Decided on March 17,2009

Md. Yunus Appellant
ABUL KALAM Respondents


MD.ABDUL AZIZ,J. - (1.) This petition for leave to appeal is directed against the judgment and order dated 10.12.2007 passed by a Single Bench of the High Court Division No. 42 of 2004 making the Rule absolute arising out of judgment and order dated 21.07.2003 passed by the learned Joint District Judge, 1st Court, Chittagong, in Miscellaneous Appeal No.145 of 1998 allowing the appeal after setting aside the judgment and order dated 29.09.1998 passed by the Assistant Judge, Hathazari, Chittagong in Title Suit No.45 of 1996 granting an order of mandatory injunction.
(2.) Facts, in brief, are that one Abdur Rahman, father of respondent No.1-4 as plaintiffs instituted Title suit no. 45 of 1996 in the Court of Assistant Judge, hathazari, Chittagong for confirmation of possession and partition in respect of the suit land for 6 gondas, 2 karas, 1 kranti and share in 12 decimals of land out of 73 decimals appertaining to C. S. Plot No.1063 and 1068 under R. S. Khatian No. 878 corresponding to R. S. Plot No.722 measuring .55 decimals and R. S. Plot No.726 measuring 18 decimals as described in the schedule of the plaint. Thereafter, on 10.06.1996 the plaintiffs also filed an application under Order 39, Rule and 2 read with Section 151 of the Code of Civil Procedure praying for temporary injunction restraining the defendant No.1 and 6 from disturbing the peaceful possession of the homestead and from demolishing their latrine of breaking the fencing or cutting the trees in the suit property behind the western side of their house till disposal of the suit.
(3.) The petitioner as defendant No.1 filed written objections against the petition for temporary injunction denying the allegation, contending, inter alia, that the plaintiff has got no prima facie and good arguable case as such he is not entitled to get any order of injunction. The suit plot is vague and not identifiable and that the balance of conveniences and inconvenience is in favour of the defendants since the defendant is in exclusive pos session of the suit land long before filing the suit as such this petition for injunction is not maintainable, etc.;

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