MD. AZIM UDDIN Vs. MD. ABDUL LATIF

JUDGEMENT

(1.) These petitions for leave to appeal are directed against the judgment and order dated 06.01.2009 passed by the High Court Division in Civil Revision No.5532 of 2001 heard analogously with Civil Revision No. 2464 of 2000 discharging the Rule and upholding the judgment and decree dated 16.07.2001 passed by the learned Subordinate Judge, First Court, Dhaka in Title Appeal No.69 of 1994 allowing the appeal and reversing the judgment and decree dated 31.01.1994 passed by the learned Assistant Judge, 3rd Court, Dhaka in Title Suit No.41 of 1993 decreeing the suit for permanent injunction.

(2.) The facts, in short, are that the petitioner as plaintiff filed Title Suit No.41 of 1993 before the learned Assistant Judge, 3rd Court, Dhaka for a decree of permanent injunction against the defendant opposite parties stating, inter alia, that the suit property having an area of 0236 ajutangsha originally belonged to one Kazim Khalifa, the C.S. recorded tenant. C.S. Khatian No. 14789 C.S. Plot No.264 was in his name. He transferred right, title and interest and possession of the suit property to one Amiruddin Ostagar who is the father of the plaintiff petitioner. S.A. Khatian No.4770, relating to S.A. Plot No.9041 of Mouja Shahar, Dhaka and R.S. Khatian No. 1281 relating to R.S. Plot No. 13147 are correctly prepared and finally published in his name. He paid rents to the Government authority and received receipts for the same. His name is also recorded in the Municipal record. He paid holding tax. Amiruddin Ostagar owned and possessed the suit property openly for a long time to the exclusion of others. He died leaving behind the plaintiff-respondent the petitioner herein as the only son and Shamsunessa and Umme Kulsum as two daughters. Aforesaid two daughters of Amiruddin Ostager orally gifted their shares in the suit property to their only brother Azimuddin. Thus the plaintiff respondent, the petitioner .herein owns and possesses the suit property as sole owner for more than twelve years. He has been paying rents and other taxes to Government and Dhaka City Corporation after mutating his name in respect of the suit property. The defendant appellants falsely claimed the suit property as the property of local mosque in order to grab the same illegally and fraudulently. They threatened the plaintiff respondent, the petitioner herein on 12.03.1993 to dispossess and oust him from the suit property and as such he was constrained to file the above suit for permanent injunction against the defendant respondent opposite parties.

(3.) The respondent herein contested the suit by filing a joint written statement stating, inter alia, that the original owner of the suit property was Meer Mohammad Ali who executed and registered a deed of waqf in favour of Sikkatuly Mosque, the same was enrolled vide EC No.2030 as public waqf under Bengal Waqf Act, 1934. One Shahabuddin was appointed Mutwalli by the court in Case No. 14 of 1948 who mutated the Waqf in the Office of the East Pakistan Waqf Commission. The motwalli inducted the father of the plaintiff respondent, the petitioner herein, who as tenant executed a kabuliyat on 24.02.1934 in favour of the mutwalli as monthly tenant. He became a defaulter and the mutwalli instituted Title Suit No. 116 of 1957 in the First Court of Munsif, Dhaka for his ejectment and got a decree for ejectment. The decree was upheld by the lower appellate court and the High Court Division. After the death of Amiruddin his heirs executed a deed of release in October 1996 at a consideration of Tk.1080.00. The plaintiff respondent, the petitioner, herein and his sisters expressed their inability to vacate the suit property and continued to remain in possession. Thereafter in 1992 plaintiff promised in writing to vacate but instead continued to remain in possession unauthorizedly. The plaintiff respondent, the petitioner, herein is an ejectable monthly tenant and hence the suit for permanent injunction is liable to be dismissed.