Abdul Halim Vs. Md. Tatan Mia and others, VI ADC (2009) 763

Case No: Civil Petition for Leave to Appeal No. 486 of 2006

Judge: Md. Tafazzul Islam ,

Court: Appellate Division ,,

Advocate: Mr. Chowdhury Md. Zahangir,,

Citation: VI ADC (2009) 763

Case Year: 2009

Appellant: Abdul Halim

Respondent: Tatan Mia and others

Subject: Land Law, Injunction, Property Law,

Delivery Date: 2008-1-9

 
Supreme Court
Appellate Division
(Civil)
 
Present:
MM Ruhul Amin, J.
Md. Abdul Matin, J.
Md. Tafazzul Islam, J.
 
Abdul Halim
........................Petitioner
Vs.
Md. Tatan Mia and others
………...........Respondents
 
Judgment
January 9, 2008
 
A decree of permanent injunction by way of restraining the petitioner from interfering with their in the suit land on the avertments that the suit land… (2)
Since Karim Munshi was the owner of 3.61 acres of land and there were several other plots, the extent of land inherited by his heirs may be determined in a properly constituted suit and will not debar the plaintiffs to get the decree for permanent injunction if they are found in exclusive possession of more lands then they are entitled to retain possession according to the devolution of their interest.
 
Lawyers Involved:
Chowdhury Md. Zahangir, Advocate on-Record-For the Petitioner.               
Not represented- the Respondents.
 
Civil Petition for Leave to Appeal No. 486 of 2006
(From the judgment and order dated 9.2.2006 & 12.2.2006 passed by the High Court Division in Civil Revision No. 3714 of 2000).
 
JUDGMENT
 
Md. Tafazzul Islam J.
 
          This petition for leave to appeal, at the instance of the defendant/petitioner, is directed against the judgment and order dated 9.2.2006  and 12.2.2006 of the High Court Division passed in Civil Revision Case No.3714 of  2000 making absolute the Rule obtained against the judgment and decree dated  17.7.2000 of the learned Additional District Judge, Court No.10, Dhaka passed in Title Appeal No.438 of 1993 affirming those of dated 10.11.1993 of the learned Assistant Judge, 4th Additional Court, Dhaka passed in Title Suit No.72 of 1993 decreeing the suit.
 
2. The respondents, as plaintiffs, instituted the above Title Suit No.72 of 1993 for a decree of permanent injunction by way of restraining the petitioner from interfering with their in the suit land on the averments that the suit land, comprising an area .58 decimals of land, belonged to recorded owner Karim Munshi and after his death Rahman Munshi and Meghu Munshi, sons, got /8/ annas share each; Meghu Munshi died leaving one son Abdul who sold some land to Sona Mia who in turn sold the same to Abdul Salam and Salma Begum and they then jointly sold their share to Akali Munshi; the first wife of Akali Munshi being childless, she and Akali Munshi adopted Jalaluddin as their son and then Akali Munshi gifted his share in favour of Jalaluddin; thereafter Basironnessa Bibi, second wife of Akali Munshi, gave birth to a female child and then at the request of Akali Munshi Jalaluddin gifted some land in faovur of Akali Munshi; subsequently Akali Munshi gifted some of his land in favour of Basironnessa Bibi; then Akali Munshi, Jalaluddin and Basironnessa Bibi jointly sold 29 decimals of land in favour of Nazimuddin by a kabala dated 3.4.1964 and Akali Munshi also transferred 29 dec­imals of land in favour of Nazimuddin by a kabala dated 22.4.1969 and accordingly the name of Nazimuddin was recorded in the S.A. Khatian; subsequently Nazimuddin died leaving one widow and four sons and four daughters as his heirs and all the heirs of Nazimuddin by kabala dated 18.4.1979 transferred the suit land in favour of the plaintiffs and then the plaintiffs, after mutating their names, con­structed semi pucca building in the suit land and also paid rents, taxes and current bills etc. but, on 9.10.1992, the defendant threatened the peaceful possession of the plaintiffs in the suit land and hence the suit. The defendant contested the above suit and filed written statement contending that Karim Munshi, the recorded owner, died leaving behind not only Rahman Munshi and Megha Munshi, sons, but also two daughters Sirjon Bibi and Sukhownessa Bibi and one wife Bahatunnessa Bibi who jointly transferred their share in favour of Rahman Munshi by a kabala dated 17.11.1927; Megha Munshi also transferred his entire share of land in favour of Rahman Munshi in the year 1928 A.D. by an unregistered kabala at a consideration less than Tk.100/- and handed over possession of the same in favour of Rahman Munshi; thus Megha Munshi, at the time of his death, having no right, title and possession in the suit land, his son Abul did not inherit any share and so the subsequent purchasers including the plaintiff did not acquire any right, title and interest in the share of Megha Munshi; Rahman Munshi while being owner of the suit land died leaving behind Kalim Munshi, Salim Munshi and Alimuddin Munshi, sons, and accordingly their names were recorded in S.A. Khatian No.204 but therein the names of their far was wrongly printed as Karim Munshi instead of Rahman Munshi; Alimuddin Munshi died leaving wife Sonabanu and two brothers Salim, Kalim; then Sonabanu gifted her entire share in favour of defen­dant No.1 by a heba deed dated 2.9.1987; Salim died leaving four sons and two daughters and they along with Kalim transferred their share in favour of defen­dant No.1 by six registered deed; Hachon Banu, in terms of a contract to sell her share to the defendant No.1, handed over the possession of her share to the defen­dant No.1 and thus defendant No.1 had been owing and possessing the suit land. The trial Court, after hearing, decreed the suit. On appeal the learned Additional District Judge, Dhaka allowed the appeal. The plaintiff-respondents then moved the High Court Division and obtained Rules and after hearing, the High Court Division made the Rule absolute.
 
3. We have heard the learned advocate-on-record, perused the impugned judgment and order and other connected papers.
 
4. As it appears the High Court Division found that both the plaintiffs and the defendants claimed title on the basis of purchases from the successive heirs of Rahman Munshi and Meghu Munshi and the plaintiffs, in order to prove their prima facie title, has produced Ext. 4, kabala dated 3.4.1968 showing purchase of .29 acres of land from plot No. 697 and Ext. 15, kabala dated 22.4.1969 showing purchase of .38 acres of land out of .58 acres from plot No.697, the sellers of which were Md. Jalaluddin and Akali Mistry, who became the owners of the suit land by purchase from the successive heirs of Meghu Munshi and the defendants, though accepted Meghu Munshi as one of the son of Karim Munshi but claimed that Karim Munshi died also leaving behind one widow and two daughters who trans­ferred their interest in favour of Rahman Munshi, but however, the defendants could not prove transfer by Meghu Munshi of his share to Rahman Munshi and the High Court Division further found that Exts.5, Ext.6, Ext.7 series, Exts.8 series, Ext.9, Exts. 10 series and Ext. 13 series, proved the exclusive possession of the plaintiffs in the suit land. The High Court Division also found that plaintiffs examined six witness whereas the defen­dants examined only one witness to prove their respective cases and the trial Court, having found that D.W. in his cross stated that "বাদীরা ওয়াল করিলে আমি Injunction চাই...............বাদীরা ওয়াল করিতে পারে নাই," decreed the suit holding that the defendants could not prove their exclusive possession in the suit land but the appellate Court, mainly relying on Ext. E, which is an order dated 21.11.92 passed by the Assistant Commissioner (Land), Tejgaon Circle, Dhaka in Miscellaneous Case No. 414 of 1989 allowed the appeal holding that "অত্র মোকদ্দমায় উভয় পক্ষ নালিশী সম্পত্তিতে দখল্কার বলিয়া দাবী করেন। কিন্তু নাম খারিজ ও খাজনা ও কাগজের মাধ্যমে প্রমান হয় বিবাদী এই সম্পত্তিতে দখলকার” but this above finding is not correct as Ext. E, though shows that the mutation in the names of the plaintiffs on the basis of Mutation Case No.6578/80-81 was set aside, but Ext. E does not show that the defendants were in possession of the suit land and/or direction was given to mutate the suit land in the names of the defen­dants and further Ext. E is also not an order having binding force on any court except the Revenue Office of the Government and in any way Ext. E does prove exclu­sive possession of the defendant in the suit land and/or disprove exclusive possession of the plaintiff in the suit land and more­over Exts. F and G, on the basis of which defendants claimed title as well as posses­sion, could not also be found in the records of the suit. The High Court Division further found that Ext.1, the C.S. Khatian, showed that Karim Munshi was the owner of 8 plots including Plot No.697 measuring in all 3.61 acres of land out of which Plot No.697 consists of .58 acres and since Karim Munshi was the owner of 3.61 acres of land and there were several other plots, the extent of land inherited by his heirs may be determined in a properly constituted suit and will not debar the plaintiffs to get the decree for permanent injunction if they are found in exclusive possession of more lands then they are entitled to retain possession according to the devolution of their interest.
 
5. We are of the view that the High Court Division on proper consideration of the materials on record discharged the Rule. The learned counsel could not point out any illegality or infirmity in the decision of the High Court Division so as to call for any interference.
 
The petition is dismissed.
 
Ed.