IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

             Present:

Mr. Justice S M Kuddus Zaman

CIVIL REVISION NO.1226 OF 2022

In the matter of:

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

And

Nogendra Debnath being dead his heirs: Manik Debnath and others

... Petitioners

-Versus-

Sree Jitendra Debnath and others

... Opposite parties

Mr. Mohi Uddin Ahmed, Advocate

.... For the petitioners.

Mr. Shasti Sarker with

Mr. Kamal Hossain Talukder, Advocates

…. For the opposite party Nos.1-4. Heard and Judgment on 19.11.2024.

This Rule was issued calling upon the opposite parties to show cause as to why the impugned judgment and decree dated 24.11.2021 passed  by  the  learned  Joint  District  Judge,  2nd  Court,  Netrakona  in Other Appeal No.196 of 2020 affirming the judgment and decree dated 28.09.2020  passed  by  the  learned  Assistant  Judge,  Khaliajuri, Netrakona, in Other Suit No.51 of 2018 should not be set aside and or pass such other or further order or orders as to this Court may seem fit and proper.

Facts in short are that the petitioners as plaintiffs instituted above suit for declaration of title for 5 decimal land and recovery of khas

possession  for 5  decimal  land  out of  above  15  decimal  respectively appertaining to plot No.572.

It was alleged that 94 decimal land including above disputed land belonged to Horendra Chandra Das and others who transferred the

same to the predecessor of the plaintiffs namely Nogendra Chandra Debnath  and  predecessor  of  defendant  No.1-3  namely  Jogendra Chandra  Debnath  and  defendant  No.4  three  brothers  by  registered

kabala deed dated 11.08.1969 and they were in possession in above land

by amicable partition. Plaintiff’s father died leaving the plaintiffs as his

heirs who were in possession in the disputed land but the defendants

have  fraudulently  prepared  B.S.  Khatian  of  the  above  land  in  their

names and on the basis of the same denied title of the plaintiffs and

during pendency of this suit forcibly dispossessed the plaintiffs from 5

decimal land of schedule No.2.

Defendant  Nos.1  and  3-4  contested  the  suit  by  filing  a  joint

written  statement  alleging  that  predecessor  of  the  plaintiffs  and defendant  Nos.1-3  and  defendant  No.4  were                three  brothers  and  they  jointly  purchased  94  decimal  land  from Jogendra Chandra Debnath and Horendra Chandra Das and others by registered kabala deed dated 11.08.1969. By above amicable partition disputed land was allotted in the share of the defendants and they are

in peaceful possession in the same and BRS Khatian has been rightly

prepared in their  names and the defendants did not  dispossess the plaintiffs from 5 decimal land.

At trial plaintiffs examined 3 witnesses and defendants examined 4. Documents produced and proved by the plaintiffs were marked as Exhibit Nos.1-3 and those of the defendants were marked as Exhibit Nos.”Ka” – “Gha”.

On consideration of the facts and circumstances of the case and evidence on record the learned Assistant Judge decreed the suit.

Being aggrieved by and dissatisfied with above judgment and decree defendants preferred Other Class Appeal No.196 of 2020 to the District Judge, Netrokona which was heard by the learned Joint District Judge, 2nd Court who dismissed the appeal and affirmed the judgment and decree of the trial Court. 

Being aggrieved by and dissatisfied with the above judgment and decree of the Court of Appeal below above appellants as petitioners moved to this Court and obtained this Rule.

Mr. Mohi Uddin Ahmed, learned Advocate for the petitioners submits that it has been admitted by the plaintiffs both in their plaint and evidence of PW1 Jitendra Deb Nath that 94 decimal land including disputed 15 decimal land was purchased jointly by the father of the plaintiffs and the defendants and they were in possession in above land by amicable partition. Since plaintiffs and defendants are admittedly co-sharers and the disputed land has not been partitioned by meets and

bounds this suit at the instance of one co-sharer against the other co- sharers  for  declaration  of  title  and  recovery  of  possession  for  joint property is not maintainable in law.

On the other hand Mr. Shasti Sarker, learned Advocate for the opposite party Nos.1-4 concedes that since admittedly the defendants and plaintiffs are co-sharers and the disputed property has not been partitioned by metes and bounds the learned Advocate for the plaintiffs erroneously drafted the plaint of this case as a suit for declaration of title and recovery of khas possession against the co-sharers instead of a suit  for  partition.  Above  mistake  or  error  was  committed  by  the appointed Advocate due to lack of professional skill and efficiency and for above error of the appointed Advocate the plaintiffs should not made to suffer and since the plaintiffs are entitled to maintain a suit for partition the impugned judgment and decree may be set aside and this suit may be remanded to the trial Court for retrial after giving the plaintiffs an opportunity to convert this suit into a suit for partition.

I have considered the submissions of the learned Advocates for the respective parties and carefully examined all materials on record.

At  paragraph  No.2  of  the  plaint  it  has  been  stated  that  the predecessor of the plaintiffs namely Norendra Chandra Deb Nath and predecessor  of  defendant  Nos.1-3  Jogendra  Chandra  Deb  Nath  and defendant No.4 Anil Chandra Deb Nath are three brothers and they jointly purchased 94 decimal land including disputed 15 decimal by

registered  kabala  deed  dated  11.08.1969  and  they  were  possessing above land by amicable partition. Above statement of the plaint has been corroborated byPW1 Jitendra Deb Nath in his evidence at trial. He stated that the disputed property was acquired by Norendra, Jogendra and  Anil  and  they  were  in  possession  in  above  land  by  amicable partition.

It is well settled that in a civil proceedings admission can be made either in the pleadings or in the evidence and an admitted fact does not require further prove by evidence.

Admittedly  plaintiffs  and  defendants  are  co-sharers  for  the disputed  property  and  above  property  has  not  been  partitioned  by metes and bounds. As such the plaintiffs and defendants are lawful owners of every inch of above ejmali property. As such a co-sharer of an ejmali property cannot maintain a suit for declaration of title and recovery of possession against another co-sharer. The proper remedy of an aggrieved co-sharer is to bring a suit for partition. In a suit for partition all disputes between the co-sharers as to the extent of title and possession and other related issues are finally determined. 

In view of above facts and circumstances of the case and evidence on record I find substance in the submissions of the learned Advocates for respective parties that the plaint of this suit was drafted erroneously and the same is not maintainable in law in its present format and the plaintiffs should have brought a suit for partition.

A co-sharer of a joint property is at liberty to bring a suit for partition at any point of time. The learned Advocate for the opposite party Nos.1-4 rightly pointed out that the erroneous drafting of the plaint and designing of this suit as a suit for declaration of title and recovery of possession instead of a suit for partition was done by the appointed Advocate and the plaintiffs did not have any contribution to the  same  and  the  plaintiffs  should  not  made  to  suffer  for  above erroneous drafting of the suit.

In above view of the materials on record I hold that the ends of justice will be met if the impugned judgment and decree passed by the learned Joint District Judge is set aside and the suit is remanded to the trial Court for retrial after giving the plaintiffs an opportunity to amend the plaint to convert this suit into a suit for partition and after giving reasonable  opportunity  to  the  defendants  to  amend  their  written statement or file an additional written statement and then proceed to dispose of the suit on merit.

Hence,  I  find  substance  in  this  revisional  application  under Section 115(1) of the Code of Civil Procedure and the Rule issued in this connection deserves to be made absolute.

In the result, the Rule is hereby made absolute.

The impugned judgment and decree dated 24.11.2021 passed by the learned Joint District Judge, 2nd Court, Netrakona in Other Appeal No.196 of 2020 affirming the judgment and decree dated 28.09.2020 passed by the learned Assistant Judge, Khaliajuri, Netrakona, in Other Suit No.51 of 2018 is set aside and above suit is remanded to the trial Court for retrial after giving the plaintiffs an opportunity to amend their plaint to convert this suit into a suit for partition and providing sufficient opportunity to the defendants for submission of additional written  statements  and  then  proceed  with  the  trial  of  the  case  in accordance with law.

However, there is no order as to costs.

Send down the lower Courts records immediately.

MD. MASUDUR RAHMAN     BENCH OFFICER