S. Golam Mostafa Vs. Narayangonj District Council & others, 3 LNJ AD (2014) 27

Case No: Civil Petition for Leave to Appeal No. 1030 of 2009

Judge: Muhammad Imman Ali,

Court: Appellate Division ,,

Advocate: Mrs. Sufia Khatun,Md. Nawab Ali,,

Citation: 3 LNJ AD (2014) 27

Case Year: 2014

Appellant: S. Golam Mostafa

Respondent: Narayangonj District Council and others

Subject: Res Judicata,

Delivery Date: 2013-03-31


APPELLATE DIVISION
(CIVIL)
 
Md. Muzammel Hossain, CJ.
Surendra Kumar Sinha, J
Md. Abdul Wahhab Miah, J
Nazmun Ara Sultana, J.
Syed Mahmud Hossain, J
Muhammad Imman Ali, J.


Judgment on
31.03.2013
  S. Golam Mostafa
. . .Petitioner
-Versus-
The Narayangonj District Council, District: Narayangonj and others
. . . Respondent
 
Code of Civil Procedure (V of 1908)
Section 11
As the suit land is common in both Title Suit No.174 of 1981 as well as in the instant suit and the plaintiff claimed title through the heirs of Harun Bepari and since the earlier suit was dismissed on contest and the issue relating to right, title and possession is the same, the instant suit is clearly barred by the doctrine of a res judicata...(11)


For the petitioner: Mr. Muhammad Nawab Ali, Advocate-on-Record.
For the Respondents: Mrs. Sufia Khatun, Advocate-on-Record.

Civil Petition for Leave to Appeal No.  1030  of  2009
 
JUDGMENT
Muhammad Imman Ali, J:
 
This civil petition for leave to appeal is directed against the judgement and order dated 13.01.2009 passed by a Single Bench of the High Court Division in Civil Revision No.2987 of 2004 making the Rule absolute and thereby reversing the judgement and decree dated 06.04.2004 passed by the Additional District Judge, First Court, Narayangonj in Title Appeal No.39 of 2003 allowing the appeal and reversing the judgement and decree dated 10.03.2003 passed by the Joint District Judge, Narayangonj in Title Suit No.102 of 1999 dismissing the suit.

The facts of the case, in brief, are that the petitioner-plaintiff instituted Title Suit No.102 of 1999 before the Court of Joint District Judge, First Court, Narayangonj seeking declaration of title, confirmation of possession and recovery of khas possession in the suit land measuring an area of 21 decimals as shown in the ‘Ka’ schedule land to the plaint and also to the structures as shown in the “Kha” and “Ga” schedule land to the plaint appertaining to C.S. Khatian No.189 and S.A. Khatian No.47, Poura Holding No.210/1, Bangabandhu Sarak, Police Station Narayangonj Sadar. The plaintiff contended, inter alia, that Harun Bepari was the owner and possessor of the said land and accordingly it was recorded in C.S. Khatian No.48 in his name; that said Harun Bepari published a public notice in the daily Ittefaq dated 07.01.1978 for selling the said land. Thereafter, the plaintiff purchased the said land by sub-kabala deed dated 23.01.1978 and acquired title in the “Ka” schedule land to the plaint, filled up the land with earth, constructed some structures upon the said land and let out the same to his sister, the defendant No.3 and started possessing the suit land and structure through tenants and also by himself. A dispute arose between the plaintiff and the defendant No.2 in respect of title of the suit land and the plaintiff instituted Title Suit No.174 of 1981. That suit was dismissed by judgement and decree dated 12.05.1983. Thereafter, the plaintiff purchased the suit land again from the defendants No.4 and 5 by two registered kabala deeds dated 06.06.1983 and 21.06.1983. The defendant No.3 entered into a portion of the suit premises on 01.07.1978 by executing an agreement and thereafter he refused to pay rent whereupon the plaintiff instituted SCC Suit No.28 of 1984 for evicting the defendant No.3. The plaintiff in the instant suit prayed for declaration of title to the “Ka” schedule land to the plaint and confirmation of possession of the “Kha” schedule structure on the suit land and recovery of khas possession to “Ga” schedule structure on the suit land.

The defendant No.2, Narayangonj Jila Parishad contested the suit by filing written statement denying the material allegations made in the plaint contending, inter alia, that the suit was not maintainable as it stands framed. It was claimed that  12 decimals of land out of the suit land was acquired by the Government vide LA. Case No. 1/30 of 1935-36 and thereafter .054 acre of land was acquired for the development of Dhaka-Narayangonj Road. Thereafter, the land was leased out by defendant No.2 to defendant No.3 who is in possession of the suit land. The plaintiff previously instituted two suits against the defendants, and having lost those has filed the instant suit. The plaintiff has no right, title, interest and possession in the suit property and there was no cause of action to file the suit and the suit was not maintainable in its present form and manner. Hence, the suit was liable to be dismissed.
        
The trial Court upon consideration of the evidence on record dismissed the suit by the judgement and decree dated 10.03.2003 holding the suit to be barred by res judicata.

Being aggrieved by the judgement and decree of the trial Court, the plaintiff preferred Title Appeal No.39 of 2003. The said appeal was heard by the Additional District Judge, First Court, Narayangonj, who by the judgement and decree dated 06.04.2004 allowed the appeal and decreed the suit upon setting aside the judgement and decree of the trial Court.

The defendant filed a civil revisional application before the High Court Division and obtained Rule. By the impugned judgement and order, the High Court Division made the Rule absolute and set aside the judgement and decree dated 06.04.2004 passed by the appellate Court thereby restored the judgement and decree of the trial Court. Hence, the plaintiff-petitioner herein has filed the instant Civil Petition for Leave to Appeal before this Division.
     
Mr. Muhammad Nawab Ali, the learned Advocate-on-Record appearing on behalf of the petitioner submits that the High Court Division erred in reversing the reasoned judgement of the appellate Court. He further submits that the High Court Division did not consider the fact that L.A. Case No.  of 1935-36 acquired only .08 acres of land which was confirmed by local investigation report. As such the High Court Division erred in not decreeing the remainder of the suit land in favour of the petitioner. He lastly submits that the dismissal of the entire suit was therefore illegal and the judgement and order of the High Court Division is liable to be set aside. 

Mrs. Sufia Khatun, the learned Advocate-on-Record appearing on behalf of the respondents made submissions in support of the impugned judgement and order passed by the High Court Division.

We have considered the submissions of the learned Advocate-on-Record for the parties concerned and perused the impugned judgement of the High Court Division and other connected papers on record.

We note from the impugned judgement and order of the High Court Division that observation was made to the effect that the earlier Title Suit No.174 of 1981 (marked as Ext.”Ka” in the suit) was also filed seeking a declaration of title in the suit land and structures raised upon holding No.210/1 of Narayangonj Municipality, Plot No. 28/961 corresponding to schedule-‘Ka’, ‘Kha’ and ‘Ga’ land of the plaint. It was further observed that the plaintiff of the earlier suit is the plaintiff of the instant suit. In the earlier suit the Zilla Board Narayangonj as defendant produced the order sheets of the aforementioned L.A. case marked as Exts. ‘A’, ‘B’ and ‘C’ and gazette notification was marked as Ext.D. The trial Court in that suit came to a definite finding that the original owner received compensation in the said L.A. case and declared that no title passed in favour of the plaintiff on the strength of kobala deed dated 23.01.1978. No appeal was preferred against the dismissal of the said suit. The High Court Division also observed that the instant suit was filed on the strength of two subsequent kobala deeds dated 06.06.1983 and 21.06.1983 (Exts. 11 and 12) from Nazimuddin, son of late Abdul Gafur alleging the executant to be the grandson of Harun Bepari. The High Court Division observed that the compensation in L.A. Case No.  of 1935-36 was in the name of two sons of Harun Bepari, namely Sirajuddin and Tafizuddin and that fact was affirmed in the earlier title suit and therefore the plaintiff could not make out a case of alleged purchase from the heirs of Harun Bepari. The High Court Division observed that so long Ext. ‘Ka’ stands, the plaintiff is estopped from claiming any title in the suit land through the heirs of Harun Bepari inasmuch as in the previously instituted suit, the Court believed payment of compensation to the sons of Harun Bepari.

As the suit land is common in both Title Suit No.174 of 1981 as well as in the instant suit and the plaintiff claimed title through the heirs of Harun Bepari and since the earlier suit was dismissed on contest and the issue relating to right, title and possession is the same, the instant suit is clearly barred by the doctrine of a res judicata. 

The High Court Division has given elaborate reasons for making the Rule absolute thereby upholding the judgement and decree of the trial Court.

We do not find any cause to interfere with the impugned judgement and order of the High Court Division.

Accordingly, the petition is dismissed.

End.