IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Moinul Islam Chowdhury

Civil Revision No. 4335 of 2023

IN THE MATTER OF:

An application under section 115(1) of the Code of Civil Procedure. (Against Order)

And

IN THE MATTER OF:

Md. Robiul Islam

--- Plaintiff-Appellant-Petitioner. -versus-

Md. Saifuddin Patowary and others

--- Defendant-Respondent-Opposite Parties.

Mr. Raghib Rouf Chowdhury with

Mr. K. M. Mamun-Or-Rashid and

Mr. M. Fazlul Karim Mondol, Advocate

--- For the Plaintiff-Appellant-Petitioner. Mr. Mohammad Kamrul Hasan with

Ms. Asma Parveen, Advocates

--- For the Defendant-Respondent-Opposite Parties.

Heard on: 16.11.2023 & 28.11.2023. Date of Judgment: 28.11.2023.

At the instance of the present plaintiff-appellant-petitioner, Md. Robiul Islam, this revisional application was filed under section 115(1) of the Code of Civil Procedure and the Rule was issued calling upon the opposite parties to show cause as to why the impugned Judgment and Order dated 24.08.2023 passed by the learned Senior District Juge, Dhaka in the Miscellaneous Appeal No. 104 of 2023 dismissing the appeal and thereby affirming the

Judgement and Order dated 26.01.2023 passed by the learned Joint District Judge, Court No. 1, Dhaka in the Title/Civil Suit No. 796 of 2022 rejecting the application for temporary injunction should not be set aside.

The relevant facts for disposal of this Rule, inter-alia, are that one Kerala Sarder was the owner, thereafter, having to possess the scheduled land by his 2 sons, namely, Horicharan Sarder and Raj Chandra Chowkider by equal shares. Horicharan sold the land to Saed Ali and S. A. Record was prepared his name. Saed Ali died leaving behind his legal heirs: wife Jhunu Bibi, 2 sons, namely, Fazar Ali and Shohor Ali, 4 daughters, namely, Shokhina Bibi, Robila Khatun, Zamila Khatun and Zamina Khatun and R. S. Record was prepared in their names. Thereafter, Zamila Khatun transferred her share to 2 nephews Fazar Ali and Shohor Ali by way of a registered Heba Deed dated 21.12.1995. She also transferred the land earlier to Fazar Ali by way of a registered Deed dated 02.07.1985. Accordingly, the right of City Jorip was prepared in the name of Shohor Ali. The said Shohor Ali transferred the land by way of Heba Bill Ewaj in favour of the present plaintiff- petitioner. When the defendant-opposite parties tried to dispossess the plaintiff-petitioner and finally on 10.02.2018 the defendants dispossessed the plaintiff from the suit land.

During the pendency of the suit being the Title Suit No. 796 of 2022, the plaintiff-petitioner filed an application under Order 39 rule 1 and 2 read with section 151 of the Code of Civil Procedure praying for a temporary injunction upon the suit land.

The learned Joint District Judge, Court No. 1, Dhaka rejected the application for the temporary injunction against the opposite parties on 26.01.2023. Being aggrieved the present petitioner preferred the Miscellaneous Appeal No. 104 of 2023 in the Court of the learned Senior District Judge, Dhaka challenging the legality of the said order dated 26.01.2023 passed by the learned Joint District Judge, Court No. 1, Dhaka. After hearing the parties, the learned Senior District Judge, Dhaka rejected the appeal and affirmed the impugned judgment and order passed by his judgment and order dated 24.08.2023.

Mr. Raghib Rouf Chowdhury, the learned Advocate, appearing along with the learned Advocate, Mr. K. M. Mamun-Or- Rashid on behalf of the learned Advocate, Mr. Mohammad Fazlul Karim Mondal, for the plaintiff-appellate-petitioner, submits that the learned courts below committed an error of law by rejecting the application for temporary injunction during the pendency of the title suit in order to restraining the defendant- opposite parties from construction of a building.

The learned Advocate also submits that there is a prima facia case on behalf of the present petitioner, thus, the int