IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Moinul Islam Chowdhury

CIVIL REVISION NO. 1391 OF 2016

IN THE MATTER OF:

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

-And-

IN THE MATTER OF:

Md. Ekramul Haque

--- Plaintiff-Appellant-Petitioner. -Versus-

Nijam Uddin and others

--- Defendant-Respondent-Opposite Parties. No one appears

--- For the Plaintiff-Appellant-Petitioner. Mr. Md. Ahia, Advocate

---For the Def.-Respondent-O. P. No. 53.

Heard  on:  02.05.2023,  09.07.2023, 16.07.2023 and 17.07.2023.

Judgment on: 17.07.2023 and 18.07.2023.

At the instance of the present plaintiff-appellant-petitioner, Md.  Ekramul  Haque, this  Rule  was issued  upon  a revisional application  filed  under  section  115(1)  of  the  Code  of  Civil Procedure calling upon the defendant-respondent-opposite party Nos. 17 and 53 to show cause as to why the impugned judgment and decree dated 18.10.2015 passed by the learned Additional District Judge, Court No. 3, Dinajpur dismissing the appeal in the Other Appeal No. 80 of 2004 affirming those of the judgment

and decree dated 31.03.2004 passed by the learned Joint District Judge, Court No. 1, Dinajpurin dismissing the suit in the Other Suit No. 04 of 1998 should not be set aside.

The relevant facts for disposal of this Rule, inter-alia, are that the present petitioner as the plaintiff filed the Other Suit No. 04 of 1998 in the court of the learned Joint District Judge, Court No. 1, Dinajpur claiming title over the suit land described in the plaint. The present petitioner claimed that the suit land originally was  belonged  to  Moharaja  Jogodish  Nath  Roy  Bahadur  who purchased the suit land from one Surendra Nath on 03.05.1937 by a registered deed. Thereafter, Moharaja Jogodish Nath Roy Bahadur made a settlement/pattan of the land measuring .3850 acres in favour of Surendra Nath and his brother Radha Gobinda Dey by a registered deed dated 06.05.1942. Radha Gobinda Dey died without any issues/heirs, thus, Surendra Nath became the owner of the above land and who sold the same land to Afaj Uddin Ahmed on 05.10.1950 by a registered deed. Afaj Uddin Ahmed died leaving behind a son, namely, Mohammad Hossain and  2  daughters,  namely,  Anisa  Begum-  plaintiff  No.  1  and Rahima Begum. Thereafter, Mohammad Hossain died leaving behind his wife and eight sons and eight daughters (proforma- defendant Nos. 14-30). The land was subsequently left behind to the successors. Then Rahima Begum died leaving behind her husband,  namely,  Tabarak  Ali  Talukder,  with  5  sons  and  3 daughters. Tabarak Ali Talukder died leaving behind 5 sons and 3  daughters.  Abdul  Sattar  Talukder  died  leaving  behind defendant Nos. 38-88. Afaj Uddin Ahmed died leaving behind plaintiff  No.  1,  Anisa  Begum,  who  got  entire  the  suit  land measuring .38 acres and out of which she sold .745 acres to plaintiff No. 2, namely, Md. Ekramul Haque on 28.01.1997 by a registered Heba-Bill-Ewaj deed. In fact, plaintiff No. 2 is the grandson of plaintiff No. 1, wife of Abul Kashem. Abul Kashem died leaving behind a son and 3 daughters. Plaintiff No. 2 went to the local Tahshil Office to pay Khajna (M¡Se¡) and the Tahshil Office declined to receive Khajna (M¡Se¡) because the land was not recorded in the name of Afaj Uddin Ahmed who is the father of plaintiff No. 1. Plaintiff No. 2, applied an application to the Deputy Commissioner, Dinajpur who referred the same to the Assistant  Commissioner  (Land),  Sadar,  Dinajpur  for  taking necessary action and then the land was recorded in the name of Afaj Uddin Ahmed. However, the land measuring .3850 acres was untraced.

The  present  opposite  party  No.  53  as  the  defendant contested the suit by filing a written statement contending, inter alia, that Jogodish Nath Roy Bahadur settled the land measuring .38 acres to Surendra Nath and also admitting the case presented by  the  petitioner.  The  defendant  opposite  party  No.  53  also described that the said Afaj Uddin Ahmed died leaving behind his legal heirs a son, Mohammad Hossain, and two daughters, plaintiff No. 1, Anisa Begum and Rahima Begum. The plaintiff No. 1, Anisa Begum, settled the land in favour of Md. Ekramul Haque and he transferred the land measuring .06050 acres to Jahirul  Haque  and  Abdul  Based  on  03.09.1976.  Thereafter, Jahirul Haque sold .03 acres to Azijul Haque on 14.07.1978 and Abdul Based sold .0375 acres to Ahad Ali on 06.11.1978. Azizul Haque  sold  .03  acres  to  Ahad  Ali  on  29.08.1984.  As  such,

defendant Ahad Ali got/became total land measuring .3 + .3  1 =

4

.6  1 acres. The father of plaintiff No. 2 (Md. Eqramul Haque),

4

namely, Monir Uddin Ahmed, transferred .01 1 acres to Abdul

2

Wahed on 29.05.1977 and Abdul Wahed sold the same to Ahad Ali  on  07.06.1978. There  are  other  transfer  of  the  suit  land. Mainly, Ahad Ali remains in possession of total land measuring

8 1 decimals but he transferred 8 3 decimals to defendant No. 53

4 4

on 20.08.1985 and he remains in possession.

The government of Bangladesh as the defendant No. 17 represented by the Deputy Commissioner, Dinajpur contested the suit by filing a separate written statement contending, inter alia, that the land of plot No. 902 is a property under C. S. Khatian No. 1546 land measuring 2.68 acres which was recorded in the name of Surendra Nath. Thereafter, Khatina No. 20, Dag No. 922 along with Dag No. 902 land measuring 14 decimals was recorded in the name of Arob Ali and over time there were other transfers  in  the  name  of  different  persons  and  different measurements of the land. However, in the suit plots rest 54 decimals of land were not recorded in the names of any persons and the same remained unrecorded. As such, the said suit land had  remained  as  into  the  Khas  Khatian  and  the  Government settled  the  land  to  different  persons  but  the  plaintiff  has  no possession and right of the suit land. S. A. Khatian No. 1660, land measuring 1.32 acres remained in the list of vested property where the plaintiff has no right or title but the Government has given leases to different persons.

After receiving the suit the learned Joint District Judge, Court No. 1, Dinajpur heard the parties and dismissed the suit by his judgment and decree dated 31.03.2004.

Being aggrieved the plaintiff preferred an appeal before the learned District Judge, Dinajpur who transferred the same to the learned Additional District Judge, Court No. 3, Dinajpur for hearing  who  heard  and  dismissed  the  appeal  and  thereby affirming the judgment and decree passed by the learned trial court  by  his  judgment  and  decree  dated  18.10.2015.  Being aggrieved the plaintiff-appellant filed this revisional application before  this  court  under  section  115(1)  of  the  Code  of  Civil Procedure and the Rule was issued thereupon.

This matter has been appearing in the daily cause list for a long period of time but no one appears to hear or support the Rule on behalf of the plaintiff-appellant-petitioner. However, the plaintiff-petitioner has taken the ground that the judgment and decree passed by the learned trial court has not been based on mere conjecture and surmises and not based on materials on record and thereby came to a decision occasioning failure of justice. The learned appellate court below failed to comply with the provision of Order 41 rule 31 of the Code of Civil Procedure, as such, without discussing the oral and documentary evidence on record came to a wrongful decision occasioning failure of justice, as such, the Rule should be made absolute.

Mr. Md. Ahia, the learned Advocate, appearing on behalf of the present opposite party No. 53 submits that the present petitioner as the plaintiff filed the suit without ascertaining and identifying  the  suit  land  itself  and  making  the  suit  in  a complicated manner of facts and actual ownership as well as possession, thus, both the courts considered the plaintiff’s case and  passed  the  impugned  judgment  and  decree  against  the plaintiff without committing any error of law, as such, this Rule is liable to be discharged.

He also submits that most of the related parties are not made parties, as such, the suit is a defect of parties as the learned trial court and the learned appellate court below concurrently found that the suit is barred by defect of parties. Moreover, he submits that the plaintiff should have filed a suit for partition to ascertain the ownership of the suit land.

Considering the above submissions made by the learned Advocate  appearing  for  the  opposite  party  No.  53   and  also considering  the  revisional  application  filed  by  the  present plaintiff-petitioner  under  section  115(1)  of  the  Code  of  Civil Procedure along with the annexures therein, in particular, the impugned judgment and decree passed by the learned appellate court below and also perusing the assencial materials available in the lower courts records, it appears to this court that the present petitioner as the plaintiff filed a title suit claiming that the suit land was originally belonged to Moharaja Jogodish Nath Roy Bahadur  who  purchased  the  suit  land  on  03.05.1937  from Surendra Nath and subsequently the suit land transferred to the different  persons  and  different  measurements  of  land.  The plaintiff further claims that the  suit land is situated in S. A. Khatian No. 902 land measuring .3850 acres but the plaintiff adduced  and  produced  some  documents  of  land  without  any specific description of land and without giving any boundary of the suit land. In the plaint of the suit, the plaintiff was confused as to his ownership, as such, the learned trial court came to a conclusion by dismissing the suit on the basis of the following grounds and in the following terms:

…“h¡c£f®r 2 ew p¡r£ Sue¡m B hc£e fËcx 10 pÇf LÑ p¡rÉ ¢c mJ ¢a¢e ®Sl¡ a ü£L¡l L le ®k, a¡q¡l Be£a pLm L¡NSC g V¡L¢f Hhw paÉ¡¢uaJ e qz Hhw e¡¢mn£ 4014 ew c¢mm¢V

p¢WL ¢Le¡ ®pC pÇf­LÑ a¡q¡l ®L¡e ‘¡e e¡Cz e¡¢mn£ pÇf¢šl 209

c¡ Nl ®j¡V S¢jl f¢lj¡e 2.68 HLl Cq¡l j dÉ h¡c£l .3850 naL

 L¡e Awn a¡q¡ ¢e¢cÑø i¡ h E õM e¡Cz e¡¢mn£ pÇf¢š ¢e¢cÑø e¡ qJu¡u h¡c£ ®L¡e pÇf¢š h¡hc fË¢aL¡l Q¡¢qu¡­Re a¡q¡ f¢l×L¡l e­qz 2.68 naL j dÉ .3850 naL pÇf¢š­a ®k ü­aÄl ®O¡oZ¡ ®j¡LŸj¡ Beue

Ll¡ qCu¡ R a¡q¡l afn£ m 902 eðl c¡ Nl .22 J  902 c¡ N

1 2

.1650 naL pÇf¢š E­õM l¢qu¡­Rz h¡c£fr ¢p. Hp. 1546 ew M¢au¡e c¡¢Mm L¢lu¡ Rez ¢p. Hp. M¢au¡e J jÉ¡ f 902 J  902

1 2

eðl h¢mu¡ ®L¡e c¡N eðl e¡Cz h¡c£ a¡q¡l ®n ol ¢c L ü£L¡l L le ®k, e¡¢mn£ S¢jl Eš­l ®j¡p­mj J Bî¡p Bm£ h¡s£-Ol L¢lu¡

hph¡p L¢l a Rez a¡q¡ cl j¡jm¡u fr Ll¡ qu e¡Cz”…

The  learned  appellate  court  below  concurrently  found against the plaintiff-petitioner that the suit land is unspecified and other necessary parties should have been made parties in the suit for taking a decision lawfully, as such, the learned appellate court below dismissed the appeal by affirming the judgment and decree of the learned trial court in the following findings and manners:

…“B¢ep¡ ®hN jl e¡¢mn£ c¡ N Ju¡¢ln p§­œ fË¡ç 91 naL

2

S¢jl j dÉ ®b L B¢ep¡ ®hNj ¢e Sl 61 naL Hhw a¡l Ju¡¢ln 2

2

ew h¡c£ 11 naL ®j¡V 08 naL S¢j qÙ¹¡¿¹l L l Rez g m e¡¢mn£

2

S¢j­a Ju¡¢ln ¢q­p­h a¡l j¡œ 11 naL S¢j Ah¢nø b¡ Lz h¡c£- 2

Bf£mL¡l£ fr e¡¢mn£ S¢j a ¢hi¡N-h¾Ve Q¡e e¡z üaÄ ®O¡oZ¡l fË¡bÑe¡u h¡c£-Bf£mL¡l£ fr ®j¡LŸj¡¢V Beue L­l­Rez ¢L¿º e¡¢mn£

c¡ Nl ®L¡e ¢cL ®b L ¢a¢e e¡¢mn£ S¢j cMm L le a¡ BlS£l

afn£ m E õM L le¢ez a¡R¡s¡ 161 naL S¢j c¡h£ Ll mJ e¡¢mn£

2

c¡ N h¡c£ B¢ep¡l 11 naL S¢j Ah¢nø l u Rz h¡c£-Bf£mL¡l£

2

a¡l ®Sl¡ a ü£L¡l L l Re e¡¢mn£ S¢jl Efl ®j¡p mj J Bî¡p Bm£ h¡s£-Ol L l hph¡p L­l­Rez ¢L¿º a¡­cl­L Aœ ®j¡LŸj¡u fr Ll¡ qu¢ez g­m ®cM¡ k¡u ®k, ®j¡LŸj¡¢V fr ®c¡­o AQm q­µRz”…

In view of the above discussions and concurrent findings of both the courts below, I am of the opinion that the present plaintiff-petitioner  failed  to  prove  its  own  case,  as  such,  the present  petitioner’s  application  does  not  merit  any  further consideration. So, in light of that I am not inclined to interfere upon the impugned judgment and decree passed by the learned appellate  court  below,  as  such,  the  Rule  does  not  merit  any further consideration.

Accordingly, I do not find merit in the Rule.

In the result, the Rule is hereby discharged.

The  impugned  judgment  and  decree  dated  18.10.2015 passed by the learned Additional District Judge, Court No. 3, Dinajpur dismissing the appeal in the Other Appeal No. 80 of 2004  affirming  those  of  the  judgment  and  decree  dated 31.03.2004 passed by the learned Joint District Judge, Court No. 1, Dinajpur dismissing the suit in the Other Suit No. 04 of 1998 is hereby affirmed.

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