IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Moinul Islam Chowdhury

CIVIL REVISION NO. 4640 OF 2022

IN THE MATTER OF:

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

(Against Decree)

-And-

IN THE MATTER OF:

Md. Yeakub Ali and others

--- 3rd Party-Appellant-Petitioners. -Versus-

Md. Mofizur Rahman and others.

---Opposite Parties.

Mr. Md. Mainul Islam with

Mr. Mohammad Aftab Uddin, Advocates

---For the 3rd Party-Appellant-Petitioners. Mr. Uzzal Kumar Bhowmick with

Mr. Monoz Kumar Kirtania, Advocates

---For the Opposite Party Nos. 1-9.

Heard on: 04.01.2024, 11.01.2024, 14.01.2024, 17.01.2024, 18.01.2024, 24.01.2024 and 31.01.2024.

Judgment on: 06.02.2024.

At  the  instance  of  the  present  3rd  party-appellant- petitioners, Md. Yeakub Ali and others, this Rule was issued upon a revisional application filed under section 115(1) of the Code of Civil Procedure calling upon the opposite party Nos. 1-9 to show cause as to why the impugned judgment and decree

dated  29.08.2022  passed  by  the  learned  Additional  District Judge, Court No. 1, Sylhet in Title Appeal No. 176 of 2020 affirming those dated 14.09.2020 passed by the learned Assistant Judge,  Companygonj,  Sylhet  in  Title  Suit  No.  69  of  2019 decreeing the suit should not be set aside.

The relevant facts for disposal of this Rule, inter-alia, are that the present opposite party Nos. 1-9 as the plaintiffs filed the Title Suit No. 69 of 2019 in the court of the learned Assistant Judge, Companygonj, Sylhet for cancellation of the order dated 10.09.2017 passed by the opposite party No. 10, the Assistant Commissioner (Land), Companygonj, Sylhet and the Mutation Case No. 663 of 2017 and also for cancellation of the Order dated  14.01.2019  passed  by  the  Additional  Deputy Commissioner (Revenue), Sylhet in the Mutation Appeal No. 20 of 2018. The plaint contains that the suit land measuring 16.94 acres originally belonged to Abdul Jobbar and Mubasshir Ali in equal shares and S. A. Khatian was prepared in their names. The said Abdul Jobbar died  leaving  behind the  present defendant opposite party Nos. 4-17 as the successors of his portion of land. The said defendant-opposite parties filed the Mutation Case No. 663 of 16-17, as such, the S. A. Plot was recorded in their names. They transferred their shares of land in favour of the plaintiff opposite party Nos. 1 and 2 through the sale deed No. 825 dated 20.06.2017  and  handed  over  the  possession  in  their  favour. Accordingly, the plaintiffs owned and possessed the suit land by growing paddy. The plaint also contains that during pending the said  case  the  Assistant  Commissioner  (Land),  Companygonj, Sylhet passed an order for holding an inquiry. An inquiry was undertaken  by  the  defendant  No.  3,  Union  Land  Assistant Officer, who submitted a report stating that the suit land was not in possession of the present plaintiff-opposite parties, as such, the mutation case was rejected. Being aggrieved the plaintiffs filed the Mutation Appeal No. 20 of 2018 in the office of the Additional  District  Commissioner  (Revenue),  Sylhet  and  the appeal was dismissed.

The present defendant-opposite party Nos. 10-12 (in this Revisional  Application) contested  the suit by filing  a written statement contending, inter alia, that The State Acquisition and Tenancy Act, 1950 provides a specific remedy for challenging the order passed by them, as such, the suit is not maintainable. The suit was also contested by the present defendant-opposite party Nos. 13-37 (in the instant Revisional Application) and also contested the suit by filing a written statement supporting the case made out in the plaint.

After hearing both the parties and perusing the evidence adduced and produced by the respective parties the learned trial court being the learned Assistant Judge, Companygonj, Sylhet decreed the suit by his judgment and decree dated 14.09.2020. Being aggrieved the present 3rd party-petitioners preferred the Title Appeal No. 176 of 2020 in the court of the learned District Judge, Sylhet which was heard by the learned Additional District Judge, Court No. 1, Sylhet. The 3rd party- petitioners contended that the land measuring 16.94 acres was belonged to the said Abdul  Jabbar  and  Mobasshir  Ali  in  equal  shares.  The  said Mobasshir Ali transferred some land in favour of Abdul Latif and Aysha Bibi through the Sale Deed No. 904 dated 21.01.1964 and handed over possession and they also transferred the land to one Kazi Akbor Ali, the grandfather of the appellant-petitioners, by the Sale Deed No. 5196 dated 29.09.1967 and constructed a house in the part of the said land and mutated the record of right in their favour and their names also recorded in the R. S. Record of right and also their names recorded in the D. P. Khatian No. 450, as such, the present plaintiff-opposite parties had no right,

title or possession on the suit land but an Order was passed by the concerned authority allow the appeal filed under rule- 31 of The  Tenancy  Rule 1955.  After hearing the present 3rd party- petitioners and others the learned appellate court dismissed the appeal by the impugned judgment and decree dated 29.08.2022. Being  aggrieved  the  present  3rd  party-petitioners  filed  this revisional application under section 115(1) of the Code of Civil Procedure and the Rule was issued thereupon.

Mr. Md. Mainul Islam, the learned Advocate, appearing along with the learned Advocate Mr. Mohammad Aftab Uddin on behalf of the 3rd party-appellant-petitioners, submits that both the parties claimed title and possession of the suit land after purchasing  from  the  original  owners,  as  such,  the  learned appellate court below committed an error of law as to the title and possession upon the suit land as the title in favour of the plaintiffs could not be decided as the property as there was no formal  partition  which  was  an  ejmaly  (HSj¡m£) property, therefore,  the  impugned  judgment  and  decree  passed  by  the learned courts  below  are  liable to  be set aside  and the Rule should be made absolute.

The  Rule  has  been  opposed  by  the  present  plaintiff- opposite party Nos. 1-9.

Mr.  Uzzal  Kumar  Bhowmick,  the  learned  Advocate, appearing along with the learned Advocate, Mr. Monoz Kumar Kirtania  on  behalf  of  the  plaintiff-  opposite  party  Nos.  1-9, submits that the present 3rd party-petitioners did not have any right to file an appeal against the judgment and decree passed by the  learned  trial  court  and  the  learned  appellate  court  below concurrently  found  that  the  3rd  party  cannot  challenge  the impugned judgment as they could not prove as to their right and title upon the suit land described in the schedule of the plaint, therefore, the learned appellate court below committed no error of law by disallowing the appeal preferred by the present 3rd party-petitioners,  as  such,  the  Rule  should  be  liable  to  be discharged.

The learned Advocate further submits that the suit was filed  by  the  present  plaintiff-opposite  party  Nos.  1-9  was declared title and possession by the learned trial court in favour of them but no one of the said learned trial court challenged who were parties in the learned trial court but the present 3rd party- petitioners  as  the  appellants  preferred  the  appeal  which  was

disallowed  after  considering  the  evidence  by  the  learned appellate court below affirming the judgment of the learned trial court, thereby, the learned courts below committed no error of law and thus this Rule is liable to be discharged.

Considering the above submissions made by the learned Advocates  appearing  for  the  respective  parties  and  also considering  the revisional  application filed by the  present  3rd party-petitioners  under  section  115(1)  of  the  Code  of  Civil Procedure along with the annexures therein, in particular, the impugned judgment and decree passed by the learned appellate court below and also perusing the relevant documents available in the lower courts record, it appears to this court that the present opposite party Nos. 1-9 as the plaintiffs filed a title suit claiming their title and possession upon the suit land according to the sale deed dated 20.06.2017 and in order to get their names recorded in the record of right by filing the Mutation Case No. 62/(IX- I)/17-18  in  the  concerned  Assistant  Commissioner  (Land), Companygonj,  Sylhet  and  the  said  Assistant  Commissioner (Land) and Additional Deputy Commissioner (Revenue), Sylhet rejected the mutation case and also the mutation appeal case by the authority. It further appears that the present plaintiff-opposite

party Nos. 1-9 filed the present case in the court of the learned Assistant  Judge,  Companygonj,  Sylhet  who  after  hearing  the parties of the said suit decreed the said suit by finding that the plaintiffs have title and possession upon the suit land despite the Assistant  Commissioner  (Land)  and  Additional  Deputy Commissioner  (Revenue),  Sylhet  failed  to  consider  the possession of the plaintiff-opposite party Nos. 1-9.

The plaintiffs could prove their title pursuant to the deed dated 20.06.2017. The present defendant-opposite party Nos. 13- 37 did not challenge the judgment and decree passed by the learned trial court by way of appeal. The 3rd party- petitioners as the appellants preferred an appeal in the court of the learned District Judge, Sylhet which was heard by the learned Additional District Judge, Court No. 1, Sylhet.

In the above given legal and factual aspects, this court has to take a decision on whether the 3rd parties can challenge any judgment and decree passed by a civil court. In this regard, I have carefully examined the judgment and decree passed by the learned trial court decreeing the suit in favour of the present plaintiff- opposite party Nos. 1-9. Normally, a right of appeal is approved by the concerned parties of a suit or appeal but in the

present  case,  the  3rd  parties  preferred  an  appeal  without submitting the required and relevant documents to show their interest against the judgment and decree passed by the learned trial court. I have also carefully examined that the appeal was filed on the basis of co-sharers/parties in the mutation case and mutation  appeal  which  were  disallowed  by  the  concerned authority, as such, the present 3rd party petitioners do not have any right to challenge the judgment of the learned trial court by way  of  appeal  where  those  were  not  parties.  The  present petitioners  also  failed  to  prove  their  interest  in  preferring  an appeal as being the 3rd party.

I have also examined the findings of the learned trial court who decreed the suit on the basis of the evidence both written and depositions of the PWs and DWs decreed the suit in favour of the plaintiff-opposite parties.

The learned trial court after hearing the parties of the title suit decreed the suit in favour of the present plaintiff- opposite parties on the basis of the following findings:

…“®k­qa¥ pqL¡l£ L¢jne¡l (i¨¢j) Hhw A¢a¢lš² ®Xf¤¢V L¢jne¡l (l¡Sü) LaѪL fËQ¡¢la B­cn ¢hQ¡l ¢hi¡N£u L¡kÑœ²j e­q ®p­qa¥ Eš² B­c­nl ¢hl¦­Ü ¢hi¡N£u L¢jne¡l ¢Lwh¡ i¨¢j fËn¡pe

®h¡­X ÑQÉ¡­m” e¡ L¢lu¡ ®cJu¡e£ L¡k¢Ñh¢d 1908 Hl 9 d¡l¡ j­a

haÑj¡e j¡jm¡ Suits of Civil Nature ¢q­p­h Aœ¡c¡m­a j¡jm¡

c¡­u­l Express or Implied Bar e¡ b¡L¡ faË£uj¡Z qJu¡u Aœ

j¡jm¡ BCea Qm­a ®L¡e h¡d¡ e¡C f¢Ëauj¡Z qJu¡u Aœ¡L¡­l J

fËL¡­l Aœ j¡jm¡ lrZ£uz ®k­qa¥ h¡c£N­Zl ¢eLV 4-17 ew ¢hh¡c£NZ ¢h¢œ² L¢lu¡­Rez 4-17 ew ¢hh¡c£NZ e¡¢mn£ i¨¢j cMm h¡c£NZ hl¡h­l qÙ¹¡¿¹l L¢lu¡­Re h¢mu¡ ¢m¢Ma Sh¡h c¡¢Mm L¢lu¡ Hhw DW-1

¢q­p­h ®j±¢ML p¡r É fcË¡e L¢lu¡ h¡c£N­Zl cMm ü£L¡l L­lez 1 J

3 ew ¢hh¡c£ a¡l f¢Ëa­hc­e h¡c£N­Zl cMm e¡C Hhw Aa£­aJ LM­e¡

¢Rm e¡ c¡h£ L¢l­mJ L¡l cM­m B­R a¡q¡J E­õM L­le e¡Cz ®k­qa¥ 4-17 ew ¢hh¡c£N­Zl e¡­j 1 ew ¢hh¡c£ e¡jS¡l£ M¢au¡e pªSe f§hÑL M¡Se¡ NËqZ L¢lu¡­Re Hhw 4-17 ew ¢hh¡c£N­Zl cMm B­R j­jÑ f¢Ëa­hce ¢cu¡­Re Hhw Eš² 4-17 ew ¢hh¡c£NZC h¡c£N­Zl hl¡h­l

¢hœ²u fh§LÑ cMm qÙ¹¡¿¹l L¢lu¡­Re ®p­qa¥ e¡¢mn¡ i ¨¢j­a h¡c£N­Zl

üaÄ cMm B­R f¢Ëauj¡Z qJu¡u h¡c£N­Zl e¡­j e¡jS¡l£ M¢au¡e pªSe

Ll¡ 1 ew ¢hh¡c£l c¡¢uaÄ ¢Rm ¢hd¡u pqL¡l£ L¢jne¡l (i¨¢j), ®L¡Çf¡e£N”, ¢p­mV LaѪL e¡jS¡l£ j¡jm¡ 62/(IX-I)/17-18 Cw H

fQË¡¢la 10/09/17 Cw a¡¢l­Ml B­cn Hhw A¢a¢lš² ®Xf¤¢V L¢jne¡l

(l¡Sü), ¢p­mV LaѪL e¡jS¡l£ Bf£m 20/2018 Cw j¡jm¡u fËQ¡¢la 14/02/19 Cw a¡¢l­Ml B­cn lc J l¢qa­k¡NÉ fË¢auj¡Z qJu¡u Aœ

j¡jm¡l ¢hQ¡kÑ ¢hou 1, 4, 5 h¡c£N­Zl Ae¤L¨­m ¢pÜ¡¿¹ Nª¢qa q­m¡”…

The learned appellate court below also concurrently found in favour of the present plaintiff- opposite parties by disallowing the appeal preferred by the present 3rd party- petitioners on the basis of the following findings:

…“ph­Q­u hs Lb¡ k¢c a­LÑl M¡¢a­l d­l ®eJu¡ qu ®k, Bf£mL¡l£­cl M¢lc¡ c¢m­ml i ¢¨j p­lS¢j­e e¡¢mn¡ i ¨¢j­L BLoÑZ

L­l a¡q­m Bf£mL¡l£f­rl E¢Qv ¢Rm Bf£m öe¡e£ e¡ L­l ÙÛ¡e£u

ac­¿¹l j¡dÉ­j a¡ fjË¡Z Ll¡z ¢L¿ºH ¢ho­u Bf£­ml ®j­j¡­a ®kje

Øfø L­l c¡h£ Ll¡ qu¢e, ®aj¢e ®L¡e ÙÛ¡e£u ac­¿¹l clM¡Ù¹J Bf£mL¡l£fr c¡¢Mm L­le¢ez a¡C e¡¢mn¡ i¨¢j­a p­lS¢j­e ®lpfe­X¾V-h¡c£NZ cM­m B­R h­mC fËj¡¢Za qu ®kM¡­e h¡c£f­rl f§hÑha£Ñ ¢h­œ²a¡NZ ¢hœ²­ul fl h¡c£NZ®L cMm h¤¢T­u ®cJu¡l ¢ho­u Sh¡­h p¤Øføi¡­h E­õM L­lez Hja¡hÙÛ¡u, ¢h‘ ¢hQ¡¢lL Bc¡ma

e¡¢mn¡ i ¨¢j­a ®lpfe­X¾V-h¡c£f­r l cMm l­u­R j­j Ñ®k ¢pÜ¡¿¹

fcË¡e L­l­Re a¡ p¢WL J k¤¢š²pwNa q­u­Rz g­m pqL¡l£ L¢jne¡l

(i ¢¨j), ®L¡Çf¡e£N”, ¢p­mV LaѪL e¡jS¡l£ j¡jm¡ 62/(IX-I)/17-18

Cw H fQË¡¢la 10/09/17 ¢MÊ. a¡¢l­Ml B­cn Hhw A¢a¢lš² ®Xf¤¢V

L¢jne¡l (l¡Sü), ¢p­mV LaѪL e¡jS¡l£ Bf£m 20/2018 ew j¡jm¡u

fQË¡¢la 14/02/2019 ¢MË. a¡¢l­Ml B­cn ®hBCe£ J lc l¢qa L­l ®lpfe­X¾V-h¡c£f­r l e¡­j fªbL e¡jS¡l£ M¢au¡e pª¢øl SeÉ j­j Ñ

¢h‘ ¢hQ¡¢lL Bc¡m­al a¢LÑa l¡u J ¢Xœ²£ p¢WL q­u­Rz”…

In view of the above findings by the learned courts below found  concurrently  in  favour  of  the  present  plaintiff-opposite party Nos. 1-9 as to the title and possession upon the suit land by providing  evidence,  in  particular,  the  Sale  Deed  dated 20.06.2017 and the Mutation Case No. 62/IX-I/17-18. Therefore, the learned trial court committed no error of law by decreeing the suit in favour of the plaintiff-opposite party Nos. 1-9.

I  also  consider  that  the  learned  appellate  court  below committed no error of law by affirming the judgment and decree passed by the learned trial court concurrently finding as to the judgment and decree upon the suit land.

I  am,  therefore,  not  inclined  to  interfere  upon  the impugned judgment and decree passed by the learned Additional District Judge, Court No. 1, Sylhet on 29.08.2022 and I also found  that  there  is  no  requirement  to  consider  the  Rule  any further.

Accordingly, I do not find merit in the Rule.

In the result, the Rule is hereby discharged.

The concerned section of this court is hereby directed to send down the lower courts’ records along with a copy of this judgment and order to the learned courts below immediately.