Bench:

Mr. Justice Bhishmadev Chakrabortty

Civil Revision No.867 of 2017

Md. Harun Mridha and others

                                              ......petitioners                               -Versus-

Md. Ali Kha and others

......opposite parties 

Mr. Mohammad Eunus, Advocate

                                                                      ...... for the petitioners

Mr. Abdul Barek Chowdhury with

Mr. Nawaj Sharif, Advocates

                        ...... for opposite parties 1-6 

Judgment on 04.08.2024

This  Rule  at  the  instance  of  the  defendants  was  issued calling upon the plaintiffs to show cause as to why the judgment and  decree  of  the  Special  District  Judge,  Barishal  passed  on 23.10.2016 in Title Appeal No.19 of 2016 dismissing the same affirming the judgment and decree of the Senior Assistant Judge, Sadar, Barishal passed on 29.11.2015 in Title Suit No.105 of 2008 decreeing the suit for partition should not be set aside and/or such other or further order or orders passed to this Court seem fit and proper. 

The plaint case, in brief, is that 18.92 acres of land was recorded correctly in the name of Maheruddin alias Mafizuddin to the extent of 8 annas and Saferuddin and Aminuddin to 4 annas each. Mafizuddin thus got 9.46 acres in his share. He had two wives Barujan and Hamidunnessa. Through registered haba dated

18.03.1920 he handed over his 14 annas share to Barujan and 2 annas  to  Hamidunnessa.  Hamidunnessa  died  leaving  behind Mafizuddin  as  heir.  In  the  life  time  of  Mafizuddin  his  two daughters and wife Hamidunnessa died and as such they did not inherit his land. His wife Barujan became the sole heir of his total land.  After  Barujan’s  death  her  two  brothers  Ayzaddin  and Reazuddin  inherited  the  property  left  by  her.  Ayzaddin  and Reazuddin  remained  in  possession  and  sold  out  6.95  acres  to Mahabbat Ali Kha through a kabala dated 24.01.1925 and handed over possession thereof. Mahabbat Ali Kha sold out 1.93 acres to Kasem Ali Mridha, the predecessor of the contesting defendants through a kabala dated 16.03.1925 . In RS operation record has been prepared in the name of Kashem Ali to the extent of 10 annas share  instead  of  6  annas.  Mahabbat  Ali  remained  owner  in possession of 3.42 acres and died leaving behind his 3(three) sons and 3(three) daughters, plaintiffs herein. RS khatian 106 has been prepared  in  the  name  of  the  plaintiffs  for  1.31  acres  and  for Kashem Ali to the extent of 2.92 acres. The plaintiffs have been enjoying the suit land measuring 3.32 acres but the defendants refused to partition the suit land lastly on 05.05.2008, hence the suit for partition claiming saham to the extent of 3.32 acres.

Defendants 1(Ka)-1(Cha)  and 2-14  contested  the  suit by filing written statement denying the averments made in the plaint. They further contended that Mafizuddin had 2(two) wives. His first wife Barujan had a son namely Abdus Salam and daughter Kulsum. His second wife Hamidunnessa had a daughter named Noor Bhanu. Mafizuddin gifted his total share to his 2(two) wives Barujan to the extent of 14 annas and Hamidun Nessa of 2 annas. On his death his two wives Barujan, Hamidunnessa, son Salam and  two  daughters  Kulsum  and  Noor  Bhanu  became  heirs. Barujan died leaving his only son Salam and daughter Kulsum as heirs.  Subsequently,  Salam  died  leaving  behind  no  issues  and consequently his sister Kulsum got his share. On the death of Hamidunnessa her only daughter Noor Bhanu became her heir. She died unmarried and as such her sister Kulsum and 2(two) maternal uncles Ayzaddin and Reazuddin became his heirs. Thus Kulsum got 10 annas and Ayzaddin and Riazuddin got 6 annas share in the suit land. Ayzaddin and Reazuddin sold out their shares  to  Mahabbat  Ali  through  a  kabala  dated  24.01.1925. Subsequently Mahabbat Ali sold his share to Kashem the son of Kulsum Bibi and handed over possession thereof. On the death of Kulsum, Kashem became heir and thus he got 8 annas share by way of purchase and inheritance. Defendants 1-14 are the heirs of Kashem Mridha. They are owners in possession of 8 annas share measuring 9.46 acres out of 18.92 acres. The land of the aforesaid khatian has been subsequently recorded in RS khatian measuring

On pleadings, the trial Court framed 5(five) issues. In the trial the plaintiffs examined 3 witnesses and their documents were produced as exhibits 1-8 series. The defendants also examined 3 witnesses and their documents were exhibits-‘Ka’ series to ‘Ga.’ However, the Assistant Judge decreed the suit for partition. Being aggrieved by the defendants preferred appeal before the District Judge, Barishal. The Special District Judge, Barishal heard the said appeal on transfer and dismissed it affirming the judgment and  decree  passed  by  the  trial  Court.  In  this  juncture,  the defendants approached this Court with this revision and obtained this Rule with an interim order of stay of the impugned judgment and decree.

Mr.  Mohammad  Eunus,  learned  Advocate  for  the petitioners takes me through the judgments passed by the Courts below and submits that as per the statement made in the plaint it remains 14.74 acres of land in the suit khatian Mafizuddin got 8 annas share therefrom measuring 7.37 acres. As per the deed of gift from Mafizuddin, Barujan got 6.45 acres and Hamidunnessa got .92 acres. After the death of Hamidunnessa, Mafizuddin got her share of .92 acres. On the death of Barujan and Mafizuddin their only daughter Fuljan got 8 annas share therefrom measuring 3.225 acres of land and her two brothers Ayzaddin and Reazuddin got 1.6125 acres each. The aforesaid two brothers sold out 1.93 acres to Mahabbat Ali on 24.01.1925 through exhibit-4. Although the plaintiffs claimed 5.35 acres through purchase but actually through kabala 3.225 acres was transferred to them. Therefore, they can claim only 1.295 acres. They can get a decree to that extent only but both the Courts below without taking the aforesaid fact into account decreed the suit giving saham to the plaintiffs to the  extent  of  3.32  acres  which  cannot  be  sustained  in  law. Therefore, the Rule may be made absolute in part.

Mr. Nawaj Sharif, learned Advocate for the opposite parties opposes  the  Rule  and  submits  that  both  the  Courts  below concurrently found that the plaintiffs became owner and possessor of 5.35 acres by way of purchase and therefrom he sold out 1.93 acres to Mahabbat Ali, the predecessor of the defendants and it remains 3.32 acres to them and accordingly decreed the suit. The finding  of  both  the  Courts  below  is  based  on  evidence  and materials on record and well founded. Mr. Sharif then submits that the  defendants  although  claimed  that  Kulsum  a  daughter  of Barujan inherited the property on the death of Mafizuddin and Barujan but  failed  to  prove it in  evidence.  After the death  of Mafizuddin and his two wives, their property directly devolved upon  the  two  brothers  of  Barujan  Bibi  namely  Ayzaddin  and Reazuddin who sold a part of it to Mahabbat Ali. Mahabbat Ali subsequently sold a part of it to Kashem Mridha. Therefore, there could be no reason of preparation of the record of rights in the name of Kashem Mridha or their heirs more than the land they have purchased. Mr. Sharif further submits that Kashem Mridha admitting title of Mohabbat Ali through Ayazddin and Reazuddin in respect of whole share purchased land measuring 1.93 acres now he cannot disown the original deed in the name of Mahabbat Ali and claim more property through Kulsum Bibi. He refers to the case of the Privatizeation Commission vs. Golam Mostafa and others, 31 BLD (AD) 173 and relied on the ratio laid therein that a party cannot both approbate and reprobate. He cannot say at one time that a transaction is valid to obtain some advantage to which he  could  only  be  entitled  on  the  footing  that  it  is  valid,  and subsequently for the purpose of securing some further advantage disagreeing with the claim. Mr. Sharif finally submits that the submission made by Mr. Eunus is beyond the pleadings and as such the Rule would be discharged and the judgments passed by the Courts below be affirmed.

I have considered the submissions of both the sides and gone through the materials on record. Both the parties admit that Mafizuddin  had  8  annas  share  in  the  land  of  CS  khatian  15 measuring  an  area  of  18.92  acres  and  thus  he  got  9.46  acres therefrom. The plaintiffs claimed that on the death of Mafizuddin and  his  two  wives,  the  whole  property  was  inherited  by  the brothers  of  Barujan  namely  Ayzaddin  and  Reazuddin.  During possession and enjoyment they sold out 6.95 acres to Mahabbat Ali  who  therefrom  sold  1.93  acres  to  Kashem  Ali  Mridha, predecessor of the contesting defendants. The defendants claimed that on the death of Barujan and Mafizuddin, Fuljan got 8 annas share therefrom and Ayzaddin and Reazuddin got 4 annas each. They claimed that Ayzaddin and Reazuddin transferred their share to Mahabbat Ali through exhibit-4 which they were entitled to. Since the defendants claimed that on the death of Barujan and Mafizuddin their daughter Kulsum got share, the onus lies upon them to prove it. On going through the evidence, I do not find that the defendants produced any documentary evidence in the Court in support of the claim. I do not find anything in the record that Kulsum  was  alive  during  the  lifetime  of  Mafizuddin  or  she inherited the property left by him. Moreover, the claim of the plaintiffs that Kulsum and Fuljan died before the death of Barujan and after her (Barujan) death Ayzaddin and Reazuddin inherited

her  share  is  found  corroborative  by  evidence  of  plaintiffs’ witnesses.  On  going  through  the  contents  of  exhibit-4(Ka), registered deed dated 18.03.1920, it is found that Kulsum was satisfied  by  his  father  Mafizuddin  otherwise.  On  scanning  the evidence as a whole it is difficult to hold that Fuljan was alive after the death of Barujan and Mafizuddin. So the claim of the defendants  that  Fuljan  got  8  annas  share  left  by  Barujan  and Mafizuddin do not stand. The share as has been calculated and argued by the leaned Advocate for the petitioners to show that the plaintiffs have only 1.295 acres of land and they can get a decree to that extent is beyond the pleadings. Moreover, the defendant- petitioners  contested  the  suit  and  prayed  for  its  dismissal. Therefore, here they cannot claim that plaintiffs are entitled to get a decree to the extent of 1.295 acres. The claim of the plaintiffs through Mahabbat Ali through exhibit-4 dated 24.01.1925 is well founded. Since the defendants’ predecessor claimed suit land by way of purchase from Mahabbat Ali admitting his title as has been incorporated in the purchase deed, now they cannot claim that Ayzaddin and Reazuddin sold out excess share to Mahabbat Ali through exhibit-4 to take advantage of the erroneous record of right. The record is found to have been prepared erroneously in the name of the defendants’ predecessor for more land then that they purchased through kabala. The record of rights prepared in

the name of the predecessor of the defendants namely Kashem Ali Mridha is found erroneous as per their claim through registered kabala.  The  petitioners  claimed  through  his  predecessor  who purchased it from Mahabbat Ali but they are claiming land as per record which is more than the quantum described in the kabala. The above claim of the defendants cannot be accepted and rightly rejected by the trial Court. The trial Court correctly assessed the evidence both oral and documentary and decreed the suit giving saham to the plaintiffs to the extent of 3.32 acres which has been affirmed by the appellate Court. I find no wrong in the in the judgments passed by the Courts below for which those can be interfered with by me in revision.

Therefore, this Rule bears no merit and accordingly it is discharged. No order as to costs. The judgments passed by the Court below in hereby affirmed.

The order of stay stands vacated.

Communicate  this  judgment  and  send  down  the  lower Courts’ record.

Sumon-B.O.