Monday, July 22, 2019 | ePaper

Section 42 of the Specific Relief Act

Permanent Injunction or Confirmation of the Possession

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Appellate Division (Civil) 
Md Abdul Wahhab Miah J
Muhammad Imman Ali J
Hassan Foez Siddique J
Pear Ali (Md) @  Pear Ali Bepari and others .............
vs
Md Abdul Hai and others............ . Respondents
Judgment
August 9th, 2017
Specific Relief Act (I of 1877)
Section 42
On the date of filing the suit or on the date of cause of action for filing the suit, the plaintiffs were under the constant threat of dispossession by the defendant. They were legally obliged either to pray for permanent injunction or to pray for confirmation of possession as consequential relief along with the prayer for declaration of title to the suit land within the meaning of the proviso to Section 42 of the Act, but they did not make any such prayer and they only prayed for a declaration of title to the suit land. The plaintiffs' suit was not maintainable in law within the meaning of the proviso to Section 42 of the Act. .. .... (13)
Quamrul Haque Siddique, Senior Advocate instructed by Md Tajique Hossain, Advocate-on-Record-For the Appellants.
Abdul Momen Chowdhury, Senior Advocate instructed by Nurul Islam Bhuiyan, Advocate-on-Record -For Respondent Nos.1-21.
None Represented-For Respondent Nos. 22-24.
Judgment
Md Abdul Wahhab Miah J : This appeal, by leave, is from the judgment and order dated the 22nd day of August, 2007 passed by a Single Bench of the High Court Division in Civil Revision No. 2934 of 2000 discharging the Rule.
2. Facts necessary to dispose this appeal are that respondent Nos. 1-21 as the plaintiffs field Title Suit No. 116 of 1992 in the Court of Subordinate Judge, 2nd Court, Dhaka for declaration of title to the suit land on the averment that Saroda Proshad Roy Chowdhury was the owner of the suit land and on his death, his legal heirs were continuing to the predecessor-in-interest of the plaintiffs have been possessing the suit land. The plaintiffs to know from a reliable source that defendant No.4, with the help of some other unruly persons, tried to take possession of the suit land by applying force; the plaintiffs were compelled to institute the suit.
3. The suit was contested by defendant No.4 (hereinafter referred to as the defendant) by filing written statement denying the material statements of the plaint contending, inter alia, that the plaintiffs had no cause of action to file the suit, the suit was barred by limitation and was also barred under Section 42 of the specific Relief Act. The plaintiffs had neither any right nor any title in the suit land. The defendant had been enjoying the suit land along with other lands by taking settlement from the Zamindari State of Kashimpur. The then landlords accepted rents from him and his name was recorded in the SA Khatian, but due to mistake only 0.66 acre land out of 1.6 acres was recorded in the name of the government-After the SA record the defendant filed an appeal being No. 4493/69/70 before the settlement office. Thereafter 1.00 acre land was recorded in the RS Khatian in the name of the defendant. The defendant filed Title Suit No. 266 of 1991 in the 2nd Court of Subordinate Judge, Dhaka for declaration of title in respect
of 0.66 acre land si e his name was not recorded in respect of the  said area of the land which was pending. The defendant did not pay rents because the case was pending. The defendant paid the rents to the landlord and he had been possessing the suit land.
4. At the trial, both the parties produced evidence, oral and documentary.
5. The learned Sub-ordinate Judge on conclusion of trial by his judgment and decree dated 23-11-1998 dismissed the suit Being aggrieved by and dissatisfied with the judgment and decree of the learned Subordinate Judge, the plaintiffs field title Appeal No. 132 of 1999 before the District Judge, Dhaka. The learned Additional District Judge, 7th Court Dhaka having the appeal by his judgment and decree dated 2-2-2000 allowed the same and decreed the suit. Against the judgment and decree of the Appellate Court, the defendant filed the above mentioned civil revision before the High Court Division. A Single Bench by the impugned judgment and order discharged the Rule. Against the impugned judgment and order, the defendant preferred Civil Petition for Leave to Appeal No. 1626 of 2007 before this Division and leave was granted to consider the submissions made by their learned Counsels under.
"The learned Counsel submits that the High Court Division as well as the appellate Court being the last Court of fact committed an error of law in relying on the ext.2, the amalnama of the plaintiff ignoring the fact that “প্রদর্শন-২ ঐ কাগজটিতে যে ৫-৯-৯৪ বাংলা তারিখ লেখা আছে তাহা ভিন্ন কালিতে এবং ঘষামাজা আছে।” as found by the trial Court. Thus both the Court of appeal below as well as the High Court Division on misreading the material evidence on record arrived at an erroneous finding that the plaintiff opposite party has been able to prove his title and possession in the suit land. He further submits that the appellate Court below as well as the High Court Division fell into an error of law in finding that the plaintiff opposite party is in possession of the suit land totally ignoring the SA and RS Khatians of the suit land which are documents of possession and collateral documents of title. He next submits that in decreeing the suit and affirming the appellate decree by the High Court Division, both the Courts fell into an error of law not noticing the material fact that the plaintiff Nos. 1-16 are heirs of Gani Munshi but how the suit land is possessed by them have not been described in the plaint nor there is cogent oral evidence to show that the plaintiffs are in possession of the suit land rather PW 1, the plaintiff No, 1 in his deposition stated that he used to posses the suit land through his father-in-law. He lastly submits that the finding of the High Court Division as well as the Appellate Court below that the suit is not barred by law is also based on non-consideration of material evidence on record inasmuch as PW 1 in cross candidly admitted that “১৯৭৮ সনে খাজনা দিতে গিয়াছিলাম তহসিল অফিসে। কিš' তহসিল অফিস খাজনা নেয় নাই।” ঞযরং চড১ রহ যরং পযরবভ ধষংড় ংঃধঃবফ ঃযধঃ “নালিশী সম্পত্তির খাজনা প্রদানের জন্য তহসিল অফিসে গেলে তহসিল অফিস খাজনা গ্রহণ করে নাই। পরে জানিতে পারি যে নালিশী সম্পত্তি ৪নং বিবাদীর নামে রেকর্ড হইয়াছে এবং ৬৬ শতক জরি ভুল দেখানো হইয়াছে।”
Thus it is clear that the suit is barred by limitation inasmuch as in 1978 at least the plaintiff Abdul Hai came to know that the land is not recorded in their name."
6. Mr Quamrul Haque Siddique, learned Counsel, appearing for the appellant, has, in fact, reiterated the points on which leave was granted. Therefore, we are not restating his argument.
7. Mr Abdul Momen Chowdhury, learned Council, for respondent Nos. 1-21, on the other hand, has supported the impugned judgment and order.
8. From the judgment and decree of the trial Court, it appears that it dismissed the suit on the findings, inter alia, that amalnama exhibit- 2 which was the basis of the plaintiff's case was dated 5-9-1924 BS, but the dated was written in a different ink and there was also erasing there (in Bangla, it has been written as -“প্রদর্শনী-২ ঐ কাগজটিতে যে ৫-৯-২৪ বাংলা তারিখ আছে তাহা ভিন্ন কালিতে এবং ঘষামাজা আছে।” the tow witnesses, who deposed to prove the amalnama, the evidence of PW 6 was wishful and false, because the documents filed by. the plaintiffs, such as, amalnama, the rent receipts appeared to have been created subsequently; no proof was filed to show that PWs 5 and 6 used to serve at Kashempur Zamidari Estate; the story that they (PWs 5 and 6) knew the hand writing of the persons who granted dakhilas and that they used to serve with them was also wishful and false; after the abolition of the zamindari system in 1950, the plaintiffs did not pay any rent in respect of the suit land and the SA and the RS records were also not prepared in their names; the plaintiffs failed to give any reason of non recording of their names in the SA and the RS Khatians; therefore, the cause of action on which the plaintiffs filed the suit was also wishful one and false; the area of the suit land was 1.6.6 acres. The plaintiffs claimed to be the heirs of one Sheikh Goni Munshi, but they did not say in the plaint how did they possess the suit land as the heirs of Gani Munshi and nothing was also stated by the witnesses who tried to prove their possession in the suit land; PW 1 stated that he used to possess the suit land through his father-in-law, Ghughur Ali, but the said fact was not stated in the plaint. The PWs stated in their deposition that for the last 4/5 years, the plaintiffs started possessing the suit land, but actually no such witness was examined in Court; from the deposition of the witnesses, it appeared that the plaintiffs' side used to look after the suit land, but possession  and looking after were not the same thing; amongst the defendants, defendant No.4 got the suit land by way of settlement and exhibits- 'Kha' and 'Kha (1) showed that the suit land was recorded in his name in the SA and the RS records in respect of 1 acre land. So it was proved that defendant No.4 got 1 acre land by way of settlement; DWs 2 and 3 proved that defendant No. 4 possessed the suit land; no document was filed to prove that the suit land was the Government land; no document was also produced to show that the Government possessed the ..suit land through its lessees; besides defendant No.4 also filed Title Suit No. 16 of 1993 in the Court of Subordinate Judge, 1st Court, Dhaka in respect of 1.66 acre land out of 1.66 acres land which was pending. The trial Court concluded that from the facts and circumstances of the case, it was proved that the defendant was the owner of the suit land and that the plaintiffs had no title and possession therein. The trial Court further found that the plaintiffs had no cause of action to file the suit inasmuch as from the plaint, it appeared that the defendant with his cohorts tried to dispossess the plaintiffs on 26-6-1989 which gave the cause of action to file the suit. Whereas, in paragraph 2 of the plaint, it was stated that the plaintiffs came to know from the reliable source that the defendant was trying to record his name in the khatian which gave cause of action to file the suit. The trial Court further held that the SA record was finally published in 1961-62 and long thereafter the suit was filed and as such, the same was barred by limitation.
9. From the judgment and decree of the Appellate Court, it appears that it after noting down the submissions of the learned Advocate of the respective party found title of the plaintiffs in the suit land on the basis of amalnama, exhibit-'2'. The Appellate Court did not at all reverse the finding of the trial Court in respect of amalnama, exhibito'2'. The Appellate Court did not also reverse the finding of the trial Court as to the competence of PWs 5 and 6 in proving the rent receipt and the amalnama. The Appellate Court did not also reverse the finding of the trial Court that the documents filed by the plaintiffs, such as the amalnama and the rent receipts appeared to have been created subsequently. The Appellate Court in one sentence said that on sifting the evidence of the plaintiffs, it was found that the plaintiffs were in possession of the suit land without discussing the oral evidence and also considering of the fact that the SA and RS records were prepared in the name of the defendant. The Appellate Court found that the suit was not barred by limitation inasmuch as the plaintiffs filed the suit after coming to know about the record of rights in the name of the defendant; it did not consider the fact that the tahsilder refused to accept rent from the plaintiffs in 1978, whereas the suit was filed only on 18-7-1989, i.e. after 11 years.
10. Let us see first whether the appellate Court was correct in holding that the suit was not barred by limitation as the same was filed by the plaintiffs after they had come to know about the wrong recording. It is by now a well settled legal proposition that mere non-recording of a suit land in the name of the plaintiff or party concerned does not extinguish his title and a cause of action to file a suit would arise when title is invaded and the fact of invasion of title of the plaintiff in the suit land has to be gathered from the facts and circumstances of a particular case. In the instant case, plaintiff No. 1 as PW1 in his examination-in-chief stated that they went to Tahsil Office in 1978 to pay rent, but the Tahsil Office did not accept the rent. This clearly shows that the plaintiffs very much knew about the wrong recording of the suit land in 1978 and the very fact of refusal of rent by the tahsilder in 1978, in fact, was clear invasion on their title in the suit land, but they filed the suit only on 18-7-1989, i.e. after 11 years of the refusal of rent from them by the Tahsil Office. Therefore, the knowledge of wrong recording as stated by the plaintiffs was not correct and in the facts and in the facts and circumstances of the case, the trial Court rightly found the suit barred by limitation.
11. Now another pertinent question arises for consideration whether the plaintiffs could maintain the suit for simple declaration of title to the suit land in view of the assertion made in paragraph 7 of the plaint that on 26-6-1989 the defendant (defendant No.4, the appellant herein) accompanied by this hired goondas numbering 40/50 came to the suit land to dispossess them there from, but on being resisted by them and hearing the hue and cry, the neighboring people came running and then the defendant left the place and declared that he would come soon and would dispossess them. Besides paragraph 7, in paragraph 6 also the plaintiffs stated that they were innocent, peace loving and law abiding citizen of the country, the defendant who was influential, dangerous and greedy person, was applying force to dispossess them from the suit land and also threatening them with dire consequences. We consider it better to quote paragraph 6 and 7 of the plaint which read as: 
“৬। বাদীগণ শান্ত নিরীহ সৎ ও আইনের প্রতি শ্রদ্ধাশীল, অপর দিকে ৪নং বিবাদী প্রভাবশালী দুধর্ষ, দুর্মনা ও লোভের বশবর্তী হইয়া জোর পূর্বক বে-আইনীভাবে বাদীগণকে নালিশী সম্পত্তি হইতে বে-দখল করিতে জোর জবর দস্তি করিতেছে এবং প্রাণ নাশেরও হুমকি দিতেছে। ৪নং বিবাদী আইনের প্রতি শ্রদ্ধাশীল নয়।
৭। যেহেতু ৪নং বিবাদী ও তাহাদের ভাড়াটিয়া গুন্ডা পান্ডা আনুমানিক ৪০/৫০ জন লোক সহ বিগত ২৬-৬-৮৯ইং তারিখে নালিশী সম্পত্তি হইতে জোর জবর দস্তিতে বে-দখল করিতে আসিলে বাদীগণ তাহাদের বাধা দেন এবং আত্ম চিৎকারে আশে পাশের লোকজন দৌড়াইয়া আসে, অতঃপর বিবাদী ও তাহাদের লোকজন চলিয়া যাওয়ার সময় জোর চিৎকার বলিয়া যায় আকস্মিক ভাবে শীঘ্রই ৪নং বিবাদী ও তাহার লোকজন বাদীগণকে নালিশী সম্পত্তি হইতে বে-দখল করিবে এবং প্রয়োজন বোধে প্রাণ নাশ করিতেও দ্বিধাবোধ করিবে না। বিধায় বাদীগণ অসহায়, নিরুপায় ও বাধ্য হইয়া ন্যায় বিচারের স্বার্থে অত্র স্বত্ব সাব্য¯ে'র ঘোষণা ডিক্রীর মোকদ্দমা হুজুরের আদালতে দায়ের করিয়াছেন এবং অত্র মোকদ্দমা নিস্পত্তি না হওয়া পর্যন্ত যাহাতে অবৈধভাবে বিবাদী কর্তৃক বাদীগণকে নালিশী সম্পত্তি হইতে বে-দখল করিতে না পারে।”
12. In paragraph 7, in fact, the plaintiffs attempted to make a prayer for temporary injunction so that they could not be dispossessed during the pendency of the suit.
13. From the above quoted statements of the plaint, it is apparent that on the date of filing the suit or on the date of cause of action for filing the suit, the plaintiffs were under the constant threat of dispossession by the defendant. Therefore, they were legally obliged either to pray for permanent injunction or to pray for confirmation of possession as consequential relief along with the prayer for declaration of title to the suit land within the meaning of the proviso to Section 42 of the Specific Relief Act, but they did not make any such prayer and they only prayed for a declaration of title to the suit land. Therefore, the plaintiffs' suit was not maintainable in law within the meaning of the said proviso to Section 42 of the Specific Relief Act. It is true that the trial Court dismissed the suit not on the ground of its maintainability, but on other grounds as noted down hereinbefore, but this being a point of law and maintainability of the suit goes at the very root of the matter and when this has come to the notice of this Court, this Court cannot overlook the provision of law.
14. The High Court Division, like the Appellate Court while affirming the judgment and decree of the Appellate Court did not at all notice and consider the factual finding arrived at by the trial Court about the amalnama, the basis of the plaintiffs title the maintainability of the suit and therefore, erred in law in discharging the Rule.
15. For the discussions made above, we find merit in the appeal and accordingly, the same is allowed. The impugned judgment and order affirming those of the Appellate Court is set aside and those of the trial Court are restored.

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