IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Moinul Islam Chowdhury

CIVIL REVISION NO. 120 OF 2020

IN THE MATTER OF:

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

-And-

IN THE MATTER OF:

Shushil Chandra Sutradhar

--- Defendant-Appellant-Petitioner. -Versus-

Sree Gouranga Chandra Sutradhar and others

---Plaintiff-Respondent-Opposite Parties.

Mr. Ali Ahsan Mullah, Advocate

--- For the Defendant-Appellant-Petitioner. Mr. S. M. Rezaul Karim, Advocate

---For the Plaintiff-Res-Opposite Party No. 1.

Heard  on:  17.05.2023,  22.05.2023  and 24.05.2023.

Judgment on: 24.05.2023.

At  the  instance  of  the  present  defendant-appellant- petitioner, Shushil Chandra Sutradhar, 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. 1-7 to show cause  as  to  why  the  judgment  and  decree  dated  30.09.2019 passed by the learned Additional District Judge, Court No. 1, Kishoregonj  in  the  Other  Class  Appeal  No.  182  of  2017

dismissing the same and thereby affirming and upholding the judgment and decree dated 21.08.2017 passed by the learned Senior Assistant Judge, Bajitpur, Kishoregonj in the Partition Suit No. 13 of 1988 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. 1-7 as the plaintiffs filed the Partition Suit No. 13 of 1988 in the court of the learned Senior Assistant Judge, Bajitpur, Kishoregonj for partition of the suit land and a preliminary decree was passed by directing to appoint a Survey Commissioner for demarcating saham (p¡q¡j) for the respective parties. After a long litigation between the parties, the partition suit was finally decreed, as such, the preliminary decree remained operative and valid which was passed by the learned trial court. After receiving the file again the learned trial court passed Order No. 90 dated 21.08.2017 appointing an Advocate Commissioner who after taking all necessary steps submitted a report  by  allocating  saham  (p¡q¡j)  of  the  respective  parties pursuant to the preliminary decree passed by the learned trial court which was accepted by the learned trial court.

However, the present defendant No. 7 as the petitioner raised an objection as to the report  already submitted by the Advocate Commissioner pursuant to the preliminary decree.

Being  aggrieved  by  the  said  report  of  Advocate Commissioner  the  present  defendant  No.  7  as  the  petitioner preferred the Other Class Appeal No. 182 of 2017 in the court of the learned District Judge, Kishoregonj which was heard by the learned Additional District Judge, Court No. 1, Kishoregonj who after hearing the parties dismissed the appeal by his judgment dated 30.09.2019.

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. Ali Ahsan Mullah, the learned Advocate, appearing for the defendant No. 7 as the petitioner submits that the learned courts  below  particularly  the  learned  appellate  court  below committed an error of law by dismissing the appeal by affirming the judgment of the learned trial court, therefore, the Rule should be made absolute.

The  learned  Advocate  also  submits  that  the  Advocate Commissioner without considering the appropriate measurement of saham (p¡q¡j) of the parties in the partition suit which is an unlawful and immoral practice by the Advocate Commissioner but none of the courts below could appreciate the said mistake, thus, came to a wrongful conclusion to dismiss the claim of the plaintiffs which is liable to be set aside and the Rule should be made absolute.

The  Rule  has  been  opposed  by  the  present  plaintiff- opposite party No. 1, namely, Sree Gouranga Chandra Sutradhar. Mr. S. M. Rezaul Karim, the learned Advocate, appearing

on behalf of the plaintiff-opposite party No. 1 submits that long lengthy legal proceeding taken by the parties in this partition suit in the trial court appointed an Advocate Commissioner in order to take an appropriate measurement of land to be declared by the learned  trial  court  by  passing  preliminary  decree  dated 04.03.1997 and the Advocate Commissioner measured the land as per the said decree but reduced the measurement of land from

12 3 decimals to 11 1 decimals of land as he could not find the

8 4

decretal measurement of land by the practical survey of the land which is permissible under the law and the opposite party did not object  thereof  but  the  present  petitioner  filed  this  revisional application by raising objection thereabout which is undoubtable under the law, as such, the Rule is liable to be discharged.

The learned Advocate also submits that both the courts below  concurrently  found  in  favour  of  the  present  opposite parties but the present defendant No. 7 as the petitioner obtained the  Rule  with  a  malafide  intention  to  delay  the  matter  and obtained the present Rule by misleading the court, therefore, 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 No. 7 as the 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 dismissing 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 parties as the plaintiffs filed the partition suit and obtained the decree after adducing and producing documents in favour of the respective parties. However, the present petitioner challenged the said preliminary decree and continued lengthy litigation between the  parties  in  order  to  frustrate  the  result  of  the  preliminary decree,  therefore,  unecessarily  the  proceedings  being  in  the court.

The said preliminary decree was held by all the courts passing the preliminary decree and took the matter to the final stage of the partition suit. The decree passing by the court within the  proceeding  appointed  an  Advocate  Commissioner  who allocated saham (p¡q¡j) to the respective parties including saham (p¡q¡j)  of  the  plaintiff-opposite  parties.  The  Advocate Commissioner submitted a report by lawful step to the decretal court which was objected by the present defendant on the ground that the Advocate Commissioner did not take proper and lawful decision to reduce the measurement of land which was decreed by the court in the preliminary decree. The learned Advocate for the present opposite party No. 1 submits that there is no illegality in reducing the measurement of land if the land is not available as per the decree. Accordingly, the vital question in this Rule is that  whereas  the  Advocate  Commissioner  reduced  the measurement of land which was the decretal land.

In view of the above question, I have carefully considered the  submissions  of  the  learned  Advocates  of  the  respective parties  and  the  relevant  law  of  the  power  of  the  Advocate Commissioner in a partition suit. I am of the opinion that the Advocate Commissioner has all authentic power to file a report after making out the case of claim and counterclaim as to the measurement  of  land  in  the  partition  suit.  The  Advocate Commissioner  has  authority  over  the  parties  despite  the preliminary  decree  of  a  different  measurement  of  land.  The learned courts below lawfully came to a conclusion to pass the decree in favour of the opposite parties and this court consider that this is not a proper case for interference from this court.

In view of the above, I consider that this is not a proper case for interference upon the impugned judgment by this court.

Accordingly, I do not find merit in the Rule.

In the result, the Rule is hereby discharged.

The order of stay passed on 02.02.2021 and subsequently extended from time to time are hereby recalled and vacated.

The  impugned  judgment  and  decree  dated  30.09.2019 passed by the learned Additional District Judge, Court No. 1, Kishoregonj  in  the  Other  Class  Appeal  No.  182  of  2017  by affirming those dated 21.08.2017 passed by the learned Senior Assistant Judge, Bajitpur, Kishoregonj in the Partition Suit No. 13 of 1988 in favour of the plaintiffs is hereby upheld.

The concerned section of this court is hereby directed to receive the torn/distorted lower courts records and send down the same along with this judgment and order to the learned courts below immediately.