Chief Engineer, C & B and another Vs. Shah Hingul Mazar Sharif and others, 54 DLR (AD) (2002) 73

Case No: Civil Petition for Leave to Appeal No. 999 of 1998

Judge: Mahmudul Amin Choudhury,

Court: Appellate Division ,,

Advocate: Mr. Mahbubey Alam,,

Citation: 54 DLR (AD) (2002) 73

Case Year: 2002

Appellant: Chief Engineer, C & B and another

Respondent: Shah Hingul Mazar Sharif and others

Subject: Injunction, Wakf,

Delivery Date: 2001-8-9

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Mahmudul Amin Choudhury CJ
Mainur Reza Choudhury J
Md. Golam Rabbani J
Md. Ruhul Amin J
Md. Fazlul Karim J
 
Chief Engineer, C & B and another
................... Petitioners
Vs.
Shah Hingul Mazar Sharif and others
....................Respondent
 
Judgment
August 9, 2001
 
The Specific Relief Act, 1877(I of 1877)
Section 42
When a plaintiff is in possession of suit property in assertion of his own right he can maintain a suit for permanent injunction. The trial court, it appears, exceeded its jurisdiction in deciding the title of the respective parties.………(6)
 
Lawyers Involved:
Mahbubey Alam, Additional Attorney-General, instructed by SB Barua, Advocate-on-Record—For the Petitioners.
Ataul Huq, Advocate-on-Record—For Respondent
Not represented—Respondent Nos. 2-4.
 
Civil Petition for Leave to Appeal No. 999 of 1998
(From the judgment and decree dated 24th February ,1998 passed by the High Court Division in Civil Revision No. 3165 of 1994)
 
JUDGMENT
 
Mahmudul Amin Chowdhury, CJ.
 
          This petition for leave to appeal is directed against judgment and decree dated 24th February, 1998 passed by a Single Bench of the High Court Division in Civil Revision No. 3165 of 1994 making the Rule absolute on setting aside the judgment and decree passed by the learned Subordinate Judge, 4th Court, Dhaka in Title Appeal No.376 of 1993 allowing the appeal and reversing the judgment and decree passed by the learned Assistant Judge, Dhamrai in Title Suit No.122 of 1992 decreeing the suit.
 
2. The short fact leading to this petition is that, respondent No.1 as plaintiff instituted the aforesaid suit for permanent injunction against the defendants alleging possession in the suit property for over 100 years. Their case is that the suit property is by the side of Mazar of Shah Hingul Shah which is a Waqf property enrolled as EC No.5658 of the Administrator of Waqf, Bangladesh. Plaintiff has been appointed Khadem by the Administrator of Waqf in 1970. Their case is that the Khadem is residing with the members of his family in the structure within Mazar premises and the shops are let out to different tenants. Their case is that CS and SA Khatian has been wrongly recorded in the name of the Government but the plaintiff is in possession of the suit property and the defendants have no title, right, interest and possession in the same.
 
3. The suit was contested by the present petitioners and their case is that the suit land was acquired by the Government in the year 1907 and CS and SA Khatians were prepared in the name of the Government and the plaintiff is in unauthorised possession of the suit land and so the Government is trying to get back the property.
 
4. The learned Assistant Judge after taking evidence decreed the suit for permanent injunction against which T Appeal No.376 of 1993 was filed before the learned District Judge, Dhaka and the learned Subordinate Judge, 4th Court, Dhaka after hearing the parties allowed the appeal and set aside the judgment and decree passed by the trial Court. The plaintiff then moved the High Court Division in Civil Revision No.3165 of 1994 wherein a Rule was issued and subsequently made absolute.
 
5. Mr. Mahbubey Alam, learned Additional Attorney-General appearing for the petitioner at the very outset submits that the suit property belonged to the Government and CS and SA Khatian have been correctly prepared but the plaintiff is illegally possessing the same. The present petitioner is claiming only Plot No.33 which is admittedly in possession of the plaintiff. Case of the Government is that the plaintiff is in unauthorised possession.
 
6. It is well settled that when a plaintiff is in possession a suit property in assertion of his own right he can maintain a suit for permanent injunction. In this suit the plaintiffs claim is that the Waqf Estate is in possession of the suit property for over 100 years and thereby acquired a title. It appears that while disposing of the suit the learn1 Assistant Judge decided the title of the parties but in a suit for permanent injunction trial Court is not required to decide the title of respective parties. Ii is only to look into the factum of possession. l such circumstances the trial Court committed wrong in deciding the title of the respective parties, In such a situation the learned Additional Attorney. General submits that this petition for leave to appeal may be allowed but in view of the fact that the L Court decided the factum of possession in favour the plaintiff which is an admitted fact we are not inclined to grant leave to appeal. But the trial court it appears exceeded its jurisdiction in deciding the title of the respective parties. The suit has not been framed in that form. We therefore direct that the factum of title of the respective parties would remain open to be decided in an appropriate forum.
 
With this observation this petition is disposed of.
 
Ed.