WALI MIAH SODAGOR JAME MASJID AND MADRASHA Vs. ABDUL HOQUE

JUDGEMENT

(1.) This petition for Leave to Appeal is directed against the order dated 31.08.2005 passed by a Single Bench of the High Court Division in Civil Revision No.3529 of 2005 issuing Rule and calling upon the respondent to show cause as to why the judgment and order dated 09.05.2005 passed by the Additional District Judge, 2nd Court, Noakhali in Civil Revision Case No. 82 of 2004 reversing those dated 05.09.2004 passed by the Senior Assistant Judge, Chatkhil, Noakhali in Title Suit No.43 of 2003 should not be set aside or such other or further order or orders passed as may seem fit and proper.

(2.) The petitioner as plaintiff filed Title Suit No. 148 of 2003 in the Court of Senior Assistant Judge, Noakhali on 04.05.2003 which on transfer was registered as Title Suit No.43 of 2003 in the Court of Senior Assistant Judge, Sadar, Noakhali against the defendant Nos.1 and 2 for permanent injunction.

(3.) The case of the plaintiff is that one Abdul Latif Mia while owning and possessing his properties including the suit property distributed his properties amongst his heirs vide registered Nirdeshpatra dated 06.03.1944. Accordingly Diara Khatian Nos. 77 and 78 of Sonapur Mouza, District-Noakhali were prepared and recorded in their names. Mostafizur Rahman, proforma defendant purchased 0.57 acres of land from Plot Nos.466, 467, 468 and 469 from different recorded tenants between 1991 and 1995. While owning, possessing and enjoying the said purchased land, Mostafizur Rahman and Mst. Monowara Begum built 6(six) feet high boundary wall around 0.30 acres of land of Plot No. 467. Separate Khatian No. 644 regarding 0.45 acres of land was opened vide Mutation and Separation Case No. 731 of 1994-1995 and Khatian No. 722 regarding 0.12 acres of land was opened vide Mutaion and Separation Case No. 945 of 1999-2000 in their names. Mostafizur Rahman and his wife Mst. Monowara Khanam made an oral gift of said 0.12 acres of land from Plot No.466, 0.30 acres of land from Plot No. 467 and 0.03 acres of land from Plot No.469 in favour of the petitioner, Wali Mia Sodagor Jame Masjid and Madrasha for establishing a Masjid, Madrasha and Etimkhana declaring Mostafizur Rahman as the Motwalli. Land from Plot No. 467 was given for mosque, land from Plot No. 466 was given for building shops rent of which will be the source of income for the Mosque, Madrasha and Etimkhana and land from Plot No. 469 was given for grave yard for general public of the locality. After settling aforesaid properties in this way, Mostafizur Rahman went to perform Haj no. 27.01.2003. On return from Haj, when he started completion of unfinished work of said Mosque, Madrasha and Etimkhana, the defendant Nos.1 and 2 claimed that they are the owners of the said property vide Deed of Exchange and started disturbing him and threatening him to dispossess him from the said property and openly declared that they would not let the plaintiff build any Mosque or Madrasha on the said land. In this circumstances, the plaintiff as Mutwalli of Wali Mia Sodagar Jame Masjid and Madrasha filed the aforesaid suit for permanent injunction against the defendants-respondents.