Present:

Mr. Justice Sheikh Abdul Awal

Civil Revision No. 43 of 2020

Md. Esmail Gazi and others.

     ...…. Defendant-petitioners.

Versus

Md. Moslem Pyada and others.

                        ……..Plaintiff-Opposite Parties. Mr. Md. Hamidur Rahman, Advocate.

                        .…For the Defendant-petitioners. Mr. A.K. Rashedul Huq, Advocate.

 ..…For the Plaintiff-opposite-parties. Heard on 25.08.2024 and 27.08.2024

Judgment on 27.08.2024

This Rule was issued calling upon the opposite party Nos. 1-25 to show cause as to why the impugned judgment and decree dated 20.02.2019 (decree signed on 03.03.20219) passed by the learned District Judge, Patuakhali in Title Appeal No. 62 of 2018 dismissing  the  appeal  and  affirming  the  judgment  and  decree dated 16.11.2017 (decree signed on 23.11.2017) passed by the learned Assistant Judge, Dashmina, Patuakhali in Title Suit No. 105 of 2008 decreeing the suit should not be set-aside and/or such other or further order or orders passed as to this Court may seem

fit and proper.

The relevant facts briefly are that the opposite party Nos. 1- 25 as plaintiffs filed Title Suit No. 105 of 2008 in the Court of the

learned Assistant Judge, Dashmina, Patuakhali for partition of the suit land as described in the schedule of the plaint.

Defendant  Nos.  1-7,  14-6,  18-28,  30  and  39-42  entered appearance in the suit and filed written statement denying all the material averments made in the plaint contending, inter-alia, that in the facts and circumstance the partition suit without any prayer for declaration of title is not maintainable at all, the same is liable to be dismissed.

The learned Assistant Judge on the pleadings of the parties framed the following issues for determination:

1. Whether the suit is maintainable in its present form and manner?
2. Whether the suit is bad for defect of parties?
3. Whether the suit is bad for misjoinder and non-joinder of the parties?
4. Whether the plaintiffs have right, title and possession in the suit land?
5. Whether plaintiffs are entitled to get the reliefs, as prayed for?

At  the  trial  the  plaintiff-opposite  parties  examined  4 witnesses and the defendant side examined 2 witnesses and both the parties produced some documents to prove their respective cases.

The trial Court after hearing the parties and on considering the  materials  on  record  by  its  judgment  and  decree  dated 16.11.2017 decreed the suit in favour of the plaintiffs.

Against which the defendants preferred Title Appeal No. 62 of 2018 before the learned District Judge, Patuakhali, who by the impugned judgment and decree dated 20.02.2019 dismissed the appeal and affirmed the judgment of the trial Court below.

Aggrieved defendant-petitioners then preferred this revision application and obtained the present rule.

Mr. A.K. Rashedul Huq, the learned Advocate appearing for the plaintiff-opposite parties at the very outset upon placing an application for discharging the Rule dated 28.04.2024 submits that  in this case  preliminary decree dated 23.11.2017   has become final on 29.08.2019 and it is apparent from the record that the instant Civil Revision is directed against the judgment and decree dated 16.11.2019 and the proposition of law is by now well settled that no revision lies against final decree. The learned Advocate to fortify his sole arguments has relied on the decision reported in 11 BLT 508. Finally, the learned Advocate submits that the defendants by suppressing the facts and circumstances of the case and law bearing on the subject deliberately obtained the present Rule after passing the final decree, which is liable to be knocked down.

Mr. Md. Hamidur Rahman, the learned Advocate appearing for the defendant-petitioners on going through the application for discharging the Rule together with the decision reported in 11 BLT 508 having failed to refute the sole contention raised by Mr. Huq,  the  learned  Advocate  for  the  plaintiff-opposite  parties. However, he concedes the sole contention of Mr. Huq although he submits that judgment may kindly be passed in this case.

Having heard the learned Advocates for both the parties, perused and having gone through the application for discharging the Rule dated 28.04.2024 together with the revision application.

In deciding the Rule, I feel it necessary to quote hereunder the  order  of  final  decree  dated  29.08.2019  as  evidenced  by “Annexure-3”  series  to  the  supplementary  affidavit  dated 28.04.2024, which reads as follows:

“

”

From the certified copy of the order of final decree dated 29.08.2019,  it  appears  that  in  this  case  the  trial  Court  after accepting  the  Commissioner’s  report  passed  the  final  decree before filing this Revision application.

In the case of Abu Baar Siddique Vs. Md. Khorshed Alam and others reported in 11 BLT 508, it has been held that:

“From the impugned order it appears that the learned Assistant Judge after accepting the commissioners report also passed final decree as per preliminary decree passed on 25.08.1991 and thereby nothing remained to  be  followed  or  passed  to  make  the preliminary decree final as per provision of order  XX  Rule  6(1)  and  7  order  XXVI, Rule 14(3) of the Code. The direction to submit  stamp  and  the  drawing  and  the signing  of  the  final  decree  are  the  mere clerical job to be performed by the court staff and that cannot have any bearing to make the decree final. The submissions of the  learned  Advocates  appearing  for  the petitioner and the opposite party nos. 2(a) and  2(b)  that  after  acceptance  of  the commissioner's  report  sometime  should have been given to the parties to challenge the order before court has got no substance in  that  the  law  namely  the  relevant provisions of the Code as have discussed and quoted herein above do not provide so. The provision of sub- rule (3) of Rule 14 of order  XXVI  of  the  Code  has  made  it obligatory upon the Court to pass a final decree when the court confirms or varies the  report.  Here  in  this  case  the  learned Assistant  Judge  after  accepting  the commissioner's  report  having  passed  the final decree there is no scope to challenge the  same  by  filing  revisional  application and the only remedy left to the petitioner was/is to file appeal to the appellate court as per provision of section 96 of the Code and in the appeal the petitioner will have all the scope to raise the objections taken in the  written  objection  filed  against  the commissioner's report as well as the points taken  before  this  Court.  Furthermore,  as because of the order of stay passed by this

From a close study of the above mentioned decision, I find a clear view of law as it stands today that if the trial Court after accepting the Commissioner’s report passed the final decree as per provision of sub-role (3) of Rule 14 of Order XXVI of the Code of Civil Procedure there was/is no scope to file revisional application.

In the given facts and circumstances of the case and the decision of the highest Court as cited above, I have no hesitation to  hold  that  the  instant  Civil  Revision is  incompetent, misconceived one and not tenable in law.

In the result, the Rule is discharged without any order as to

costs.

 Let a copy of this judgment along with lower Courts’ record be sent down at once.