Abdul Hye and others Vs. Abul Mobarak and others, (Md. Moinul Islam Chowdhury, J.)

Case No: Civil Revision No. 69 of 2010

Judge: Md. Moinul Islam Chowdhury, J

Court: High Court Division,

Citation: 2019(1) LNJ

Case Year: 2017

Appellant: Abdul Hye being dead his legal heirs 1(Ka). Mahmuda Khatun (wife) and others.

Respondent: Abul Mobarak and others

Subject: Code of Civil Procedure

Delivery Date: 2019-12-04

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Md. Moinul Islam Chowdhury, J

 

Judgment on

06.08.2017

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Abdul Hye being dead his legal heirs 1(Ka). Mahmuda Khatun (wife) and others.

. . . Plaintiff-Appellant-Petitioners

-Versus-

Abul Mobarak and others  

...Principal-Defendant-Respondent-Opposite Parties

Code of Civil Procedure (V of 1908)


Order XXXIX, Rules 1 and 2

The present-petitioners sought for ad interim order of temporary injunction on the basis of an administrative order for dispossessing them from the suit land by the present-opposite parties. However, the learned courts below concurrently found that an ad interim order of temporary injunction would not be required as the present-opposite parties are in possession. In this regard, I consider that the claim and counter claim as to the possession of the suit land should be settled by way of dispossessing the suit itself instead of passing any order of restrainment by way of deciding a temporary injunction. Therefore, I consider that a status quo order should be maintained by all the relevant parties in order to an expeditious hearing of the Title Suit No.303 of 2005.   . . .(10)

Mr. Md. Momtazuddin Fakir, Advocate

. . .For the Plaintiff-Appellant-Petitioners

Mr. Sarwar-E-Deen, Advocate

. . . For the Opposite Party Nos.1-5

JUDGMENT

Md. Moinul Islam Chowdhury, J:- At the instance of the present-plaintiff-appellant-petitioners, Abdul Hye being dead his legal heirs 1(Ka). Mahmuda Khatun (wife) and others, this Rule has been issued calling upon the opposite parties to show cause as to why the impugned judgment and order dated 13.09.2009 passed by the learned Joint District Judge, 3rd Court, Noakhali in Miscellaneous Appeal No.56 of 2006 disallowing the appeal and affirming the judgment and order dated 12.10.2006 passed by the learned Senior Assistant Judge, Sadar, Noakhali in Title Suit No.303 of 2005 rejecting the temporary injunction should not be set aside. 

2.             The relevant facts for disposal of this Rule, inter-alia, are that the present petitioners as the plaintiffs filed the Title Suit No.303 of 2005 in the court of the learned Senior Assistant Judge, Sadar, Noakhali for declaration of title upon the land mentioned in the plaint and also for declaration that the judgment and decree passed on 11.04.1999 in the Title Appeal No.90 of 1997 arising out of the Title Suit No.508 of 1991 as collusive and not binding upon the plaintiffs. The plaint case is that the plaintiffs got settlement of land measuring 97.30 acres as described in Schedule “Ka” of the plaint from the government in the name of “Udayan Krishi Samabay Samity” by a registered deed No.10707 dated 19.06.1996  for the tenure of 15 (fifteen) years and after expiry of 15 years the government surveyed the total land through an institution known as CDSP in the year of 2004 in order to settle the land 2.00 acres for agricultural purpose and 2.50 acres for  residential purpose to each of the members of the said Samilty. The plaintiffs came to know about an order passed regarding 26.44 acres the suit land to be settled to the present-defendant-opposite party Nos.1-5 which prompted to file this suit. The suit is pending. During pendency of the suit the plaintiffs filed an application under Order 39, Rules 1 and 2 and under Section 151 of the Code of Civil Procedure praying for a temporary injunction in order to restrain the defendant-opposite party Nos.1-5 from dispossessing them from the suit land.

3.             The present-opposite parties as the plaintiff-opposite party Nos.1-5 opposed the prayer for temporary injunction by filing a written objection denying the statements made in the application. It is contended that one Majub Ali was the owner and possessor of 24.49 acres by way of settlement deed Nathi No. 665 of 1941-42 as being the land of Khash Mohal Khatian (KMK). Accordingly, a new holding was opened under the Khatian No.4881 and they have been paying rent to the government. Majub Ali died leaving behind his brother Moinul Haque, who gifted the same by Heba-Bil-Ewaz deed executed on 12.07.1979 and registered on 08.09.1979. The said Abul Khair transferred the suit land to the present-defendant-opposite party Nos. 1-5 by way of oral gift and they are in possession of the suit land.

4.             After hearing the parties, the learned Senior Assistant Judge, Sadar, Noakhali rejected the said application for temporary injunction. Considering the evidence adduced and produced by the parties. Being aggrieved the present-petitioners as the appellants preferred the Miscellaneous Appeal No.56 of 2006 in the court of the learned District Judge, Noakhali which was heard by the learned Joint District Judge, Court No.3, Noaskhali on transfer, who by his judgment and order dated 13.09.2009 disallowed the appeal by affirming the judgment of the trial court. This revisional application has been filed challenging the legality of the said impugned judgment and Rule was issued thereupon. 

5.             Mr. Mamtazuddin Fakir, the learned Advocate appearing for the petitioners submits that both the courts below committed an error of law resulting in an error in the decision occasioning failure of justice in rejecting the prayer for temporary injunction without considering the facts and circumstances of the case and series of documents filed by the petitioners. 

6.             The Rule has been opposed by the present-opposite party Nos.1-5.

7.             Mr. Sarwar E-Deen, the learned Advocate appearing for the opposite party Nos.1-5 submits that both the courts below after hearing the parties concurrently disallowed the application for temporary injunction on the ground that the present-opposite party Nos.1-5 got a decree in the Title Suit No.508 of 1991 against the government therefore they have title and possession upon the suit land.

8.             Considering the above submissions made by the learned Advocates appearing for the respective parties and also considering the revisional application filed under Section 115(1) of the Code of Civil Procedure along with the Annexures therein, it appears to me that the present petitioners as the plaintiffs filed the suit claiming title upon the total suit land measuring 97.30 acres of land situated in Block Dag No. 107, Bit No.02, Khatian No.01, Mouja Madda Baggar Char, Upa-zilla- Sudharampur, District- Noakhali. The present-petitioners claimed that the suit land was settled by the government on 19.06.1986 to the defendant No.7 Udayan Bhumihin Joutha Krishi Samayabay Samity Limited by a gazatte notification as being newly alleviated char land and by opening a new Mouja for a period of 16 years. After expiry of 15 years, the government took initiative for renewal of the land in favour of the plaintiff-petitioners upon the suit land measuring 2.50 acres for each member of the said Samity through an organization known as CDSP. Therefore, the petitioners are in actual possession of the suit land. On the other hand, the present-opposite party Nos.1-5 as the defendants claimed their entitlement through a settlement in the name of Khash Mohal Khatian (KMK) through a Nathi No.665 of 1941-42 in the name of one Majub Ali, who was the predecessor of the present-opposite party Nos. 1-5 by way of oral gift in their favour and they have also claimed possession upon the suit land. Their claim is based upon a decree passed in the Title Suit No.508 of 1991 against the government and the present-petitioners challenged the legality of the said decree.

9.             This Court would not enter into the merit of the Title Suit No.303 of 2005 because this revisional application is based upon an ad interim order of temporary injunction. I have perused the relevant documents in the said application and found that there are conflicting factual aspects as to the possession of the suit land. The conflict arose between the parties on the ground that whether the government settled the land in favour of the present-petitioners in the year of 1986 or whether the government settled the land in favour of the predecessor of the present-defendant-opposite parties during 1941-42 as the Khash Mohal Khatian (KMK). From the above given facts it is clear that the government is the owner and still remained to be an owner of the suit land as both the parties claimed their entitlement through lease from the government. This matter is to be decided by the learned trial court after hearing the parties and considering the evidence adduced and produced by the respective parties.

10.         The present-petitioners sought for ad interim order of temporary injunction on the basis of an administrative order for dispossessing them from the suit land by the present-opposite parties. However, the learned courts below concurrently found that an ad interim order of temporary injunction would not be required as the present-opposite parties are in possession. In this regard, I consider that the claim and counter claim as to the possession of the suit land should be settled by way of dispossessing the suit itself instead of passing any order of restrainment by way of deciding a temporary injunction. Therefore, I consider that a status quoe order should be maintained by all the relevant parties in order to an expeditious hearing of the Title Suit No.303 of 2005.

11.         In view of the above, I am of the opinion that the impugned judgment and order passed by the appellate court affirming the judgment and order of the trial court does not require as I am inclined to dispose of the Rule.

12.         Accordingly, the Rule is disposed of with the following direction. 

13.         The impugned judgment and order passed by the learned appellate court and also the judgment and order of the trial court are hereby set aside.  

14.         All the relevant parties are hereby directed to maintain status quo in respect of possession and position of the suit land untill disposal of the Title Suit No.303 of 2005 pending in the court of the learned Senior Assistant Judge, Sadar, Noakhali.

15.         The learned Senior Assistant Judge, Sadar, Noakhali is hereby directed to conclude and dispose of the Title Suit No.303 of 2005 within one year from the date of receipt of this judgment and order without allowing any unnecessary adjournment for the interest of expeditious disposal of the suit.  

16.         The ad-interim order of status quo granted at the time of issuance of the Rule is hereby recalled and vacated as afresh status quo order is passed.

17.         The office is directed to communicate this judgment and order to the concerned court at once.

Ed.