NOOR MOHAMMAD BISWAS Vs. SURENDRA NATH MONDAL

JUDGEMENT

(1.) This petition for leave to appeal is directed against the judgment dated November 29, 2004 of a Single Bench of the High Court Division in Civil Rule No.80(S) of 1998 (arising out of Second Appeal No.45 of 1979) discharging the Rule. The aforesaid Rule was obtained upon an application filed under Order 41, Rule 21 of the Code of Civil Procedure seeking re-hearing of the Second Appeal No.45 of 1979 which was allowed on 10.4.1997. The appeal was filed against the judgment and decree dated July 31, 1978 of the Court of Additional District Judge, Jessore in Title appeal No.31 of 1977 allowing the same and thereupon dismissing the plaintiffs suit. The appeal i.e. appeal No.31 of 1977 was filed against the judgment and decree dated January 31, 1977 of the 3rd Court of Munsif (now Assistant Judge) Jessore in Title Suit No.8 of 1977 decreeing the suit and thereupon declaring title of the plaintiff in the land in suit and confirmation of possession of the plaintiff. The trial Court further by a decree of permanent injunction restrained the defendant Nos. 8 and 9 from disturbing the possession of the plaintiff in the land in suit.

(2.) The suit was filed with the prayer for establishment of title in the land in suit and for confirmation of possession therein.

(3.) The High Court Division by the judgment dated April 10, 1997 in Second Appeal No.45 of 1979 set aside the judgment and decree of the lower appellate Court with the finding that defendant No.9 came on the land after the institution of the suit and that finding of the trial Court that during the pendency of the suit the defendant No.9 took forcible possession of the land in suit "is true" and thereupon the High Court Division set aside the decree passed by the lower appellate Court and restored the judgment and decree of the trial Court. It appears Second Appeal was heard in the absence of the learned Advocate of the Respondent. The Second Appeal was disposed of on April 10, 1997 and the application under Order 41, Rule 21 of the Code of Civil Procedure was affirmed on December 2, 1997 and the same as it appears was moved in the early part of the year 1998 and thereupon the aforesaid Rule i.e. Civil Rule No.80(S) of 1998 was issued. When the Rule was taken up for hearing the learned Advocate for the petitioner was not present and the Rule was disposed of in presence of the learned Advocate of the opposite party Nos. 1(a) and 1(b).