Present:

    MR. JUSTICE S.M. EMDADUL HOQUE       CIVIL REVISION NO. 1288 OF 2021.

IN THE MATTER OF:

An  application  under  Section  115(4)  of  the  Code  of  Civil Procedure.

- AND -

IN THE MATTER OF:

Khan Fatim Hasan and another.

….Defendat-petitioners.

-Versus –

Md. Nizamul Hoque and another.

….Plaintiff-opposite parties.

Mr. Md. Toufiq Zaman, Advocate, with Mr. Md. Firoj Kabir, Advocate with

Mr. Md. Golam Rabbani, Advocate.

…..  For the petitioners. Mr. Md. Kamruzzaman, Advocate with Mr. S.M. Shamim Hossain, Advocate

…..  For opposite parties.

Heard on: 31.10.2023 and Judgment on 02.11.2023.

On an application of the petitioners Khan Fatim Hasan and another

under section 115 (4) of the Code of Civil Procedure the leave was granted and the Rule was issued calling upon the opposite party Nos. 1 and 2 to show cause as to why the impugned judgment and order No. 2 dated 04.03.2021 passed by the learned District and Sessions Judge, Dhaka in Civil Revision Case No. 20 of 2021 summarily rejecting the revision and thereby affirming the order No. 37 dated 20.01.2021 passed by the Senior Assistant Judge, 6th Court, Dhaka in Title Suit No. 21 of 2015 granting permission to the plaintiff opposite parties for amendment of the plaint 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 the plaintiff opposite parties filed Title Suit No. 21 of 2015 against the defendants for declaration  of  title  and  for  correction  of  the  record  of  City  Jorip. Subsequently the defendant No.1 Khan Saifur Rahman died and his legal heirs were substituted as defendant No. 1(a) to 1(c).

On 19.11.2019 the plaintiff opposite parties filed an application for amendment of the plaint with a prayer for partition since the record was prepared ejmali in the name of defendant Nos. 1-11 and claiming that by the proposed amendment the nature and character of the suit has not been changed. The said application was allowed by the trial court by its order No. 37 dated 20.01.2021. 

Against the said order the defendant No. 1(a)-1(c) filed revisional application under Section 115(2) of the Code of Civil Procedure before the District Judge, Dhaka being Civil Revision No. 20 of 2021.

The  learned  District  Judge,  Dhaka  after  hearing  the  parties  and considering the facts and circumstances of the case summarily rejected the revisional application by its order No. 2 dated 04.03.2021.

Being aggrieved by and dissatisfied with the impugned order dated 04.03.2021 the petitioners filed this revisional application under Section 115(4) of the Code of Civil Procedure accordingly the leave was granted and the Rule was issued.

Mr.  Kamruzzaman,  the  learned  Advocate  along  with  Mr.  S.M. Shamim  Hossain,  Advocate  enter  appeared  on  behalf  of  the  plaintiff- opposite parties through vokalatnama to oppose the Rule.

Mr.  Firoj  Kabir  for  Md.  Golam  Rabbani,  Advocate  appearing  on behalf of the defendant-petitioners submits that by the impugned order the nature and character of the pleadings has been changed and thus both the courts committed error in law resulting in an error in the decision occasioning  failure  of  justice.  He further  submits  that  both  the  courts failed  to  understand  that  the  plaintiffs  purchased  the  land  from  the predecessor  of  the  petitioners  the  defendant  No.1  and  also  from  one Abdul  Bari  and  both  the  transferor  purchased  the  suit  land  from  the original  S.A.  recorded  owner  and  both  the  transferor  of  the  plaintiffs separated  their  portion  through  mutation  and  then  the  plaintiffs  also mutated their names and resided separately in their respective portion of the land but inadvertently the City Jorip was wrongly prepared in the name of defendant Nos. 1-11 in such a case the declaration of title along with prayer for correction of record is the right prayer and if the prayer for partition is allowed then several multiplicity of the suit has been arisen and for ends of justice the said prayer should not be allowed. He prayed for making the Rule absolute.    

Mr. Md. Kamruzzaman, the learned Advocate along with Mr. S.M. Shamim Hossain, Advocate appearing on behalf of the opposite parties submits that the plaintiffs purchased the land from the predecessor of the petitioner Khan Saifur Rahman the defendant No.1 and one Abdul Bari and said two persons also purchased the land from the S.A. recorded owner and Khan Saifur and Abdul Bari after purchasing the land mutated their  names  and  the  plaintiffs  also  mutated  their  names  and  are  in possession of their respective portion of the land by erecting dwelling hut but inadvertently the present City Jorip was prepared in the heirs of the original  S.A.  recorded  owner  and  some  portion  of  the  land  was  still remaining in the ownership of the S.A. recorded owners and no partition among them by meets and bounds thus for avoiding multiplicity of the case it is better to amend the pleadings with a prayer for partition. He further submits that at the time of preparation of the C.T. Jorip the Math parcha was prepared in the name of the plaintiffs and for the rest portion of  the  land  was  prepared  in  the  name  of  Khan  Saifur  Rahman  but subsequently when the plaintiffs went to the Tahshil office for paying rent then the authority disclosed that the record was prepared in the name of heirs of the S.A. recorded owner thus they requested to their Bayah Khan Saifur Rahman to correct the record but he could not do the same thus the plaintiffs within the stipulated period filed this suit for declaration of title  and  for  correction  of  the  record.  He  further  submits  that  the defendant Nos. 2-11 are the heirs of the S.A. recorded owner and they transferred  the  land  to  defendant  No.1  and  one  Abdul  Bari  and  from whom the plaintiffs purchased the land but some portion of land of the same khatian remained in the ownerships of the defendant No.2-11 but

I have heard the learned Advocate of both the sides, perused the impugned judgment and the order of the courts below and the papers and documents as available on the record.

The plaintiff opposite party Nos. 1 and 2 filed Title Suit No. 21 of 2015 against the defendant Nos. 1-11. The plaintiff’s case is that they have purchased the land from C.S. Dag No. 5197, 5218 and 5191 and the Baya of plaintiffs the defendant No.1 and one Abdul Bari also purchased land from the aforesaid three plots and after purchased of the said land they mutated their names and also paying rents regularly to the Government Authorities  and  subsequently  the  plaintiffs  purchased  the  land  from defendant No.1 and said Abdul Bari Khan.

The plaintiffs purchased the suit land by separate two deeds being No. 5006 dated 21.06.1989 and deed No. 2757 dated 30.04.1991 and they are in possession of the said suit land by constructing dwelling hut with boundaries. The plaintiffs claimed that though in math porcha the entire 13.5 decimal of land was recorded in the name of the plaintiffs as plot No. 37126 but when the plaintiffs obtained the original printed record it was revealed that the record was not prepared in the name of the plaintiffs but  inadvertently  which  was  recorded  in  the  name  of  the  defendant Nos.1-11. Thus the plaintiff filed the suit within the stipulated period of time with a prayer for declaration of title and for correction of the record.

It appears that the prayer as made by the plaintiffs is a correct prayer that for declaration of title and consequential relief for correction of record in such a case section 42 does not hit the instant case. But it appears  from  the  statement  made  in  the  plaint  that  the  plaintiffs purchased  land  from  three  plots  and  though  the  plaintiffs  are  in possession of the suit land and mutated their names in a single Khatian but some portion of the land has remained in the ownerships of the S.A. recorded owner and inadvertently the record was finally prepared in the name  of  defendant  Nos.  1-11  in  such  circumstances  of  the  facts  the plaintiffs rightly filed the application for amendment of the plaint with a prayer for partition.

The  trial  court  after  consideration  of  the  said  facts  opined  that though  the  plaintiffs  purchased  the  land  from  the  defendants  but inadvertently the City Jorip was prepared in the name of the heirs of the original S.A. recorded owner. The trial court also opined that it appears that nothing was mentioned that the entire C.S. or S.A. recorded land were separated by meets and bounds among the parties. The Revisional court also found that the defendant Nos. 1-11 are the owners of the Ejmali property and in such a case the prayer for partition for the entire plots as mentioned in the deeds of the plaintiffs is required.

It is our view that the plaintiffs are in possession of a single plot but inadvertently the City Jorip was recorded in the name of the defendant Nos. 1-11. Though Mr. Khan Saifur Rahman and one Abdul Bari purchased the land from the original S.A. recorded owner and mutated their names and the plaintiffs also mutated their names after purchased of the land and are in possession of the said land by erected dwelling hut but since the record was prepared in the name of defendant Nos.1-11 in ejmali and the plaintiff purchased land from three S.R. plots and no evidence that the said land was separated by meets and bounds among the parties in such circumstances  of  the  facts  the  revisional  court  rightly  upheld  the  trial courts order maintaining the order of amendment of the pleading.

It is well settled principle that all the dispute should be resolved in partition suit even the correction of record in such a case the proposed amendment inserting the prayer for partition is a right prayer and by which the nature and character of the suit has not been changed.

Considering the facts and circumstances of the case it is my view that both the courts in disposal of the application did not commit any error of law resulting in an error in the decision occasioning failure of justice. Thus the revision consequently, failed and the Rule is liable to be discharged.

In the result the Rule is discharged.

The order of stay granted earlier by this court is hereby recalled and

vacated.

Since this is long pending case and thus it is better to direct the trial court to dispose of the suit as early as possible preferably within 1 (one) year in accordance with law.

Communicated the order at once.

M.R.