Md Shafiul Alam V. Ajmat Ullah 16 MLR HCD 2011 233

Facts In Brief:

The plaintiffs instituted title suit no 363 in the First Court for Senior Assistant Judge, Gazipur against defendants for declaration of title and recovery of khas possession in suit land. In  the suit, on 20 09 2007, one Md Shafiul Alam and Five Others sought to be imp leaded as Defendants under Order 1 Rule 10(2) Of The CPC which was allowed By Trial Court On 3 2 2008 but the order was reversed in revision by the impugned order. The impugned order provided by the court of revisional is not well founded in fact; the grounds argued advanced by the petitioners are correct expositions of law and facts. So the legal pleas taken by him appears to have a good deal of force.

Issues:

1) Whether the petitioners are entitled to get back the khas land.

2). Whether the transfer during the pendency of suit is hit by the doctrine of Lis Pendence.

Rule of Law

1)Section 52 of the Transfer of Property Act 1882 read with Order 1 Rule 10(2) of the CPC.

Cases Referred:

1) Akram Hossain V Sahera Khatun 57 DLR 317

2) Abdul Mannan V Swaris Roy 54 DLR 352 

3) Nurul Jamaludin V Rabeya Befim 32 DLR 63

4)  Islam V Jamila Khatun 53 DLR 54)

Application to the fact

The defendant transferring their shares to the petitioner delivered possession. However the petitioners purchased the disputed land so it is submitted by the opposites that they are neither proper nor necessary parties to the suit nor their presence are necessary to decide the suit.

As it was purchased at the time of pendency of suit the petitioners claim is hit by the doctrine of lies pendence under section 52.

 In the Jamaludin v Rabeya Begum a transfer of the land in suit being the subject matter of pending suit is hit by doctrine of lies pended so such a transfer is not valid.

In this case, it is pertinent to point out that to protect their rights and actual physically possession in order to avoid multiplicity of the disputes they were imp leaded as parties.

 In another case of Nurul islam v Jamila khatun a transfer in the suit property is liable to be impleaded in the suit and evicted from the suit property to give effective relief to the plaintiffs.

The presence of the petitioners are necessary in order to enable the court effectually and completely to adjudicate upon and settle the question in the suit. The impugned order provided by the court of revisional is not well founded in fact, the grounds argued advanced by the petitioners are correct expositions of law and facts. so the legal pleas taken by him appears to have a good deal of force.

Decision:

The judgment and order dated passed in civil revision is set aside.The impugned judgment and order suffers from legal  infirmity which calls for interference by this court. The rule having merit succeeds. The leave granted earlier is made absolute. 

Conclusion:

It is necessary to be present of the petitioner in order to enable the court effectually and completely to adjudicate upon and settle the question in the suit. The impugned order provided by the court of revisional is not well founded in fact.