Appellate Division
(Civil)
Md Abdul Wahhab Miah J
Md Imman Ali J
AHM Shams uddin
Choudhury J
Judgment
June 23rd, 2015
Helaluddin …………
……… Appellant
Nazimuddin and
others ……………
…… Respondents”
Code of Civil Procedure (V of 1908)
Order XLI, rule 3
Where a co-sharer in ejmali property, when he has been in exclusive possession of a specific and separate share thereof demarcated by boundary, is entitle to retain his portion till legal partition, by an order of injunction.
…………..We find that the trial Court dismissed the suit because the boundaries of the suit land were not proved by evidence. We note, however, that the trial Court observed that although the suit land was recorded in a separate khatian but the plots were not separated in the names of the plaintiffs and defendants. However, the observation of the trial Court is contradictory to Exhibit-2 series/which show two separate plots. Incidentally the learned Judge of the trial Court himself noted that the mutation porcha exhibited by the plaintiffs as Exhibit-2 and 2(Kha) show that the name of the plaintiffs have been mutated in respect of 46 decimals of land. This description, in our view, is sufficiently clear to identify the suit land of the plaintiffs as being 46 decimals of land out of 92 decimals of the whole plot i,e. half of the plot, situated in the western side of the plot bounded in the north by Syed Ali, in the south by a road, in the east by Nazim Uddin and in the west by Syed Ali. To our mind, this description makes the land in possession of the plaintiffs sufficiently identifiable. . ….. (12, 13 & 14)
Moharram Ali vs Mohammad Madhu Mia, 41 DLR (AD) 92 ref.
Sheikh Mohammad Morshed, Advocate, instructed by Taufique Hossain, Advocate-on-Record-For the Appellant.
Awlad Ali, Senior Advocate, instructed by Syed Mahbubar Rahman, Advocate-on-Record-For Respondent Nos. 1-5.
Judgment
Md Imman Ali J : This Civil Appeal, by leave, is directed against the judgment and order dated 14-12-2005 passed by a Single Bench of the High Court Division in Civil Revision No. 2151 of 2004 making the Rule absolute. The facts of the case, in brief, are that the appellant along with others as plaintiffs instituted title suit No. 246 of 2001 in the court of Senior Assistant Judge, 2nd Court, Narayangonj, praying for permanent injunction in the suit land. They contended, inter alia, that the suit land belonged to Azimuddin Madbar who died leaving behind two sons, named Hafizuddin and Mofizuddin. Hafizuddin died leaving behind his wife Nurjahan Bibi, a son plaintiff No.1 and two daughters plaintiff Nos. 2 and 3. Nurjahan Bibi transferred her share of the land along with tinshed huts by Wasiwatnama dated 14-3-1981 in favour of the plaintiff No.1. During RS operation 23 of deciminals of land was recorded in the name of Nurjahan Bibi. In this way the plaintiffs have been in possession in the suit land by way of inheritance and on the strength of the Wasiwatnama. Their names have been correctly recorded in SA and RS Khatian. Thus the defendants have got no right, title and possession in the suit land. On 24-11-2001 the defendants threatened to dispossess the plaintiffs from the suit land. Hence, they filed the suit.
2. The defendant Nos. 1-4 contested the suit by filing written statement denying the material statements made in the plaint contending, inter alia, that the suit land belonged to Azimuddin who died leaving behind two sons Hafizuddin and Mofizuddin. Hafizuddin and Mofizuddin both transferred 45 decimals of land from plot No. 1814 by a kabala dated 12-4-1943 in favour of Satish Chandra Paul and handed over possession. They further sold 45 decimals of land by a kabala dated 17-4-1944 in favour of Hossain Miah and Alijan Miah, who got possession and their names were recorded duly in the Khatian. Hossain Miah and Alijan Miah transferred 221/2 decimals of land by a kabala dated 4-2-1957 in favour of Mir Syed Ali. Hossain Miah again transferred 11/1-3 decimals of land by a kabala dated 29-4-1963 in favour of Mir Syed Ali, Alijan transferred 11-1/4 decimals of land by two kabalas dated 17-3-1965 and 1-5-1965 in favour of Mir Syed Ali, In this way Mir Syed Ali purchased 45 decimals of land and his name was correctly recorded in the RS Khatian. One Chan Miah being an heir of Hossain Miah transferred 5 decimals of land by a kababa dated 14-9-1970 in favour of Mofizuddin, Mir Ibrahim son of Mir Syed Ali sold 71/2 decimals of land by a kabala dated 3-5-2000 and Mir Wahidulla and other two heirs of Mir Syed Ali transferred 7 decimals of land by a kabala dated 29-11-1993 in favour of defendant No.1. Mir Shahjahan Ali, another son of Mir Syed Ali, transferred 7Jdecimals of land and Mir Salima Begum and Shahida Begum two daughters of Mir Saved Ali transferred 71 h decimals of land in favour of defendant No.I. Mosammat Masuda, another daughter of Mir Syed Ali, transferred by a kabala dated 4-3-1990 an area of 0.0367 Ajutangsha in favour of the defendant. Mofizuddin, the father of defendant No.1 transferred 5 decimals of land by a Heba dated 29-11-1996 in favour of defendant No.1. In this way defendant No. 1 became owner and possessor of 68 decimals of land and mutated his name, constructed a tinshed hut, one kitchen and one temporary latrine and has been in possession thereof through his tenant. Defendant No.1 sold 5 decimals of land to Abdul Karim who constructed a pucca building and has been in possession. The plaintiffs have got no title and possession in the suit land. With these averments they prayed for dismissal of the suit.
3. The plaintiffs examined 3 PWs and the defendants examined 4 DWs.
4. After hearing the parties and considering the evidence and materials on record, the learned Assistant Judge, Second Court, Narayangonj, by his judgment and decree dated 18-8-2003 dismissed the suit.
5. Being aggrieved by the said judgment and decree, the plaintiffs preferred Title Appeal No. 188 of 2003 and the said appeal was heard by the learned Additional District Judge, 1st Court, Narayimgonj, who by his judgement and decree dated 13-5-2004 allowed the appeal and decreed the suit setting aside the judgment and decree passed by the trial court.
6. Against the aforesaid judgement and decree, the defendants filed Civil Revision No. 2151 of 2004 before the High Court Division and obtained Rule, which upon hearing was made absolute. Hence, the plaintiffs as petitioners filed civil petition for leave to appeal No. 353 of 2006.
7. Leave was granted on the following submissions of the learned Advocate appearing for the petitioner:
“(1) It is abundantly clear that the suit land has been properly described by the plaintiff in the plaint showing the boundary of it and out of 92 decimals of land 46 decimals has been in the possession of the plaintiffs and on the Northern side of the suit land it was the land of Mir Syed Ali, on the Southern side it was road and on the Eastern side it was the land of Nazimuddin and on the Western side it was the land of Mir Syed Ali, and this clearly shows that the suit land has been properly specified by the plaintiffs in the plaint, but the High Court Division without taking into consideration the specification of the suit land made the Rule absolute which is illegal, untenable and unsustainable in the eye of law.
“(II) The High Court Division failed to consider that PW 1 during cross examination had stated that:
Avwg Gm, G, cP©v `vwLj KwiqvwQ| Zvnv‡Z ev`x‡`i c~e©eZx©‡`i bvgwjwc Av‡Q| and also stated that: ev`xi Rb¥ Aewa bvwjkx f~wg‡Z evwo Ni Kwiqv emevm Kwi‡Z‡Q| Avgvi AbygwZ `v‡bi c~‡e©I ev`xiv GLv‡b _vwKZ| This clearly shows that the plaintiffs have been in possession of the suit land and the High Court Division has travelled beyond its jurisdiction by not considering that the suit land for which the plaintiffs prayed for injunction has been in the possession of the plaintiffs and, as such, the judgment and order passed by the High Court Division is liable to be set aside; and
“(lll) DWl during cross examination stated that ev`x‡`i `yBwU †mwg cvKv eviv›`vmn Ni Av‡Q| GKwU †`vPvjv Ni Av‡Q, Zvnvi Rb¥ Aewa GBLv‡b †fvM `Lj Av‡Q| ev`x‡`i Ni Avgvi evwo Ni nB‡Z jv‡Mvqv| The possession of the suit land by the plaintiffs is also corroborated by DW 1 and on this score the High Court Division ought to have taken into consideration that the suit land for which the plaintiffs prayed for injunction is specified and also the plaintiffs are in possession of the suit land and, as such, the judgment and order passed by the High Court Division is liable to be set aside since that impugned judgment and order is not sustainable in law and, as such, is liable to be set aside.
8. Mr Sheikh Mohammad Morshed, learned Advocate appearing on behalf of the appellant made submissions in line with the grounds upon which leave was granted. The learned Advocate further submitted that the trial Court noted that Exhibit-2 and 2(Kha) show 46 decimals of land having separate mutation in the name of the plaintiff but went on to hold that the boundary of the suit land was not proved by any witness and that although the suit land was recorded in a separate khatian as shown in the RS Porcha it did not record the separate plots of the plaintiff and defendant. The learned Advocate submitted that Exhibit-2 series clearly shows that separate plot have been mentioned in the khatian. In this regard he referred to the decision in the case of Moharram Ali vs Mohammad Madhu Mia reported in 41 DLR (AD) 92. The learned Advocate pointed’ out that DW 1 admitted in his cross-examination that the plaintiffs were in possession of the suit land and living there since their birth by constructing homestead thereon. He also pointed out that DW 1 admitted that the name of the predecessor of the plaintiffs appears in the SA Porcha and a separate RS Khatian has been prepared in respect of the suit plot owned by the heirs of Hafiz Uddin, thus the appellate Court was correct in decreeing the suit for permanent injunction, and the High Court Division was wrong to interfere with the decision of the last court of facts.
9. Mr Awlad Ali, learned Senior Advocate on behalf of the respondent Nos. 1-5 made submission in support of the impugned judgement and order of the High Court Division. The learned Advocate further submitted that admittedly the plaintiffs are cosharers of the suit plot comprising land measuring 92 decimals with homestead and, therefore, cannot maintain a suit for permanent injunction unless they can prove their exclusive possession. The learned Advocate also submitted that the 46 decimals of land claimed by the plaintiffs having not been specifically demarcated, the suit for permanent injunction was not maintainable and the High Court Division was correct in setting aside the decree of the lower appellate Court.
10. We have considered the submissions of the learned Advocates appearing for the parties concerned and perused the impugned judgment and order of the High Court Division and other connected papers on record.
11. We note from the impugned judgement that the High Court Division reversed the judgement and decree of the appellate Court on the ground that the suit land was not identifiable, and as the suit for permanent injunction related to a portion of a bigger plot such a suit is not maintainable unless the plaintiffs are able to make out a case of exclusive possession. The High Court Division observed that the plaintiffs ought to have filed a suit for partition.
12. The learned Advocate for the appellant has placed before us the case of Moharram Ali Vs Mohammad Modhu Mia reported in 41 DLR (AD) 92, where it was held that where a co-sharer in ejmali property, when he has been exclusive possession of a specific and separate share thereof demarcated by boundary, is entitle to retain his portion till legal partition, by an order of injunction.
13. In the instant case, we find that the trial Court dismissed the suit because the boundaries of the suit land were not proved by evidence. We note, however, that the trial Court observed that although the suit land was recorded in a separate khatian but the plots were not separated in the names of the plaintiffs and defendants. However, the observation of the trial Court is contradictory to Exhibit-2 series/which show two separate plots. Incidentally the learned Judge of the trial Court himself noted that the mutation porcha exhibited by the plaintiffs as Exhibit-2 and 2(Kha) show that the name of the plaintiffs have been mutated in respect of 46 decimals of land. Moreover, by amendment dated 20-2-2003 the suit land has been described as follows:
3684 `v‡M 16 Avbv 92 kZvsk cwðgv‡s‡ki Kv‡Z 46 kZvsk| hvnvi †PŠnwÏ Dˇi ˆmq` Avjx| `wÿ‡Y iv¯Ív, c~‡e©-bvwRg DwÏb, cwð‡g-ˆmq` Avjx Zrcwð‡g †ij jvBb| t
14. This description, in our view, is sufficiently clear to identify the suit land of the plaintiffs as being 46 decimals of land out of 92 decimals of the whole plot i.e. half of the plot, situated in the western side of the plot bounded “in the north by Syed Ali, in the south by a road, in the east by Nazim Uddin and in the west by Syed Ali. To our mind, this description makes the land in possession of the plaintiffs sufficiently identifiable.
15. In view of the above discussion, it appears that the finding of the trial Court with regard to the plaintiffs claim of exclusive possession is not correct in view of Exhibit-2 series and also the fact that DW 1 admitted the possession in the suit land by the plaintiffs, the High Court Division was wrong in upholding the decision of the trial Court.
16. Moreover, admittedly a separate khatian has been prepared in the name of the plaintiffs, which is sufficient to show exclusive possession of the plaintiffs.
17. However, our views expressed above shall not be binding in the trial Court if any suit is filed for partition. In such event the trial Court will be at liberty to give saham to the parties in accordance with title and possession established in such partition suit.
18. With the above observations, the appeal is allowed without, however, any order as to costs.