RAYNA BEGUM Vs. MD. MARUFUDDIN AHMED

JUDGEMENT

(1.) This petition for leave to appeal is directed against the judgment and order dated 02.08.2007 passed by the High Court Division in Civil Revision No. 4795 of 2005 making the Rule absolute and setting aside the judgment and order dated 05.09.2005 passed by the learned Joint District Judge, 3rd Court, Sylhet in Miscellaneous Appeal No. 84 of 2004 dismissing the appeal and affirming the judgment and order dated 21.08.2004 passed by the learned Senior Assistant Judge, Beanibazar, Sylhet in Title Suit No.51 of 2004 granting and order of temporary injunction under order 39 Rule 1 of the Code of Civil Procedure.

(2.) The facts, in short, are that the plaintiff-petitioner Nos.1-4 filed Title Suit No. 51 of 2004 along with an application for temporary injunction against the defendant-respondent No.1 on 06.06.2004. The suit was for declaration that the judgment and order dated 06.09.1999 obtained by the defendant-respondent in Miscellaneous (Pre-emption) Case No. 21 of 1998 is illegal, null and void, inoperative, fraudulent, unexecutable and liable to be set aside and the plaintiffs-petitioner Nos.1-4 and pro-forma-respondent No.15 are not bound by that judgment and also for permanent injunction restraining the defendant-resplendent No.1 from evicting the plaintiff- petitioners from any part of suit land by putting the said judgment and order in execution.

(3.) The averments made in the plaint of the suit as well as the application for temporary injunction in brief was that though the defendant-respondent No.1 is a stranger yet he obtained an ex parte judgment and order in Miscellaneous (Pre-emption) Case No.21 of 1998 on 06.09.1999 challenging a deed of gift dated 04.01.1998 which was not maintainable under section 96(10) (a) of the State Acquisition and Tenancy Act, 1950. When the plaintiff-petitioner Nos.1-4 and pro forma respondent No.15 came to learn about the said ex parte order they filed Miscellaneous Case No. 27 of 1999 under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the said order and to restore the case to its original file and number but the same was rejected. They pursued the matter upto the Appellate Division but could not succeed and the said order was upheld upto the Appellate Division by judgment and order dated 17.04.2004 passed in Civil Petition for Leave to Appeal No.1040 of 2003 and then the defendant respondent was taking step hurriedly to take over possession of suit land in execution and as such the plaintiff-petitioners were constrained to file the application for granting temporary injunction to restrain the defendant-respondent No.1 from evicting the plaintiff-petitioners from any part of the suit land by putting the illegal ex-parte judgment and order in execution.