MD. AZIZUR RAHMAN CHOWDHURY Vs. TAUHIDUDDIN CHOWDHURY

JUDGEMENT

(1.) In this appeal leave was granted to consider whether the High Court Division was justified in interfering with the order of mandatory injunction passed by the Courts below relying upon the principles of doctrine of necessity and whether the High Court Division was correct in its view that no co-sharer should be restrained by an order of injunction from making construction on the suit lands in a partition suit.

(2.) Appellant instituted Title Suit No.1 of 1996 against the respondents for partition of the suit lands and allotment of a saham of .50 acres of land out of .68 acres of land of plot No. 889 of khatian No. 326 under mouja Chandgram, Police Station Beanibazar, District Sylhet. Plaintiffs case in short, is that the suit lands are the ejmali property of the appellant and the respondents. After the institution of the suit the appellant filed an application for temporary injunction restraining the respondents No. 1 and 2 from making any construction and / or changing the nature and character of the suit lands or from cutting away trees from the suit lands. The respondents No. 1 and 2 resisted the prayer for temporary injunction by filing a written objection. The trial Court made an interim order of status quo on 6th January, 1996 and upon hearing the parties the trial Court by judgment and order dated 20th March, 1997 directed the respondents No.1 and 2 to maintain status-quo in respect of the suit lands. The respondents did not challenge the said order in the appellate forum. Thereafter the appellant filed an application under section 55 of the Specific Relief Act for mandatory injunction stating, inter alia, that after the order of status quo made by the trial Court on 6th January, 1996, the respondents hastily started construction of permanent and temporary houses. Over and above, they had also dug up a ditch measuring 7 ft. length 7 ft. breath and 3 ft. depth and thereby created obstruction in the movement of the plaintiff-appellant.

(3.) The respondents No.1 and 2 filed a written objection against the application for mandatory injunction claiming that the plaintiff has no possession in the suit lands, that the respondents having faced with acute shortage of accommodation in their house raised the constructions in an area of .04 acres of land and that they did not violate the order of the Court by raising such constructions.