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Code of Civil Procedure

Permanent injunction will not operate as res-judicata

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12th-Oct-2019       
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High Court Division :
(Civil Revisional Jurisdiction)

Md Rezaul Hasan J
Azadul Islam and others
.............Defendant- Respondent-Petitioners
vs
Asis Bewa and others ...... Plaintiff-Appellant Opposite Parties
 
Judgment
March 7th, 2019
Code of Civil Procedure (V of 1908)
Section 11
Decree in a suit for permanent injunction will not operate as res-judicata, in a subsequent suit, so far as the issue of title is concerned. .. .... (15)
In a suit for permanent injunction, the issue regarding title need not be and should not be conclusively decided, because the purpose of granting the relief of permanent injunction is to prevent forceful ouster of an apparently lawful occupant of the suit property, thereby disapproving the act of taking law into the defendant's own hands. Nonetheless, the court should incidentally look into the title or other lawful basis of the plaintiffs acquiring and continuing in possession, to satisfy itself that the plaintiff is not an usurper or trespasser or a land grabber and that he has come in clean hands.
Sushil Kumar Paik vs Harendra Nath Samadder, 8 MLR (AD) 41 = 55 DLR (AD) 9; Chandan Mandal @ Kushal Nath Mandal vs Abdus Samad Talukder, 51 DLR (AD) 150; Pasharuddin Mir vs Ismail Mir, 1986 BLD 155; Manindra Nath Sen Sarma vs Bangladesh, 4 BLD (AD) 285; Sheikh Ahmed vs Abdul Alim, 9 BLD 368 = 42 DLR 408 and  Government of Bangladesh, represented by the Additional Deputy Commissioner, Gazipur vs AKM Abdul Hye 56 DLR (AD) 53 ref.
Md Jamiruddin Sircar with AHM Abdul Wahab, Advocates-For the Petitioners.
Bivash Chandra Biswas with Mrinal Kanti Biswas, Advocates-For the Opposite-Parties.

Judgment
This Rule has been issued calling upon the opposite parties, to show cause as to why the impugned judgment and decree dated 12-2-2014 (decree signed on 17-2-2014), passed by the learned Additional District Judge, Gaibandha, in other Appeal No.41 of 2013, allowing the appeal and reversing the judgment and decree dated 28-4-2013 (decree signed on 5-5-2013), passed by the learned Joint District Judge, 1st Court, Gaibandha, in Other Suit No.8 of 2003, should not be set-aside and/or pass such other 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 one Most Asia Khatun and others, as plaintiffs, filed Other Suit No. 20 of 2002, subsequently re-numbered as 8 of 2003, against Md Azadul Islam and others, impleaded as defendants, with a prayer for declaration of title and permanent injunction, in respect of the schedule property. However, the plaintiffs have subsequently dropped the prayer as regards declaration of title in the suit property. Hence, the suit remains to be one for permanent injunction, and, evidently, the defendant did not challenge this amendment of the plaint.
3. Be that as it may, the defendants Nos. 6-8/11/13/20/24-26 have filed written statements and contested in the suit.
4. I have gone through the pleadings of the parties which need not be reproduced here.
5. The Trial Court, after hearing the parties and assessing the evidence on record, dismissed the suit by his judgment and decree dated 28-4-2013 (decree signed on 5-5-2013).
6. Against the said judgment and decree of the Trial Court, the plaintiff-appellant opposite parties, preferred Other Appeal No.41 of 2013 (as appellants) before the District Judge, Gaibanda, which was heard by the learned Additional District Judge, Gaibanda, who being the Appellate Court, has passed the impugned judgment and decree, allowing the appeal by setting aside the judgment and decree of the trial court, vide judgment and decree dated 12-2-2014 (decree signed on 17-2-2014).
7. Being aggrieved by and dissatisfied with the judgment and decree of the Appellate Court, the Defendant-Respondent-Petitioners filed this application under Section 115(1) of the Code of Civil Procedure and obtained the present Rule.
8. Learned Senior Counsel Mr Mohammad Jamiruddin Sircar with learned Advocate Mr AHM Abdul Wahab appeared for the petitioners. Mr Sircar has placed the petition. He first of all submits that, the trial court having properly assessed the evidence on record, had come to the correct findings. as regards the facts and circumstances of this case, which ought not to have been set-aside by the appellate court. He also submits that, the trial court has rightly found that, the genology placed by the heirs of late Azizur Rahman (predecessor of the defendant) was not correct and that, the CS khatain No. 122 Ext. 1 does not support the plaintiff's case of taking grant (patton) from Kosir Uddin, who had the superior rent receiving interest in the suit property. He next submits that, the findings of the trial court has been wrongly set-aside by the appellate court without applying the judicial mind or assessing the evidence on record. He, making reference to the judgment of the appellate court as well as to the CS khatain No. 1, also submits that the plaintiff could not prove their prima-facie title in the suit land in as much as Vomor Ali Sarker is entitled to get 59 decimals of land as per CS khatain, but the plaintiffs have made out a case of obtaining kabuliat for 90 decimals of land in the suit property, which is in excess of the land owned by Kosir Uddin, who was son of Vomor Ali Sarker. In support of his contention, he has referred a decision reported in 8 MLR (AD) 41 = 55 DLR (AD) 9: between Sushii Kumar Paik vs Harendra Nath Samadder. He further submits that, the plaintiffs have submitted certain documents purported to be the kabuliat dakhila in support of the alleged kabuliat to prove their title in the suit property, but the court cannot take the same into consideration, vide the decision reported in 51 DLR (AD) 150: between Chandan Mandai @ Kushai Nath Mandai vs Abdus Samad Taiukder. But, the appellate court has totally ignored the law declared in the said decisios and thereby passed the impugned judgment and decree and has committed serious error of law in passing the impugned decision occasioning failure of justice and, therefore, the impugned judgment and decree passed by the appellate court are liable to be set-aside and the judgment and decree passed by the trial court may be upheld, he prayed for.
9. Mr Bivash Chandra Biswas along with Mr Mrinal Kanti Biswas, learned Advocates appeared for the opposite parties. Mr Bivash Chandra Biswas, on the contrary, submits that, this is a case for permanent injunction in which the question of proof of title does not at all arise. The learned Advocate submits that, the question of title may be looked into incidentally in a suit for permanent injunction. He submits that, the plaintiffs have filed RS khatian No. 147 showing 16 annas lands in the suit plot No. 796 and 830/1685, comprising 98 decimals of land, and the said khatian is in the name of predecessor of the plaintiffs, but the other side (defendants) did not challenge the said khatians and the presumption of the validity of the said khatians remains un-rebutted and this proves the prima-facie basis of the plaintiff's acquiring and remaining possession of the suit land. He next submits that, the schedule "Ka" to the plaint correctly described the land shown in the SA khatian No. 147 of Mouza Sathalia, PS Saghata, under District- Gaibanda. He further submits that, the plaintiffs have proved their case by adducing PW 1, who has deposed in support of the plaintiff's case and proved the documentary evidence including aforesaid khatian, to support their prima-facie case regarding the plaintiff's lawful possession in the suit land. PW 1 was then corroborated by PWs 2 and 3. He next submits, the defendants did not cross examine these PW Nos. 2 and 3, nor did the defendants adduce any witness to prove their positive case. He also submits that, the appellate court has pointed out all these aspects of this case and has rightly passed the impugned judgment and decree, which calls for no interference by this revisional Court. In support of his contention, he has referred to the decisions reported in 1986 BLD 155: between Pasharuddin Mir vs Ismail Mir, 4 BLD (AD) 285: between Manindar Nath Sen Sarma vs Bangladesh, 9 BLD 368 = 42 DLR 408: between Sheikh Ahmed vs Abdul Alim and also the decision reported in 56 DLR (AD) 53: between Government of Bangladesh, represented by the Additional Deputy Commissioner, Gazipur vs AKM Abdul Hye. In these decisions, referred to above, the superior Court has confirmed the presumption of the validity attached to RS khatain as per section 144A of the State Acquisition and Tenancy Act, 1950, and also held that, failure to prove the title in a case for permanent injunction will not disentitle the plaintiff to get permanent injunction, if they prove their exclusive possession in the suit property. He proceeds on that, the impugned judgment and decree passed by the appellate court suffers from no illegality or from any other lacuna, whatsoever, and this Rule has no merit and the same may be discharged.
10. I have heard the learned Advocates for both sides, perused the application for revision, lower Court's record as well as the judgment of both the Courts below and other materials in the record.
11. This is a case for permanent injunction, in which the question of declaration of title does not at all arise, though the question of title should be looked into incidentally, to satisfy the court about the basis of the lawful possession of the plaintiff (as opposed to the possession of a trespasser or land grabber).
12. I find that, RS khatian No. 147, shows 16 annas lands of the suit plot No. 796 and 830/1685, comprises 98 decimals of land, and that the said khatian is in the name of predecessors of the plaintiffs, but the other side (defendants) did not challenge the legality or correctness of the same and the presumption of the validity of these khatian remains unrebutted. The schedule "Ka" to the plaint has correctly described the land shown in the SA khatian No. 147 of Mouza Sathalia, PS Saghata under District-Gaibanda.
13. I also find that, the plaintiffs have proved their case by adducing PW 1, who has deposed in support of the plaintiff's case and proved the documentary evidence including aforesaid khatians to support their prima-facie case regarding their lawful possession in the suit land and he was corroborated by PWs 2 and 3, but the defendants did not cross examine these PW Nos. 2 and 3, nor did they adduce witness to prove their positive case.
14. I also find that, the appellate court has pointed out and discussed all these aspects of this case and has rightly passed the impugned judgment and decree, which call for no interference by this revisional Court.
15. I am also of opinion that, in a suit for permanent injunction, this Court should satisfy itself as regards the lawful nature of the plaintiffs' possession. In a suit for permanent injunction, the issue regarding title need not be and should not be conclusively decided, because the purpose of granting the relief of permanent injunction is to prevent forceful ouster of an apparently lawful occupant of the  suit property, thereby disapproving the act of taking law into the defendants own hands. Nonetheless, the court should incidentally look into the title or other lawful basis of the plaintiffs acquiring and continuing in possession, to satisfy itself that the plaintiff is not an usurper or trespasser or a land grabber and that he has come in clean hands. Therefore, decree in a suit for permanent injunction will not operate as resjudicata, in a subsequent suit, so far as the issue of title is concerned.
16. With these findings and observations, I find that, the impugned judgment and decree passed by the appellate court suffers from no illegality, nor from any other lacuna whatsoever, and this Rule has no merit and the same should be discharged.
Order
In the result, the Rule is discharged.
The impugned judgment and decree dated 12-2-2014 (decree signed on 17-2-2014), passed by the learned Additional District Judge, Gaibanda, in Other Appeal No.41 of 2013 is hereby upheld.
The order of stay granted earlier by this Court is hereby vacated.     .
No costs.
Let a copy of this judgment along with the Lower Court's Record be sent down to the concerned Courts at once.

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