Fazlul Hoque Patwary (Md) and others Vs. Md. Rezaul Hoque Patwary and others, 59 DLR (2007) 115

Case No: First Miscellaneous Appeal No. 61 of 2005

Judge: Md. Arayesuddin,

Court: High Court Division,,

Advocate: Mr. Md. Shamsul Huq,MA Quayyum Chowdhury,,

Citation: 59 DLR (2007) 115

Case Year: 2007

Appellant: Fazlul Hoque Patwary (Md) and others

Respondent: Md. Rezaul Hoque Patwary and others

Subject: Property Law,

Delivery Date: 2006-07-17

Fazlul Hoque Patwary (Md) and others Vs. Md. Rezaul Hoque Patwary and others, 59 DLR (2007) 115
 
Supreme Court
High Court Division
(Civil Appellate Jurisdiction)
 
Present:
Md. Arayesuddin J
SM Emdadul Hoque J
 
Fazlul Hoque Patwary (Md) & others
…………………Appellants
Vs.
Md. Rezaul Hoque Patwary & others
.……………….Respondents
 
Judgment
July 17, 2006.
 
Code of Civil Procedure (V of 1908)
Order XXXIX rule I
The impugned order directing the appellants to maintain status quo with regard to possession of the suit land is set aside as the appellants appear to be co-sharers in possession and having development work.
 
Cases Referred To-
Abul Kalam Engineer and another vs. Nasiruddin Howlader and others 54 DLR 515; Ali Ahmed vs. Rezia Begum and others 1986 BLD 326.
 
Lawyers involved:
Md. Shamsul Hoque, Advocate — For the Appellants.
MA Quayyum Chowdhury, Advocate — For the Respondents.
First Miscellaneous Appeal No. 61 of 2005.
 
JUDGMENT
 
Md. Arayesuddin J.
 
This Miscellaneous Appeal has been preferred by the defendant against the judgment and order dated 16-2-2005 passed by the learned Joint District Judge, 2nd Court, Lalmonirhat in Other Suit (Partition No.1) of 2005 allowing the petition filed by the plaintiff-respondent to maintain status quo till disposal of the suit.
 
2. Fact necessary to dispose of this Miscellaneous Appeal, in brief, is that plaintiff and respondents are step-brothers. The suit property belonged to their father Bakhte Jamal Patwary who bequested each of them by executing about the suit property which is within the Lalmonirhat Paura­shava and each of the brothers took possession of the same. Plaintiff has stated that there was no parti­tion among them by metes and bounds. So he is feeling inconvenience to possess bis land. As such, he instituted Other Class Suit (Partition) No. 1 of 2005 in the Court of the Joint District Judge, 2nd Court, Lalmonirhat. In that suit he filed a petition under Order XXXIX, rule 1 of the Code of Civil Procedure praying for ad interim injunction restraining the defendants from changing the nature and character of the suit property and from proceeding with the construction work. The present appellant along with others appeared and contested the same. The learned trial Court by the impugned judgment and order allowed the petition and restrained the defendant Nos. 3, 4, 8 and 9 to maintain status quo. Being aggrieved they have preferred this Miscellaneous Appeal. Point for determination in this Miscellaneous Appeal is, that whether the impugned judgment and order passed against the appellants directing them to maintain status quo is tenable or not,
 
3. On behalf of the appellant, the learned Advocate Mr. Md. Shamsul Hoque submitted that the appellants and respondents are step-brothers. Admittedly, their father was the original owner of the suit property and he requested equal portion of land to each of them who are in possession by ami­cable settlement among themselves. He further sub­mitted that the plaintiff has exhausted his share by mortgaging his land in the bank. He is a defaulter and his land has been attached by the bank and put into auction sale. So, with ill motive he has filed the suit. Further, he has submitted that within the municipal area due to the dearth of land no co-sharers can be restrained from proceeding with the construction work. In this regard, he has relied on the case of Abul Kalam Engineer and another vs. Nasiruddin Howlader and others reported in 54 DLR 515. Further, he submitted that in a suit for partition injunction is tenable when the suit property is in danger of being damaged or wasted. But when any development is made generally injunction is not tenable. In this respect he has relied on the case of Ali Ahmed vs. Rezia Begum and others reported in 1986 BLD 326.
 
4. On behalf of the respondent Nos. 10, 13 and 14, the learned Advocate Mr. MA Quayyum Chowdhury submitted that the principle of the law is, that if a co-sharer is in possession of specific portion of joint property he cannot be ousted by the other co-sharer till the suit property has not been partitioned by the Advocate Commissioner by metes and bounds.
 
We have perused the impugned judgment and the papers submitted by both the parties and find that the plaintiff mortgaged 17.5 decimal of land in the local Janata Bank and he became a defaulter and that his land has been attached and it has been sold in auction. This document proves that there was amicable partition among them. In view of that we are constrained to come to the conclusion that the impugned judgment and order of the trial Court passed for this land is not tenable in the eye of law. Accordingly the appeal is allowed. The impugned judgment and order dated 16-2-2005 passed by the learned Joint District Judge, 2nd Court, Lalmonirhat is hereby set aside and the petition filed under Order XXXIX, rule 1 of the Code of Civil Procedure is rejected.
 
Ed.