District-Bhola

    In the Supreme Court of Bangladesh

        High Court Division

(Civil Revisional Jurisdiction)

Present:

Mr Justice Md Atoar Rahman Civil Revision No 482 of 2022

Md  Kamal  Hossain  being  dead  his heirs 1(a) Sarekur Rahman Ashik and others

…defendant-respondent-petitioners

- versus-

Md Shahjada Kabir and others

              …plaintiff-opposite parties Mr Md. Maksud Alam, Advocate

     ….for the defendant-respondent- petitioners

Mr Swapan Kumar Dutta, Advocate

… for the plaintiff-opposite parties

Heard on: 14.01.2024, 04.02.2024 and 05.02.2024

Judgment on: 09.05.2024

This Rule was issued upon an application under section 115(1) of  the  Code  of  Civil  Procedure,  1908  calling  upon  the opposite parties No 01 to 07 to show cause as to why the impugned judgment and decree dated 21.10.2021, passed by the learned Joint District Judge, First Court, Bhola in Title Appeal No 94 of 2011 allowing the appeal  and  reversing  the  judgment  and  decree  dated  02.06.2011, passed by the learned Assistant Judge, Borhanuddin, Bhola in Title

Suit No 03 of 2007, dismissing the suit should not be set aside and/or passed such other or further order(s) as to this court may seem fit and proper.

        During  issuance  of  the  Rule  an  order  was  passed  staying operation  of  the  impugned  judgment  and  order  passed  by  the appellate court below till disposal of the Rule.

The facts for the purpose of disposal of the Rule are that the opposite  parties  No  1  to  8  as  plaintiffs  instituted  a  suit  for declaration of title in the suit land by way of adverse possession in the Court of Senior Assistant Judge, Borhanuddin, Bhola being Title Suit  No  03  of  2007  impleading  the  petitioners  and  others  as defendants  stating  inter  alia  that  the  predecessor  of  the  present petitioners Atahar being owner and possessor of the suit property died leaving behind 4 sons namely, defendant-petitioners No 1 to 3 and Abu Salem Naju as his heirs. They entered into an agreement for sale the suit property with the plaintiffs’ predecessor Shahjahan and executed  an  unregistered  deed  of  agreement  on  19.06.1975  and delivered possession of the suit property to him. But subsequently they denied to execute and registered the sale deed on the basis of agreement. Nevertheless, predecessor of the plaintiffs Shahjahan had been enjoying the possession of the suit property for more than 12 years and accordingly right of title by way of adverse possession had been created in favour of the plaintiffs, hence the suit for declaration.

The  defendant-petitioners  submitted  two  separate  sets  of written statement denying all the material assertions made in the plaint. During trial two compromise petitions were submitted for decreeing the suit on the basis of the same. But the learned Assistant Judge  dismissed  the  suit  by  the  judgment  and  decree  dated 02.06.2021.

Being aggrieved by and dissatisfied with the above judgment and decree the plaintiffs preferred an appeal being Title Appeal No 94 of 2011 in the Court of District Judge, Bhola. On transfer said appeal was heard by learned Joint District Judge, First Court, Bhola who by the impugned judgment and decree dated 21.10.2021 allowed the appeal reversing the judgment and decree passed by the learned Assistant Judge and decreed the suit on compromise.

Being aggrieved by and dissatisfied with the above judgment and decree passed by the appellate court the defendant-respondent- petitioners moved to this court with an application under section 115(1) of the Code of Civil Procedure and obtained the present Rule and the order of stay.

Mr  Md  Maksud  Alam,  the  learned  Advocate  appearing  on behalf  of  the  defendant-petitioners  along  with  a  supplementary affidavit submits that during the trial the defendants No 1 to 3 did not submit any compromise petition on 18.06.2008 or on 20.08.2009 with  the  plaintiffs  and  they  also  did  not  give  any  deposition supporting the compromise petitions as DWs No 1, 2 and 3 and the compromise petitions are forged and the depositions before the trial court as DWs had been made by false personification and having considered the materials on record learned trial Judge rightly and perfectly dismissed the suit. But learned Judge of the appellate court without going through the materials on record and without following the provisions of law allowed the appeal and decreed the suit on compromise committing an error of law resulting in an error in such decision occasioning failure of justice and, as such, the impugned judgment and decree is not sustainable in law.

On the other hand, Mr Swapan Kumar Dutta, the learned Advocate,  appearing  on  behalf  of  the  plaintiff-appellant-opposite parties  submits  that  learned  Judge  of  the  trial  court  upon misconception of law and facts dismissed the suit holding that the signatures  available  in  the  agreement  dated  19.06.1975  of  the defendants No 1 and 3 Md Alamgir Baklai and Md Jahangir Alam Baklai and signatures given by them on deposition sheets as DWs 1 and  2  are  not  same  without  uttering  a  single  word  about  the signatures  of  all  the  defendants  available  in  those  petitions  of compromise. Moreover, the learned trial Judge did not refer to any single word about the deposition of DW 3 as such, committed a serious error of law in dismissing the suit and the appellate court below upon proper appreciation of facts and law rightly reversed the judgment  and  decree  passed  by  the  learned  trial  Judge  which  is immune  from  interference  by  this  court  exercising  revisional jurisdiction under section 115 (1) of the Code of Civil Procedure.

 I have heard the submissions placed by the learned Advocates of  both  the  sides  and  perused  the  record  along  with  both  the judgments and connected papers on record.

It  appears  that  there  are  two  compromise  petitions  in  the record  purported  one  to  have  been  executed  and  proved  on 20.08.2009 by the plaintiffs and defendants No 1 and 3 and another to have been executed and proved on 18.06.2008 by the plaintiffs and the defendant No 2. Specific assertions of the learned Advocate for  the  defendants-petitioners  are  that  none  of  the  defendants executed any compromise petition, nor proved the same by deposing in the trial court. It transpires that none of the courts below has taken into consideration both the compromise petitions except the compromise  petition  claimed  to  have  been  executed  by  the defendants No 1 & 3. It also appears that there is no claim that the defendant  No  4  Tofayel  Ahmmad  is  a  party  to  any  of  the compromise  petitions.  But  learned  Judge  of  the  appellate  court decreed the suit on compromise against all the defendants. Apart from this, he did not satisfy himself in respect of execution and proving of the petitions of compromise by the defendant No 1, 2 & 3 as required under the provisions of Order XXIII, rule 3 of the Code of Civil Procedure.

On  the  other  hand,  learned  trial  Judge  dismissed  the  suit holding that agreement for sale as claimed by the plaintiff-opposite party was doubtful as the signatures of the defendants No 1 & 3 given in the depositions as DWs 1 & 2 and the agreement for sale dated “19.06.1976” were not found identical. It is also found that although the suit was dismissed but the petition of compromise for decreeing the suit was made part of the decree. 

However, for better appreciation of the matter the relevant provision in respect of compromise of a suit ie rule 3 of the Order XXIII of the Code of Civil Procedure is quoted bellow:

             “3. Where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement  or  compromise,  or  where  the  defendant  satisfies  the plaintiff in respect of the whole or any part of the subject-matter of the  suit,  the  court  shall  order  such  agreement,  compromise  or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit”

            From the above quoted provisions of law it is found that if in  any  suit  a  compromise  petition  or  an  agreement  regarding compromise is submitted the court shall satisfy itself whether the same is duly executed by the parties and the same is lawful or valid within the meaning of the Contract Act. The court is not empowered to determine the truthfulness of the pleadings and validity of the document(s) in support of the respective cases in deciding the suit on compromise.  If  the  court  satisfies  itself  that  the  petition  of compromise  or  the  agreement  of  compromise  has  been  duly executed  by  the  parties  and  proved  by  them  in  the  court  and agreement or conditions of the same are found valid and lawful then it shall dispose of the suit on the basis of the compromise. If the court  is  not  satisfied  itself  about  the  execution,  genuineness  or lawfulness of the petition or agreement of compromise, it shall reject the  same  and  proceed  with  the  suit  to  dispose  of  on  merit  in accordance with law.

In  the  instant  suit  the  learned  trial  Judge  in  order  to  his satisfaction did not examine the execution, genuineness and validity of the petition or agreement of compromise, rather he dismissed the suit on merit having disbelieved the document in support of the plaintiffs’  case  without  giving  opportunity  to  adduce  evidence  in support of respective cases.

On the other hand, it has already been mentioned that the learned Joint District Judge without taking into consideration the petition  of  compromise  claimed  to  have  been  executed  by  the defendant No 2 and without determining his satisfaction in respect of  execution  of  the  petitions  of  compromise  by  the  defendants allowed the appeal and decreed the suit against all the defendant on compromise,  although  the  defendant  No  4  did  not  execute  and submit any petition of compromise. Thus, in deciding the appeal the learned  Judge  of  the  appellate  court  committed  an  error  of  law resulting in an error in such decision occasioning failure of justice.

In view of the above discussions and considering the facts and circumstances, I am of the view that justice will be met if the title suit is send back on remand to the trial court for disposal of the same afresh ascertaining whether the disputed petitions of compromise dated 18.06.2008 and 20.08.2009 were executed by the defendants No 2 and 1 & 3 and proved by them as DWs 1, 2 & 3 by giving depositions  on  18.06.2008  and  20.08.2009  respectively.  In  this respect if the learned Judge of the concerned court thinks fit and proper  he  may  take  opinion  of  hand  writing  expert  about  the signatures purported to have been given by the defendants No 1 to 3 in  the  disputed  petitions  of  compromise  and  depositions  by comparing with the admitted signatures.    

          If  the  petitions  of  compromise  are  found  genuine  and conditions  of  the  same  are  found  lawful  then  the  suit  shall  be disposed of on the basis of the compromise against the defendant- party/parties to the compromise and on merit against other(s) in accordance with law and procedure. If the petitions of compromise are found not genuine or conditions are found unlawful then the same shall be rejected and the suit shall be disposed of on merit giving opportunity to both the parties to adduce evidence in support of their respective cases.

          In the result, the Rule is made absolute without any order as to  cost.  The  impugned  judgments  and  decrees  passed  by  the appellate court as well as by the trial court are hereby set aside. The Title Suit No 03 of 2007 is sent back on remand to the trial court for disposal following the directions and observations as made above within a shortest possible time.

 Let  the  lower  courts’  records  along  with  a  copy  of  this judgment be transmitted at once.