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Case Name: Moulana Serajul Haque v. Md.

Saifullah [24 BLD (AD) 2004, 163]


Relevant Laws: Section 42 of the Specific Relief Act (Act 1 of 1877)
Fact in Short: The disputed area of suit land is decimal of land with a shop on the same and
both parties claim ownership over the same Md. Saifullah, respondent no. 1 in both the appeals
instituted Title Suit No. 93 of 1985 (defendant of the Title Suit No. 222 of 1992) has claimed that
the property appertained to C.S. Plot No. 313, while Moulana Serajul Haque, plaintiff in Title
Suit No. 222 of 1992 has claimed that the suit land appertained to C.S Plot No. 312. Both the
suits were for declaration of title and for recovery of Khas possession.
At first Md. Saifullah filed the Title Suit No. 112 regarding the dispute arising between him and
Moulana Serajul Haque on the land appertaining to S. A. Khatian No. 425 Plot No. 313. Learned
Assistant Judge decreed the suit in favour of plaintiff Md. Saifullah. Against the said decision
defendant Moulana Serajul Haque preferred Civil Revision No. 109 before the Court of District
Judge which was rejected. Against the said decision defendant preferred Civil Revision No. 386
before the High Court Division of the Supreme Court. But the High Court Division made the rule
absolute with the finding that the suit is triable by the Village Court. The plaintiff then filed the
Civil Petition No. 351 for leave to appeal but it was also rejected on the same finding.
Then Md. Saifullah filed the present Title Suit No. 93 regarding the title of the property. Learned
Assistant Judge again decreed the suit in favour of the plaintiff. Against the said decision
Moulana Serajul Haque filed the Title Appeal No. 139 before the Court of District Judge which
was passed in his favour. He also filed the Misc. Case No. 42 for setting aside the ex-parte
decree on the basis of forged and conclusive kabala submitted by Md. Saifullah in the Title Suit
No. 93. But in the meantime Md. Saifullah as a decree holder put the decree into execution and
got delivery of possession. Against the decision of the District Judge in Title Appeal No. 139
Md. Saifullah filed the Civil Revision No. 4184 before the High Court Division which was
passed in his favour. Against the said decision Civil Appeal No. 42 has been filed before the
Appellate Division.
On the Other hand, Moulana Serajul Haque filed the Title Suit No. 399 before the Court of
Assistant Judge regarding the property appertains to Plot No. 312 which was decreed in his
favour and after that the suit property was duly executed with a registered deed of partition. The
plaintiff Moulana Serajul Haque also got his name recorded in Khariji Khatian No. 322. But the
defendant Md. Saifullah denied the plaintiffs rights and for that Plaintiff was constrained to file
the Title Suit No. 90 before the Court of Assistant Judge which was decreed in his favour.
Against the said decision defendant Md. Saifullah filed the Title Appeal No. 90 which was
ultimately dismissed in favour of Moulana Serajul Haque. Moulana Serajul Haque again filed the
Title Suit No. 222 before the Court of Assistant Judge which was ultimately dismissed on the
ground of resjudicata. Against the said decision Moulana Serajul Haque filed the Title Appeal
No. 140 before the Court of District Judge which was passed in his favour. Against the said
decision of the Learned District Judge Md. Saifullah filed the Civil Revision No. 4183 before the
High Court Division of the Supreme Court and the High Court decided in favour of Md.
Saifullah setting aside the decision of the Court of Assistant Judge and restoring the decision of
the Court of District Judge. Against the said Decision of the High Court Moulana Serajul Haque
filed the Civil Appeal No. 41 before the Appellate Division.
Issue:
1. Whether the provision of resjudicata applies in regard of the Title Suit No. 90 and Title Suit
No. 222.
2. Whether the provision of resjudicata applies in regard of the Title Suit No. 90 and Title Suit
No. 93.
3. Whether the decisions of High Court in both the Civil Revisions were erroneous.
Decision of the Appellate Division:
Regarding the first issue the Appellate Division decided that the provision of resjudicata cannot
be applied. Regarding the second issue the Appellate Division decided that the provision of
resjudicata may not be applied. Regarding the third issue the Appellate Division decided that the
decision of the High Court Division in both the Civil Revisions were erroneous. The decisions of
the Court of District Judge in both the Title Appeals were set aside and the decisions of the Court
of Assistant Judge in both the Title Suits were restored.
Reasoning:
As the Title Suit No. 90 deals with the issue of declaration of title and the Title Suit No. 222
deals with the issue of recovery of khas possession, the provision of resjudicata cannot be
applied in this regard. But Title Suit No. 93 and Title Suit No. 90 deal with the same issue. So,
the provision of resjuciata may be applied in this regard. The decisions of the High Court in both
the Civil Revisions were held erroneous on the ground that the title of Moulana Serajul Haque
was earlier declared by a competent court in Title Suit No. 90 and the decree was upheld up to
the appellate stage and the decree stands still valid.