District: Kishoregonj

In the Supreme Court of Bangladesh

High Court Division

(Civil Revisional Jurisdiction)

  Present

Mr. Justice Md. Zakir Hossain

Civil Revision No. 2179 of 2020

Ibrahim Miah being dead his legal heirs: Jotsna Begum and others

....... Defendant-Petitioners

-Versus-

Golam Rabbani and others

......Heirs of plaintiff-Opposite Parties

Mrs Afsana Begum, Advocate

...... For the petitioners

Mr. A. M. Showkatul Haque, Advocate

....... For the opposite parties

Heard on: 24.01.2024 Judgment on: 28.05.2024

At the instance of the petitioners, the Rule was issued by this Court with the following terms:

“Records need not be called for

Let a Rule be issued calling upon the opposite party Nos. 1-8 to show cause as to why the judgment and order dated 29.10.2020 passed by the learned Additional District Judge and Sessions Judge, 1st Court, Kishoregonj in Civil Revision No. 21 of 2015 reversing those of dated 14.01.2015 passed by the Court of Assistant Judge, Bhairab (Bajitpur Chowki) in Partition Suit No. 41 of 1985 whereby directed the plaintiff- opposite party Nos. 1-8 to deposit Tk. 6,000/- as Advocate Commissioner Fee to survey and

measure the saham of the plaintiffs 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 leading to the issuance of the Rule are inter alia that the predecessor of the opposite party Nos. 1-8 being plaintiffs instituted Title Suit No. 100 of 1961 for partition and separate saham before the Court of the learned Munsif against the predecessor of the petitioners. The defendant No.1 contested the suit and defendant Nos. 5, 9-11, 25 and 30-38 prayed for separate saham. After conclusion of the trial, the learned Munsif decreed the suit in preliminary form. Questioning the legality and chastity of the decree of the learned Munsif, the defendant No. preferred Title Appeal No. 243 of 1963. The Appeal was allowed in part. Thereafter, one; Mr. Narayan Chandra Saha was appointed as an Advocate Commissioner for effecting partition but he failed to perform his duty. After that, Mr. Basanto Kumar being appointed as advocate commissioner submitted a report. Upon hearing, the learned Munsif was pleased to reject the report of the said advocate commissioner on 24.05.1984. Later on, Mr. Lal Mahmud was appointed as advocate commissioner by the learned Munsif on 18.04.1985, who after making partition submitted a report. The report of Mr. Lal Mahmud was cancelled by the Trial Court but it was upheld by the High Court Division. By the order dated 14.01.2015, the learned Senior Assistant Judge directed the plaintiffs to deposit Tk. 6,000/- as cost for appointing a new advocate commissioner though the report of Mr. Lal Mahmud was restored and upheld by the High Court Division. Challenging the legality and propriety of the judgment and order of the learned Senior Assistant Judge, the plaintiffs preferred Civil Revision No. 21 of 2015 before the Court of the learned District Judge, Kishoregonj. After admitting the Revisional Application, the learned District Judge was pleased to transmit the record to the learned Additional District Judge, First Court, Kishoregonj for disposal. Upon hearing, the learned Additional District Judge was pleased to allow the Revisional Application and thereby set aside the judgment and order of the learned Senior Assistant Judge. Impugning the judgment and order of the learned Additional District Judge, the petitioners moved this Court and obtained the Rule and stay therewith.

Heard the submissions advanced by the learned Advocates of the petitioners and the opposite parties at length and perused the materials on record with due care and attention and seriousness as they deserve. The convoluted question of law embroiled in this case has meticulously been waded through.

Since the report of the Advocate Commissioner; Mr. Lal Mahmud is still in force, it is redundant to appoint a new advocate commissioner; therefore, the impugned judgment and order of the learned Additional District Judge is based on sound reasoning and, hence, the same does not warrant for any interference.

During the hearing of the Rule, the petitioners filed a supplementary affidavit with some registered documents regarding transfer of some property during the pendency of the suit by the plaintiff-opposite Nos. 1-7. The transferees shall step into the shoes of the plaintiff-opposite parties.

It appears from the record that the original suit started its journey in the year 1961 and in the meantime, more than 63 years have been elapsed; therefore, the suit is required to be disposed of with the highest expedition.

Having regard to the facts and circumstances of the case, the learned Senior Assistant Judge is directed to make the preliminary decree final within 03 (three) months from the date of receipt of the copy of this judgment without any fail.

With the above observation and direction, the Rule is discharged, however, without passing any order as to costs. The earlier order of stay granted by this Court thus stands recalled and vacated.

Let a copy of the judgment be transmitted to the Court below at once.

...............................................

Md. Zakir Hossain, J

Naser Po