High Court Division · Civil Revisional Jurisdiction
Nitai Chandra Roy and others v Vanu Chandra Sarker and others
Civil Revision 928/2018 · Decided 7 July 2026
The plaintiff sued for a perpetual injunction over 21 decimals of land, alleging that the defendants had tried to dispossess him on 27.08.2010. The contesting defendants claimed part of the land by inheritance, relied on mutation of five decimals in S.A. Plot No. 574, and argued that the land was unpartitioned joint property. The Senior Assistant Judge, Nababgonj, Dhaka decreed the suit and the Additional District Judge, 5th Court, Dhaka dismissed the defendants' appeal. In revision, the High Court Division noted that the defendants' own witnesses admitted that the plots were adjacent and that the plaintiff's house and fruit trees stood on the land, and that the mutation did not correspond to the land claimed. It held that a perpetual injunction only protects existing lawful possession and does not decide title or operate as partition, so it may be granted against a co-sharer who threatens forcible dispossession. Mutation neither creates nor extinguishes title. Finding no misreading of evidence or legal error, the Court discharged the Rule.
- Q1
Whether a decree for perpetual injunction can be granted to a co-sharer in settled possession of unpartitioned joint property against other co-sharers.
- Q2
Whether the defendants' mutation records could displace concurrent findings of the plaintiff's actual possession.
- A decree for perpetual injunction merely protects existing lawful possession against unlawful interference and neither declares title nor operates as a decree of partition.
- A co-sharer cannot, under cover of joint ownership, forcibly dispossess another co-sharer in settled possession; such disputes must be resolved by due process, including partition.
- Possession is the primary consideration in a suit under section 54 of the Specific Relief Act, and a person in settled possession is entitled to protection.
- Mutation neither creates nor extinguishes title and is maintained for fiscal purposes, so mutation records alone cannot displace findings of actual possession.
- Concurrent findings of fact are not interfered with in revision absent jurisdictional error, material illegality, perversity or non-consideration of material evidence.
It is now a settled principle that a decree for perpetual injunction merely protects existing lawful possession against unlawful interference. Such decree neither determines nor declares absolute title, nor does it operate as a decree of partition.
In the court’s own words.
Civil Revision 928/2018, as published by the Supreme Court of Bangladesh. 14 pages, with paragraph numbers for citing.
1IN THE SUPREME COURT OF BANGLADESH
2HIGH COURT DIVISION
3(CIVIL REVISIONAL JURISDICTION)
Present:
4Mr Justice Abdur Rahman
5Civil Revision No. 928 of 2018
6In the matter of:
7Nitai Chandra Roy and others
……Defendants-Appellants
Petitioners
-Versus-
8Vanu Chandra Sarker and others
…Plaintiff – Respondent
Opposite parties
9Mr Md. Zakir Hossain, with
10Mr. Ram Chandra Das, Advocate
……..For the Petitioners.
11Mr Mohammad Shamsul Alam, Advocate
…for the opposite parties.
12Date of Hearing: 24.6.2026 and 25.06.2026 A.D. Date of Judgment: 07.07.2026 A.D., Tuesday,
23 Ashar, 1433 B.S.
JUDGMENT:
13Abdur Rahman, J:
14This revisional application, at the instance of the petitioners, has been filed under section 115(1) of the Code of Civil Procedure, 1908. At the time of issuance of the Rule, the following order was passed:
15"Let a Rule be issued calling upon the opposite party No.
161 to show cause as to why the judgment and decree
17dated 20.4.2017 passed by the learned Additional
18District Judge, 5th Court, Dhaka in Title Appeal No. 03 of
192016 dismissing the appeal by setting aside (Sic) the
20judgment and decree dated 15.10.2015 passed by the
21learned Senior Assistant Judge, Nababgonj, Dhaka in
22Title Suit No. 689 of 2010 decreeing the suit should not
23be set aside and/or why such other or further order or
24orders should not be passed as to this Court may seem
25fit and proper."
26At the time of issuance of the Rule, this Court also
27stayed the operation of the impugned judgment and
28decree for a period of one year. The said order of stay
was subsequently extended from time to time and
29remained in force until the disposal of the present Rule. Facts
30The facts, shorn of unnecessary details, are that the opposite party, as plaintiff, instituted Title Suit No. 689 of 2010, seeking a decree of perpetual injunction in respect of 21 decimals of land described in the schedule to the plaint. The plaintiff asserted that the original owner of the suit property was one Sharashati. According to the plaintiff, he acquired title and possession of 14 decimals of land appertaining to S.A. Plot No.575, and another 7 decimals from S.A. Plot No.574, corresponding to R.S. Plot Nos.983 and 981, respectively. The plaintiff's grievance was that, although he had been peacefully possessing the suit property, the defendants, claiming title to a portion thereof, attempted to forcibly dispossess him on 27.08.2010, compelling him to institute the instant suit for a perpetual injunction.
31The contesting defendants entered an appearance and filed separate written statements denying the material allegations made in the plaint. Their principal defense was that
the suit was devoid of a cause of action, not maintainable in law, and liable to dismissal.
32The defendants further contended that S.A. Khatian No. 244, including Plot No. 574, originally belonged to Radhika Mohan Roy and others. Upon successive inheritance, defendant Nos. 1-5 became owners of the property and subsequently obtained mutation in respect of five decimals of land under Plot No. 574. They claimed continuous possession by planting trees and asserted that the plaintiff neither acquired title nor possession over the suit land.
33Defendant Nos.6-9 also filed a written statement substantially denying the plaintiff's claim but did not seriously contest the proceeding.
34Upon recording oral and documentary evidence adduced by the respective parties, the learned Senior Assistant Judge, by judgment and decree dated 15.10.2015, decreed the suit.
35Being dissatisfied, the contesting defendants preferred Title Appeal No.03 of 2016 before the learned District Judge, Dhaka, which was subsequently transferred to the learned Additional District Judge, 5th Court, Dhaka.
36After hearing both sides, the learned appellate Court dismissed the appeal and affirmed the judgment and decree passed by the trial Court.
37Feeling aggrieved thereby, the petitioners have invoked the revisional jurisdiction of this Court. Submissions
38Mr Ram Chandra Das, the learned Advocate appearing on behalf of the petitioners, submits that both the Courts below failed to appreciate the evidence on record in its proper perspective and thereby arrived at erroneous findings of fact, resulting in failure of justice.
39He next submits that, admittedly, the suit property remains joint amongst the co-sharers, and there has been no partition by metes and bounds. In such circumstances, no decree for permanent injunction could legally be granted against co-sharers without determination of their respective shares.
40The learned Advocate further argues that the schedule of the suit suffers from uncertainty and vagueness, inasmuch as the boundaries of the suit land have not been properly
specified. Consequently, he said the suit itself was not maintainable.
41It is further contended that the defendants successfully established their title to and possession of the disputed property through documentary evidence, including mutation records, and that both the Courts below committed a serious illegality in granting a decree of perpetual injunction.
42Lastly, he submits that an injunction, being an equitable relief, cannot be granted where the identity of the property itself remains uncertain.
43In support of his submissions, the learned Advocate has relied upon the decisions reported in 50 DLR (AD) 6 and 12 BLT (AD) 203.
44Conversely, Mr Md. Shamsul Alam, the learned Advocate appearing for the opposite party, supports the impugned judgment.
45He submits that both the Courts below, upon meticulous consideration of the entire oral and documentary evidence, concurrently found that the plaintiff had been in actual
physical possession of the suit property and that such possession was threatened by the defendants.
46He further submits that both the plaintiff's witnesses and the defendants' witnesses consistently admitted the location and identity of the suit property. The R.S. tenant, Onushanto Sarkar, also clearly identified the boundaries during his deposition.
47He contends that the defendants failed to establish possession over the suit property, whereas their own witnesses admitted the plaintiff's possession by acknowledging the existence of his dwelling house, trees and cultivation on the disputed land.
48In support of his submissions, the learned Advocate has referred to the decisions reported in 19 BLC (AD) 139, 1984 BLD (AD) 285, 56 DLR (AD) 22 and 8 BLC (AD) 10. Consideration
49I have heard the learned Advocates for the respective parties, perused the judgments of both the Subordinate Courts, examined the evidence available on record and carefully considered the submissions advanced at the Bar.
50On perusal of the judgment of the learned trial Court, it is found that he observed in the following way:
51“উ িবষেয় মৗিখক সাে র পাশাপািশ তােদর নামজারী উ দােগর
52০৫ শতাংশ স ি র কােত আেছ মেম দািলিলক
! #মান উপ$াপন করা
53হেয়েছ। িববাদীপে র অপর দাবী হেলা য, তােদর দাবীকৃত ৫৭৪ দাগ
54এবং সংল- ৫৭৫ দােগর মাঝখােন এক/ট রা1া আেছ। উ িবষেয় িড
55ডি3উ-২ এবং িড ডি3উ-৩ এর সা পযােলাচনায়
! দখা যায় য, তারা
56উভেয় নািলশী ৯৮৩ এবং ৯৮১নং দাগ দুই/ট পাশাপািশ এবং সংল-
57মেম ! =ীকার কেরেছন। িড ডি3উ-৪ এর সা মেত দুই/ট >েটর
58মাঝখান িদেয় বড় কান রা1া নই। তেব দুই বাড়ীর লাকজন চলাচল
59কের। “ The learned trial Court also observed that,
60“অন িদেক িববাদীপে র সমথেন
! সা ী গেণর #েত েকই ৫৭৪ দােগর
61০৭ শতাংেশর উ েরর >ট/ট ১৪ শতাংেশর যখােন বাদীপে র ঘরবাড়ী
62আেছ মেম !=ীকার কেরন। িড ডি3উ-১ জরায় বেলন য, ৯৮৩ দােগর
63স ি েত ঘর-দরজা আেছ। সখােন অনুশাC বাস কের। স বাদী ভানু
64সরকােরর DEড়। স ি র দখল সংFােC িববাদীপে র সা ী িড
65ডি3ড-২ জরায় পিরGার ভােব =ীকার কেরন- "বাদীরা নাঃ দােগর
66এক/টেত ঘর-দরজা ও এক/ট ফলফলািদ লািগেয়েছ-ইহা সত ।" উ Kপ
67ব ব বাদীপে র কস ক সমথন! দান কের। “
Concomitantly, on perusal of the judgment of the learned Appellate Court, observed that:
68“অন িদেক িববাদীপ নািলশী ৫৭৫ দােগর কান স ি িনজ নােম
69খািরজ কেরন নাই এবং খাজনা #দান কেরন নাই। যিদও নািলশী ৫৭৪
70দােগ ৫ শতক স ি িববাদীপ িনজ নােম খািরজ কেরেছ মেম ! দখা
71যায়। িকL নািলশী ৫৭৪ দাগ যা আর,এস ৯৮১ দাগ তা পযােলাচনায়
!
72দখা যায় উেMিখত দােগ জিমর পিরমাণ ৩০ শতক। কােজই উেMিখত
73দােগ ৫ শতক জিম িববাদীপ িনজ নােম খািরজ করেলও তা বাদীর
74দাবীকৃত স ি নয় মেম ! #তীয়মান হয়। এছাড়া িববাদীপে র
75সা ীগন =ীকার কের ৫৭৪ দােগর ৭ শতাংেশর উ েরর >ট/ট ১৪
76শতাংশ এবং সখােন বাদীপ ঘরবািড় কের আেছ। িড,ডি3উ-১ জরার
77জবােব বেল ৯৮৩ দােগর স ি েত ঘর দরজা আেছ এবং সখােন
78অনুশাC বসবাস কের এবং অনুশাC বাদীর DEড়। িড, ডি3উ-২ জরার
79জবােব =ীকার কেরন নািলশী দােগর স ি েত ঘর দরজা আেছ এবং
80ফসল আেছ। কােজই বাদীপ য নািলশী স ি দখল কের তা
81িববাদীপে র সা ীেদর সা হেত #তীয়মান হয়। ফেল নািলশী
82স ি েত িববাদীপে র দখল নাই মেম সাব
! 1 করা হল। িবN িবচারক
83তিক!ত রােয় য উেMখ কেরেছন িববাদীপে র নািলশী স ি েত দখল
84নাই তা স/ঠক। উেMিখত wm×všÍ হ1ে পেযাগ নয়।“
85From the above observations, it is found that the learned trial Court, after discussing the evidence in detail, observed that although the defendants claimed mutation in
respect of five decimals of land under S.A. Plot No.574, their own witnesses admitted that R.S. Plot Nos.983 and 981 are adjacent to each other and that no substantial road exists between them. More importantly, the defendants' witnesses admitted the existence of the plaintiff's dwelling house and fruit-bearing trees over the disputed property.
86Similarly, the learned appellate Court independently reassessed the entire evidence and concurred with the findings of the trial Court. It categorically found that although the defendants obtained mutation for five decimals under Plot No. 574, such mutation did not correspond to the land claimed by the plaintiff. The appellate Court further noticed that the defendants themselves admitted the plaintiff's actual possession of the suit land.
87The concurrent findings recorded by both the Courts below are based upon proper appreciation of oral and documentary evidence and cannot be said to be either perverse or unsupported by the materials on record.
88The principal argument advanced by the petitioners is that since the property remains unpartitioned amongst the co-
sharers, no decree for permanent injunction could have been granted.
89The contention, attractive at first blush, does not withstand close scrutiny.
90It is now a settled principle that a decree for perpetual injunction merely protects existing lawful possession against unlawful interference. Such decree neither determines nor declares absolute title, nor does it operate as a decree of partition. A decree of injunction simply preserves the existing state of possession until the rights of the parties are finally adjudicated in an appropriate proceeding.
91The Appellate Division has consistently held that where a plaintiff establishes lawful possession and proves interference or threatened dispossession, a decree for permanent injunction is maintainable notwithstanding the existence of complicated questions of title, provided the plaintiff is not required to seek a declaration of title as an indispensable relief. Equally well settled is the proposition that a co-sharer cannot, under the guise of joint ownership, forcibly dispossess another co-sharer who is in settled
possession. Such disputes must be resolved through due process of law, including partition where necessary.
92The authorities reported in 1984 BLD (AD) 285, 19 BLC (AD) 139 and 56 DLR (AD) 22 reiterate that possession constitutes the primary consideration in a suit under section 54 of the Specific Relief Act and that a person in settled possession is entitled to judicial protection against unlawful interference.
93The contention regarding the absence of partition also cannot advance the petitioners' case. Even assuming the property remains joint, the decree under challenge does not confer exclusive ownership on the plaintiff, nor does it extinguish the defendants' rights. The decree merely restrains unlawful interference with the plaintiff's established possession. The defendants remain at liberty to work out their respective rights in accordance with law by seeking partition or other appropriate relief before the competent forum.
94It is equally settled that mutation neither creates nor extinguishes title; it is merely maintained for fiscal purposes. Therefore, the defendants' mutation records by themselves
cannot displace the concurrent findings regarding actual possession.
95The decisions relied upon by the petitioners are distinguishable on the facts. Those authorities deal with circumstances where the plaintiff failed to establish possession or where an injunction was sought despite the existence of legal bars contemplated under section 56 of the Specific Relief Act. The factual foundation of the present case is entirely different because both the Subordinate Courts concurrently found, on evidence, that the plaintiff was in actual possession of the disputed property.
96Furthermore, this Court is exercising revisional jurisdiction under section 115 of the Code of Civil Procedure. The jurisdiction is supervisory in nature. Unless the findings recorded by the Subordinate Courts suffer from jurisdictional error, material illegality, perversity or non-consideration of material evidence occasioning failure of justice, this Court would not ordinarily interfere with concurrent findings of fact. This principle has repeatedly been affirmed by the Appellate Division.
97Having examined the entire record, I find no misreading or non-reading of evidence, nor any jurisdictional infirmity or legal error warranting interference in revisional jurisdiction.
98Accordingly, I am of the considered opinion that both the Subordinate Courts rightly appreciated the evidence and correctly decreed the suit for perpetual injunction. The impugned judgment does not suffer from any illegality, impropriety or material irregularity calling for interference by this Court. Result
99As a result, the Rule is discharged.
100There shall, however, be no order as to costs.
101The order of stay granted earlier by this Court stands recalled and vacated.
102Let the Subordinate Courts' Records be transmitted forthwith to the Courts concerned together with a copy of this judgment.
(Abdur Rahman, J.)
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