.09.1986 although set aside the stay order but failed to give decision on the disputed question with regard to auc­tion sale on the basis of Certificate Case No. 55922 or whether the 2nd schedule land purchased by the petitioner was in any way affected by the aforesaid auc­tion sale. The plaintiff has been possessing the suit land peacefully and con­tinuously since the date of his purchase i.e. 30.10.1962 and the petitioner insti­tuted the aforesaid suit for declaration of title, confirmation of possession and for permanent injunction.
 
7. The defendant Nos.1-4 and 6 contest­ed the suit by filing joint written state­ments    contending, inter alia, that Surendra Chandra Dey and other 26 per­sons were the original owner’s.  For arrears of rent the entire land was put into auction. Certificate Case No. 55921 in which 4.81 acres of land was auction purchased by one Abdul Ahad and Ismail Miah and took delivery of pos­session. Subsequently the aforesaid Ismial Miah and Abdul Ahad propose to sell the entire land to Abdul Mannan, predecessor-in-interest of defendant Nos. 1-10 for an amount of Tk. 5,000/- and on the same day executed an agree­ment for sale. Subsequently Ismail Miah and Abdul Ahad having failed to execute and got registered the required sale deed inspite of repeated request on receipt of the entire consideration money, that the aforesaid Abdul Mannan having learnt that the predecessor of the present peti­tioner has obtained an unregistered kabala on 30.10.1962 in respect of the suit land from the aforesaid auction pur­chaser and he instituted Title Suit No.1 of 1967 for specific performance against his proposed vendor. The suit was decreed on contest upto the Appellate Division, that subsequently the decree holder instituted Title Execution Case No. 18 of 1984 which was opposed by the predecessor of the present petitioner and other asserting, inter-alia, that by the Certificate Case No. 55922 as men­tioned in the plaint of Title Suit No. 1 of 1967 the schedule land was not auction sold to anybody. Having learnt about the fact the decree-holder filed an applica­tion before the learned Subordinate Judge, Comilla who by order dated 21.01.1986 allowed the application and amended the Certificate Case No. 55921 in place of 55922 but, on the application further proceedings of aforesaid title execution case was stayed which was, later on, set aside on revision at the instance of the decree holder. Thereafter the decree-holder filed an application to proceed with the aforesaid title execu­tion case but the predecessor of the peti­tioner instituted the present suit being Title Suit No.3 of 1993 in orders to delay the finalization of the aforesaid title execution case, that Ganga Banshi was not the owner of the suit schedule land and the same was not sold to the petitioner. The defendant did not threat­en the petitioner's to dispossess them from the suit schedule land and prayed for dismissal the suit which cost.
 
8. The trial Court decreed the suit and on appeal the appellate court set aside the judgment of the trial court and allowed the appeal. On revision the High Court Division was pleased to affirm the judg­ment and decree of the appellate court.
 
9. Heard the learned Counsel and perused the petition and the impugned judgment and order of the High Court Division and other papers on record.
 
10. It appears that the appellate court being the last court of fact believed the auction purchase of Ismail Mia in cer­tificate case No. 55921 of 1960-61 and the plaintiff could not challenge his right and title. The finding of the last court of fact has been affirmed by the High Court Division.
 
We find no substance in this petition which is accordingly dismissed.
 
Ed.