IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

             Present:

Mr. Justice S M Kuddus Zaman

CIVIL REVISION NO. 4201 OF 2017

In the matter of:

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

And

Menaz Howlader and others

... Petitioners

-Versus-

Md. Fazlul Khan and others

... Opposite parties

Mr. Mohammad Eunus, Advocate

.... For the petitioners.

None appears

…. For the opposite parties.

Heard and Judgment on 25.08.2024.

This Rule was issued calling upon the opposite party Nos.1-3 to show  cause  as  to  why  the  impugned  judgment  and  decree  dated 21.11.2017 passed by the Joint District Judge, 1st Court, Patuakhali in Title  Appeal  No.102  of  2015  and  reversing  those  dated  28.05.2015 passed by the Senior Assistant Judge, Sadar, Patuakhali in Title Suit No.406 of 2008 decreed 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 3.38 acres land appertaining to S.A. Khatian No.105 belonged to Asman Khan who transferred 1.71 acres land to Abdur  Rashid  and  Abdul  Wahab  by  a  two  registered  kabala  deed. Asman Khan died leaving behind one son Kashem Ali Khan and two

daughters Hayatonnessa and Jobentonnessa. The plaintiffs purchased 2.43 acres land by 6 registered kabala deed dated 08.03.1978, 09.04.1980, 09.04.1980, 09.04.1980, 31.03.1992 and  04.10.2006 from the heirs and successive  heirs  of  Hayatonnessa  and  Jobentonnesa  and  from  the purchasers who purchased land from Asman Khan. The plaintiffs are in possession in above land by constructing a dwelling house, yard and garden. Above property has not been partitioned by meets and bounds and  the  defendants  denied  to  effect  an  amicable  partitioned  on 30.05.2008.

The suit was contested by defendant Nos.1-3 who are the male heirs of Abul Kashem now deceased only son of Asman Khan. It has been stated that above property was put to auction sale for realization of  outstanding  rent  pursuant  to  Certificate  Case  No.85  of  61B  and defendant Nos.1-3 purchased the same and obtained sale certificate and certificate of possession on 25.06.1961 and 28.01.1962 respectively. The defendants got their names mutated in above land and possessing the same by constructing dwelling house, garden and pond.

At trial plaintiffs and defendant No.1-3 examined two witnesses each. Documents produced and proved by the plaintiffs were marked as Exhibit Nos.1-8 and those of the defendants were marked as Exhibit Nos.ka-gha.

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

Being aggrieved by above judgment and decree of the trial Court defendants Nos.1-3 preferred Title Appeal No.102 of 2015 to the District Judge, Patuakhali which was heard by the learned Joint District Judge, 1st  Court,  Patuakhali  who  allowed  the  appeal  and  set  aside  the judgment and decree of the trial Court and dismissed the suit.

Being aggrieved by above judgment and decree of the Court of appeal below plaintiffs as petitioners moved to this Court and obtained this Rule.

Mr.  Mohammad  Eunus,  learned  Advocate  for  the  petitioners submits that DW1 Md. Monju Khan has admitted in cross examination that he as complainant filed a Criminal case and the learned Magistrate initiated a proceeding under Section 211 of the Penal Code, 1860 against them for giving false evidence in above case. The documents of the defendants relating to above auction sale of the disputed land were proved  to  be  forged.  Asman  Khan  sold  1.3  acres  land  out  of  the disputed  khatian  to  Md.  Shamsul  Hoq  by  a  registered  kabala  deed No.2296  dated  04.03.1968  which  was  subsequently  purchased  from above  Shamsul  Hoq  by  defendant  Nos.1-3  on  08.03.1978.  Above documents further prove that the alleged claim of auction purchas of the disputed land by the defendant is false and fabricated. The learned Judge  of  the  trial  Court  on  examination  of  the  sale  certificate  and certificate of delivery of possession produced by the defendants rightly held that above documents were forged and created for the purpose of the this suit. On consideration of above facts and circumstances of the case  and  materials  on  record  the  learned  Assistant  Judge  rightly decreed the suit. But the learned Joint District Judge without reversing any  material  findings  of  the  trial  Court  most  illegally  allowed  the appeal and set aside the judgment and decree of the trial Court and dismissed the suit by a non speaking judgment which is not tenable in law.

No one appears for the opposite parties when the Rule was taken up for hearing. 

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

It is not disputed that 3.38 acres land appertaining to S.A. Khatian No.105  belonged  to  Asman  Khan  who  died  leaving  one  son  Abul Kashem and two daughters, namely Hayatunnessa and Sobentunnessa. The plaintiffs are purchasers of land from the above two daughters of above Asman Khan and from the purchasers who purchased land from above Aslam Khan. On the other hand defendants are  grandson of above Asman Khan by his only son now deceased Abul Kashem.

Plaintiffs have claimed to have purchased the disputed land by six  registered  kabala  deed  dated  08.03.1978,  09.04.1980,  09.04.1980, 09.04.1980,  31.03.1992  and  04.10.2006  and  they  have  produced  and proved above documents at trial which were marked as Exhibit No.1-6. The  plaintiffs  have  claimed  to  be  in  possession  of  above  land  by constructing their dwelling house, courtyard and garden.

Defendants claimed to have purchased the suit land in auction pursuant  to  Certificate  Case  No.85  of  61B.  The  defendants  have produced and proved a sale certificate and certificate of delivery of possession of the disputed land pursuant to above auction sale. But those  documents  remained  not  proved  by  legal  evidence.  In  his evidence as DW1 Md. Monju Khan stated that he did not have any personal  knowledge  about  above  documents  nor  he  know  who obtained above documents from which office. He did not make any endeavor to prove the genuinity and effectiveness of those documents. He  further  stated  that  their  mutation  of  names  for  the  disputed property has been cancelled vide another Miscellaneous Case filed by the plaintiffs. But against above order of cancellation of their mutation they  did  not  prefer  any  appeal.  He  lastly  admitted  that  he  as complainant  filed  a  Criminal  Case  in  which  the  learned  Judicial Magistrate directed for production of their documents relating to above auction purchase but they could not produce any document.

It is true that at trial the defendants produced a sale certificate and a certificate of delivery of possession of the disputed land. But on a careful examination of those document the learned Judge of the trial Court found that above documents were prepared by interpolation and overwriting and above documents were forged. As far as the impugned judgment  and  decree  passed  by  the  learned  Joint  District  Judge  in appeal  is  concerned  the  same  cannot  be  designated  as  a  proper judgment of reversal of a Court of Appeal. The learned Joint District Judge did not discuss the evidence on record and did not reverse any material findings of the trial Court. He did not assign any reason for setting aside the judgment and decree of the trial Court which was based on the evidence on record.

In  above  view  of the  facts and  circumstances  of  the case  and evidence  on  record  I  hold  that  the  learned  Joint  Session  Judge committed  serious  illegality  in  setting  aside  the  well  reasoned  and evidence  based  judgment  and  decree  of  the  trial  Court  by  a  non speaking judgment which is not tenable in law.

Accordingly, I find substance in this application under Section 115(1)  of  the  Code  of  Civil  Procedure  and  the  Rule  issued  in  this connection deserves to be made absolute.

In the result, the Rule is hereby made absolute. 

The impugned judgment and decree dated 21.11.2017 passed by the Joint District Judge, 1st Court, Patuakhali in Title Appeal No.102 of 2015  is  set  aside  and  those  dated  28.05.2015  passed  by  the  Senior Assistant  Judge,  Sadar,  Patuakhali  in  Title  Suit  No.406  of  2008  is restored.

Send down the lower Court’s records immediately.

MD. MASUDUR RAHMAN     BENCH OFFICER