Judgement passed in the other class suit No. 63/2015

BANGLADESH FORM NO. 3701

HIGH COURT FORM NO. (J) 2

HEADING OF JUDGEMENT IN ORIGINAL SUIT/CASE

District: Rajshahi

In the Court of the Senior Assistant Judge, Mohonpur, Rajshahi

Present: - Md. Abdul Malek, Senior Assistant Judge

14 July, 2022

Other Class Suit No. 63/2015 

Mr. Md. Noimuddin Sardar (Plaintiff)

Vs

Mr. Md. Rofiqul Sardar (Defendant).

 

The suit's trial ended and the argument was heard.

In the presence of

1.   Mr……………..............................,

Learned Advocate for the Plaintiffs.

2.  Mr………….................................,

Learned Advocate for the Defendants

 

And having stood for consideration to this day, the Court delivered the following judgment:  This is a suit for deed rectification.

The Plaint in the nutshell:

The recorded tenants of the RS khatian No. 106 were Poka Sardar, Thoirjon Bibi and Dukhi Beowa. Poka Sardar transferred 48 decimal lands comprising in SA plot No 926/929 and 950 of the RS khatian No. 106 via the deed No. 24492, and delivered possession therein. When the plaintiff went for mutation at the local land office on 15.04.2015, he got informed of the fact that the number of a RS plot was mistakenly written, that is to say, RS plot No. 299 has erroneously been written in the disputed deed in the place of RS plot NO. 402. Being surprised by these facts, he obtained the certified copy of the deed in question on 12.05.2015 and became well-informed of the same. The plaintiff claims that such an error has resulted from mistakes, and hence, the suit comes of.

The Written Statements in Brief:

The defendantscontested the suit by filing a written statement denying the material averments made in the plaint. He contended, inter alia, that Plaintiff lacks in locus standi, the impugned facts are fabricated and fanciful, and the very suit is legally untenable and unjustifiable;defect of parties, barred by limitation, and dismissible in law.

The disputed 34 decimal lands comprising in the RS khatian No. 106, plot No. 402 belonged to the defendants father Poka Sardar, who died leaving behind a wife, a daughter and the defendants. The defendant No. 02 and the defendant’s mother Arejan Beowa transferred their shares of lands of 0.0525 Acres to the defendant No. 01 Rafiqul Sardar via deed No. 3934 dated 27.09.2011. The defendants claim that their father never transferred the lands involving the RS plot No. 402 via the suit deed. The defendants also claim that the suit deed is not a genuine deed, which is not duly executed, and now, the defendants are in exclusive possession of the suit property comprised in the RS plot NO. 402. Hence, the suit is liable to be dismissed with costs.

Issues:

In cognizance of the parties’ pleadings and the matters in controversy, the issues are reframed under R. 05 of Or. 14 of the 1908 Code of Civil Procedure in the following way:

1.      Whether the suit is maintainable in the present form and manner.

2.     Whether the suit is barred by limitation.

3.     Whether the suit deed should be rectified.

4.     Whether the plaintiff may get relief as prayed for.

Discussions and Decisions:

During the trial, the plaintiff examined 02 witnesses and produced documentary pieces of evidence marked as exhibits No. 1-4. The defendants examined 03 witnesses and produced documents marked Exhibit No. Ka-Gha. Arguments were heard from both parties after the conclusion of the trial of the suit.

Issue No. 02:

As per the provision of Article 113 of the 1908 Limitation Act, the period of limitation for a suit seeking relief of rectification of a deed is three years, which commences from the date when the right to sue first accrues. On perusal of the suit record, it appearsto the Court that the plaintiff claims that the cause of action of the suit, the discovery of the mistake that furnishes the starting point of limitation, first arose on 15/04/2015 and then on 12/05/2015 upon obtaining the certified copy of the suit deed. The instant suit was instituted on 20/05/2015. In evidence, the PW-01 asserted the same in the same sense. Conversely, it appears that the defendants did not prove anything contrary to the plaintiff’s fact of the alleged cause of actions. Because of the above propositions of law and facts, it is, therefore, held that the suit has been filed within the period prescribed in law. Hence, this issue is decided in favor of the plaintiff.

Issue No. 03:

In general, a party to a written instrument is not allowed to contradict the instrument, but where the instrument does not reflect the real intention because of fraud or mutual mistakes, party may get the instrument rectified under section 31 of the 1887 Specific Relief Act and such a relief is based on equity. The actual expression of a thought very often fails to express the whole thought; some times more may be expressed, some times less, sometimes something totally different may be expressed. So, the object behind section 31 of the 1887 Specific Relief Act is to see that the defect in expression should not be allowed to defeat the real intention of the parties.

04. It is also well settled that the condition precedent for claiming rectification is the existence of a valid and complete contract. It is equally settled that there can be no rectification where there is no prior agreement with reference to which the rectification has to be done. Here, it is the both parties’ case that the deed in question is an outcome of a valid and contract between them. Besides, either party to a contract or instrument, or his representative in interest can sue for rectification of instrument to protect his rights by proving the mistaken expression of the agreement. Even the parties who would be affected by such rectification are proper parties to the suit. They can apply to be impleaded as parties. Here, the plaintiff himself is a party to the disputed deed. So, it is decided that the plaintiff has locas standi to institute the suit.

05. As per provision of section 31 of the 1887 Specific Relief Act, there are two cardinal grounds upon which a plaintiff may seek a relief in the name of the rectification of deed. Of them, the plaintiff has invoked the court’s jurisdiction and prayed for rectifying the disputed deed on the ground of mutual mistakes. The term “mutual mistake” arises when the parties misunderstand each other. They may not make the same mistake but they may not understand what the other is offering or accepting. It is the legal position that a person who seeks to rectify a deed upon the ground of mistake must establish that the alleged intention to which he desires it to be made comfortable continued concurrently in the minds of all parties down to the time of its execution. On careful perusal of the materials on record, it occurs in pleading and testimony (PW-01) that the plaintiff contends that by reason of a common mistake of the two parties to the agreement, an agreement (deed in question) was drawn up in a manner inconsistent with their common intention, and ought therefore to be rectified. In such a situation, the burden of proof lies heavily on the plaintiff seeking rectification to prove that due to mutual mistake, such a deed failed to reflect the real intention of the parties.

06. Now consider the evidence available on the record. The deed in question contains two plots, and the plaintiff only seeks to rectify a mistakenly written plot number from the deed. That is to say, the number of a RS plot No. 299 has erroneously been written in the disputed deed in the place of RS plot NO. 402. In testimony, the plaintiff as PW-01 admitted that the defendant Rafiqul are currently possessing 0.0525 acres of lands comprising in RS plot No. 402 of RS khatian 106. Even, the exhibit Nos. Kh-Gha are found to be in support of the defendant’s de jure possession in the disputed Plot. Besides, the PW-02 also maintained that the plaintiff possesses only 14 decimal lands comprised in RS plot No. 402. Accordingly, there is no gainsaying that there appears contradiction in the evidence adduced by the plaintiff side relating to his possession in the RS disputed plot.

07. Surprisingly, the impugned deed was executed and registered in 1978. Considerable time is already spent after the same was brought into being. But, no mutation is pursued with regard to the suit lands. Even, the PW-01 in his cross-examination admitted that taxes are being paid by him till to date in the name of Poka Sardar [ext.: 03]. So, it becomes an innuendo that reflects the true intention of the parties to the suit deed [ext.: 04]. Moreover, on perusal of the evidence adduced by the DW 01-03, as well as PW01-02, the defendant side has categorically been able to identify the suit lands, whereas the plaintiff’s current defacto possession on the whole lands comprising in RS plot No. 402 has not been established with convincing evidence so far.    

08. In arguments, Ld. Advocates for the plaintiff aptly pointed out that the measurement of the SA plot No. 926/929 is equal to the corresponding RS plot No. 402. But, as aforesaid, the defendant’s possession in the RS 402 is admitted by the plaintiff in his cross-examination. Moreover, there is no convincing evidence on the plaintiff’s favour on points that support a discourse of purchasing lands measuring 34 decimal in a single plot [Ext.: 01-02]. So, such a plea carries the plaintiff nowhere. In dispelling ambiguity, it is also pertinent to mention that it is not necessary to enter into a detailed discussion of the question of onus.

The reason is simple: the whole fabric of the evidential edifice is before the court; which finds no difficulty in arriving at a conclusion with regard to the issues in discussion. Accordingly, in considering the aforesaid facts, relevant laws, and corroborative evidence as well as encompassing conditions, it appears to the court that the plaintiffs have not been successful in establishing that there have been any mutual mistakes from the part of the parties to the deed in question. So, this issue is not settled in the plaintiff’s favor.

Issue No. 01 & 04:

For brevity, convenience and interrelation, these issues are taken together in discussing the case matter. These issues are certainly crucial in point of laws and facts for being related to the questions of eligibility for getting relief as sought for. The general principle of evidence law is that “the burden lies on the Plaintiff to prove his case and he must succeed on his own strength only and not at the weakness of the adversary” [vide 3 BLC 6], and the weakness of the defence case does not entitle the plaintiff to get a decree [vide 06 BLC AD 2001].

In respect of the instant suit, the cumulative effect and cogency of legal inference help the court hold that the plaintiff’s case has not been proved by evidence as well as sufficient implications that the disputed deed was executed with mutual mistakes of the both parties, who never intended the same to be executed as it is in the deed now. And again, the relevant law dealing with the instant suit also suggests that the Court may not in its discretion rectify the instrument so as to express that intention, when prejudice may result to rights acquired by third persons in good faith and for value. As per provision of section 31 of the 1877 Specific Reliefs Act, the instant suit does not appear to be a good fit for exercising the Court’s discretion in decreeing the same. Consequently, because the plaintiff has not been able to prove his case, the suit deserves to be dismissed. As such, it is decided that the plaintiff may not get the relief as prayed for. 

The court fee paid is sufficient.

Hence,

it is  ORDERED

that the suit be dismissed on contest against the defendants with costs.

 (Composed and corrected by)

continue reading Judgement passed in the other class suit No. 63/2015

Order passed on Injunction Petition in the other class suit No. 32/2020

        Heard the learned advocates for the both sides. Perused the petition under Order 39 Rule 01 & 02 of the 1908 Code of Civil procedure, and the supporting affidavit, written objection thereto, the plaint, submitted documents and the case record. The record is taken up for passing necessary order.

Substance of the Petition:

                     On such perusal, it appears to the court that this is a suit for permanent injunction instituted on 27/09/2020. The plaintiff’s case in the nutshell is that the recorded tenant of the RS khatian No. 99 was Isahak Pramanik, who transferred his title to the scheduled land to the Plaintiffs. The plaintiffs claim that they have been in exclusive possession of the suit lands in cognizance of all including the defendant since the execution of the said deed. But due to the existence of the suit deed, the defendant claimed title to the suit land on 05/12/2021 and intimidated the plaintiffs for dispossession from the suit land; and as such, the plaintiff turned up before the court invoking temporary injunction with a view to refraining the defendants from causing disturbance to or dispossessing the plaintiff from the suit lands. And hence is the petition.  

Objections of the Opposite Party:

            The defendant submitted written objection thereto, the brief of which encapsulates that the averment of the plaintiffs on the fact of the aforesaid forceful dispossession from the land specified in the schedule to the plaint is totally fake and falsified. The CS and SA khatians of the suit lands were recorded in the names of the defendants’ predecessors and predecessor-in-interest. But, RS record was wrongly prepared and published in the name of Isahak Pramanik, in the place of Isaha Ali Pramanik, the basis of which includes several deeds in their favor. Accordingly, a lawsuit bearing number of the other class suit No. 57//2010 was instituted against Isahak Pramanik and his heirs later on, where the plaintiffs of this suit were included in the bulk of the defendant, and finally, the suit was decreed against the plaintiffs of this suit. The defendant states that they have been in exclusive possession of the suit lands and thus, the fact of the resistance by the plaintiff side caused towards the defendants who intimidated the plaintiffs and kept continuing the same is fabricated and has been brought into being for causing damages to the defendant. Hence, as they claim, the petition is liable to be dismissed.

Point for determination:

Whether the plaintiff may get the relief prayed for?

Discussions and Decisions:

The so called trinity of principles on which rests the foundation of any order of injunction are the corner stones of a party’s pleading in a proceeding for injunction. No doubt, prima facie case means the plaintiff must show the existence of a legal right in him to continue in possession. It is a substantial question raised bona fide, which needs investigation and a decision on merits. In addition, a finding on 'prima facie case' would be a finding of fact.

05. Firstly, on careful perusal of the averments of pleadings as well as submitted documents, it conspicuously appears that the plaintiff shows some material facts which obviously carry him to the trial with his suit. Accordingly, it occurs that they have demonstrated ‘good and arguable case’ in his favour. It is thus needless to hold that with regard to the present case, a fair question is raised for determination; and accordingly, it is decisive that a prima facie case is established, even in face of the defendants’ assertion that legally stands beyond the ambit of the instant context.

06. With regard to ‘possession’, on careful perusal of the materials on record, it transpires that the plaintiffs are not outspoken of how and what manner they have been in possession of the suit lands. Accordingly, there appears a lack of precision and perspicuity with regard to the plaintiffs’ possessory state of the suit lands. With an instance, the plaintiffs’ petition merely envisages that he has been in possession of the same but they steps no more in details as to their possession. On the contrary, the defendant submitted some possessory documents, which seems obviously evidentiary value-laden. More specifically, sheer confounding conditions are arisen as such; and it is not ascertainable how and in what manner, he has been in possession of the suit land with the materials found on the record. Consequently, it contextually becomes decisive that the plaintiffs’ exclusive possession in the specified suit land cannot be decided upon the materials available on the record right now without taking further evidences.

7. Balance of convenience meaning to comparative mischief or inconvenience is likely to issue from withholding the injunction will be greater than that which is likely to arise from granting it. In applying this principle, the Court has to weigh the amount of substantial mischief that is likely to be done to the applicant if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. Apart from a prima facie case and a balance of convenience, the pleadings must establish also a case of irreparable injury to occur to the plaintiff if no injunction were granted.

The issue is, in fact, to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties’ case. Having taken aforesaid narratives, it is much safe to hold that speaking out the irreparable injury alleged to be occurred to the plaintiff if no injunction were granted, or deciding upon the question of the balance of convenience and inconvenience to the parties fall short in any details to be determined due to the findings made hereinbefore.

8. Of irreparable injury', such injury cannot be adequately remedied by damages. The remedy by damages would be inadequate if the compensation ultimately payable to the plaintiff in case of success in the suit would not place him in the position in which he was before injunction was refuse. In the instant context, it diaphanously appears that the plaintiffs are precarious in their mode of possession of the suit land; and it is also not ascertainable so far as long as the materials currently available on the record are considered. Hence, whether compensation can be adequate remedy to the plaintiff or he may face injury, irreparable or otherwise are consequently ruled out.

09. It is further well-conversant that the phrases `prima facie case’, `balance of convenience’ and ` irreparable loss’ are not rhetoric phrases for incantation, but words of width and elasticity, to meet myriad situations presented by man’s ingenuity in given facts and circumstances, but always is hedged with sound exercise of judicial discretion to meet the ends of justice. Keeping all of these things in the appreciation of the appearing facts and aspects, the court is of view that the plaintiff’s prayer for temporary injunction is not worth-being allowed.

However, the materials on record including the certified documents relating to the other class suit No. 57/2010 are further taken into consideration. The judicial mind understands that although the plaintiffs rely on the RS record of rights and a registered deed along with defacto possessions in the suit lands, they totally pursued taciturn regarding the verdict of the other class suit No. 57/2010, albeit they were made party as defendants (No. 1ka-1chh) to that suit as well as the suit properties are identical. It could thus be no denying that such an obvious fact was, in all probability, known to the petitioners, nevertheless they seem to be suppressing it advertently. As a result, the court is of opinion that the plaintiffs ought to come before the court with clean hands.

Hence, it is ordered

That the application for temporary injunction dated 08.12.2021 be disallowed on the contest.

The next date is on 14.08.2022 AD for framing of issue(s).

continue reading Order passed on Injunction Petition in the other class suit No. 32/2020

Ad-interim Injunction is passed in the other class suit No. 10/2022

Heard. The record is taken up for passing the necessary order. Perused the petition dated 22.03.2022 under Order 39 Rule 1 & 2 of the 1908 Code of Civil procedure, and the petition for ad-interim injunction dated 17.05.2022, supporting affidavits, the written objections, the plaint, and the case record. On such perusal, it appears to the court that the plaintiffs prayed for relief in the name of ‘temporary injunction’ and on an urgent basis, an ad-interim order against the O.P. described in the petition. 

In consideration of the submitted documents, including possessory pieces of evidence on the petitioner’s behalf and other materials available on record, the petitioner appeared to have prima facie title to the land from which he is alleged to be dispossessed. Accordingly, the court issued a show-cause notice upon the O.P. as to why the prayed reliefs should not be granted. Although the notice of showcase was served upon the O.P., he is yet to appear before the court with his objections to the said petitions. On the other hand, having turned up before the court today for a hearing on the matters in question, the petitioner underscored the hearing on the petition; and heard the petitioner as such.

In close scrutiny of the materials on record, it transpires that, as the petitioner pleaded, despite having notice of this lawsuit, the O.P is still trying to change the types and their mode of possession in the suit lands, and thus, prayed for an ad-interim order meanwhile. On further perusal of the materials on record, it appears that the petitioner has a good standing for convincingly demonstrating the incidents of the threats for dispossession. In such a condition, it is the court’s view that unless the O.Ps are restrained as such, the mode of possession, type of the suit land may be changed; and the purpose of the suit and the instant petition may be frustrated; and thus, the petitioners appear to be prejudiced. In the background of such a condition and the nature of the instant case, the court is of view that instead of a temporary injunction, an ad-interim injunction may be issued against the O.P in the present context till the disposal of the respective petition for temporary injunction.

Hence, it is ORDERED that an ad-interim injunction be issued against the opposite party till the disposal of the petition dated 22.03.2022. The opposite party is hereby restrained from changing the nature, character, and the mode of possession in the suit lands by means of whatsoever.

The Officer-in-Charge of the concerned Police Station shall take the necessary steps in accordance with the law to maintain the sanctity and the force of this order. Send copies of this order to the concerned attached with the requisite information as to the suit lands.

Writs are to be put in at once.

continue reading Ad-interim Injunction is passed in the other class suit No. 10/2022

Order passed on the petition for rejection of plaint in the other class suit No. 03.2020

Heard and Seen. This is a suit for partition. Perused the plaint, written statement, the respective petition, and the materials available on record. Upon such perusal, it appears to the court that the defendants have come up with a petition dated 25/01/2022 with the prayer that the suit is liable to be rejected under Order 7, Rule 11, and section 151of the 1908 Code of Civil Procedure.

 

The substance of the petition:

The fact that appears in the defendants’ petition is that there was an earlier partition suit (17/2000, OC) that was dismissed on contest by the trial court on 20/06/2007. The plaintiffs instituted another suit (the very suit No. 03/2020, OC) with regard to the same property. The defendant petitioners claim that since the parties, the schedules, and the nature of both suits are the same and identical, the latter suit should be rejected on the ground that the plaintiffs lack locus standi to institute the instant suit, as well as the suit, is barred by the principle of Res Judicata under the aforesaid provision. The plaintiffs merely participated in the hearing upon the petition but placed no written objection thereto.

 

Point for determination:

Whether the plaint should be rejected under Order 7, Rule 11, and section 151 of the 1908 Code of Civil Procedure.

 

Discussion and Decisions:

            The Defendant can file an application in the form of interlocutory application at any stage of proceedings. It is important to note that, when the suit filed appears from the statement in the plaint as barred by any statute and gives no such right to the plaintiff for instituting the suit, it shall be liable to be rejected. The rejection of plaint occurs only under Order VII Rule 11 of the Code. A plaint can be rejected on the grounds which have been mentioned under the said Order. On perusal of the petition in the discussion, it appears that the defendant invoked the court's jurisdiction to reject the plaint on the ground that the suit is barred by law, particularly under the provision of Order VII Rule 11(d)), along with section 151 of the Code.

            05. Yet, it is a well-known legal position that in order to come to a decision as to whether a plaint is liable to be rejected under Order 7, Rule 11 of the 1908 Code of Civil Procedure, the court generally will look into the statements made in “the plaint itself” and “will not consider the statement made by a defendant” in the application filed by him for rejection of the plaint. But, in our case, the defendant has opted to elect the option of the bar of trial under the principle of res judicata. Moreover, the defendants invoked the court's jurisdiction under section 151 of the Code and put much emphasis on this public policy instrument.

06. Since the principle of res judicata under section 11 of the Code are the mixed questions of law and fact, such a question may be decided at any stage of the suit and the whole materials available on record can be taken into consideration by the court, although some other grounds may attract aforesaid legal position. Accordingly, considering the materials on record, the court tends to take into account the long and substance of the petition, plaint, and submitted materials. As a result, it is the court’s opinion that the petition is amenable to be considered and the whole materials on record could be taken into consideration on the grounds which have been mentioned under the said Order of the Code. Thus, a question fairly arises whether the suit is barred by the principle of res judicata.

 

07. This principle basically prohibits adjudication of the same issue between the same parties more than once. Upon such perusal of the plaint, written statement, the instant petition as well as the copy of the judgment and decree passed in the other class suit No. 17/2000, it clearly appears to the court that the earlier suit was the other class suit No. 17/2000, and the instant suit No. 03/2020. Both suits are partition suits. The defendant No. 02 of the other class suit No. 17/2000 was one “Den Mohammad". Here, Den Mohammad, the father of the plaintiffs, is the transferor and the plaintiffs are the transferee of the gift deed. Such a transfer was done through a gift deed that was executed and registered in 2019. But, Den Mohammad instituted the former suit (partition) that got dismissed on contest. Since the judgment and decree of the OC suit No. 17/2000 are also binding upon the plaintiffs, the plaintiffs of the OC suit No. 17/2000 are the plaintiffs of the instant suit (03/2020) in disguise. But the good thing is that the facts are unveiled as such.

 

08. Even, the body of the judgment at pages No. 3-4 substantiates that the earlier court has finally decided an issue regarding the RS khatian No. 1422 and 930 and held that the court does not find that the plaintiffs (including Den Mohammad) have title to the suit land. The RS khatian Nos. 1422 and 930 are also the schedule of the instant suit. Hence, it appears that the subject-matter and parties to both suits are lucidly identical, as well as the issue of whether the plaintiffs are entitled to the suit lands has also finally been decided by a competent court. Res judicata includes two concepts of claim preclusion and issue preclusion. In issue preclusion, it prohibits the relitigation of issues of law that have already been determined by the judge as part of an earlier case. No person should be disputed twice for the same reason

 

09. Interestingly, the instant suit also states that the plaintiffs pray for a relief that the judgment and decree of the former suit shall be declared as not binding upon them. The court finds that plaintiffs have set out such a new prayer, which attracts the principle of constructive res judicata. The interesting fact is that Den Mohammad was one of the “plaintiffs” (not a defendant) of the former suit, and the suit was dismissed on contest in 2007. But, he regrettably again transferred his lands (subject-matter of the former suit that finds no entitlement to the suit lands) to the plaintiffs of the instant suit in 2019. In fact, such a situation suggests that Den Mohammad took a hoax and played active concealment while the plaintiffs of the instant suit were executing their deed of 2019.

            10. Even, the plaintiff side has not claimed that the earlier suit had not been finally decided and decided. A cause of action may not be relitigated once it has been judged on the merits. And also, "finality" is the term that refers to when a court renders a final judgment on the merits. Earlier decision right or wrong is not relevant.   Besides, there is no proof or any claim that the former suit is now subjudice. Thus, there arises no doubt that the earlier suit was 'finally heard and decided'. It is like a day where a decree on the merits gets its finality, it becomes res judicata. Therefore, the court holds that the earlier suit gets the force of finality for the latter one. If only the materials on record is carefully considered and scrutinized throughout, it cogently would transpire that the apparent face of the plaint explicitly discloses a fact, which has already been decided on merit in another suit by the competent court, which conspicuously falls within the mischievous grounds for the rejection of the plaint. It is pertinent to mention that in such a situation, the instant suit is liable to suffer the mandate of the principle res judicata: a rule of conclusiveness of judgment. There should be an end to litigation.

 

            11. Apart from the aforesaid decisive position, another legal perspective under section 151 of the CPC should also be taken into account. When Order 7 of the Code is not sufficient in the opinion of the judge and rejection of plaint is necessary for the end of justice, the court may invoke its inherent power under section 151 of the CPC. Besides, if the continuation of the suit is found to be an abuse of the process of the court, if the suit is foredoomed or if the ultimate result of the suit is as clear as the daylight, there is no other option but the suit should be buried at its inception. Consequently, since the instant case does not involve the determination of facts and the law necessitating investigation on such plea of res judicata, this plaint should be rejected as it is clear and palpable from the meaningful reading of the plaint that no further evidence is required.

           

12. Above and beyond, when it is also apparent from the materials on the record itself that the suit is barred by res judicata and no evidence will be required to decide the question of whether the suit is barred as such, the suit should stop immediately. Although the plea of the implied bar should ordinarily be decided on the evidence, the explicit bar does not require it. And thus, if the instant suit is not buried at its’ inception, injustice to the parties to the suits and unnecessary waste of court resources would be the obvious result that may breed the multiplicity of suits. The court is of opinion that the instant suit is barred by the provision of section 11 of the 1908 Code of Civil Procedure, and thus, the plaint should be rejected under Order VII Rule 11(d)) of the Code of Civil Procedure. The court also finds that applying the principle of res judicata in such a particular case seeks to promote the fair administration of justice and honesty and to prevent the law from being abused. Because, this principle is founded upon the principles of justice, equity, and good conscience that serve the purpose of public policy and the purpose of this is to inculcate finality into litigation. 

 

Hence, it is ORDERED that the petition dated 25/01/22 is allowed with costs. The plaint is hereby rejected under Order VII Rule 11(d)) of the Code of Civil Procedure.

 

continue reading Order passed on the petition for rejection of plaint in the other class suit No. 03.2020

Order of status quo is passed in the Other Class Suit No. 50/2020

 The record is taken up for passing the necessary order. Perused the petition under Order 39 Rule 1 with section 151 of the 1908 Code of Civil procedure, and the supporting affidavit, written objection thereto, submitted documents, and the record. On such perusal, it appears to the court that this is a suit for recovery of possession and ejectment. The instant case requires a discretionary decision to be made upon a prayer by the plaintiff side for an order of temporary injunction against the defendant side.

Substance of the Petition:

             The plaintiff’s case, in a nutshell, reveals that the reordered tenants of the RS Khatian No. 127 are the plaintiff No. 1-2 along with Gias Uddin Sarkar. The recorded tenant Giyas Uddin Sarkar’s son one Shamsul Alam Sarkar transferred some land to the defendant No. 01 and others. Another son of Gius Uddin named Robiul Islam alias Nasir Uddin also transferred some land to the defendant No. 01 and others. In both cases, the plaintiff No. 1-2 brought in two pre-emption cases (61/94; 62/94), which was granted eventually; and the payment made to the court was withdrawn by defendant No. 01 of the instant suit. Consequently, Plaintiff No. 01-02 of the suit had become in possession of the land, which was once transferred to the defendant No. 01 and others, as aforesaid.

In addition, another RS recorded tenant Siraj Uddin Sarkar transferred some of his land to his three sons (Plaintiff No. 03-05) through three deeds. Furthermore, RS recorded tenant also transferred his some of land to his son, the plaintiff No. 06. Thus, the plaintiffs had been in possession of the suit land since then. The plaintiffs claim that the defendants forcibly dispossessed them from the land specified in the schedule to the suit on 06/06/2020 by constructing structure(s) made of mud walls and tin sheets. Consequently, the suit was instituted as such. Thereafter, after demolishing the mud wall in question on 26/01/2021, the defendant side started preparing for building pakka structure(s) and gathered construction materials thereon. Upon resistance by the plaintiff side, the defendants intimidated the plaintiffs and kept continuing the same. The very injunction petition is hereby placed before the court for restraining the defendants from their continuing encroachment.

Objections of the Opposite Party:

The defendants submitted a written objection thereto, the brief of which encapsulates that the averment of the plaintiffs on the fact of the aforesaid forceful dispossession from the land specified in the schedule to the suit by constructing structures and thereafter preparation for building pakka structure(s) and gathering construction materials is totally fake and falsified. The fact of the resistance by the plaintiff side caused towards the defendants, who intimidated the plaintiffs and kept continuing the construction on the land in question, is fabricated and has been brought into being for causing damages to the defendant.

However, the defendant side admits the RS recorded tenant and their share and possession therein. The recorded tenant Giyas Uddin Sarkar’s son one Shamsul Alam Sarkar transferred some land to the defendant No. 01 and others. Another son of Gius Uddin named Robiul Islam alias Nasir Uddin also transferred some land to the defendant No. 01 and others. In both cases, the plaintiff No. 1-2 brought in two pre-emption cases (61/94; 62/94), which was granted eventually. The defendants claim that the plaintiffs never took any legal recourse for taking the pre-empted suit land in their possession; despite their pre-emption cases were allowed. Therefore, the defendants have been in exclusive possession of the suit land in question as such. The so called structures were built even prior to the suit was instituted before this court. Hence, due to lacking of prima facie case and possession, inter alia, the petition is liable to be dismissed.

Point for determination:

Whether the plaintiff may get the relief prayed for?

Discussions and Decisions: 

            No doubt, the so-called trinity of principles on which rests the foundation of any order of injunction is the cornerstone of a party’s pleadings. On careful perusal of the pleadings’ averment and the respective petition along with submitted documents, including deed No. 1456/12, and 1459/12, Khatians, and the copies of documents relating to two pre-emption cases (61/94; 62/94); etc., it conspicuously appears to the court that the plaintiff shows some material facts which obviously carry him to the trial with his suit. In the consideration that a finding on 'prima facie case' would be a finding of fact, a substantial question has already been raised bona fide, which needs investigation and a decision on merits. Therefore, since the plaintiff side demonstrates a ‘good and arguable case’ in his favor by raising a fair question for determination; it is needless to put that a prima facie case is vividly established (not to be confused with prima facie title).  However, the defendants’ robust assertion of facts fairly outlines some considering issues, but they in fact legally stand beyond the domain of the instant context.

02. As this is a suit for recovery of possession and ejectment, it would be trite to say that the plaintiff side is not in the possession of the land in question. The plaintiff states in his respective petition with reference to the averment of the plaint that while the plaintiffs had been in possession of the suit land, the defendants forcibly dispossessed them from the land specified in the schedule to the suit on 06/06/2020 by constructing structure(s) of mud walls and tin sheets. In the aftermath, as it is claimed, after demolishing the mud wall in question on 26/01/2021, the defendant side started preparing for building pakka structure(s) and gathered construction materials thereon. In support of their averments as such, some photographs are placed before the court for its cognizance. These images are found to evidently form a transition of the construction from Kachcha to Pakka structure(s). To note here, one of defendants was also present in the courtroom and the court asked him for the contrary explanation to those images if any. Being asked for as such, he certified such a transformation and admitted that construction has already been stopped after the notice of the court’s interim order was serviced upon them. Accordingly, the defendant side cogently appears to have currently been in possession of the suit land in question. But, without taking further evidence at trial, it is not opportune to decide whether the plaintiffs were in possession of that land before their alleged dispossession.

03. The next point is the balance of convenience and inconvenience, meaning a ‘comparative hardship or mischief’ that is likely to be caused to a party if the injunction is refused, will be greater than that it is likely to be caused to the other party if the injunction is granted. In applying this principle, the Court has to weigh the amount of substantial and probable injury to either party. Apart from a prima facie case and a balance of convenience, the petitioner must establish also a case of ‘irreparable injury’ to occur to him if no injunction were granted. As the aforesaid narrative vividly discloses the fact of pakka construction by the defendant side on the disputed land, it appears that if they are not stopped from the continuing construction, the nature of the land might be changed or the purpose of the suit be frustrated. Conversely, financial hardship might be caused to the opposite parties if construction is restrained in the suit land; but that could not be construed as irreparable injury. In addition, dispossession from land always tends to irreparable loss, which cannot be adequately remedied by damages. The issue is, in fact, to be looked at from the point of view as to whether on the refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties’ case. Therefore, as the principle governing injunction as well as status quo is on the same footing, it is the court’s view that the balance of convenience appears to be in the preservation of status quo.

04. It is further well-conversant that the phrases `prima facie case, `balance of convenience’ and ` irreparable loss’ are not rhetoric phrases for incantation, but words of width and elasticity to meet myriad situations presented by man’s ingenuity in given facts and circumstances; so always is to be hedged with sound exercise of judicial discretion to meet the interest of justice. Therefore, while making decisions regarding injunction, the Court also ought to be circumspect and look to the conduct of the party. So far as the instant suit is concerned, it transpires that the very injunction petition was filed when the defendant side was about to build any construction on the suit lands. Although an ad-interim order was made by the court against the defendant side, the work of construction by the latter had become greater in volume. As a result, it transpires that if the opposite party is not restrained in whatsoever manner, the petitioners would suffer irreparable loss and injury that cannot be compensated by way of damages.

Therefore, the court is of opinion that non-interference by the Court would result in irreparable injury to the party seeking relief and the petitioners need protection from the consequences of apprehended injury. Since the possession of the suit property is sufficiently ascertained and the opposite party has already started building pakka structure(s) and walls on the land in question, it thus appears to be expedient to maintain status quo so much the brick wall has been erected. Although it may be pertinent to do a local inspection to determine how much construction work is already done; but, in the present context, the materials available on record seem to be sufficient to infer that. As such, on considering all of the aforesaid appearing facts and weighing the competing possibilities of the likelihood of comparative injury, the court is of a view that the subject matter should be maintained in status quo 

Hence, it is ordered 

that the parties to the suit are hereby ordered to maintain status quo, as appeared to date in respect of the suit, landed property scheduled to the plaint till further order. However, the defendants may protect all the raw materials of construction (if any) from being damaged by availing every usual means. 

 Notify Ld. Advocate(s) for the parties to the suit. The next date is fixed on 03.10.2021 AD for ADR.

continue reading Order of status quo is passed in the Other Class Suit No. 50/2020

Judgment passed in the other class suit No. 62/2018

HEADING OF JUDGEMENT IN ORIGINAL SUIT/CASE

District: Rajshahi

In the Court of the Senior Assistant Judge, Mohonpur, Rajshahi

Present: - Md. Abdul Malek, Senior Assistant Judge

Other Class Suit No. 62/2018

Mst. Hameda Bibi (Plaintiff) Versus Mr. Riaz Uddin (Defendant).

 

The suit's trial ended and the argument was heard.

In the presence of................................

 

And having stood for consideration to this day, the Court delivered the following judgment: This is a suit for a permanent injunction regarding the landed property described in the schedule to the plaint.

The Plaint in the nutshell:

The recorded tenant of the suit lands described as RS khatian No. 223 in the schedules to the plaint was one Nurjahan Beowa, who is the predecessor mother of the plaintiffs. After the demise of Nurjahan Beowa, the plaintiffs as his heirs got title to and possession in the suit landed property. The plaintiffs claim that they are now in exclusive possession of the suit land. Despite having no title to the suit land, the defendants made threats to the plaintiffs for dispossession from the suit lands, and hence the suit. The Plaintiffs claimed that the suit land belongs to them; and that is now under their possession. Hence, he is entitled to get relief as prayed for. 

The Written Statements in Brief:

The defendant No. 1 & 4-5 contested the suit by filing written statements denying the material averments made in the plaint. They contended therein, inter alia, that the suit not maintainable in the present form, has no cause of action and thus, is legally untenable, unjustifiable; and dismissible in law. Defendants stated that the recorded tenant of the suit lands described as RS khatian No. 223 in the schedules to the plaint was one Nurjahan Beowa, who transferred 0.84 acres of lands to her daughter Mrs. Jobeda Beowa via a registered deed of gift No. 5419/1999. Recorded tenant Nurjahan also transferred 0.10 acres of land to her daughter Jobeda Beowa via a registered deed No. 2842/2000. Then, Jobeda Beowa transferred 0.93 acres of land to defendant No. 01 Mr. Riaz Uddin via a registered deed No. 1707/2003. Some lawsuits were also brought into being regarding the suit lands and respective deeds; but, final courts’ decisions do not support the plaintiffs’ title to the suit lands.

Defendant No. 01 also transferred some lands to Defendant Nos. 4-5. Accordingly, the lands were mutated against the defendant’s name and land rents are being paid by him accordingly. In fact, the plaintiffs have no title as well as no exclusive possession of the suit land in its entirety. Accordingly, the plaintiffs have no cause of action and any rights to sue regarding the land in question and thus, the plaintiff's suit is not sustainable in the law. Hence, the suit will be dismissed.

Issues

In cognizance of the parties’ pleadings and the matters in controversy, the issues are reframed under Or. 14, R. 05 of the 1908 Code of Civil Procedure in the following way:

1.      Whether the suit is maintainable in the present form and manner.

2.      Whether the plaintiffs have prima facie title to the suit land.

3.      Whether the plaintiffs have exclusive possession of the suit land.

4.      Whether the plaintiffs are entitled to the relief as prayed for?

Discussions and Decisions:

During the trial, the plaintiff examined 04 witnesses and produced documentary pieces of evidence marked as exhibits No. 1-3. Defendants examined 03 witnesses and produced documents marked as Exhibit No. Ka-Dha Arguments were heard from both parties after the conclusion of the trial of the suit.

Issue No. 02:

These issues are taken together for concision, convenience, and interrelation. No skepticism, it becomes high time to see through the plaintiffs’ prima facie title to the suit land envisaged in the Kha schedule. In proof of their prima facie title thereto, the plaintiffs narrated in ways that the recorded tenant of the suit lands described as RS khatian No. 223 [ext.: 01-02] in the schedules to the plaint was one Nurjahan Beowa, who is the predecessor mother of the plaintiffs. After the demise of Nurjahan Beowa, the plaintiffs as his heirs got title to and possession in the suit landed property.

06. On the contrary, the defendant No. 1 & 4-5 contended that the recorded tenant of the suit lands described as RS khatian No. 223 in the schedules to the plaint was one Nurjahan Beowa, who transferred 0.84 acres of lands to her daughter Mrs. Jobeda Beowa via a registered deed of gift No. 5419/1999[ext.: Cha]. Recorded tenant Nurjahan also transferred 0.10 acres of land to her daughter Jobeda Beowa via a registered deed No. 2842/2000. Then, Jobeda Beowa transferred 0.93 acres of land to defendant No. 01 Mr. Riaz Uddin via a registered deed No. 1707/2003[ext.: Chha]. It is also stated that defendant No. 01 also transferred some lands to Defendant Nos. 4-5 [ext.: Ja-Jha]. Accordingly, the lands were mutated against the defendant’s name and land rents are being paid by him as such [ext.: Tha-Da]. On perusal of the Exhibit Ka-Kha, it also appears that the defendants’ title to the suit lands in part has been established through the court’s verdicts. In giving testimony, the DW-01 evidently claims that they are entitled to 93 decimal lands out of the suit property.

07. Now, consider the scheduled property: RS khatian No. 223 [ext.: 01-02] scheduled to the plaint. The measurement of land comprised in this khatian is of 1.60 acres. It is now well settled that ‘in a suit for permanent injunction, the court need not enter into disputed title except to the extent that it would help the court in finding which of the parties have prima facei title and exclusive possession’ (vide 56 DLR Ad 22). In essence, ‘title’ is a legal term that refers to interest and ownership of something. In a jurisprudential sense, title to the property also refers to ‘ownership of the property", meaning that you have ‘the rights to use’ that property. Particularly, the concept of ownership flows from that of ‘possession’[vide A Textbook of Jurisprudence, G. W. Paton, (1973) OUP, p. 539, 546]. So, it is apparent that an investigation into the parties’ entitlement to the suit lands is clearly a matter of deep analysis and intense examination, which is fairly beyond the simpliciter suit’s preview. However, it could cogently be opined that there arises some good standing that demonstrates the plaintiffs’ prima facie title to the suit land, and thus, it is decided that the plaintiffs have successfully established their prima facie title to the suit landed property. Hence, it is decided that this issue is decided in the plaintiff’s favor.

 

Issue No. 03:

In pleading and evidence, the plaintiffs claim that they are now in exclusive possession of the suit land, and the PW-01 has deposed that they have eight old mango trees, 16 new mango trees, and a house built by the mother of plaintiff No. 01. The PW-01 claims that all plaintiffs are in exclusive possession in lands measuring 1.60 acres. It is the plaintiff’s case that despite having no title to the suit land, the defendants made threats to the plaintiffs for dispossession from the suit lands. The Plaintiffs thus claimed that since the suit land belongs to them and is now under their possession, they are entitled to get relief as prayed for. 

09. Now consider the adduced evidence in this respect. The PW-02 also stated that only plaintiff No. 01 Hameda is in possession of the suit. But the PW-03 stated in his examination-in-chief that only plaintiff Hamida is in possession; but in his cross-examination, he again said that plaintiff Hamida and Plaintiff Jobeda possess the lands in question. Both PWs 02-03 are found to be contradictory to each other, although they claim themselves to be adjacent to the suit lands. Furthermore, the PW-04 claims himself to be a cultivator on the suit lands, but he was unable to specify how much of lands he cultivates on behalf of plaintiff Hamida. More particularly, the PW-01 stated in his cross-examination that one Fozlu and Khorshed worked for them on the suit lands at the time of paddy harvest, but these two persons are not examined before the court. Consequently, in considering the discussion made hereinbefore, it also occurs that such contradictory assertions by the plaintiff’s witnesses fade away from their credibility, and thus, they are not found in harmony with the same sense and manner. Accordingly, the plaintiff cannot claim any support from them.

10. On the contrary, to substantiate the defendants’ possession, the DW-01 also asserted a similar proposition in evidence, even in addition to fact that defendant No. 01 and defendant No. 4-7 have also possession in the lands measuring 95 decimal out of the suit property. In cross-examination, the PW-01 also attempted to underscore the fact of his possession as such. The DW-02 also stated that he purchased 02 decimal lands, comprised in RS Plot No. 1953, from defendant No. 01 and now, has been in possession of that land. The DW-03 is also found to be walking in the shoe of the DW02. These witnesses are examined in cross-examination but nothing contradictory was unearthed by the plaintiff's side.

11. However, apart from oral testimony regarding de facto possessory evidence, there is also documentary evidence that talks about de jure possession of the parties. In cross-examination, the PW-01 admitted that he paid land tax in 2015 for 67 decimal lands, but he claims their possession in lands measuring 1.60 acres. She (PW-01) also asserted that they have also paid taxes but did not provide the same to the court for inspection. On the other hand, the defendant's side places some tax receipt and prostabito khatian looking forward to proving de jure possession of the suit lands [ext.: Tha-Da]. No doubt, the record of rights is evidence of present possession, meaning a record of physical possession at the time when it is prepared (vide 59 DLR 207; 07 ADC 945). In this way, it is cogent to opine that such a mutation also gives rise to a presumption that the defendants are also in possession of the suit land.  And the fact thus follows that the plaintiffs have not been able to rebut such a presumption.

12. Moreover, the plaintiff-side also underscores an order passed by the court of Addl. District Magistrate (Rajshahi) under section 144 (but the content of the case suggests it would be under section 145) of the Code of Criminal Procedure. But the defendant side made robust objections to the admissibility of a criminal court’s judgment in a civil proceeding. In rejoinder, the plaintiff-side pleaded that the court of Addl. District Magistrate exercising jurisdictions under section 144 or 145 is a quasi-civil court. In fact, the general legal position is that “a criminal court’s finding of possession is not admissible in evidence in a civil suit” [vide 40 DLR 1988 271]. And the issue of inter-admissibility of judgments arising from different proceedings is governed by the 1872 Evidence Act. As per section 43 of the Act, judgment, order or decree are irrelevant other than those mentioned in sections 40, 41, and 42, unless the existence of such judgment, order, or decree is a fact in issue, or is relevant under some other provision of this Act. A test is whether the concept of res judicata would result as an outcome of the given proceeding, largely based upon the same premises. The dichotomy of legal systems indicates that an order of the aforesaid court exercising jurisdiction under the Code of Criminal Procedure may not result in a decree (if the case is successful) or operate as res judicata for a proceeding under the Code of Civil Procedure, this court is not prone to swim with the tide led by the plaintiff-side.  

13. Apart from the fact that the defendant-side places some latest documentary pieces of evidence, including prostabito khatian and tax receipts in proof of their possession in the suit land, as well as convincing oral testimony regarding their current possession, the defendant's side also placed some registered deeds in favor of their claims that they have good property deeds and documentation concerning the suit lands. On perusal of the documentary evidence marked exhibit stated above, it vividly transpires to the court that the defendant side produced more convincing and dependable materials than the plaintiff side. Therefore, the court holds that the pieces of evidence concerning the plaintiffs' possession in the suit lands lack practical certainty and reasonable propriety. In addition, it conspicuously admitted that the suit lands are admitted not yet to be allotted among the sharers by meets and bounds on partition [vide PW-01]. Hence, it is decided that the balance of preponderance towards the suit lands ‘possession goes against the plaintiffs so far.

14. In dispelling ambiguity, it is also pertinent to mention that it is not necessary to enter into a detailed discussion of the question of onus. The reason is simple: the whole fabric of the evidential edifice is before the court; which finds no difficulty in arriving at a conclusion about the issues in discussion. So, in considering the aforesaid facts, relevant laws, and corroborative evidence as well as encompassing conditions, it appears to the court that although the plaintiffs have been successful in establishing their prima facie title to the suit lands, they have failed to prove their exclusive possession therein. So, the issue at hand is not settled in favor of the plaintiffs.

Issues No. 01 & 04:

The essence of the suit's alleged cause of action displayed in the plaint reveals that the defendants made threats to the plaintiff for dispossessing the latter from the suit lands and thus, had caused interruption to the plaintiffs' exclusive possession of the suit property. There is thus no gainsaying that this is a suit for a permanent injunction. On perusal of the materials on record, it vividly appears that the plaintiff filed the suit before this court having jurisdiction with paying proper court fees and seeking a decree for perpetual injunction simpliciter. Section 54 of the 1877 Specific Relief Act recognizes any aggrieved person's right to file a lawsuit for such a relief as prayed for.

16. However, in the light of the discussion made hereinbefore, it becomes lucid that the plaintiffs have not been able to prove their exclusive possession in the specified lands scheduled to the plaint; instead, the defendants’ possession is also proven to be in the suit lands. In a suit for permanent injunction, the plaintiffs shall have to prove their exclusive possession of the suit land in order to get a decree [vide 7 BLC HCD 2002]. In our case, the plaintiffs have failed to prove their exclusive possession out of a vast plot, and that cannot be ascertained unless the suit lands are sufficiently specified and ascertained. Since the plaintiff has failed to comply with the mandatory requirement of law, they are not entitled to any decree even if they have some merits in the suit. Yet, this is not a suit for partition, where all sorts of legal questions regarding the suit lands could be resolved.

17. The general principle of evidence law is that “the burden lies on the Plaintiff to prove his case and he must succeed on his own strength only and not at the weakness of the adversary” [vide 3 BLC 6], and the weakness of the defence case does not entitle the plaintiff to get a decree [vide 06 BLC AD 2001]. It would also be verbose to reiterate that in a simple suit for permanent injunction with regard to a disputed landed property, relief is not available to a person who is not in possession’ (vide 43 DLR AD 215). Pertinently, an injunction cannot be granted in a case where the defendant has legal character as to title and possession in the suit property.

Therefore, in respect of the instant suit, the cumulative effect and cogency of legal inference help the court hold that since the plaintiffs have failed to entirely prove their exclusive possession in the suit lands, the plaintiffs have not sufficiently been able to prove their exclusive possession in the entire suit lands and a complicated question of title and possession is involved in the suit. It is decisive to the court that the suit is maintainable in its current form and manner. Accordingly, the Court is of the view that since all of these issues are not decided in the plaintiff’s favor, the instant suit is not a good fit for exercising the Court’s discretion in decreeing the same. As such, the Plaintiffs may not get relief as prayed for. As a result, the suit deserves to be dismissed on contest.

The court fee paid is sufficient.

Hence,

it is  ORDERED

that the suit be dismissed on the contest against defendants without costs.

            Composed and corrected by                                              

continue reading Judgment passed in the other class suit No. 62/2018