IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Moinul Islam Chowdhury

CIVIL REVISION NO. 2170 OF 2019

IN THE MATTER OF:

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

-And-

IN THE MATTER OF:

Falik Uddin Chowdhury being died his legal heirs: petitioner Nos. 1-8.

--- Defendant-Appellant-Petitioners. -Versus-

Fazlur Rahman Chowdhury and another

---Plaintiff-Respondent-Opposite Parties. Golam Nurani Chowdhury and others

--- Defendant-Respondent-Opposite Parties.

Mr. Nirmalendu Deb with

Mr. Didar Alam Kallol,

Ms. Rawshanara Akter and

Ms. Sharmin Rubayat Islam, Advocates

--- For the Defendant-Appellant-Petitioners. Mr. Uzzal Kumar Bhowmick with

Mr. Monoj Kumar Kirtania, Advocates

---For the Plaintiff-Res- O. P. Nos. 1 and 2.

Heard  on:  23.07.2023,  25.07.2023, 31.07.2023 and 01.08.2023.

Judgment on: 28.08.2023.

At  the  instance  of  the  present  defendant-appellant- petitioners,  Falik  Uddin  Chowdhury  died  leaving  behind  his legal heirs: Ehsan Ahmed Chowdhury and others, this Rule was issued upon a revisional application filed under section 115(1) of

the Code of Civil Procedure calling upon the opposite party Nos. 1 and 2 to show cause as to why the impugned judgment and decree  dated  27.03.2019  passed  by  the  learned  Additional District Judge, Court No. 3, Sylhet in the Title Appeal No. 192 of 2014 dismissing the appeal and thereby affirming the judgment and decree dated 31.08.2014 passed by the learned Joint District Judge, Court No. 3, Sylhet in the Title Suit No. 72 of 2006 decreeing the suit in favour of the plaintiffs should not be set aside.

The relevant facts for disposal of this Rule, inter-alia, are that the present opposite party Nos. 1 and 2 as the plaintiffs instituted the Title Suit No. 72 of 2006 in the court of the learned Joint  District  Judge,  Court  No.  2,  Sylhet  against  the  present petitioners  as  the  defendants  over  the  suit  praying  for  a declaration of title of the land described in the schedule 2 in the plaint. The plaint contains that Korom Mohammad and Bokkor Mohammad were the owners of the scheduled land along with other land. During the land survey of the settlement the land was recorded in the names of one Noki and others under Chok No. 110 of Taluk No. 2043/30 of Korom Mohammad and he died unmarried leaving behind his legal sole heir full-brother Bokkor Mohammad who thereafter died leaving behind his legal heirs: 5 sons being namely, Md. Zakir, Md. Danis, Md. Muslim, Md. Noki and Golam Nobi. Thereafter Golam Nobi died unmarried leaving behind his brothers as his heirs. Md. Noki got the land mentioned in Schedule 2 by way of amicable partition. He died leaving behind his 3 sons, namely, Ismail Ali, Akbor Ali and Md. Musa. Thereafter, Akbor Ali died issueless leaving behind his two brothers and Ismail Ali got Schedule 2 land mentioned in the plaints and other land got into amicable partition. In the course of the long period of succession of the suit land, there was a wrong record of right in the name of the defendants and their predecessors even though the defendants never had any title and possession of the suit land. The settlement officials declined to correct the names of the proper owners as the plaintiffs. In the meantime, 1 decimal of suit land was recorded in the name of the Government  for  the  requirement  of  the  road  of  Golapgonj Pouroshova. During the operation of S. A. Khatian 61 decimals of land under Dag No. 2868 and 33 decimals of land under Dag No. 2904 were owned by the plaintiffs and proforma defendant Nos. 177-178 and predecessor of the defendant Nos. 1-129 who relinquished their claim but the suit land was wrongly recorded

The defendant Nos. 15, 17, 18, 20, 26, 30, 31, 37, 39, 41, 51, 88 and 104 contested the suit by filing a written statement contending inter alia that the land within the Taluk No. 2043/30 was owned by Korom Mohammad who died leaving behind his brother Bokkor Mohammad as his legal heirs. The said Bokkor Mohammad died leaving behind his 5 sons who owned the suit land and their names were recorded in S. A. Khatian under Chok No. 110 Dag/Thak (b¡L) No. 3913 but 16 decimals of land under Plot No. 2904 were wrongly recorded in the names of the some of predecessors of the defendants. Title Suit No. 170 of 1986 was filed in the court of the then Sadar Munsif, Court No. 1, Sylhet and  thereafter  they  made  pucca  houses  and  got  electric connections over the suit land and profit over the Plot Nos. 2861 and 2886 are being spent on constructing and maintaining of the Jame Mosque (S¡ j jp¢Sc) upon the suit land on behalf of the co- sharer through borgader (hNÑ¡c¡l). Therefore, the plaintiffs are not the sole owners and possessors of the suit land.

The defendant Nos. 171-176 contested the suit by filing a separate statement contending, inter alia, that 1 decimal of land was recorded as Khas Khatian No. 1 of the suit Dag, thus, 1 decimal was recorded in the name of the Government within the knowledge of all the parties concerned. None of the parties have any rights over the said 1 decimal land. The learned Joint District Judge, Court No. 3, Sylhet as the trial court heard the parties and exhibited  the  documents  adduced  and  produced  by  both  the parties in support of their respective cases and the learned trial court  decreed  the  suit  by  the  judgment  and  decree  dated 31.08.2014.

Being  aggrieved  the  contesting  defendants  as  the appellants preferred the Title Appeal No. 192 of 2014 in the court  of  the  learned  District  Judge,  Sylhet  which  was subsequently  heard  by  the  learned  Additional  District  Judge, Court No. 3, Sylhet who after hearing dismissed the appeal by his  judgment  and  decree  dated  27.03.2019  by  affirming  the judgment of the learned trial court.

This revisional application has been filed against the said impugned judgment passed by the learned appellate court below under section 115(1) of the Code of Civil Procedure and the Rule was issued thereupon.

Mr.  Nirmalendu  Deb,  the  learned  Advocate,  appearing along with the learned Advocates Mr. Didar Alam Kallol, Ms. Rowshanara  Akter  and  Ms.  Sharmin  Rubayat  Islam  for  the defendants as the petitioners, submits that the plaintiffs and the defendants are the co-sharer by inheritance upon the suit land and  admittedly  there  is  no  partition  of  the  1st  schedule  land amongst  them,  as  such,  without  seeking  partition  of  the  2nd schedule of the land within the 1st schedule land a simple suit for declaration  of  title  was  not  maintainable  but  both  the  courts below failed to appreciate that the vital legal aspect of the case which caused a serious miscarriage of justice, as such, the Rule should be made absolute.

The learned Advocate by filing a supplementary affidavit today  on  behalf  of  the  defendant-petitioners  made  another ground and submitted that the plaintiffs knew fully well about the record of right in the names of the defendants as evident from the assertion made in the plaint of the earlier suit has filed the instant suit after long 20 years, as such, the instant suit is clearly barred  by  limitation  but  both  the  courts  below  failed  to appreciate that the vital legal aspect of the case and erroneously decreed the suit which caused failure of justice.

The  learned  Advocate  also  submits  that  there  is  no document  adduced  and  produced  by  the  parties  as  to  the amicable partition of the suit land between the concerned parties which is against Order 7 rule 3 of the Code of Civil Procedure as there was no specific identification of the land, as such, the Rule is made absolute.

The  Rule  has  been  opposed  by  the  present  plaintiff- opposite party Nos. 1 and 2.

Mr.  Uzzal  Kumar  Bhowmick,  the  learned  Advocate, appearing along with the learned Advocate Mr. Monoj Kumar Kirtania on behalf of the plaintiff-opposite party Nos. 1 and 2, submits  that  the  learned  trial  court  properly  examined  the exhibits  adduced  and  produced  by  the  parties  regarding  the amicable  partition  among  the  parties  and  the  suit  land  has properly distributed which is described in the schedules of the plaint, as such, the learned appellate court below concurrently found in favour of the present plaintiff-opposite parties and they could  prove  their  title  and  possession  by  producing  required document  and  evidence,  as  such,  the  Rule  is  liable  to  be discharged.

The learned Advocate further submits that the matter of limitation in filing the present suit was not in front of the trial court  by  adducing  and  producing  evidence  as  they  got  an opportunity to examine the documents and which are not also part of the lower court records. Moreover, he submits that the predecessor of the plaintiff Nos. 1 and 2 used to live abroad who did not have any knowledge of the earlier suit but they were made a party beyond his knowledge, thus, the suit is not barred by limitation under Article 120 of the Limitation Act, therefore, the suit is liable to be discharged.

The learned Advocate also submits that the plaintiffs could produce their evidence and prove their right of the suit land but the suit was filed challenging the wrong record of right in the names and they are some of the defendants and both the courts concurrently found that the plaintiffs could prove their own case as to the title and possession upon the suit land but the present petitioners obtained the Rule by misleading the court as to the possession of the suit land and record of right, thus, the Rule is liable to be discharged.

Considering the above submissions made by the learned Advocates appearing on behalf of the respective parties and also considering  the  revisional  application  filed  by  the  present defendant-petitioners under section 115(1) of the Code of Civil Procedure  along  with  the  annexures  therein  as  well  as  the supplementary affidavit filed today by the petitioners along with the annexures therein, in particular, the impugned judgment and decree passed by the learned appellate court below disallowing the appeal and thereby affirming the judgment and decree of the learned trial court as well as perusing the essential documents available in the lower courts records, it appears to this court that the present opposite party Nos. 1 and 2 as the plaintiffs filed the title suit praying for correction of the wrong record of right. The present plaintiff- opposite parties adduced relevant documents to prove their own case by producing Exhibit-5 being a tenancy agreement with the plaintiffs and the tenants, Exhibit-6 obtaining electric  correction  in  their  names  and  payment  of  the  bills consumed  by  them,  Exhibit-7  payment  of  local  Golapgonj Powroshova  holding  TAX.  The  plaintiff  witnesses  produced more evidence to prove their entitlement upon the suit land and possession thereon. On the other hand, the present defendant- petitioners produced evidence as to the title and record of right in their names and also the construction of a Mosque upon the suit

In a civil suit, parties bear the burden of proof on the balance  of  probability  and  also  bear  the  burden  of  its  own assertion as in the pleadings.

I  have  carefully  examined  the  exhibits  adduced  and produced by the parties as well as the depositions of the PWs and DWs, in particular, DW-2 claimed that he used to cultivate the land but failed to make any statements to prove as the Borgadar (hNÑ¡c¡l),  whereas,  the  plaintiffs  could  produce  sufficient documents in favour of their entitlement and possession.

Regarding the above matters, the plaintiffs could prove their entitlement by constructing a structure as to the title and possession of the suit land. I have also carefully examined the exhibits produced by the present defendant-petitioners including Exhibit-  “Ga”  which  is  a  summon  (pje)  issued  upon  the defendants regarding the Title Suit No. 170 of 1986 but this document could not establish. The saumon (pje) was properly served  or  not  upon  the  defendants  wherein  both  the  present plaintiff-opposite  parties  and  defendant-petitioners  claiming correction of the record of right. This matter was examined by the learned trial court and the learned appellate court below as to the  period  of  limitation  provided  under  Article  120  of  the Limitation Act.

I consider that this is not an official evidence as to any earlier  decision  which  can  the  present  suit  made  barred  by limitation  and  the  learned  appellate  court  below  concurrently found and took the decision as there is no bar of the period of limitation  upon  the  said  Exhibit- “Ga”  by  finding  concurrent decision of the learned trial court. Now, I will be considering the findings of the learned courts below. The learned trial court came to a conclusion to decree the suit filed by the present plaintiff- opposite parties on the basis of the following findings:

…“h¡c£f rl f§hÑ¡¢dL¡l£ jlýj Bë¤m h¡l£ ®Q±d¤l£ f§hÑae üaÄ 170/86 ew j¡jm¡u Afl¡fl ¢hh¡c£ cl p¡ b 4 ew h¡c£ ¢R me

j j Ñ ¢m¢Ma ¢hhª¢al ü£L«¢aC h¡c£l ü aÄl EvL«ø fËj¡Zz f¡n¡f¡¢n haÑj¡e j¡jm¡u ÙÛ¡e£u f¢lcnÑe fË¢a hce fËcnÑe£-5 ¢Q¢q²a i¡s¡¢Vu¡

Q¥¢š²fœ, fËcnÑe£-6 ¢p¢lS ¢Qq²a ¢hc¤Év ¢hm, fËcnÑe£-7 ¢Q¢q²a ÙÛ¡e£u ®N¡m¡fN” ®f±lpi¡l ®q¡¢ôw VÉ¡„ l¢nc fËi«¢a e¡¢mn£ pÇf¢š­a

h¡c£f rl c M ml c¡¢m¢mL fËj¡Zz Hje¢L ¢X.X¢hÔE. 1 a¡l ®Sl¡u

ü£L¡l L le ®k, h¡c£l¡ a¡ cl Aw nl ¢hc¤Év ¢hm ¢c u Rz Bh¡l, ¢hh¡c£f rl ¢m¢Ma ¢hhª¢a a ü£L«a ®k, S®~eL L uR Bqjc e¡¢mn£ pÇf¢š­a Ah¢ÙÛa O­l i¡s¡¢Vu¡ ¢q p h ¢j¢øl L¡VѤe ®~al£l hÉhp¡ öl¦ L­lez Eš² hÉ¢š² ¢e­S a¡l e¡j L­uR E¢Ÿe ®Q±d¤l£ j­jÑ fËL¡n L­le

Hhw a¡l e¡j L uR Bqjc euz ¢a¢e ¢f.X¢hÔE. 2 ¢q p h haÑj¡e j¡jm¡u p¡rÉ fËc¡e L lez ®kM¡ e ®Sl¡u ¢a¢e àÉbÑq£ei¡ h h me ®k, e¡¢mn£ pÇf¢šl OlM¡e¡ ¢a¢e 1 ew h¡c£ gSm¤l lqj¡­el Ol ®S­e i¡s¡ ¢e­u­Rez AbÑ¡v e¡¢mn£ pÇf¢š­a h¡c£f rl cMm fËj¡¢Za

quz”…

The learned appellate court below concurrently found in favour of the present plaintiff-opposite parties on the basis of the following findings:

…“ü£L«a j a e¡¢mn¡ i¨¢j h¡hc ¢m¢fL«a M¢au¡e pj§q h¡c£N Zl f§hÑha£ÑN Zl p¡ b ¢hh¡c£N Zl Hhw a¡ cl f§hÑha£Ñl e¡j ®k±bi¡ h ¢m¢fhÜ B Rz h¡c£- lpf ä¾V f rl c¡h£ j a a¡l¡ e¡¢mn¡

i¨¢j a HLL üaÄh¡e cMmL¡lz ¢hh¡c£N­Zl f§hÑha£Ñl e¡j i¥mœ²­j M¢au¡ e ¢m¢f q u Rz e¡¢mn¡ i¨¢j a ¢hh¡c£N Zl ®L¡e cMm eCz

h¡c£NZ e¡¢mn¡ i¨¢j HLLi¡ h cMm L lez h¡c£f r EfÙÛ¡¢fa p¡rÉ

fkÑ¡ m¡Qe¡u e¡¢mn¡ i¨¢j a h¡c£N Zl HLL cMm fËj¡¢Za quz ¢hh¡c£f rl c¡h£ j a a¡l¡J h¡c£f rl p¡ b ®k±bi¡ h e¡¢mn¡ i¨¢j

cMm L le j jÑ ¢hh¡c£fr fËj¡Z Ll a f¡ le¢ez ¢hh¡c£fr e¡¢mn¡ M¢au¡e pj§ q a¡ cl Hhw a¡ cl f§hÑha£ÑN Zl e¡j ¢m¢f qJu¡l

p¤ k¡ N e¡¢mn¡ i¨¢j h¡hc h¡c£N Zl üaÄ Aü£L¡l L lez ”…

In view of the above decisions by the learned courts below as to the plaintiffs' case, I do not find that the learned appellate court below committed any error of law or non-considered any evidence or non-application of judicial mind in decreeing the suit concurrently finding the decision of the learned trial court.

In such a situation, I do not consider that this is a proper case for interference by this court in this jurisdiction at this stage.

Accordingly, I do not find merit in the Rule.

In the result, the Rule is hereby discharged.

The interim  order of stay passed at the time of issuance of this Rule and subsequently the same was extended till disposal of the Rule are hereby recalled and vacated.

The  impugned  judgment  and  decree  dated  27.03.2019 passed by the learned Additional District Judge, Court No. 3, Sylhet in the Title Appeal No. 192 of 2014 by disallowing the appeal  and  thereby  affirming  the  judgment  and  decree  dated 31.08.2014 passed by the learned Joint District Judge, Court No. 3, Sylhet in the Title Suit No. 72 of 2006 decreeing the suit in favour of the plaintiffs is hereby upheld.

The concerned section of this court is hereby directed to send down the lower courts records along with a copy of this judgment and order to the learned courts below immediately.