Abdul Khaleque Vs. Md. Shamsul Alam and others 2016 (2) LNJ 242

Case No: First Miscellaneous Appeal No. 135 of 2010 with Civil Rule No. 324(FM)/10

Judge: Kashefa Hussain,

Court: High Court Division,,

Advocate: Mr. Sk. Zulfiqur Bulbul Chowdhury,Mr. Md. Abdul Matin Sardar,Mr. Mizan Sayeed,Ms. Farzana Rashid,,

Citation: 2016 (2) LNJ 242

Case Year: 2016

Appellant: Abdul Khaleque

Respondent: Md. Shamsul Alam and others

Subject: Civil Law,

Delivery Date: 2015-11-23

Abdul Khaleque Vs. Md. Shamsul Alam and others 2016 (2) LNJ 242
HIGH COURT DIVISION
(CIVIL APPELLATE JURISDICTION)
 
Syed Muhammad Dastagir Hussain, J
And
Kashefa Hussain, J
Judgment on

23.11.2015
  Abdul Khaleque, represented by constituted Attorney Abdul Quayum
. . .Plaintiff-appellant
-Versus-
Md. Shamsul Alam Chairman and Managing Director of Hyporia Building Limited and others
. . .Principal –defendant- respondents.
 
Code of Civil Procedure (V of 1908)
Order XXXIX, Rule 1
It is an admitted fact that the plaintiff is not in possession of the property and it is also admitted that permission to transfer property was not obtained by the power of attorney holder while selling the suit land on behalf of the legal heirs of the original lessee and it also appears from the records that the construction upon the suit land has sufficiently progressed. The defendant-respondents being in possession of the property and having obtained prior permission before purchasing the suit land and construction already started and having made sufficient progress, the case is not prima-facie case in his favour and the plaintiff having failed to show possession and prima facie title in the suit property, the balance of convenience lies in favour of the defendant. Trial Court correctly passed the Order rejecting the application for temporary injunction and accordingly the appeal is dismissed.   (13 & 14)

Mr. Sk. Zulfiqur Bulbul Chowdhury with
Mr. Md. Abdul Matin Sardar, Advocates,
. . . For the plaintiff-appellant.
Mr. Mizan Sayeed with
Ms. Farzana Rashid , Advocates,
. . . For the defendant-respondents.

First Miscellaneous Appeal No. 135 of 2010 with Civil Rule No. 324(FM)/10.
 
JUDGMENT

Kashefa Hussain, J :
         The supplementary-affidavit do form part of the main petition.
  1. This Civil Miscellaneous appeal is directed at the instance of the plaintiff-appellant against Order No.06 dated 04.05.2010 passed by the learned Joint District Judge, 1st Court, Cox’s Bazar in Other Class Suit No.33 of 2010 rejecting the application for injunction. 
  2. The facts relevant for disposal of the miscellaneous appeal in a nutshell is that, the appellant as plaintiff filed Other Class Suit No.33 of 2010 inter alia, praying for declaration of title. Subsequently however the plaintiff made an application under Order 6 Rule 17 of the Code of Civil Procedure and also made added prayer for recovery of khash possession.
  3. The facts of the case of the plaintiff inter alia, is that the suit land was acquired by the Public Works Department (P.W.D) and subsequently the land leased by the P.W.D to different persons and the suit land was obtained in lease by one Mr. Jalal Ahmed from the P.W.D following due procedure and he also obtained possession thereof in the suit land and after  the death of Jalal Ahmed his wife, two sons and three daughters became his lawful heirs and they gave power of attorney to one Mr. Salim through two registered deeds being Nos.1416 of 1995 on 16.04.1995 and 2502 of 1995 on 19.11.1995 respectively primarily with the power to supervise and transfer and the plaintiff purchased the suit land from the said power of attorney holder. While in possession of the suit land a dispute arose with the defendant No.1, a businessman and developer and that one stage he went up to Ministry of Public Works and the concerned Ministry advised them to settle the dispute lawfully by taking resort to law. The defendant No.1 conspired against the plaintiff and in consequence the power of attorney given to Md. Salim was ultimately revoked unlawfully on 08.03.2007 and the suit land was also mutated in their names for further approval of construction and building plan in the suit land.
  4. The defendant No.1 filed a written statement denying all the material allegations against him and stated that the legal heirs of the original case while in possession of the property upon paying due taxes and constructing building thereupon was residing therein. At one stage being in need of  money, they decided to sell the suit land to the  defendant No.1through registered kabala No.2817 of 2007 and in pursuance the defendant No.1 after depositing due taxes etc, obtained approval of construction and building of the suit land from the concerned authorities The defendant No.1 also states that while transferring the same, Md. Salim the power of attorney holder transferring the suit land did not obtain permission from the relevant concerned authorities i.e. Ministry of Public Works and Housing whereas the legal heirs of the original lessee before transferring the suit land  to the defendant No.1obtained due permission from the concerned Ministry.
  5. Mr. Sk. Zulfiqur Bulbul Chowdhury with Mr. Md. Abdul Matin Sardar the learned Advocates appeared on behalf of the plaintiff-appellant while Mr. Mizan Sayeed with Ms. Farzana Rashid the learned Advocates appeared on behalf of the defendant-respondents to oppose the appeal.
  6. Mr. Sk. Zulfiqur Bulbul Chowdhury, the learned Advocate for the plaintiff-appellant submits that he had purchased the suit land from the power of attorney holder by dint of the power of attorney given to the holder by the legal heirs of the original lessee by registered deed No.2109 on 25.07.2000 and asserts that he also got his name mutated following a lawful mutation case and opened B.S. khatian in his name in addition to paying rents up to the year 2010. He contends that the subsequent revocation of the power of attorney by the legal heirs of the original lessee does no cast any cloud on his title, since the power of attorney given to him by the legal heirs of Jalal Ahmed was a valid one and the suit land was sold to him by Md. Salim the power of attorney holder. He pursued that he is a bona-fide purchaser of the property with value in good faith and therefore the subsequent revocation does no cast any cloud on his Title. The learned Advocate however admits that the plaintiffs are not in possession of the suit land and was dispossessed on 05.05.2010 by the defendant No.1. He persuaded that the Trial Court committed serious illegality in not granting him a temporary injunction, since it is “evident” that the plaintiff is the lawful holder of Title to the property. The learned Advocate for the appellant draws our attention to Section 48 of the Transfer of Property Act and submits that in keeping with the provisions of Section 48 of the T.P. Act the plaintiff’s title deed being earlier in time will prevail upon the defendant No.1’s but he contends that the Trial Court without taking into consideration these factors, upon a serious error of law and fact rejected the prayer for temporary injunction and thereby committed serious illegality and submits that therefore the Rule is liable to made absolute. 
  7. On the other hand, Mr. Mizan Sayeed, the learned Advocate appearing on behalf of the defendant-respondents opens his submissions by drawing our attention to the fact that no permission from the concerned authorities was taken by the power of attorney holder Md. Salim while selling the suit land to the plaintiffs. In pursuance to his contention he reiterates upon the point that according to the relevant rules, while transferring property permission has to be obtained mandatorily from the concerned ministry or any other authority by dint of delegated power. But he asserts that in this case the power of attorney holder did not take any such permission to sell the suit land from the concerned authorities. He also takes us through the standard agreement which has been marked as Annexure-“B” of the application for vacating the order of status-quo filed by the respondent. He specifically takes us to Clause 11 and Clause 20 of the lease agreement. He points out that prior permission from the lessor is mandatory before transferring the lease hold property under Clauses II of the original standard lease agreement dated 30.04.1981 and no transfer of the demised property without sanction of the lessor shall be valid, binding or effective under Clause 20 of the original lease deed. He further contends that the date of dispossession of the suit land was also not correctly stated by the plaintiff appellants. He points out that in para 7 and 13 of the counter affidavit, the appellant stated the date of dispossession as 25.02.2008 but in his oral submissions the appellant submitted that he was dispossessed on 05.05.2010. In context of such inconsistencies of the Appellant,  he contends that the plaintiff having been not in possession and not having obtained valid permission while the suit land was transferred to him, hence he could not make out any prima-facie case in his favour and the Trial Court lawfully and correctly rejected his application for temporary injunction.
  8. Heard the learned Advocates for both sides, perused the application and all the materials available on record, wherefrom it significantly transpires that the plaintiffs while purchasing the suit land did not obtain permission from the relevant authorities. On the other hand, it is apparent from the records that the legal heirs of the original lessee while selling the suit land to the defendant No.1 developer obtained necessary permission of the concerned Ministry. The learned Advocate for the appellant while making his submissions however assailed that not taking permission is a mere ‘irregularity’ and not an illegality.
  9. On the other hand, Learned Advocate for the respondents submits that since the appellant did not take permission from the authorities’  the sale of the suit land to the plaintiff by the power of attorney is a nullity and  void  ab-initio since obtaining permission from the concerned  authorities is a mandatory provision of the relevant Rules. We have examined the records and it is evident from Annexure-‘B’ of the application for vacating the order of status-quo by the respondents, where the proviso of clause 20 of the standard lease agreement actually makes it expressly mandatory for   prior approval of permission before transfer of any land of which it is the lessor and the proviso expressly states that any transfer without permission will not be valid, binding or effective. We have also noticed from perusal of the record that it is an admitted fact that the plaintiff was dispossessed of the property and it is also true that there are discrepancies and inconsistency in his statement regarding the date of dispossession. While examining the materials on record before us, we have also perused the report of the Advocate Commissioner dated 28.03.2011 which is annexed and marked as Annexure-‘CC’ in the reply of the respondents to the counter affidavit filed by the Plaintiff Appellants. It is revealed from Annexure –‘CC’ that the Advocate Commissioner in his report made an observation that at the time of inspection the construction work on the 6th floor of the building was found  to be approximately one year and 2/3 months old building. From this report it may be assumed that the construction work had started around 2009 approximately and also helps to ascertain the fact that the plaintiff was actually not in possession since 2008.
  10. The learned Advocate for the appellant had drawn our attention to Section 48 of Transfer of Property Act wherein he had argued that in accordance with the principles of Section 48 of Transfer of Property Act, the plaintiff’s title deed being earlier in time shall prevail over the defendant No.1ˈs title deed. Regarding this submission of the appellant, our considered view is that the legality or validity of either deed has not been decided yet and those will be decided in the suit. We are here to decide whether the rejection of the application for temporary injunction was given correctly or not.
  11. The Learned Advocate for the Respondents while elaborating upon assertions contended that the plaintiff- Appellant failed to show possession in the property and therefore could not prima facie make out any case in favour of the plaintiff’s prayer for temporary injunction. In support of his submissions he cited a few  decisions before us, including that of our Apex Court in the case of Babul Chandra Biswas and others versus Dina Bandhu Chowdhury and others where the underlying principle propounded by Their Lordship’s was that fact of possession must be proved before granting temporary injunction. 
  12. Upon considering of the facts and circumstances and all the materials on record placed before us and also relying upon the decisions cited before us, it is an admitted fact that the plaintiff is not in possession of the property and it is also admitted that permission to transfer property was not obtained by the power of attorney holder while selling the suit land on behalf of the legal heirs of the original lessee and it also appears from the records that the construction upon the suit land has sufficiently progressed. Therefore we are constrained to hold that the defendant-respondents being in possession of the property and having obtaining prior permission before purchasing the suit land and construction already started and having made sufficient progress, the case is not prima-facie case in his favour and the plaintiff having failed to show possession and prima facie title in the suit property, the balance of convenience lies in favour of the defendant.
  13. Under the foregoing facts and circumstances we are of the considered view that the Trial Court correctly passed Order No. 06 dated 04.05.2010 in Other Class Suit No. 33/2010 rejecting the application for temporary injunction filed by the defendant-appellant. Therefore we find no substance in the appeal and accordingly the appeal is dismissed.
  14. In the result, the appeal is dismissed and the connected Rule being Civil Rule No. 324(FM)/10 is hereby discharged without any order as to costs.
  15. The status-quo order granted earlier by this Court stands vacated.
         Communicate the order at once along with a copy of this judgment to the Court below immediately for information and necessary action.
Ed.