Azim Sarawar Bashar & ors. Vs. Belayed Hossen and others, 2018(1) LNJ 126

Case No: First Miscellaneous Appeal No. 70 of 2017

Judge: Kashefa Hussain, J.

Court: High Court Division,

Advocate: Mr. Md. Mustafa, Advocate, Mr. Md. Nurul Amin,

Citation: 2018(1) LNJ 126

Case Year: 2017

Appellant: Azim Sarawar Bashar and others

Respondent: Belayet Hossen and others

Subject: Code of Civil Procedure

Delivery Date: 2018-05-30

HIGH COURT DIVISION

(CIVIL APPELLATE JURISDICTION)

S. M. Emdadul Hoque, J

And

Kashefa Hussain, J

Judgment on

04.07.2017

}

}

}

}

Azim Sarawar Bashar and others

. . . Petitioners

-Versus-

Belayet Hossen and others

. . .Respondent

Code of Civil Procedure (V of 1908)

Order XXXIX, Rule1

Construction in urban areas cannot be hauled or stopped by an order of injunction. Since scarcity of land, utmost necessity for accommodation etc in urban areas is a stark reality, consequently causing impediments and obstacles to construction in urban areas by order of temporary injunction shall result in unfairness and serious inconveniences to the urban dwellers and the public in general. Making or continuing construction of building for residential or other purposes whatsoever during pendency of any suit be it a partition suit or any other type of suit should be allowed and the party or parties who have undertaken the construction ought not to be obstructed from doing so. But of course, there is no gainsaying the fact that the party undertaking the construction during pendency of a suit or suits whatsoever shall continue construction at his own risk and peril depending on the result and fate of the suit.              . . . (12 and 13)

Mofazzal Hosain Vs. Mainuddin, 3 BLC (AD) 1998, 78; Nasir Uddin Howalder Vs. Abul Kalam, 8 BLC (AD) 2003, 156; Ali Ahmed Vs. Rezia Begum and others 1986 BLD 326 and Abul Kalam Engineer Vs. Nasiruddin Howlader 54 DLR 2002, 515 ref.

Mr. Md. Mustafa, Advocate

. . . For the Appellants

Mr. Md. Nurul Amin with     

Mr. Ahmed Nowshed Jamil, Advocate

... For the Respondents

JUDGMENT

Kashefa Hussain, J. This appeal is directed against the judgment and decree dated 16.02.2017 passed by the learned Joint District Judge, First Court, Khulna in Title Suit No. 10 of 2017 rejecting the application for temporary injunction.

2.            Facts relevant for disposal of this appeal is that the plaintiff-appellants instituted Title Suit No. 10 of 1997 in the Court of Joint District Judge, 1st Court, Khulna for partition. The case of the plaintiffs in short is that the land measuring an area of .10 decimal appertaining to S.A. Khatian No. 1750 belonged to Moshammat Halima Khatun; that while owner in possession Halima Khatun died leaving behind 5 sons namely Delowar Hossain, Belayet Hossain, Ishtiaque Hossain, Iftekhar Hossain and 5 daughters namely Suraiya alias Shuraiya Bashar, Sultana Begum Iva, Ferdousi, Nila Ferdousi and Diba Ferdousi. As per Mohammedan Law Suraiya Bashar obtained .0067 acres of land and she as owner in possession died leaving behind one son and 3 daughters. The plaintiff’s case is that the plaintiffs as legal heirs have been owning and possessing their share with the co-sharer and paying rents and other taxes that in the present R.S. settlement the suit land was not recorded in the name of the plaintiffs for which they filed Tribunal Case No. 1342 of 2016 at the Land Survey Tribunal which is pending at the Tribunal.

3.            The suit land was never partitioned by metes and bounds amongst the co-sharers for which the plaintiffs faces difficulties in enjoying the share and as such they demanded partition but which the defendant refused on 05.01.2017. The plaintiff’s after filing the suit filed an application under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure for restraining the defendants from changing the nature and character of the suit land, stating inter alia that the defendants inspite of being aware of the case filed by the plaintiff in Land Survey Tribunal are trying to build structure on the suit land. The defendant Nos. 2,3,5,6 resisted the application for injunction by filing written objection denying material allegations and contending inter alia that Halima Khatun is the 2nd wife of Farhad Hossain and plaintiff’s mother is the 1st wife of Farhad Hossain, the suit is a self acquired property of Halima Khatun and the plaintiff did not inherit the suit land.

4.            Being aggrieved by the judgment and order dated 16.02.2017 passed by the learned Joint District Judge, 1st Court, Khulna in Title Suit No. 10 of 2017 rejecting the application for temporary injunction, the plaintiff’s as appellants preferred the instant First Miscellaneous Appeal which is before us for disposal.

5.            Learned Advocate Mr. Md. Mostafa appeared for the plaintiff-appellants while Mr. Md. Nurul Amin along with Mr. Ahmed Nowshed Jamil appeared for the defendant-respondents.

6.            Learned Advocate for the plaintiff-appellants submitted that the court below caused serious injustice by committing error in law in rejecting the application for temporary injunction. He elaborates his submission by asserting that the learned Joint District Judge without discussing the evidence on record and without considering the prima-facie cause of the respective parties and without considering the balance of convenience and inconvenience, rejected the application for temporary injunction only quoting the case land reported in 54 DLR page-515 which is not applicable in the case and thereby committed an error of law resulting in an error in the decision occasioning failure of justice.

7.            He further contends that the plaintiffs-appellants permanently reside in Barisal town and the defendants reside in Khulna and the plaintiffs possess the land and pay rents, taxes through them but that the defendant-respondent are taking advantage in absence of the plaintiff and trying to build structures permanently on the suit land including the plaintiff land and if they succeeds, the plaintiff would suffer irreparable loss and injury and the plaintiff would be deprived from their land. He further submits upon assertion that the plaintiff-petitioners have good prima-facie and arguable case and balance of convenience and inconvenience is in favour of the plaintiff-petitioners. Therefore relying upon his submissions he asserts that the appeal bears merit and ought to allowed for ends of justice.

8.            On the other hand learned Advocate for the respondents upon filing a counter affidavit denied all the material allegations of the plaintiff-appellants. He argues that the plaintiffs are not co-sharer in the suit land and they are not heirs of Halima Khatun and that they have no right, Title and possession in the suit land. He further asserts that the Plaintiffs never paid any sort of rents/tax against the suit land through the defendants. He continues his argument upon assertion that the defendants started construction in the suit land by taking plan from the Khulna Development Authority. He further submits that the defendant-respondents procured the particulars of Suraya Bashar from the office of Election Commissioner, Khulna wherefrom it transpires that the name of the mother of Suraya Bashar is Jahanara Begum. The local councillor of Khulna city Corporation issued Succession Certificate of Halima Khatun on 02.08.2000 and 03.04.2016. He further contends that Barishal City Corporation has issued birth certificate and death certificate of Suraya Basher on 04.05.2017 and 07.05.2017 and contends that the Suit land was recorded in the recent R.S. survey in the name of defendant-respondents in R.S. Khatian No. 7230. He assails that the defendant-respondent have started construction in the suit land taking plan from Khulna Development Authority.

9.            He also asserts that the plaintiffs have failed to prove their specific possession in the suit land, as such they are not entitled to have an order an injunction and that in these days of scarcity of accommodation in urban areas a co-sharer should not be deprived of using the land in his possession, which is a subject matter in this suit for partition but that he ought to be allowed to make constructions pending the suit at his own risk and peril.

10.        In support of the submission learned Advocate Mr. Nurul Amin cited 4 decisions both of our Apex Court including this Division, being in the case of Mofazzal Hosain Vs. Mainuddin reported in 3 BLC (AD) 1998 page-78; in the case of Nasir Uddin Howalder Vs. Abul Kalam reported in 8 BLC(AD) 2003 page-156; in the case of Ali Ahmed Vs Rezia Begum and others reported in 1986 BLD page-326 and in the case of Abul Kalam Engineer Vs. Nasiruddin Howlader reported in 54 DLR 2002 page-515

11.        Relying upon his submission and the decision cited by him the Learned Advocate for the respondent concludes that the appeal does not bear any merits and ought to be dismissed.

12.        We have heard the Learned Advocates perused the impugned order, the counter affidavit filed by the respondent and the decisions cited before us by the respondents. Upon scrutiny into the documents before us it prima-facie appears, particularly from the Annexures-2,3 Series and 4 series that the name of the mother of the plaintiff-appellant’s mother is different from the name of the respondent’s mother. It is prima-facie clear from the Annexures that the name of the plaintiffs-appellant’s mother’s mother, that is the name of Suraiya Bashar’s mother is Jahanara Begum and the name of the respondents’ mother is Halima Khatun. Therefore it is prima-facie apparent that the mothers of the plaintiff-respondents are different. From Annexure-5 of the counter affidavit it also appears that the BRS record pertaining to the schedule suit property does not bear the name of the plaintiffs’ mother. Though the plaintiff’s-appellants had filed a case against the BRS record before the Land Survey Tribunal and though the Learned Advocate for the appellants submitted that they were paying taxes, rents etc but yet no documentary evidence in support has been produced before the Court. We have also perused the decisions of our Apex Court and in respectful agreement with the decisions of our Apex Court which are binding on us, we are also of the view that construction in urban areas cannot be hauled or stopped by an order of injunction. Since scarcity of land, utmost