Syed Ershadul Huda & another Vs. Md. Badsha Mia & others, (Soumendra Sarker, J.)

Case No: Civil Rule No. 1782 of 2017

Judge: Soumendra Sarker, J

Court: High Court Division,

Advocate: Mr. Mohammad Ali Azam, Advocate ,

Citation: 2019(2) LNJ

Case Year: 2019

Appellant: Syed Ershadul Huda and another

Respondent: Md. Badsha Mia and others

Subject: Code of Civil Procedure

Delivery Date: 2019-12-04

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Soumendra Sarker, J

 

 

Judgment on

23.05.2019

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Syed Ershadul Huda and another

. . .Plaintiff-Respondent -Petitioner

-Versus-

Md. Badsha Mia and others

. . . Defendant No. 1-Appellant- Opposite parties.

Code of Civil Procedure (V of 1908)

Order XXXIX, Rule 1 and 2

Imperative points of determination for temporary injunction is: Firstly; as to whether the applicants have strong prima-facie arguable case with that of the opposite parties. Secondly; as to whether the applicants will suffer irreparable loss in absence of temporary injunction which is not compensateable in terms of money value. Thirdly; the balance of convenience and inconvenience lies in favor of the applicants. . . . (13)

Specific Relief Act (I of 1877)

Section 39

In respect of  the kabala deeds there were 6 (six) pre-emption miscellaneous cases by one Syed Azharul Kabir, but up to the Hon’ble Appellate Division the petitioner to that case Azharul Kabir failed and in that cases Hajera Begum was one of the opposite party. Nevertheless, the existence of Hajera Begum or her presence in the pre-emption miscellaneous cases is not a legal barrier to challenge the deeds as challenged by her in the present suit for cancellation of the instruments.   . . . (14)

Mr. Mohammad Ali Azam, Advocate

. . . For the petitioners

No one appears.

. . . For the Opposite Parties.

JUDGMENT

Soumendra Sarker, J.  The Rule issued calling upon the opposite party No.1 to show cause as to why the judgment and order dated 23.05.2017 passed by the learned Additional District Judge, 1st Court, Dhaka in Miscellaneous Appeal No.01 of 2017 setting aside the order dated 06.10.2016 passed by the learned Senior Assistant Judge, 6th Court, Dhaka in Title Suit No.210 of 2014 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.               The facts giving rise to the issuance of the Rule in a nutshell can be stated thus: The mother of the present petitioners namely Hajera Begum as plaintiff instituted the original Title Suit No.210 of 2014 in the 6th Court of learned Senior Assistant Judge, Dhaka for a declaration that the sub-kabala deeds described in the schedule “Ga” of the plaint are collusive, forged, fraudulent and not binding upon the plaintiffs contending inter alia that the property described in the schedule of the plaint originally belonged to one Debendra Mohon Sen and others in C.S. plots No.25-27 comprising an area of 92.90 acres of land. Subsequently, the ‘Ka’ schedule land has been transferred by the heirs of C.S. recorded tenant in favour of one Ibrahim and others by a registered sub-kabala dated 15.09.1950. The purchasers were 05(five) full brothers and the S.A. record of rights was correctly prepared in their names. The suit land by amicable partition among the brothers developed upon one brother namely Md. Khalil and subsequently Md. Khalil transferred the suit land in favour of the plaintiff No.1 Hajera Begum and two others. The owner of the land Md. Khalil out of total consideration amount of Tk.90,000/- (ninety thousand) taking Tk.60,000/- (sixty thousand) as baina executed a bainapatra deed in favour of Hajera Begum and others on 07.01.1972. Subsequently, while Md. Khalil denied to register the sale deed, Hajera Begum and others filed a suit for specific Performance of Contract being No.97 of 1973 in the 1st Court of learned the then Sub-ordinate Judge, Dhaka and obtained a decree and pursuant to that a kabala deed was registered through Court. In this way, Hajera Begum after obtaining share of the schedule land comprising an area of 30.96 decimals possessed the same for more than 30(thirty) years. Thereafter, she transferred 10.72 decimals of land in favour of her son Altaful Huda by a Heba deed. The remaining 20.24 decimals of land is under possession of the plaintiff No.1 and the plaintiff No.2 Altaful Huda possess his 10.72 decimals of land, but the defendant on 10.04.2014 obstructed the construction work of the plaintiffs disclosing that the plaintiff No.1 Hajera Begum transferred the land in their favour by 06(six) sub-kabala deeds dated 11.09.1981. Thereafter, taking certified copy of the deeds, the plaintiffs came to know for the 1st time on 11.05.2014 that the defendants have created the forged kabala deeds in their names which were never acted upon. Thereafter, challenging the said deeds the plaintiffs filed the original suit.

3.               The contrary case of the defendant-opposite parties in short is thus that Hajera Begum being the owner of the suit land transferred the same in favour of the defendants No.1-6 by six registered sub-kabala deeds which was duly executed and registered on 11.09.1981, but only to harass the defendants on false allegations the plaintiffs have filed the original suit, which is liable to be dismissed.

4.               During pendency of the suit, the plaintiffs filed an application for temporary injunction against the defendants alleging that on 29.07.2016 the defendants knowing about the suit against them, tried to dispossess the plaintiffs from the suit property, which is a homestead of the plaintiffs.

5.               The defendants after filling written objection against the temporary injunction application alleged that they did not try to dispossess the plaintiffs and in fact the plaintiffs are not in possession of the suit land after their transfer and the defendants are in possession over the suit property since 11.09.1981.

6.               The learned trial court on hearing the application for temporary injunction by its judgment and order dated 06.10.2016 allowed the temporary injunction application and restrained the defendant No.1 from disturbing the possession of the plaintiffs and from making any transfer deed in favour of 3rd party in respect of the suit property.

7.               Being aggrieved the defendants preferred a Miscellaneous Appeal being No.01 of 2017 in the Court of learned District Judge, Dhaka which was transmitted to the 1st Court of learned Additional District Judge, Dhaka for hearing and disposal and the learned appellate court on hearing the appeal by the impugned judgment and order dated 23.05.2017 allowed the appeal and set aside the judgment and order passed by the trial court and also disallowed the application for temporary injunction.

8.               Being aggrieved by and dissatisfied with the impugned judgment and order, the plaintiff-respondent-petitioners have preferred this civil revision under section 115(1) of the Code of Civil Procedure and obtained the Rule with an interim order of status quo.

9.               During hearing of the Rule, Mr. Mohammad Ali Azam, the learned Advocate appeared on behalf of the petitioners, while none appeared on behalf of the opposite parties.

10.           The learned Advocate appearing on behalf of the petitioners submits that the learned appellate court during disposal of the appeal committed gross illegality and irregularity. The learned Advocate further submits that the learned court of appeal below at the time of disposal of the appeal failed to appreciate the series of documents in favour of the plaintiffs by which the plaintiffs have acquired a strong prima-facie arguable case and on the contrary the defendant-opposite parties have totally failed to establish any prima-facie case in respect of their claim with regard to the suit property, but the learned appellate court without reversing the conclusive findings of the trial court reversed the judgment and order passed by the learned Senior Assistant Judge, 6th Court, Dhaka illegally. The learned Advocate also submits that the learned trial court during disposal of the application for temporary injunction according to the proposition of law of temporary injunction rightly framed 04(four) issues and decided all the issues in favour of the plaintiffs after proper assessment of the papers on records, but the learned Additional District Judge, 1st Court, Dhaka being guided by surmise and conjecture decided the merit of the appeal arbitrarily in favour of the defendant-appellant and as such the impugned judgment and order is not sustainable in law as well as in facts.

11.           In order to appreciate the submission advanced from the side of the learned counsel for the petitioners, having gone through the judgment and order passed by the trial court dated 06.10.2016 in Civil Suit No.210 of 2014, the judgment and order passed by the appellate court dated 23.05.2017 in Miscellaneous Appeal No.01 of 2017, the papers filed from the sides of the respective parties and all other connected documents, I find that admittedly the lands of the disputed 06(six) sub-kabala deeds dated 11.09.1981 originally belonged to Hajera Begum. It is also an admitted position that the defendant-opposite parties are claiming their title and possession by dint of the disputed kabala deeds which are 06(six) in numbers and described in schedule ‘Ga’ of the plaint. I have come across from the copy of plaint that the plaintiff-petitioners instituted the original suit being Civil Suit No.210 of 2014 challenging the aforesaid title documents of the defendant-opposite parties. It is the positive contention within the pleadings of the plaintiffs that the defendants have created the forged kabala deeds in their names which were not acted upon and no possession was delivered in favour of the defendants by the plaintiff No.1 Hajera Begum. The further case of the petitioners is such that the sub-kabala deeds in the name of defendants are forged, collusive, without consideration, illegal and not binding upon the plaintiffs. For cancellation of the said deeds, the original suit was instituted by their mother Hajera Begum, which is awaiting for disposal on merit.

12.           Having gone through the relevant papers I also find that the learned trial court during disposal of the application for temporary injunction rightly appraised the proposition of law as incorporated in the law of temporary injunction.

13.           The provisions laid down in Order XXXIX rule 1/2 of the Code of Civil Procedure (Act No.V of 1908) contemplates that the imperative points of determination for temporary injunction is: Firstly; as to whether the applicants have strong prima-facie arguable case with that of the opposite parties. Secondly; as to whether the applicants will suffer irreparable loss in absence of temporary injunction which is not compensateable in terms of money value. Thirdly; the balance of convenience and inconvenience lies in favour of the applicants.

14.           The learned trial court during disposal of the application for temporary injunction after thorough consideration of the points stated earlier arrived at a conclusive finding in comparison with the papers/documents produced from the sides of the respective parties that the plaintiffs to the suit have a better strong prima-facie and good arguable case in comparison to the defendants. The series of papers which were produced from the side of the plaintiff-petitioners go to show that the plaintiff-petitioners in respect of the suit property have acquired a strong prima-facie case and on the contrary the defendants have totally failed to produce any paper showing their bonafide or prima-facie case in respect of the property described in the schedule of the plaint. The learned appellate court during disposal of the appeal was totally misconceived in holding the view that apparently the 06(six) sub-kabala deeds dated 11.09.1981 stands registered in favour of the defendants, which were executed by the plaintiff No.1 Hajera Begum. Apart from this; the learned appellate court also filed to appreciate that, it is a matter of evidence as to whether the plaintiff-petitioner Hajera Begum was in the know about the execution and registration of the deeds under challenge. Prior to disposal of the suit on merit, scanning the evidences adduced from the sides of the respective parties, there is no scope at this stage to draw such inference that the executant of the deeds, the plaintiff Hajera Begum knew about the transfer and its registration. Furthermore, she was in the know about the pre-emption cases, which were gone upto the Hon’ble Appellate Division. It is a fact that in respect of the kabala deeds there were 06(six) pre-emption miscellaneous cases by one Syed Azharul Kabir, but upto the Hon’ble Appellate Division the petitioner to that case Azharul Kabir failed and in that cases Hajera Begum was one of the opposite party. Nevertheless, the existence of Hajera Begum or her presence in the pre-emption miscellaneous cases is not a legal barrier to challenge the deeds as challenged by her in the present suit for cancellation of the instruments.

15.           Be that as it may, I am constrained to hold such a view that the learned Additional District Judge, 1st Court, Dhaka during disposal of the Miscellaneous Appeal No.01 of 2017 committed gross illegality and infirmity. He was totally misconceived and pre-judged the merit of the original suit, rather; the learned trial court rightly appreciated the papers produced and addressed the same in its true perspective and thereby arrived at a correct decision as to the merit of the temporary injunction application.

16.           In view of the discussions and findings referred to above, I am constrained to hold such a view that the Rule has got sufficient merit to succeed.

17.           In the result, the Rule is made absolute without any order as to costs. The impugned judgment and order dated 23.05.2017 passed by the learned Additional District Judge, 1st Court, Dhaka in Miscellaneous Appeal No.01 of 2017 setting aside the order dated 06.10.2016 passed by the learned Senior Assistant Judge, 6th Court, Dhaka in Title Suit No.210 of 2014 is hereby set aside.

18.           The order of status quo granted earlier by this Court at the time of issuance of the Rule stands vacated.

19.           Communicate the judgment and order at once.

         Ed. 


Civil Rule No. 1782 of 2017