দায়বর্জন বিবৃতি (DISCLAIMER)

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1

IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

    MR. JUSTICE S.M. EMDADUL HOQUE

CIVIL REVISION NO. 125 OF 1991.

IN THE MATTER OF:

An application under Section 115 (1) of the Code of Civil Procedure, 1908.

- AND -

IN THE MATTER OF:

Rahima Bewa and others

   .... Petitioners.       -Versus-

Md. Aulad Hossain and others.

…… Opposite parties.

Mr. S.M. Mohammad Ali, Advocate

….. For the petitioners.

Heard on: 10.01.2024 and  Judgment on: 11.01.2024.

On  an  application  of  the  petitioner  Rahima  Bewa  and  others under section 115 (1) of the Code of Civil Procedure, 1908, the Rule was issued calling upon the opposite parties to show cause as to why the impugned  judgment  and  decree  dated  12.08.1989  passed  by  the Subordinate Judge, Sirajganj in Other Class Appeal No. 105 of 1984 affirming those dated 22.05.1984 and 30.05.1984 respectively passed by the Munsif, 2nd Court, Sirajganj in Other Class Suit No. 95 of 1981 should not be set-aside and/or such other or further order or orders passed as to this Court may seem fit and proper.

Facts necessary for disposal of the Rule, in short, is that, one Aksed Ali and others filed the Title Suit No.95 of 1981 in the Court of Munsif, 2nd Court, Sirajganj against the defendant Md. Aulad Hossain and others for declaration of title of the suit land, contending, inter- alia, that the suit land belonged to Yeasin Sheikh, Jubed Ali and Guli Bibi equally as per C.S. Khatian No.14 who possessed the land in ejmali and that Yeasin Sheikh died leaving one son Moydan Ali and Jubed Sheikh left  three  sons  Abed  Ali,  Aksed  and  Kudrat  Ali.  Then  Moydan  died leaving one son Asab Ali and Abed left two sons Abul Kashem and Abdul Awal and Guli Bibi left three daughters namely, Nilu Bibi, Duku Bibi, Moni Bibi and two cousins Aksed and leaving one son Shamser Ali and all  the  heirs  have  been  possessing  the  suit  land  in  ejmali  but  the predecessor of defendant Nos.1-4 has got the S.A. record prepared in his  name  collusively  of  which  the  plaintiffs  came  to  know  on 01.01.1981. Hence, the suit.

The defendant Nos.1-4 contested the said suit by filing a joint written statement admitting the name of the C.S tenants but denied all other facts contending, inter-alia, that the suit land/property was put in auction in money execution Case No.541 of 1927 by this Court and the defendants’  predecessor  auction  purchased  the  same  and  got possession  through  the  Court  and  since  then  the  defendants’ predecessor had been possessing the same and the S.A  record was correctly  prepared  and  after  his  death  the  defendants  have  been possessing  the  suit  land.  The  petitioners  have  no  right,  title  and possession in the suit land and hence this suit would be dismissed with costs.

At the time of trial the trial Court framed three issues.

During the trial the plaintiff adduced four witnesses as P.Ws-1-4 and also exhibited some documents. 

The defendants also examined four witnesses as D.W-1-4 and also exhibited some documents to prove their respective cases.

The trial Court, after consideration of the evidence on record as adduced by the parties, dismissed the suit by its judgment and decree dated  22.05.1984  (decree  signed  on  30.05.1984).  Against  the  said judgment  and  decree  of  the  trial  Court  the  plaintiffs  as  appellants preferred Other Class Appeal No.105 of 1984 before the learned District Judge,  Sirajganj  and  the  said  appeal  ultimately  heard  by  the Subordinate  Judge,  Sirajganj,  who  after  hearing  the  parties  and considering the evidence on record dismissed the said appeal by its judgment and decree dated 16.07.1989 (decree signed on 12.08.1989)

 Being aggrieved by and dissatisfied with the impugned judgment and decree passed by learned Subordinate Judge, Sirajganj the plaintiff- petitioners filed this revisional application under Section 115(1) of the Code of Civil Procedure, 1908, and obtained the Rule.

No one appears on behalf of the defendant-opposite parties.

Mr.  S.M.  Mohammad  Ali,  the  learned  Advocate  appearing  on behalf  of  the  petitioners  submits  that  both  the  Courts  passed  the impugned  judgment  without  considering  the  material  evidence  on record. He further submits that the Appellate Court, being the final Court of facts ought to have considered the entire material evidence on record and discussed the details. But it appears that the Appellate Court without considering and discussing the details of evidence on record dismissed the appeal in a slipshod manner which he committed error in law resulting in an error in the decision occasioning failure of justice. The  learned  Advocate  further  submits  that  the  trial  Court  in  its judgment  specifically  mentioned  that  the  predecessor  of  the defendants filed Money Suit No.118 of 1926 for the land of three plots and the trial Court also found that the predecessor of the defendants got decree of the said three plots for non-payment of loan money of Tk.57/- and accordingly, the hue¡j¡ Hhw cMm e¡j¡ also was executed and the predecessor of the defendants also got their possession of the said three plots only. But in such a case the parties may dispose of the same amicably or by a fresh suit whereas the trial Court dismissed the suit finding that the plaintiff failed to prove his possession over the suit land but the defendants  succeed to prove their possession over the suit land, which is also an erroneous decision of the trial Court. Even the Appellate Court also did not consider the said vital material facts of the case though the record was available specially the record of Money Suit No.118 of 1926 was called for and accordingly the same was received from the concerned Court of Sirajgonj. Thus, both the Court committed error in law resulting in an error in the decision occasioning failure of justice. The learned Advocate for the petitioner prayed for making the Rule absolute.

 I have heard the learned Advocate of the petitioner. It appears that the plaintiffs of this case filed title suit only seeking the declaration of title claiming that they are the C.S. recorded owner but they also claim that the subsequent S.A. record was wrongly prepared in the name of the defendants. The defendants entirely appeared and filed a joint  written  statement  and  claimed  that  their  predecessor  of  the defendants  acquired  the  suit  land  through  an  auction  and  the predecessor of the defendants Md. Kashimuddin filed the Money Suit No.  118  of  1926  and  accordingly  obtained  a  decree  and  thereafter through  Money  Execution  Case  No.541  of  1927,  ownership  of  the predecessor  of  the  defendants’  obtained  the  said  suit  land  and accordingly, hue¡j¡ Hhw cMm e¡j¡ was obtained by the said predecessor of the defendants and they obtained the possession of the suit land and the S.A. record was rightly prepared in their name. Unfortunately, in the instant case, though the record was called for on 13.01.1991 but the said record was not received by this Court despite being sent by the concerned Court. But it appears from the office note dated 24.08.2002 that inadvertently in the head line of the judgment the Other Class Appeal No.184 arising out of Other Class Suit No.492 of 1979 but Other Class  Suit No.95  of 1981  nothing  was  mentioned  by  the  concerned Court  of  Sirajganj.  Subsequently,  on  09.01.2005  this  revisional application  was  discharged  for  non-compliance  of  the  Court’s  order dated 26.08.2002 but it appears that Mr. S.M Mohammad Ali, filed an application  for  registration  of  the  said  revisional  application,  and accordingly the revisional application was restored on 07.02.2018. It also appears that the learned Advocate again filed an application for correction of the cause title stating that inadvertently in the head line of the judgment where the Other Class Appeal No.100 of 1981 was mentioned  instead  of  Other  Class  Appeal  No.105  of  1984  and accordingly  the  said  application  was  allowed  on  14.02.2018  and thereafter the reminder was sent and accordingly the L.C record of Other Class Appeal No.105 of 1984 arising out of Other Class Suit No.59 of  1981  received  by  this  Court  on  10.03.2019  but  the  office  note showed that all the relevant matters are not available in the record. Accordingly, on the basis of the office note dated 12.02.2020 and dated 31.07.2022, this Court directed to make the Rule ready for hearing at the risk and peril of the concerned parties.

 From the record, it appears that in the said record of Money Suit No.118 of 1926 and Money Execution Case No.541 of 1927, along with all  other  documents  contained  in the  C-1 file, C-2 file, and D were destructed  by  the  concerned  Court  as  per  the  provision  of  law, consequently  there  are  no  records  or  documents  available  in  the current case. However, the learned Advocate Mr. S.M Mohammad Ali, filed a supplementary-affidavit annexing some documents related to the C.S.  Porcha, S.A. Porcha,  along with  hue¡j¡ Hhw cMm e¡j¡ and the record which was made according to the decree in the name of the defendant-purchaser.

Considering the aforesaid facts in the instant case all the relevant documents by which the defendants obtained the right and title cannot be considered at all. However, from the judgment of the trial Court, it appears that the trial Court in it’s judgment stated to the effect that:

“In  this  suit  at  the  instance  of  the  plaintiffs  the  Suit Register of Money Suit No.118 of 1926 was called for, from

which,  it   is  evident  that  there  was  a  suit  by  the predecessor  of  the  defendants,  named  Kasim  Uddin, against the plaintiffs’ predecessor Yeasin, in which Kasim Uddin get the decree on  23.04.1927  and this  execution Case No. 541 was filed on 07.11.1927 and the scheduled land was sold to the defendants on 21.03.1928, the sale was  confirmed  on   26.04.1928  and  the  possession  was delivered on 09.06.1928.”

 The plaintiff alleged that the said suit was filed for plot Nos. 2, 3 and 4 and not for plots of this suit, therefore, the suit land cannot be the subject of the auction sale in execution of the decree of Money Suit No. 118 of 1926. It is evident from the Suit Register as well as from its certified  copy  (Exhibit-1)  that  the  said  decree  was  passed  with  the findings that the suit decreed on contest in part in a modified form. The plaintiffs, after getting the possession of the mortgaged plot Nos. 2, 3 and 4, shall get the unsatisfied principal sum of Tk.57/- with interest

1 st

thereon at 38 % from the date of the cause of action (1 Sarabon 1330

B.S) to the date of his getting possession of the said 3 plots for the period which amount either party shall be at liberty to get determined either amicably or by a fresh suit.  

It appears that thereafter the trial Court, after consideration of the evidence  on record as adduced by the parties,  opined that the plaintiff failed to prove the case of possession and further opined that since the defendant side proved the case and their possession through their Borgader D.W-1 and also found that considering the material facts and the evidence on record, the defendants are in the possession of the suit land.

The Appellate Court also opined that the plaintiff succeeded in proving their possession and the defendants by adducing evidence also proved  their  possession  of  the  suit  land  and  on  that  ground  the Appellate  Court  dismissed  the  appeal  and  thereby  affirmed  the judgment of the trial Court. However, the trial Court opined that the defendant side produced the auction sale certificates (Exhibits-A and B) by which it is proved that the defendant side auction purchased the property but we have examined the record and the exhibits, specially Exhibit A, B but others are not available on the record and it has already been discussed that all the other documents were destructed by the Court through the process of law.

However, the learned Advocate through supplementary-affidavit submitted some documents and argued that the auction purchaser only purchased three plots (being Nos. 2-4), the same was also mentioned by  the  learned  judge,  but  no  documents  in  my  hand,  and  the documents, submitted by the learned Advocate, all are photocopy of the  certified  copies.  In  such  a  case  since  the  petitioner  in  the application mentioned some deeds and others documents and thus all the documents should be considered by taking evidence.

I have considered the judgment of the Courts below. This is a simple suit for declaration and the plaintiff claimed the suit land on the basis of  the C.S. record, and  the defendants  claimed  that  they had purchased the land through an auction process and the S.A. record was prepared in their names, in such a case, the plaintiff ought to have sought consequential relief for confirmation of possession or any other relief for challenging the auction procedure and others.

Though the trial Court took view that the plaintiffs argued that all the alleged documents, in question, are forged and collusive but took view that the same was issued by competent Court and the same is not the product of any forgery so from the said facts since the plaintiff only seeking  a  simple  declaration  in  the  suit  and  did  not  claim  any consequential relief, the suit, in such a case, is not maintainable and barred by Section 42 of the Specific Relief Act.

However,  since  the  learned  Advocate  mentioned  that  all  the documents were destructed by the Court and submits that which was done by the influence of the defendants’ side, but it is my view that since the record was in the custody of the Court for a longer period and perhaps  either  side  did  not  receive  the  certified  copy  of  the  said documents.  However,  since  the  learned  Advocate  produced  some documents, in such a case, the trial Court took view that the matter should be resolved by either side amicably or by a fresh suit. The suit simple for a declaration is not maintainable without any proper for consequential relief and the learned Advocate since claimed that the defendant side purchased some portion of the suit land through the auction process, in such a case, if any right remaining then the plaintiffs ought to have filed a fresh suit for partition and there is no bar to file suit for partition afresh since in partition suit the cause of action is recurring,  and  since  the  matter  is  pending  before  the  High  Court Division,  in  such  a  case  the  limitation  for  filing  the  partition  suit immaterial. 

However, since both the Courts after considering the evidence on record opined that the plaintiffs side failed to prove their case and accordingly  passed  the  impugned  judgment  and  on  perusal  of  the record I am of the same view that both the Courts rightly passed the impugned judgment and thus committed no error in law resulting in an error in the decision occasioning failure of justice. 

In the result, the Rule is discharged without any order as to costs. The impugned judgment and decree dated 12.08.1989 passed by the Sub-Judge, Sirajganj in Other Class Appeal No. 105 of 1984 affirming those  dated  22.05.1984  and  30.05.1984  respectively  passed  by  the Munsif, 2nd Court, Sirajganj in Other Class Suit No. 95 of 1981 is hereby upheld.

Sent down the lower Court records at once.

B.O. Obayedur