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Civil Petition for Special Leave to Appeal No. 13‑D of 1969, decided on 5th March 1969.
(On appeal from the judgment and order of the High Court of East Pakistan, Dacca, dated the 31st October 1968, in Writ Petition No. 257 of 1968.)
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-- Art. 98‑Dispute about property‑Question of title should not be gone into in writ jurisdic tion‑High Court entertaining and entering into such question dismissing petition on merits‑Held proper course for High Court was to direct petitioner to seek his remedy by way o f regular suit in civil Court‑Observations made by the High Court regarding question of title, declared by Supreme Court to be not binding on any Court in suit that might be instituted by the petitioner.
M. H. Khondker, Senior Advocate Supreme Court (H. Sarkar, Advocate Supreme Court with him) instructed by Abdur Rab I , Attorney for Petitioner.
Nemo for Respondents.
Date of hearing : 5th March 1969.
This is a petition for special leave to appeal from the judgment and order of a Division Bench of the High Court of East Pakistan dismissing Writ Petition No. 257 of 1968 made by the petitioner under Article 98 of the Constitution.
The petitioner claimed to be a member of a Committee called the Sitakunda Shrine Committee and made the writ petition in his capacity as such member. The subject‑matter of the writ petition is B. S. Plot No. 181 of Mouza Jungle Sitakunda within P. S. Sitakunda in the Sadar (North) Sub‑division in the district of Chittagong. The said land is said to be situated on the top of the Chandranath Hill. According to the petitioner, the ChandraNath Shrine stands on the top of that Hill, and the land of the said B. S. Plot No. 181 belong to the deity ChandraNath exclusively. It is alleged that the officers of the Telephone and Telegraph Department encroached upon the said land and started construction for establishing a Microwave station thereon. Just on the nothern side of the Chandranath temple. The petitioner's protests went in vain. Hence, the petitioner made the writ petition for issue of a Rule Nisi calling upon the respondents 1 to 3 (they are the Islamic Republic of Pakistan, the General Manager, T & T Department and the Director, T & T Department respectively) to show cause why their encroachment upon the Land in question and the constructions made thereon should not be declared to be without lawful authority and of no legal effect. A further prayer was made for directing the said respondents to vacate the land. A Rule Nisi was issued as prayed for.
The respondents 2 and 3 entered appearance and filed an affidavit‑in‑opposition stating that the District Authorities of Chittagong had given the disputed land to them for establishing a Microwave station thereon, the Government being the owner of that land.
Obviously, the facts as alleged by the contending parties gave rise to a question of title with regard to the land in dispute. The learned Judges of High Court, in fact, went into the question of title in the writ petition and decided it against the petitioner.
The question of title should not be gone into in the writ jurisdiction of the High Court under Article 98 of the Consti tution, and the proper remedy of an aggrieved party in a case involving a question of title to property lies in a regular suit in a Civil Court. In the instant case the learned counsel for the petitioner, as it appeared from the High Court's judgment accepted the position that "the best course for his client is to agitate the question of title in a civil Court in a properly framed suit". The learned Advocate made a prayer to the High Court to keep the writ petition pending to enable his client to file a suit. We think that this opportunity should be given to the petitioner in order that the question of title with regard to the disputed land may be fully canvassed in a regular suit before a civil Court.
In the circumstances, we think that the proper order for us to make is to dismiss the petition for special leave to appeal with the observation that any finding or observation of the learned Judges of the High Court with regard to the question of title shall not be binding on any Court in any suit that may be instituted by the petitioner. With this observation we dismiss the petition.
Leave refused.
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