IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice S M Kuddus Zaman

CIVIL REVISION NO.3936 of 2016. In the matter of:

An  application  under  section 115(1) of the Code of Civil Procedure.

And

Bimol Chandra Karmoker

                 ...Petitioner

-Versus-

Dilip Kumar Karmoker being dead his heirs:

1(a) Palash Kumar Karmaker and others

...opposite parties

No one appears

        ...For the petitioner Mr. Mohammad Eunus, Advocate

...For  the  opposite  party No.1(a)-1(b).    

Heard on:28.11.2024 Judgment on: 03.12.2024.

This  Rule  was  issued  calling  upon  the opposite party No.1 to show cause as to why the judgment and decree dated 15.06.2016 passed by the  learned  Joint  District  Judge,  1st  Court, Patuakhali  in  Title  Appeal  No.172  of  2014 rejecting the appeal and thereby affirming the judgment and decree dated 25.09.2024 passed by the learned Assistant Judge, Golacipa, Patuakhali in Title Suit No.27 of 2008 rejecting the suit should not be set aside and/or pass such other or

further order or orders as to this Court may seem fit and proper. 

Facts  in  short  are  that  petitioner  as plaintiff instituted above suit for declaration that  the  judgment  and  preliminary  decree  of partition suit No.110 of 2004 and the order passed in decree execution case by the learned Assistant Judge, Golacipa is illegal collusive and  not  binding  upon  the  plaintiff.  It  was alleged that the plaintiff was defendant No.5 in above suit but no notice of above suit was served upon him nor he was aware about decree execution Case No.04 of 2007. Defendant No.2 of above suit Sk. Ranjan died during pendency of above suit but his heirs were not substituted and defendant No.10 Shovon Kormoker was a minor but no court guardian was appointed to defend him in above suit. Jitendranath had 75 sahosrangso land in the disputed khatian who transferred the same to the plaintiff  by  registered  deed  of  gift  dated 16.06.1986 and he is in possession from eastern side of the above plot by mutating his name and paying rent to the government.

Defendant No.1 contested the suit by filing written statement alleging that Jitendranath and Nogendranath were owners and possessors in equal shares of 1.5 sahosrangso land appertaining to plot  No.234  of  S.  A.  khatian  No.385  and Nogendranath  died  leaving  four  sons  namely Sukumar Kormoker, Sunil Kormoker, Shdhir Chandra Kormoder  and  Satta  Ranjan  Kormoker  who transferred their 75 sahosrangso land to the defendant  by  registered  kobla  deed  dated 05.08.1997 and he is possessing in above land from  the  western  part  of  above  plot.  The defendant  as  plaintiff  instituted  Title  Suit No.110 of 2004 for partition of above land and summon of above suit was properly served upon the plaintiff and his father and uncle who were defendant Nos.1 and 3 respectively of above suit and they entered appearance and obtained six adjournments but did not contest the suit.. The plaintiff has not been affected in any way by above judgment and decree of the Title Suit No.110 of 2004.   

At trial plaintiff and defendant examined three witnesses each. Documents of the plaintiff were marked as Exhibit No.1-3 series and those of the defendant were marked as Exhibit No.Ka-Ga series.    

On consideration of facts and circumstances of the case and evidence on record the learned Senior Assistant Judge dismissed the suit.

Being aggrieved by above judgment and deree of the learned Assistant Judge above plaintiff preferred Title Appeal No.172 of 2014 to the District Judge, Patuakhali which was heard by the learned  Joint  District  Judge,  1st  Court  who dismissed above appeal and affirmed the judgment and decree of the trial court.

Being aggrieved by above judgment and decree of the court of appeal below above appellant as petitioner moved to this court and obtained this rule.

No one appears on behalf of the petitioner at the time of hearing of this revision although the matter  appeared  in  the  list  for  hearing  on several dates.

Mr. Mohammad Eunus learned Advocate for the opposite parties submits that the summon of the plaintiff  of  Title  Suit  No.110  of  2004  was received by his father by putting his signature and  his  father  and  brother  jointly  entered appearance  in  above  suit  and  obtained  six adjournments for filing written statement but they ultimately abandoned the same the suit which was rightly decreed ex-parte. Admittedly disputed khatian comprises 150 sahosrangso land which was owned  and  held  by  the  Jitendranath  and Nogendranth  in  equal  shares  and  plaintiff acquired 75 sahosrangso land of Jitendranath by gift and defendant acquired 75 of of Nogendranth from his four sons by registered kobla deed. It is also admitted that plaintiff possessed from eastern side of the disputed plot and defendant possesses from the western side of the disputed plot. As such the learned Judges of both the courts below rightly held that the plaintiff has not been affected in any way by the impugned judgment and decree and summon of above Title Suit No.110 of 2004 was properly served upon the plaintiff which calls for no interference.

I have considered the submissions of the learned Advocate for the opposite parties and carefully examined all materials on record.

It is admitted that 150 sahosrangso land appertaining to plot Nos.234 of S.A. khatian No.385 belonged to Jitendranath and Nogendranath in equal shares and Jitendranath transferred his 75  sahosrangso  land  to  the  plaintiff  by registered deed of gift dated 16.06.1986 and Nogendranath  died  leaving  four  sons  namely Sukumar Kormoker, Sunil Kormoker, Shdhir Chandra Kormoder  and  Satta  Ranjan  Kormoker  who transferred  their  75  sahosrangso  land  to defendant No.1 by registered kobla deed dated 05.08.1997.

It is also admitted that the Jitendranath and subsequently  plaintiff  possessed  above  75 sahosrangso land from the eastern side of plot No.234  and  Nogendranath  and  his  sons  and thereafter  defendant  No.1  possesses  his  75 sahosrangso land from the western side of above plot.

While  giving  evidence  as  P.W.1  plaintiff admitted that defendant No.1 acquired disputed land from the heirs of Nogendranath and the Advocate Commissioner has given saham to above defendant from western side of the disputed plot and he does not have any claim over above land of Nogendranath. From above admission the plaintiff has clearly admitted that he has no lawful claim over 75 sahosrangso land of defendant No.1 which he has purchased from the heirs of Nogendranath and he is in possession from the western side of the disputed plot.

As far as service of summons of Title Suit No.110 of 2004 is concerned P.W.1 stated that he gave signature in the vokalatnama of Title Suit No.110 of 2004 on 09.03.2006. He further admitted that other two signatures in above vokalatnama belongs to his father and his uncle. It turns out from  the  service  return  of  the  summon  of defendant No.5 of Title Suit No.110 of 2004 that the summon of above defendant was received by his father who was defendant No.1 in above suit. As mentioned above defendant Nos.1 and 3 entered appearance  in  above  suit  and  obtained  six adjournments for filing of written statement but they ultimately abandoned above suit.

It has been alleged that Shovon Kormoker was defendant No.10 of above suit and he was minor but  no  court  guardian  was  appointed  to  the presence interest in above suit. As mention above defendant No.1 purchased total 75 sahosrangso land of Nogendranath from his four sons namely namely Sukumar Kormoker, Sunil Kormoker, Shdhir Chandra Kormoder and Satta Ranjan Kormoker. As such Shovon Kormoker had no subsisting interest in the above joma nor there is anything on record to show that the interest of above minor has been affected by the impugned judgment and decree.

In above view of the materials on record I hold that the concurrent findings of the learned Judges of the courts below that the summon of Title Suit No.110 of 2004 was properly served upon the plaintiff who was defendant No.5 in above  suit  and  the  plaintiff  has  not  been affected in any way by the impugned judgment and final decree and order of execution case arising out of Title Suit No.110 of 2004 are based on evidence on record and in the absence of any allegation of non consideration or misreading of any evidence this court cannot in its revisional jurisdiction  interfere  with  above  concurrent findings of fact.

I  am  unable  to  find  any  infirmity  and illegality in the impugned judgment and decree of the learned Joint District Judge nor I find any substance in this revision under section 115(1) of the Code of Civil procedure and the rule issued  in  this  connection  is  liable  to  be discharged.

In the result, the rule is discharged.

Let the lower Court’s record along with a copy of this judgment be transmitted down to the Court concerned at once.

Md.Kamrul Islam

Assistant Bench Officer