RAMANI MARAK Vs. JAMINI MARAK

JUDGEMENT

(1.) Leave was granted to consider whether the learned Judges of the High Court were justified in granting temporary injunction during the pendency of the first appeal in the High Court Division, arising from a suit which was only for declaration of title without any prayer for consequential relief.

(2.) Facts are that Respondents 1, 2 and 20 filed OC Suit No. 336 of 1975 in the Court of the Subordinate Judge, Tangail for declaration of their title in the suit properties, claiming that the property originally belonged to one Ifrimoni Garoani and they were her great grand daughters through her daughter Midong. The suit was contested by the first appellant saying that the suit property was self-acquired properties of Ramjan Garo and it was so recorded in his name in CS Khatian. Ramjan Garo died leaving his wife (defendant No. 1) as the legal heir who has been enjoying the suit properties being in possession for more than 12 years. First appellant as plaint at filed OC Suit No. 66 of 1975 in the same Court for declaration in respect of the self same properties making the plaintiffs of the other suit as the defendants along (sic) with others. Both the suits were tried analogously and dismissed by the same judgment on December 31, 1976. Against the judgment and decree passed in OC Suit No. 335 of 1975 two plaintiffs, namely, Respondents I and 2 filed an appeal in the High Court Division being FAT No. 363 of 1977 and the same is still pending. In the said appeal Respondents 1 and 2 filed an application for temporary injunction restraining the appellant from interfering with their possession in the suit land. Prayer for injunction was opposed, saying that the respondents could not legally make a prayer for temporary injunction in the suit for declaration simpliciter. It was further contended that the respondents' possession in the suit property was not accepted by the learned Subordinate Judge. The learned Judges of the High Court Division, however, accepting the case of the respondents found it a fit case for restraining the appellants and so issued the order of temporary injunction.

(3.) Leave was granted to consider whether in view of the decision in the case of Kanti Ram Shil Vs. Sumitra Devi 16 DLR 272 and in the case of Mosharraf Hossain Vs. Bangladesh Jute Industries Corporation 29 DLR (SC) 168 the injunction granted by the High Court Division was done on correct principles.