Judgement of the previous pretrial session of MOOT COURT...(Land dispute) -:Suit Title:- Md. Nazmul Huda VS. Md. Shamsul Huda (Plaintiff Petitioner) (Defendant Opposite Party) Advocates for Plaintiff Pleaders for Defendants 1 Mahmudullah 1 Mehedi Hasan 2 Tanvir Islam 2 Saddam Hossen 3 Joyanto kumar 3 Sabbirul Islam 4 Murad Hossain 4 Mousumi Halder 5 Afrin sultana 5 Md. Neamat Ullah 6 Susmita Akhtar 6 Rezwana Afroz 7 Abdulah Al Noman 7 Rumana Sultana 8 Bristi sarker 8 Mou Mondal 9 Mofizur Rahman Rana 9 Shohag Mamun 10 Ayrin Akhter Surovi 10 Hamimur Rahman 11 Nazmul Hossen 11 Habibur Rahman 12 Eva Bala Mondal IN THE COURT OF ASSISTANT JUDGE, KHULNA. TITLE SUIT NO. 45/2013. Judges: 1. Parama Nazmul 2. Imran Hossain 3. Azmira Firdawsy 4. Rima khatun This judgment is given by Azmira Firdawsy: Fact in Short: That one Kawsar Ali on 09.05.90 make registration of piece of land amounted to 1.125 acres. But Plaintiff’s father Idris Ali and two other Elias Ali and Shamsul Huda bought the piece of land according to a decree passed by the court on 05.06.1993, through a khas kabla deed No. 1056/95. After purchasing the land the three owner of the property made a solenama according to which each party has got 0.375 acres and a portion of land amounted to 0.004 acres would be used as land for rood for Idris Ali and Shamsul Huda. After the death of Idris Ali his son Nazmul Huda got the land by inheritence, Then on 07/01/2013 the cause of action of this suit has been arised when defendant Shamsul Huda attempted to made a wall in front of the road. The plaintiff filed this suit as he claimed that the portion of land used for road is his property and has absolute ownership on the land. This was the plaintiff’s fact. On the other hand defendant Shamsul Huda denied the fact of the plaintiff. He mentioned in his statement that they, that menas Idris Ali, Elias Ali and he himself made a solenama according to which each of the parties will get 0.375 acres, Idris Ali got 0.375 acres and defendant Shamsul Huda got 0.370 acres of land and another 0.004 acres of land which is adjacent to the land of plaintiff’s father Md. Idris Ali, It was also agreed by them that the rest 0.001 acres of land will be used as road for both Idris Ali and Shamsul Huda. After death of Idris Ali His son Nazmul Huda has got the land and now he illefally tried to acquire the land and intended to harress the defendant. So, defendant Shamsul Huda prays to the court to dismiss the suit and not to pass order of declaration of title and permanent injunction in favor of the plaintiff. The defendant also said that the plaintiff has no cause of action and as such it is not maintainable in law and liable to be dismissed. Fact in Issue: 1. Is the suit maintainable in it’s present from and character? 2. Has the plaintiff any cause of action? 3. Is the plaintiff entitled to the declaration of title to the land? 4. Is the plaintiff entitled to permanent injunction? 5. Is the defendant entitled to any remedy from the court? Decision and Reasons behind Decision: Decision on Issue No-1: In this suit both the plaintiff and defendant claim that the suit proper is absolutely their own property and each of them has interest in the subject matter of the suit. Again, by filling written statement the defendant stated that the suit of plaintiff is not maintainable and barred by limitation. But in the trail and argument there is no contrary or even no question raised regarding this point. So, without any legal bar this suit can run and maintainable in its present form and character. Decision on Issue No-2: Both the plaintiff and defendant admitted that the total 1.125 acres of land was purchased by plaintiff”s father. Idris Ali, Elias Ali and Shamsul Huda. They both also admitted that they have made a solenama according to which each party will get 0.0375 acres of land and there will be a road for use of pathway. Plaintiff claims that defendant attempted to made a wall in front of the road and filed a GD to Khulna Sader Thane whose No. is 13/2013, In examination Plaintiff told it and also provides the copy of the GD but defendant Shamsul Huda did not provide any document to disprove it even he admitted the fact. so, the issue goes against defendant and from the trial and argument it is clear the Plaintiff has a cause of action. Decision on Issue No-3: The Plaintiff Nazmul Huda got the land from his father by inheritence, In his examination he mentioned that the portion of his land amounted to 3.75 acres and the portion for the used road is 0.04 respectively. This seems to be self contradictory and he actually has no idea about his land. Again in his favor he submitted a solenama deed in the court but here is also irregularity as there is seals no notary public officer but no sign even there seals of senior Assistant judge court of Khulna but no date are also there is no mention of the Proper history of land. In addition, from the face of document produced by the plaintiff, his ownership and title over the property is not clear. Again in the plaint the plaintiff claims that he has actual possession over the land but the solenama produced by him shows that he agreed the land to be used as road. It is also self contradictory. On the other hand. Defendant claims the portion .004 is his own land has possession over it. So, it is not clear that who has possession over the land. So, the plaintiff is not entitled to declaration of title under section 42 of specific Relief Act 1877. When the plaintiff is out of possession a suit for mere declaration is not maintainable. Bibi Zubaida VS. Mohar, AIR 1937 pag 229, 40 Bom,LR 127. Decision on Issue No- 4: The plaintiff claimed for a permanent injunction as the defendant tried to make a wall in front of the road. But he did not claim any temporary injunction. A plaintiff can have temporary on permanent injunction in a suit if he succeeds to make out a good prima facie case. Which means a serious question is to be tied and if the injunction is not granted the plaintiff will suffer irreparably 25 DLR, 69. Section 54 of Specific Relief Act 1877 mention that a permanent injunction may be granted to prevent the breach of an obligation existing in favor of the application whether expressly or by implication. (Hossain Ahmed VS. HD Hossain and Brothers 32 DLR (AD) 223.) From the above two case references it is clear that the plaintiff has to prove irreparable injury or breach of an obligation. The defendant attempted to make wall in front of the road but plaintiff did not apply to the court for temporary injunction so as to compel the defendant to follow obligation imposed by court. So, plaintiff is not entitled to any permanent injunction as he did not apply for any temporary injunction. Decision on Issue No- 5: The defendant Shamsul Huda in his written statement claimed that it is his own property and has absolute possession over it, In his favor he also produce a solenama deed which was made at 03/12/1993. So, it is self contradictory and there was no argument between the parties about it. The defendant said that he compromise 0.001 acres for plaintiff use as road but in his examination he admits that he tried to make a wall. And the DWS witnesses submission in the court is also contradictory to each other. Even none of the parties have mentioned that at the time of making the partition there present any person from district collector office. As the terms in the documents produced by defendant and submission of witnesses it is not clear that the defendant has possession over it or not so he is not entitled to any remedy. Hence, Ordered: Both the plaintiff and defendant of this suit failed to prove their claim as stated in their plaint and written statement. Both the parties failed to prove their ownership and possession over the disputed suit property. So. This court in its discretion hereby ordered the advocates of each party to make jointly a commission for the purpose of partition of the whole land amounted to 1.125 acres between there parties. The commission is empowered to hold inquiry in such manner as necessary. As the plaintiff did not apply for temporary injunction so he is hereby directed to break the wall at his own cost and this court hereby dismiss the claim of both parties for any kind of remedy and also both the parties are directed to follow the instruction as made by this court regarding the partition and also Pws 5 is proved to be a false witness and shall be punished under section 191 and 193 of the penal code 1860 as the actual Elias Ali has died 14 years ago.
Posted on: Wed, 24 Jul 2013 06:41:00 +0000
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