Shamsul Hoque Vs. Upazila Nirbahi Officer and others 2017 (2) LNJ 199

Case No: Civil Revision No. 5018 of 2006

Judge: Mahmudul Hoque. J.

Court: High Court Division,

Advocate: Mr. Mustaque Ahmed Chowdhury,

Citation: 2017 (2) LNJ 199

Case Year: 2016

Appellant: Shamsul Hoque

Respondent: Upazila Nirbahi Officer and others

Subject: Civil Law

Delivery Date: 2017-11-14

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Mahmudul Hoque, J

Judgment on

10.05.2016

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Shamsul Hoque

.. Plaintiff-Respondent-Petitioners

-Versus-

Upazila Nirbahi Officer and others

... Defendant-Appellant-Opposite Parties

Specific Relief Act, (I of 1877)

Section 52

A person in possession is legally entitled to retain his possession and in the absence of any lawful claim of the defendants, they are not in any way entitled to dispossess the plaintiff-petitioner from the suit land without due process of law.                                  . . .(17)

Code of Civil Procedure, (V of 1908)

Order XLI, Rule 31

The appellate court in its judgment neither controverted the observations made by the trial court regarding possession of the plaintiff-petitioner in the suit land nor appreciated the documents in its true perspective and as such, this court finds merit in this Rule calling interference by this court.  . . .(18)

No one appears

.... For the petitioner

Mr. Md. Mustaque Ahmed, Advocate   

....For the added Opposite Party No.4

JUDGMENT

Mahmudul Hoque, J: This Rule was issued calling upon the opposite party Nos. 1-3 to show cause as to why the impugned judgment and decree dated 18.07.2006 passed by the Joint District Judge, 1st Court, Sunamganj, in Title Appeal No. 14 of 2005 reversing those dated 06.10.2004 passed by the Senior Assistant Judge, (in-Charge) Jamalganj, Sunamganj, in Title Suit No. 18 of 2002 should not be set aside and /or such other or further order or orders passed as to this Court may seem fit and proper.

2.            Facts relevant for disposal of the Rule, in brief, are that the petitioner as plaintiff filed Title Suit No. 18 of 2002 for a decree of permanent injunction against the opposite parties as defendants claiming inter alia, that the suit land covered by Plot Nos. 504 and 503 measuring .0481 acres and .0344 acres respectively belonged to L¡m£Ns hÉhp¡l pÇfc wjwg‡UW presently known as Sachna Bazar Banik Samity. Accordingly, S.A. Khatian No. 244 prepared in the name of L¡m£Ns hÉhp¡l pÇfc wjwg‡UW . The said Samity while in possession of the schedule land leased out .0413 acres of land to the father of the plaintiff-petitioner, who after getting lease in the year 1971 filled up the low land and made the same into bhiti land. Thereafter, father of the plaintiff-petitioner constructed a tin shed shop house in the schedule land and possessing the same since 1971 upon payment of rents to the Government. After death of lessee Iskander Ali, the plaintiff got the property by inheritance and has been possessing the same with the knowledge of the defendants upon payment of arrear rents as demanded by the defendant-opposite party nos. 2 and 3. While the plaintiff-petitioner possessing the suit land peacefully without any disturbances from any  quarter, all on a sudden, the defendant-opposite party nos. 1-3 came to the suit land on 16.11.2002 and asked the plaintiff-petitioner to remove the shop house else they will demolish the same and evict the plaintiff-petitioner from the suit land by applying force. On query the defendant-opposite parties could not give any satisfactory reply as to why they will evict the plaintiff-petitioner from the suit land.

3.            The plaintiff-petitioner made a search about title of the defendant-opposite party in the suit land but found nothing in their favour. Further case of the plaintiff-petitioner, is that, the property in question belongs to L¡m£Ns hÉhp¡l pÇfc wjwg‡UW known as Sachna Bazar Banik Samity from whom father of the plaintiff-petitioner obtained lease. The defendant-opposite parties have had no right, title, interest and possession in the suit property. They being biased and gained over by some interested persons, illegally threatened the plaintiff-petitioner with dispossession from the suit land. In the circumstances, the plaintiff-petitioner has become compelled to file the suit against the defendant for a decree of permanent injunction.

4.            The defendant-opposite parties contested the suit by filing written statement denying all the material allegations made in the plaint, contending, inter-alia, that the schedule to the plaint is indefinite and unspecified; the plaintiff-petitioner has no right, title, interest and possession in the suit land and also stated that there is no existence of Samity named L¡m£Ns hÉhp¡l pÇfc wjwg‡UW and the alleged Sachna Bazar Banik Samity has/had no right to lease out the suit land to the plaintiff's father. Further case of the defendant-opposite parties, is that, the property in question belongs to nobody and there is no owner and claimant of the suit property. For that reason the property in question is liable to be made khas under Section 19(N) of the State Acquisition and Tenancy Act, 1950 and accordingly, the Government is taking step for making the property khas to the government. The plaintiff being informed about the said process of the Government, for illegal gain and to grab the property filed the suit against the defendants with false allegation of giving threat to the plaintiff. The plaintiff has got no cause of action against the defendants to file the suit for permanent injunction and as such, the suit is liable to be dismissed.

5.            The plaintiff examined three witnesses including himself as PWs 1-3 and exhibited his documents as Exhibits 1-3 and the defendant No. 1 deposed as DW1 on behalf of the defendants.

6.            The trial court decreed the suit by its judgment and decree dated 06.10.2004. The defendant-opposite parties preferred Title Appeal No. 14 of 2005 before the District Judge, Sunamganj, who transferred the same to the court of Joint District Judge, 1st Court, Sunamganj for hearing and disposal. The appellate court after contested hearing allowed the appeal by its judgment and decree dated 18.07.2006 and reversed the judgment and decree of the trial court. The present-petitioner being aggrieved and dissatisfied with the judgment and decree of the appellate court has moved this Court by filing this revisional application under Section 115(1) of the Code of Civil Procedure and obtained the present Rule and order of stay and status quo in respect of possession of the suit property.  

7.            None appears to press or oppose the Rule. 

8.            One Md. Mobarak Hossain Talukder during pendency of this Rule by filing an application added as opposite party no. 4 by order dated 11.03.20104 but he was not a party in the suit or appeal.

9.            From a perusal of the application for addition of party, it appears that father of the added opposite party tried to be added as defendant in the suit before the trial court but the trial court rejected the application against which he preferred Civil Revision before the District Judge, Sunamganj that was also rejected. After a long time, his son Mobarak Ali Talukder added in this revisional application as opposite party No. 4.

10.        Mr. Mustaque Ahmed, the learned Advocate appearing for the opposite party no. 4 submits that the property in question belongs to the father of the opposite party no. 4 but since the application of his father for addition of party was rejected by the trial court as well as by the revisional court he could not contest the suit by filing written statement and produce the relevant title documents in the name of his father. He further submits that the plaintiff-petitioner or his father never possessed the suit land and the lease agreement/deed filed on behalf of the plaintiff-petitioner showing  Sachna Bazar Banik Samity as executants of the deed is anti dated and the said Samity has/had  no right, title and interest  in the property to lease out the same. It is also argued that the petitioner is not in possession and the story of making shop house on the suit property by his father is absolutely false and untrue. The plaintiff being not in possession and having no title in the suit property, suit for injunction is not at all maintainable. The plaintiff-petitioner has filed the suit to grab the property against the Government without making the real owner as defendant. He also submits that the appellate court rightly allowed the appeal and set aside the judgment and decree of the trial court as the petitioner utterly failed to prove his title and possession in the suit property.

11.        Heard the learned Advocate for the opposite party no. 4, gone through the revisional application, judgment of both the courts below, evidences adduced by the parties and the exhibits submitted by the plaintiff-petitioner.

12.        From  a perusal of the judgment and decree passed by the trial court, it appears that the trial court while decreeing  the suit observed as follows:-  

      ""ü£L«a ®k e¡¢mn£ i¥¢j­®a ®c¡L¡e Ol B­®Rz h¡c£ Eš² ®c¡L¡e Ol a¡q¡l ¢fa¡ E­®š¡me L¢lu¡­®Re h­®mez S.A. M¢au¡­e e¡¢mn£ i¥¢j­®a ¢i¢V J h¡s£ ¢m¢f ®cM¡ k¡uz ®Sl¡u D.W- 1 e¡¢mn£ i¥¢j­®a A¯hd cMmL¡l h¡c£ e®­qe a«a£u ®L¡e hÉ¡¢š² B­®Re E®­õM L¢l­®mJ e¡j h¢m­®a f¡®le e¡Cz ü£L«a ®k e¡¢mn£ i¥¢j®­a 1-3 ew ¢hh¡c£ plL¡­®ll h¡ 1-3 ew ¢hh¡c£f­®rl ®L¡e cMm e¡C z P.W-1, P.W-2, P.W-3 Hl p¡rÉ J ®Sl¡ fkÑ¡­®m¡Qe¡u e¡¢mn£ i¥¢j­®a h¡c£ hÉ¢aa aªa£u ®L¡e hÉ¢š²l cMm ®cM¡ k¡u e¡z

      ac¡hÙÛ¡u h¡c£l e¡¢mn£ i¥¢j­®a J ®c¡L¡eO­l p¡Qe¡ h¡S¡l hÉhp¡u£ p¢j¢al Ad£­e m£S p§­®œ Bf¡a üaÅ J HLµRœ cMm B­®R j­®jÑ ¢pÜ¡¿¹ ¢eu¡ 2ew ¢hQ¡kÑ ¢hou h¡c£l Ae¤L¥­®m ¢eÖf¢š Ll¡ qCmz

¢hQ¡kÑ ¢hou 1/3

      1-3 ew ¢hh¡c£l Sh¡h J  P.W-1 Hl Sh¡eh¢¾c fkÑ¡­®m¡Qe¡u e¡¢mn£ i¥¢j­®L c¡h£c¡lq£e m¡-Ju¡¢ln pÇf¢š N­®eÉ a¡q¡ M¡p Ll¡l SeÉ plL¡l fc­®rf NËq­e E­®cÉ¡N£ qCu¡­®Rez ¢L¿º e¡¢mn£ pÇf¢š plL¡l£ M¡p M¢au¡e i¥š² Ll¡l ®L¡e ¢mNÉ¡m fТp¢Xw Qmj¡e b¡L¡l ®L¡e p¤¢e¢cÑø hš²hÉ 1-3 ew ¢hh¡c£NZ h­®m e¡C z h¡c£ 1-3 ew ¢hh¡c£ h¡ plL¡­®ll ®L¡e Qmj¡e BCe£ fТœ²u¡l ¢hl¦®­Ü ÙÛ¡u£ ¢e®od¡‘¡ fСbÑe¡u Aœ ®j¡LŸj¡ Beue L­®le e¡Cz S.A.T. Act (Act XXVIII of 1950) Hl 92 (N) d¡l¡u plL¡l e¡¢mn£ i¥¢j ¢ho­®u HM­®e¡ hÉhÙÛ¡ ®eu e¡Cz kb¡kb BCe£ fТœ²u¡l à¡l¡ e¡¢mn£ pÇf¢š­®L plL¡l h¡ ¢e®S­cl ¢eu¿»­®e ®eJu¡l f§­®hÑC ®S¡­l h­®m h¡c£­®L ab¡ qC®a ®h-cMm Ll¡l ®L¡e A¢dL¡l 1-3 ew ¢hh¡c£l Hj¤ý®aÑ e¡Cz aâ¦f­®r®­œ h¡c£l Aœ ®j¡LŸj¡ Q¢m®­a f¡­®l Hhw h¡c£ fС¢bÑa ¢e®­od¡‘¡ B­®cn f¡Ju¡l qLc¡l j®­jÑ ¢pÜ¡¿¹ ¢eu¡ 1/3 ew ¢hQ¡kÑ ¢hou h¡c£l Ae¤L¥­®m ¢eÖf¢š qCmz"

13.        Apart from the observations made hereinabove, it was also observed by the trial court that:-

     "h¡c£l ¢fa¡ CpL¡¾cl Bm£, p¡Qe¡ h¡S¡l h¢eL p¢j¢al avL¡m£e pÇf¡cL P.W-3 Hl ¢fa¡ Bx lqj¡e qC®­a e¡¢mn£ i¥¢j 25/2/1971 Cw a¡¢l­®M m£S ®ee j®­jÑ c¡h£ L®­lez Eš² m£S c¢mm¢V­®a (fÐc-3) P.W-3 p¡r£ ®cM¡ k¡uz

P.W-3 p¡rÉ à¡l¡ e¡¢mn£ i¥¢j a¡q¡l ¢fa¡ LaѪL h¡c£l ¢fa¡ hl¡h­®l m£S ®cJu¡­®L pjbÑe L­®lez"

14.        I have gone through the judgment and decree passed by the appellate court. It appears that the appellate court in its judgment observed as follows:-

     "h¡c£f­®rl c¡¢Mm£u fÐcx-1 AbÑ¡v e¡¢mn£ Hp,H 244 M¢au¡­®el S¡­®hc¡ eLm fkÑ¡­®m¡Qe¡u ®cM¡ k¡u ®k, 504 c¡­N h¡s£ f¢lj¡Z 4.81 HLl Hhw 305 c¡­N ¢iV¡ f¢lj¡e 3.44 HLl i¥¢j qC­®a®­Rz ¢L¿º h¡c£fr Bl¢S­®a E®­õM L¢lu¡­®Re ®k, e¡¢mn£ 244 M¢au¡­®el 504 c¡­N .0481 HLl Hhw 503 c¡­N .0344 HLl i¥¢j z Hja¡hÙÛ¡u, h¡c£l Bl¢Sl pÇf¢šl heeÑ¡l p¢qa e¡¢mn£ Hp,H 244 M¢au¡­®el i¥¢jl heeÑ¡l ¢jm e¡Cz h¡c£l c¡¢Mm£u fÐcx-3 AbÑ¡v Cw 25/2/71 a¡¢l­®Ml CS¡l¡e¡j¡ c¢mm cª­®ø fТauj¡e qu ®k, ®j¡x Bë¥l lqj¡e ¢fa¡ q¡S£ L¡m¡ N¡S£ p¡w L¡m£f¤l q¡w p¡w p¡Qe¡ h¡S¡l, pÇf¡cL, p¡Qe¡ h¡S¡l h¢ZL p¢j¢az fÐcx-1 AbÑ¡v e¡¢mn£ Hp,H 244 M¢au¡­®el S¡ ®­hc¡ eLm cª­®ø fТauj¡e qu ®k, Aœ M¢au¡­®el fÐS¡ L¡m£N‘ hÉhp¡l pÇfc ¢mxz Hja¡hÙÛ¡u ®cM¡ k¡C®­a­®R ®k, h¡c£fr e¡¢mn£ i¥¢jl Hp,H fÐS¡l ¢eLV qC®­a e¡¢mn£ i¥¢j CS¡l¡ NËqe L®­le e¡Cz a¡q¡ R¡s¡ h¡c£fr e¡¢mn£ i¥¢jl Hp,H M¢au¡e ïj¡aÈLi¡®­h fÐL¡­®nl c¡h£ Bl¢S­®a E®­õM L¢l®­mJ a¡q¡ c§l£i¨aLl­®el SeÉ ®L¡e ®j¡LŸj¡ L­®le e¡C h¡ Aœ ®j¡LŸj¡u avj­®jÑ ®L¡e fТaL¡l fСbÑe¡ L®­le e¡Cz Afl¢c­®L p¡Qe¡ h¡S¡l h¢ZL p¢j¢al pÇf¡cL e¡¢mn£ pÇf¢š 90 hR­ll SeÉ BCep‰ai¡­®h m£S ®cJu¡l A¢dL¡l l¡­®Me e¡z ¢hh¡c£/Bf£mL¡l£fr c¡h£ L¢lu¡­®Re ®k, e¡¢mn£ pÇf¢š m¡Ju¡¢ln J c¡h£c¡l ¢hq£e, f¢laÉš² pÇf¢š Hhw e¡¢mn£ pÇf¢š q¡V-h¡S¡­®ll pÇf¢š j®­jÑ c¡h£ L¢lu¡­®Rez Hja¡hÙÛ¡u ®cM¡ k¡C®­a®­R ®k, e¡¢mn£ pÇf¢š­®a h¡c£f®­rl f§hÑ¡¢dL¡l£l h¡ h¡c£l üaÅ ¢hcÉj¡e e¡C ¢hd¡u h¡c£fr j§m ­®j¡LŸj¡u fСbÑ£aj­®a fТaL¡l f¡Ch¡l qLc¡l e­®qe"z

15.        The above quoted observations of the appellate court is contrary to the actual facts and circumstances of the case and the exhibits. The appellate court found that the suit Plot Nos. 305 and 504 covered a total quantum of land 8.25 acres but the plaintiff-petitioner mentioned in the schedule to the plaint as .0826 acres of land, which is not in conformity with the document. It is also wrongly found that the plaintiff-petitioner's father obtained the lease from Sachna Bazar Banik Samity which was not the owner in S.A. record. The lease deed itself disclosed the fact that S.A. recorded Samity is presently known as Sachna Bazar Banik Samity. Apart from such controversies about the documentary evidences produced on the plaintiff's side the appellate court ought to have observed about the possession of the property in question but the appellate court totally remained silent about the possession of the property in question which is a paramount issue and consideration in a suit for injunction. From the papers and documents available in file and exhibited on behalf of the plaintiff-petitioner this court finds a prima facie case and possession of the plaintiff in the suit land, entitling him to get a decree for injunction.

16.        Apart from title, a person found in exclusive possession of certain plot of land for a period of more than 30 years without any disturbances cannot be dispossessed by any authority or person without due process of law. 

In the present case, the trial court found that the plaintiff-petitioner has failed to prove his clear and undisputed title in the suit property though some documents have been filed trying to establish his title but the trial court has found that the plaintiff is in exclusive possession of the suit land. Therefore, a person in possession is legally entitled to retain his possession and in the absence of any lawful claim of the defendants they are not in any way entitled to dispossess the plaintiff-petitioner from the suit land without due process of law. The written statement filed by the defendant clearly speaks that the government has not yet acquired any right, title in the property by any means or by any legal process. So, in the absence of any legal basis, the defendant-opposite parties cannot initiate any action against the plaintiff-petitioner.

17.        Taking into consideration the above, this Court finds that the trial court rightly decreed the suit and the appellate court in allowing the appeal and reversing the judgment and decree passed by the trial court has committed an error of law resulting in an error in the decision occasioning failure of justice. The appellate court in its judgment neither controverted the observations made by the trial court regarding possession of the plaintiff-petitioner in the suit land nor appreciated the documents in its true perspective and as such, this Court finds merit in this Rule calling interference by this Court.

18.        In the result, the Rule is made absolute, however, there will be no order as to costs. The impugned judgment and decree dated 18.07.2006 passed by the Joint District Judge, First Court, Sunamganj in Title Appeal No. 14 of 2005 is hereby set aside and the judgment and decree passed by the Assistant Judge, Jamalganj, Sunamganj in Title Suit No. 18 of 2002 is restored.

19.        The orders of stay and status-quo granted at the time of issuance of the Rule stand vacated.

         Communicate a copy of this judgment to the Court concerned.

         Send down the lower court records at once.  

Ed.

 



Civil Revision No. 5018 of 2006