High Court Division (Civil Appellate Jurisdiction) :
Farid Ahmed J
Md Khurshid Alam
Sarkar J
Chamak Ali
……….Appellant
vs
Kaniz Fatema and others
……….Respondents*
Judgment
November 24th, 2014.
Specific Relief Act (I of 1877)
Section 42
When the plaintiff is admittedly out of posession of the suit property, the question whether the plaintiff was dispossessed from the suit property, by the defendant or whether he has lawful title in the suit property or not can be decided only after examining the witnesses adduced by the parties at the time of hearing. …… (11)
Md Khurshid Alam Khan, Advocate – For the Appellant.
Md Lokman Karim, Advocate – For Respondents.
Judgment
Farid Ahmed J: This miscellaneous appeal at the instance of the plaintiff-appellant has been preferred against the judgment and order No. 9 dated 11-10-2011 passed by the Joint District Judge, 3rd Court, Chittagong, in Other Class Suit No. 193 of 2011 rejecting the prayer for temporary injunction.
2. The appellant as plaintiff instituted Other Class Suit No. 193 of 2011 in the 3rd Court of Joint District Judge, Chitta gong impleading the respondents as defendants for declaration of title and recovery of khas possession alleging inter alia that the plaintiff is the lawful owner of the suit property and that he had been in possession of the same by constructing tin-shed structure on the suit land and residing thereon with their family members and that on 1-8-2010 the defendant-respondent Nos. 1-3 took forcible possession of the said house and dispossessed the plaintiff-appellant therefrom which compelled the plaintiff to institute the suit for declaration of title and recovery of khas possession.
3. In that suit, plaintiff filed an application under Order XXXIX, rules 1 and 2 read with section 151 of the Code of Civil Procedure for restraining the defendants from changing the nature and character of the suit property by constructing building thereon and mortgaging or transferring the same to any third party.
4. The defendant-respondents contested the said application for injunction alleging that the plaintiff had no right, title, interest and possession on the suit property and that this defendants have been in possession of the same by raising construction. These defendants never dispossessed the plaintiff from the suit land.
The suit is false and that the suit as well as the application for injunction is liable to be rejected.
5. The learned Joint District Judge heard the injunction petition and by his judgment and order dated 11-10-2011 rejected the same.
6. Being aggrieved thereby, the plaintiff-appellant preferred this appeal.
7. At the time of admission of appeal upon an application of the plaintiff-appellant for granting injunction restraining the respondents from changing the nature and character of the suitland or from transferring the same to any 3rd party, this Court issued rule in Civil Rule No. 1039 (FM) of 2011 and also directed the parties to maintain status quo in respect of changing the nature and feature of the suit land.
8. Mr Md Khurshid Alam Khan, learned Advocate appearing on behalf of the appellant has submitted that the plaintiff had been in possession of the suit property and that on 1-8-2010 the defendant-respondents dispossessed them therefrom and took forcible possession of the suit property, in such circumstances the learned Joint District Judge was not justified in rejecting the plaintiff’s application for injunction. He further has submitted that if during pendency of the suit the nature and character of the suit property is changed or the same is sold out to any 3rd party, this plaintiff will be seriously prejudiced.
9. Me Lokman Karim, learned Advocate appearing on behalf of respondent Nos. 1-3 has submitted that the plaintiff has no right, title and interest on the suit property and that he never possessed the suit property and only to disturb the peaceful possession of the defendant-respondents the plaintiff has filed the instance suit and the application for injunction. He further has submitted that if the injunction is granted as per prayer of the plaintiff-appellant in that case, the defendant-respondents will be deprived of peaceful possession of the suit property. He has also submitted that admittedly the plaintiff-appellant has no possession in the suit property and in such circumstances the learned Judge has not committed illegality in rejecting the plaintiff’s prayer for injunction.
10. Heard the learned Advocates for both the sides, perused the memo of appeal and documents filed by the parties.
11. The plaintiff-appellant filed the suit for declaration of title and recovery of khas possession. Admittedly, the plaintiff is out of possession of the suit property. Whether the plaintiff-appellant was dispossessed from the suit property by the defendant-respondents or whether he has lawful title in the suit property can be decided only after examining the witnesses adduced by the parties at the time of hearing of the suit.
12. Admittedly, the defendant-respondents dents are in possession of the suit property. The trial Court held that the plaintiff-appellant has failed to make out a prima-facie case to get an order of injunction. The defendant-respondents should not be disturbed from his peaceful enjoyment of the suit property till disposal of the suit. However, the defendant-respondents are restrained by an order of injunction only from transferring the suit land till disposal of the suit.
With the above observation the appeal is disposed of without any order as to costs.
Farid Ahmed J
Md Khurshid Alam
Sarkar J
Chamak Ali
……….Appellant
vs
Kaniz Fatema and others
……….Respondents*
Judgment
November 24th, 2014.
Specific Relief Act (I of 1877)
Section 42
When the plaintiff is admittedly out of posession of the suit property, the question whether the plaintiff was dispossessed from the suit property, by the defendant or whether he has lawful title in the suit property or not can be decided only after examining the witnesses adduced by the parties at the time of hearing. …… (11)
Md Khurshid Alam Khan, Advocate – For the Appellant.
Md Lokman Karim, Advocate – For Respondents.
Judgment
Farid Ahmed J: This miscellaneous appeal at the instance of the plaintiff-appellant has been preferred against the judgment and order No. 9 dated 11-10-2011 passed by the Joint District Judge, 3rd Court, Chittagong, in Other Class Suit No. 193 of 2011 rejecting the prayer for temporary injunction.
2. The appellant as plaintiff instituted Other Class Suit No. 193 of 2011 in the 3rd Court of Joint District Judge, Chitta gong impleading the respondents as defendants for declaration of title and recovery of khas possession alleging inter alia that the plaintiff is the lawful owner of the suit property and that he had been in possession of the same by constructing tin-shed structure on the suit land and residing thereon with their family members and that on 1-8-2010 the defendant-respondent Nos. 1-3 took forcible possession of the said house and dispossessed the plaintiff-appellant therefrom which compelled the plaintiff to institute the suit for declaration of title and recovery of khas possession.
3. In that suit, plaintiff filed an application under Order XXXIX, rules 1 and 2 read with section 151 of the Code of Civil Procedure for restraining the defendants from changing the nature and character of the suit property by constructing building thereon and mortgaging or transferring the same to any third party.
4. The defendant-respondents contested the said application for injunction alleging that the plaintiff had no right, title, interest and possession on the suit property and that this defendants have been in possession of the same by raising construction. These defendants never dispossessed the plaintiff from the suit land.
The suit is false and that the suit as well as the application for injunction is liable to be rejected.
5. The learned Joint District Judge heard the injunction petition and by his judgment and order dated 11-10-2011 rejected the same.
6. Being aggrieved thereby, the plaintiff-appellant preferred this appeal.
7. At the time of admission of appeal upon an application of the plaintiff-appellant for granting injunction restraining the respondents from changing the nature and character of the suitland or from transferring the same to any 3rd party, this Court issued rule in Civil Rule No. 1039 (FM) of 2011 and also directed the parties to maintain status quo in respect of changing the nature and feature of the suit land.
8. Mr Md Khurshid Alam Khan, learned Advocate appearing on behalf of the appellant has submitted that the plaintiff had been in possession of the suit property and that on 1-8-2010 the defendant-respondents dispossessed them therefrom and took forcible possession of the suit property, in such circumstances the learned Joint District Judge was not justified in rejecting the plaintiff’s application for injunction. He further has submitted that if during pendency of the suit the nature and character of the suit property is changed or the same is sold out to any 3rd party, this plaintiff will be seriously prejudiced.
9. Me Lokman Karim, learned Advocate appearing on behalf of respondent Nos. 1-3 has submitted that the plaintiff has no right, title and interest on the suit property and that he never possessed the suit property and only to disturb the peaceful possession of the defendant-respondents the plaintiff has filed the instance suit and the application for injunction. He further has submitted that if the injunction is granted as per prayer of the plaintiff-appellant in that case, the defendant-respondents will be deprived of peaceful possession of the suit property. He has also submitted that admittedly the plaintiff-appellant has no possession in the suit property and in such circumstances the learned Judge has not committed illegality in rejecting the plaintiff’s prayer for injunction.
10. Heard the learned Advocates for both the sides, perused the memo of appeal and documents filed by the parties.
11. The plaintiff-appellant filed the suit for declaration of title and recovery of khas possession. Admittedly, the plaintiff is out of possession of the suit property. Whether the plaintiff-appellant was dispossessed from the suit property by the defendant-respondents or whether he has lawful title in the suit property can be decided only after examining the witnesses adduced by the parties at the time of hearing of the suit.
12. Admittedly, the defendant-respondents dents are in possession of the suit property. The trial Court held that the plaintiff-appellant has failed to make out a prima-facie case to get an order of injunction. The defendant-respondents should not be disturbed from his peaceful enjoyment of the suit property till disposal of the suit. However, the defendant-respondents are restrained by an order of injunction only from transferring the suit land till disposal of the suit.
With the above observation the appeal is disposed of without any order as to costs.
