Bashir Ahmed Vs. DG, Bangladesh Railway & others, (Md. Rezaul Hasan, J.)

Case No: Civil Revision No. 1225 of 2016

Judge: Md. Rezaul Hasan, J

Court: High Court Division,

Advocate: Mr. Zulfiqur Ahmed with Mr. Shahnoor Ahmed, Advocates.,

Citation: 2019(1) LNJ

Case Year: 2018

Appellant: Bashir Ahmed

Respondent: Director General, Bangladesh Railway, Abdul Gani Road, Dhaka and others

Subject: Code of Civil Procedure

Delivery Date: 2019-11-26

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Md. Rezaul Hasan, J

 

Judgment on

18.07.2018

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Bashir Ahmed

. . .Plaintiff-Petitioner

-Versus-

Director General, Bangladesh Railway, Abdul Gani Road, Dhaka and others

. . .Defendant-Opposite party.

Code of Civil Procedure (V of 1908)

Order XIV

Rules 1, 2 and 3

The plaintiff has claimed title in the suit land under the guise of eviction suit and that he has also asserted his title in the suit land. Therefore, apparently it is not a suit for eviction simplicitor, rather a suit in which the issue as regards the title of the plaintiff has to be framed and decided. The dispute in issue involves the question of deciding the locus-standi of the plaintiff who has filed the suit for eviction by claiming title, in addition to his possession in the suit land, and it is necessary to ascertain as to whether the plaintiff had any title in the suit land and also to determine as to whether the suit is maintainable in its present form. If it is found that, the plaintiff has no title or if he is found to be a trespasser or is found to be land grabber, then he would have no locus-standi to file this suit and thereby to directly or indirectly title in the suit land a building on the suit land to avoid eviction under the Government and (Recovery of Local Authority Recovery of Possession Ordinance), 1970, or as per law. No merit in the Rule and it is discharged.    . . . (13 to 15)

Mr. Zulfiqur Ahmed with

Mr. Shahnoor Ahmed, Advocates.

. . . For the petitioner.

Mr. S.M. Salim, Advocate.

        ...For the Opposite Party Nos. 3 and 4.

Mr. Sk. Shafique Mahmud, Advocate.

     ...For the Opposite Party Nos. 1 and 2.

JUDGMENT

Md. Rezaul Hasan, J. This Rule has been issued calling upon the Opposite Parties to show cause as to why the impugned judgment and order dated 21.03.2016, passed by the Additional District Judge, 1st Court, Chattogram, in Civil Revision No. 44 of 2015, reversing the order dated 06.04.2015, passed by the Senior Assistant Judge, 5th Court, Chattogram in Other Class Suit No. 263 of 2009, rejecting the application for addition of party, should not be set-aside and/or pass such other order or orders passed as to this Court may seem fit and proper.

2.             Facts, relevant for disposal of the Rule, in short, are that the plaintiff-petitioner has filed Other Class Suit No. 263 of 2009 against the Opposite Party Nos. 3 and 4 with a prayer for evection of the tenant named in the plaint, from the schedule land.

3.             The Opposite Party Nos. 1 and 2 have filed an application, in that suit, on 26.02.2015, to add them as defendants and to amend the plaint by adding them as defendant Nos. 1 and 2, alleging that Bangladesh Railway is the owner of the suit property and that the son of the plaintiff was granted lease by the Railway, in respect of the suit property. The Opposite Party No. 1 Bangladesh Railway filed the application for addition of party and pleaded that, unless they are added as party, the title of the Opposite Party No. 1, Bangladesh Railway will be clouded.

4.             The plaintiff-petitioner has filed written objection to the said application for addition of party, though the same has not been annexed with the application for revision.

5.             The Senior Assistant Judge, 5th Court, Chattogram, after hearing the application for amendment (by way of addition of party) has rejected the same by his order dated 06.04.2015, mainly, stating as ground, that since the suit was filed for evection, therefore, if a decree is passed in that suit, the title of the applicant-Railway will not be clouded.

6.             Against the said judgment and order of rejection dated 06.04.2015, Bangladesh Railway has filed Civil Revision No. 44 of 2015 before the District Judge, Chattogram, which was heard by the Additional District Judge, 1st Court, Chattogram, who, after hearing the same, has allowed the revision by his judgment and order dated 21.03.2016, stating the reason that the disputed property was acquired for Railway, pursuant to L.A. Case No. 1979-60 and the possession of the suit land was handed over to the Railway by a certificate dated 22.02.1961. The revisional Court has also found that, on the suit land, Bangladesh Railway has constructed rail line connecting Jalalihat to Dojahari-Chottagram Rail line.

7.             Being aggrieved by and dissatisfied with the said judgment and order dated 21.03.2016, the plaintiff-petitioner has filed this revisional application and obtained the present Rule.

8.             Mr. Zulfiqur Ahmed and Mr. Shahnoor Ahmed, learned Advocates appeared for the plaintiff-petitioner and having placed the petition alongwith the materials on record, he mainly submits, highlighting that it is a suit for evection and the trial Court has rightly held that, even if the suit is decreed, the title of the Bangladesh Railway will not be clouded in any way, in as much as, it was not a suit for declaration of title. He also submits that, the impugned judgment and order, passed by the revisional Court was wrong and if the petition for amendment, by way of addition of party, is allowed this will change the nature and character of suit as well as separate valuation should have to be made and that it will change the jurisdiction of the Assistant Judge and, as such, the Rule is liable to be made absolute.

9.             On the other hand, Mr. Sk. Shafique Mahmud, learned Advocate, appearing on behalf of the Opposite party Nos. 1-2, submits that, basically the disputed land was acquired by the Government, vide L.A. Case No. 75/59-60, and its physical possession was handed over to the railway by way of a certificate of possession, on 22.02.1961. He next submits that, after getting the physical possession of the land in question, Bangladesh Railway had extended rail line from Jalalihat to Dojahari-Chattogram over the acquired land that also includes the suit land and that some portion of the land was leased out by way of giving license to some persons, while some portion of the acquired land remained unused at the relevant time. Subsequently, on 08.01.2015, following the dispute raised, it was found that, a person named Md. Mizanur Rahman, as plaintiff, filed the aforesaid suit for evection, claiming that he was owner in the suit land, but he was never the owner of the said land, rather he is a land grabber. He also submits that, the impugned judgment and order is proper and lawful and the same does not call for interference. He prays for discharging the Rule. 

10.         Learned Advocate Mr. S.M. Salim appeared for the opposite party Nos. 3 and 4 and he has made submission supporting the case of the Railway (the opposite party Nos. 1 and 2) and asserts that, the suit land belonged to the railway, since acquired by the aforesaid L.A. Case No. 75/59-60 and that physical possession of the same was handed over to the railway. He also submits that, earlier the opposite party Nos. 3 and 4 made small shops on the suit land, which were demolished by the railway and the railway has restored its possession and still in possession in the suit land.

11.         I have heard the learned Advocates appeared for the parties, perused the application for revision, as well as the judgment and order of both the Courts below and other materials in the record.

12.         It appears from the averments made in the plaint that the plaintiff has claimed title in the suit property, vide paragraph No. 1 of the plaint, as the successor of one Reajot Ali, who is said to be the owner of the suit land as per R.S. Khotian No. 3874 of Mouza Mohora (suit Plot No. 10307) and that, as owner of the suit land he has filed the suit for evection of his tenant (O.P. Nos. 3 and 4).

13.         In view of the statements made in the plaint as well as the averment made in paragraph No. 7 of the counter affidavit filed by the Opposite Party Nos. 1 and 2, I find that, the plaintiff has claimed title in the suit land under the guise of evection suit and that he has also asserted his title in the suit land. Therefore, apparently it is not a suit for evection simplicitor, rather a suit in which the issue as regards the title of the plaintiff has to be framed and decided.  

14.         In such a case, railway should be given an opportunity to state their case before the Court below, since, the dispute in issue involves the question of deciding the locus-standi of the plaintiff who has filed the suit for evection by claiming title, in addition to his possession in the suit land, and it is necessary to ascertain as to whether the plaintiff had any title in the suit land and also to determine as to whether the suit is maintainable in its present form.

15.         Besides, because of the averments made in the plaint (in the suit for evection), the issue of title to the suit land is directly as well as constructively in issue and this is not a suit for evection simpliciter, rather a suit for declaration of title under the guise of suit for evection. Apart from that, if is found that, the plaintiff has no title or if he is found to be a trespasser or is found to be land grabber, then he would have no locus-standi to file this suit and thereby to directly or indirectly title in the suit land a building on the suit land to avoid eviction under the Government and (Recovery of Local Authority Recovery of Possession Ordinance), 1970, or as per law.

16.         I do not find any merit in this Rule and accordingly, the Rule is liable to be discharged with appropriate direction.

O R D E R

In the result, the Rule is discharged.

The impugned judgment and order dated 21.03.2016, passed by the Additional District Judge, 1st Court, Chattogram, in Civil Revision No. 44 of 2015, is hereby upheld.

The Trial Court is directed to frame issues, amongst other, (i) as to whether the suit is maintainable in its present form and (ii) as to whether plaintiff has any title in the suit property to let out the same. 

The order of stay and status-quo granted earlier by this Court is hereby vacated.

The trial Court is directed to dispose of the suit within soonest possible time.

No costs.

Let a copy of this judgment be sent to the concerned Courts at once.

Ed.



Civil Revision No. 1225 of 2016