IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice S M Kuddus Zaman

CIVIL REVISION NO.3686 of 2019. In the matter of:

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

And

Md. Shahjahan and others

               ...Petitioners

-Versus-

Md. Zakir Hossain and others           ...opposite parties

Mr. M. A. Azim Khair with

Mr. Md. Sultanuzzaman, Advocates

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

..For the opposite party No.1 & 2.    

Heard on: 25.11.2024 Judgment on: 15.12.2024.  

This  Rule  was  issued  calling  upon  the opposite party Nos.1-2 to show cause as to why the impugned judgment and decree dated 25.11.2019 passed by the learned Additional District Judge, Charfashion, Bhola in Title Appeal No.44 of 2018 allowing the appeal and thereby reversing the judgment and decree dated 12.07.2018 passed by the learned Joint District and Sessions Judge,

Charfashion Chowki Adalat, Bhola in Title Suit No. decreeing 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 the petitioner as plaintiff instituted above suit for declaration that registered deed of Hiba Bil Ewaz executed by Md. Salauddin Bepari in favour of defendant Nos.1 and  2  on  04.06.1990  as  described  in  “Kha” schedule to the plaint is collusive void and not binding upon the plaintiffs alleging that above Md.  Salauddin  Bepari  died  issueless  and  the plaintiffs are his legitimate heirs as the sons of his brother Karim Box and plaintiffs are in possession in the disputed land of Kha schedule. The defendants created above Hiba Bil Ewaz deed by false personation and fraud and above document was never acted upon and the defendant did net got possession of above land. The defendants as plaintiffs filed Title Suit No.226 of 2005 for partition and in above suit they made mention of above Hiba Bil Ewaz deed.

The suit was contested by defendant Nos.1 and 2 by filing a joint written statement alleging alleged that above Salauddin Bepari was issueless and he lived with the defendants and defendants No.1 and 2 used to take care of him and he died in the house of the defendants. Above Salauddin being satisfied with the behavior and treatment of defendants No.1 and 2 voluntarily transferred above land by impugned Hiba Bil Ewaz deed dated 04.06.1990 and delivered possession. Defendants are  in  possession  in  above  land  and  the defendants as plaintiffs filed Title Suit No.226 of  2005  for  partition  and  in  above  suit defendants claimed “Ka” schedule land on the basis  of  above  Hiba  Bil  Ewaz  deed  and  the plaintiffs contested above suit as defendants and the  trial  court  decreed  above  suit  on determination that above Hiba Bil Ewaz deed was a valid and effective document. Above judgment and decree of Title Suit ANo.226 of 2005 is binding upon the plaintiffs and above judgment operates as resjudicata against the instant suit.

At trial plaintiff examined two witnesses and the documents of the plaintiff were marked as Exhibit  Nos.1-6.  Defendants  examined  four witnesses and documents of the defendants were marked as Exhibit Nos.Ka-Gha series.    

On consideration of facts and circumstances of the case and evidence on record the learned Joint District Judge decreed the suit.

Being aggrieved by above judgment and decree of the trial court defendants preferred Title Appeal No.44 of 2018 to the District Judge, Bhola which  was  heard  by  the  learned  Additional District Judge who allowed the appeal 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 above respondents as petitioners moved to this court and obtained this rule.

Mr.  M.  A.  Azim  Khair  Advocate  for  the petitioner submits that the court of appeal below found that in Title Suit No.226 of 2005 the trial court has determined that the impugned Heba Bil Ewaz  deed  (Exhibit  No.Ga4)  was  a  valid  and effective document and on the basis of above findings granted saham of above land to the defendants. As such this suit was barred by section 11 of the Code of Civil Procedure. But in spite of above findings the learned Judge of the court of appeal below proceeded to decide the merit of the appeal and most illegally held that the respondents did not have any right, title and interest in the land of Heba Bil Ewaz deed which is not tenable in law. If this suit was barred by resjudicata by the judgment and decree of Tile Suit No.226 of 2005 then the petitioners could vindicate their grievance in the Title Appeal No.6 of 2017 but if above findings of the court of appeal prevails the appeal of the petitioners shall become infructous.

Mr. Mohammad Eunus learned Advocate for the opposite  parties  submits  that  in  his  cross examination as P.W.1 Plaintiff No.1 has stated that Salaudddin had three brothers but at the time of his death his brother Hamid Box and sister Hamida Khatun were alive and they were his heirs. The father of the petitioners was Karim Box who was a brother of Salauddin but he died during  life  time  of  Salauddin.  As  such  the petitioners did not inherit the “Ka” schedule land of Salauddin and the petitioners have no locus  standi  to  challenge  the  legality  of impugned registered Heba Bil Ewaz deed executed by Salauddin in favour of the opposite parties. The  learned  Advocate  further  submits  that genuinity  and  effectiveness  of  impugned registered Heba Bil Ewaz deed dated 04.06.1990 was  determined  between  parties  of  this proceedings in partition Suit NO.226 of 2005. In above partition suit the trial court found that above Heba Bil Ewaz deed was a lawful document which was duly acted upon and above land was allocated in the saham of the opposite parties. Since the petitioners were defendants in above suit and contested the same this instant suit is barred  by  Section  11  of  the  Code  of  Civil Procedure.   

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

It  is  admitted  that  Salauddin  had  two brothers  namely  Karim  Box,  father  of  the petitioners and Hamid Box father of the opposite parties and above Salauddin had no child. It is also  admitted  that  the  opposite  parties  as plaintiffs instituted Title Suit No.226 of 2005 for partition and the petitioners were contesting defendant in above suit and in above partition suit  opposite  parties  claimed  title  and possession on the basis of impugned Heba Bil Ewaz deed  dated  04.06.1990(Exhibit  No.Ga4)  and  on conclusion of trial the court determined that about Heba Bil Ewaz deed was a lawful deed which was  acted  upon  and  on  the  basis  of  above determination Ka schedule land was allocated in the saham of the opposite parties.

The plaintiffs have admitted in the plaint that they came to know about the impugned Heba Bil Ewaz deed from the plaint of Title Suit No.226 of 2005 in which they were defendants.

Since  admittedly  the  correctness  and effectiveness of the impugned Heba Bil Ewaz deed dated 04.06.1990 (Exhibit No.Ga4) was an issue in Title Suit No.226 of 2005 between the petitioner and opposite parties and a competent civil court on consideration of evidence has conclusively determined above issue holding that above Heba Bil Ewaz deed was a valid and lawful document which was acted upon and on the basis of the above  findings  above  suit  of  partition  was decreed above judgment operates as resjudicata against the instant suit of the petitioner for declaration that above Heba Bil Ewaz deed is a collusive and void document and not binding upon the plaintiffs.

In above view of the materials on record I am unable to find any legal infirmity or illegality in the findings arrived at the learned Judge of the corut of appeal below that the instance suit was barred by Section 11 of the Code of Civil Procedure.

It  is  admitted  that  the  petitioners  as defendants being aggrieved by and dissatisfied with the judgment and decree of Title Suit No.226 of 2005 have preferred an appeal to the District Judge, Bhola being Title Appeal No.06 of 2017 and above  appeal  is  pending  for  hearing.  The petitioners  and  opposite  parties  shall  raise their  respective  claim  as  to  legality  and effectiveness of above Hiba Bil Ewaz deed in above appeal and the court of appeal below shall determine of above appeal on merit in accordance with law.

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

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