Present:-

Mr. Justice Mahmudul Hoque

Civil Revision No. 1851 of 2023

Tofel Ali Waqf Estate, EC No. 3033, represented by its Motawalli Mujibul Islam

... Petitioner

-Versus-

Mobinul Haque and others

...Opposite-parties No one appeared.

...For the petitioner

Ms. Nusrat Jahan, Advocate

...For the opposite-party No. 1.

Judgment on 12th February, 2024.

In this application under Section 115(4) of the Code of Civil Procedure, by granting leave to revision to the petitioner Rule was issued calling upon the opposite parties to show cause as to why the impugned judgment and order dated 23.02.2023 passed by the learned Senior District Judge, Chattogram in Miscellaneous Appeal No. 557 of 2022 dismissing the appeal and thereby affirming the judgment and order dated 17.10.2022 passed by the learned Senior Assistant Judge, 1st Court, Patiya, Chattogram in Other Suit No. 342 of 2022 rejecting an application filed by the plaintiff under Order 39 Rules 1 and 2 of the Code of Civil Procedure for temporary injunction should not be set aside and/or pass such other or further order or orders as to this Court may seem fit and proper.

Shorn of unnecessary details, fact of the case lies in a very narrow compus. The petitioner, as plaintiff, filed Other Suit No. 342 of 2022 in the Court of Senior Assistant Judge, 1st Court, Patiya, Chattogram for perpetual injunction. Plaintiff’s case in short are that the schedule property was originally belonged to one Munshi Tofel Ali who by a deed of Waqf No. 4080 dated 02.09.1891 established Munshi Tofel Ali Waqf Estate in his name and enrolled the same under defendant No. 6 being E.C. No. 3033 and he himself served as Motawalli. After his death, as per terms of Waqf deed his eldest son Ashraf Ali was Motawalli and after death of Ashraf Ali his son Ear Ali was Motawalli. During R.S. operation suit property was inadvertently recorded in the name of Ear Ali inspite of Munshi Tofel Estate, represented by Motawalli Ear Ali. Actually said Ear Ali never claimed the suit property as his own property, subsequently, in 1950 on his death, brother Monir Ahmed was appointed as Motawalli of the Waqf Estate. After death of Monir Ahmed his brother Abdul Ali and then on the death of Abdul Ali present plaintiff was appointed as Motawalli of the Waqf Estate.

The defendant No. 1 Mobinul Haque, Fazlul Haque, Ekramul Haque are sons of Monir Ahmed. During B.S. operation said property rightly recorded in the name of Waqf Estate with minor mistake as Tufan Ali Waqf Estate and accordingly, the plaintiff was appointed as Motawalli by defendant No. 6 on 10.11.2019. The defendant No. 1 transferred ·48 acres land of Plot No. 4115 vide Deed No. 2788 dated 17.04.2014 to his nephew Mukibul Islam Chowdhury including ·06 acres of land of Waqf Estate though they have no right, title and interest. On 24.08.2022 the defendant No. 1 disclosed that he will construct “Bir Nibash” on the scheduled property of the Waqf Estate informing that he got allotment from government to establish “Bir Nibash” and threatened the plaintiff with dispossession. The defendant No. 1 also disclosed that tender was published for construction of “Bir Nibash” by LGED Patiya after taking permission from Ministry of Freedom Fighter, and hence the suit for perpetual injunction.

On 26.09.2022 the defendant No. 1 filed written objection against the application for temporary injunction filed by the plaintiff. After hearing the learned trial court rejected the same vide Order No. 06 dated 17.10.2022. Being aggrieved by the aforesaid Order No. 06 dated 17.10.2022 passed by the trial court, the plaintiff appellant preferred Miscellaneous Appeal No. 557 of 2022 before the learned Senior District Judge, Chattogram who after hearing dismissed the appeal by the impugned judgment and order dated 23.02.2023. At this juncture, the petitioner, moved this Court by filing this application under Section 115(4) of the Code seeking leave to revision instead of filing revision under Section 1