IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

             Present:

Mr. Justice S M Kuddus Zaman

CIVIL REVISION NO.811 OF 2011

In the matter of:

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

And

Sharif Khatun

.... Petitioner

-Versus-

Md. Eshak and others

.... Opposite parties

Mr. Md. Aminul Ehsan, Advocate

.... For the petitioner.

None appears

…. For the opposite parties.

Heard on 28.11.2024. Judgment on 02.12.2024.

This Rule was issued calling upon the opposite parties to show cause as to why the impugned judgment and decree dated 08.07.2010 passed  by  the  learned  Joint  District  Judge,  1st  Court,  Feni  in  Title Appeal  No.16  of  2009  disallowing  the  appeal  and  affirming  the judgment  and  decree  dated  19.03.2009  passed  by  the  learned Assistant Judge, Parsuram, Feni in Title Suit No.33 of 2007 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 petitioner as plaintiff instituted above suit for partition seeking a separate saham for one decimal land.

It  was  alleged  that  Anjumer  Nessa  and  Nawabjan  two  sisters purchased two decimal land from heirs of Golam Rasul and Ashraf Ali by registered kabala deed dated 22.02.1979 and above Anjumer Nessa transferred 2 decimal land to the plaintiff by a registered kabala deed on 24.01.1984.

Above suit was contested by defendant Nos.1 and 3 by filing separate  statements.  Defendant  No.1  denied  plaintiff’s  title  and possession  in  the  above  land  and  defendant  No.3  sought  separate saham for his land in the above joma.

At  trial  plaintiff  examined  5  witnesses  and  documents  of  the plaintiff were marked as Exhibit Nos.1-4. On the other hand defendants examined 6 witnesses and their documents were marked as Exhibit Nos.’Ka’-‘Chaa’.

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

Being aggrieved by above judgment and decree of the trial Court above  plaintiff  preferred  Title  Appeal  No.16  of  2009  to  the  District Judge, Feni which was heard by the learned Joint District Judge, 1st Court who dismissed above appeal and affirmed the judgment and decree of the trial Court.

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

Mr.  Md.  Aminul  Ehsan,  learned  Advocate  for  the  petitioner submits that contesting defendants have admitted plaintiff’s title in 1 decimal  land  and  further  admitted  that  above  land  comprises  a dwelling hut of the plaintiff. But the learned Assistant Judge dismissed above suit merely for non production of the original kabala deed of the plaintiff which is misconceived and not tenable in law. The learned Judge  of  the  Court  of  Appeal  below  also  found  that  the  plaintiff lawfully purchased 1 decimal land by registered kabala deed dated 22.01.1979. But the learned Judge erroneously dismissed the appeal and affirmed the flawed judgment and decree of the trial Court which is not tenable in law.

No one appears on behalf of the opposite parties when the Rule was taken up for hearing although this matter appeared in the list for several dates.

I have considered the submissions of the learned Advocate for the petitioner  and  carefully  examined  the  impugned  judgments  of  the Courts below and all other materials on record.

In the judgment of the trial Court the learned Assistant Judge held as follows:

""B”¤−jl −ep¡ 22/01/1979 Cw a¡¢l−Ml c¢mmj§−m 1 ¢X¢œ² i§¢j−a j¡¢mL qu a¡ ¢hh¡c£fr ü£L¡l L−l Hhw fËcx 4(L) fkÑ¡−m¡Qe¡u fËa£uj¡e quz ¢L¿º B”¤−jl −ep¡

24/01/1984 Cw a¡¢l−Ml c¢mm j§−m 2 ¢X¢œ² i¨¢j h¡c£l ¢eLV ¢hœ²u L−l k¡ j¡¢mL¡e¡l A¢a¢lJ² i¨¢j j−jÑ fËj¡¢Za quz''  

In  this  regard  the  learned  Joint  District  Judge  has  recorded following findings in the impugned judgment of the Court of Appeal below:

""h¡c£l ¢eLV hs ®S¡l 01 naL ¢hœ²u L¢l−a f¡−le z''

From above concurrent findings of the Courts below it appears that  the  plaintiff  acquired  valid  title  in  1  decimal  land  by  way  of purchase from her foster mother Anjumer Nessa by registered kabala deed dated 24.01.1984.

It is true that Anjumer Nessa, predecessor of the plaintiff and her sister  Nawabjan  jointly  purchased  two  decimal  land  by  registered kabala deed dated 22.01.1979 from the heirs of Galam Rasul and Arshad Ali. As such Anjumer Nessa was owner and possessor of only one decimal land but she transferred two decimal land to the plaintiff by registered kabala deed dated 24.01.1984 (Exhibit No.4Ka).

If any person self land in excess of his legitimate share that sale deed shall not become void or voidable but the deed shall be effective and lawful only to the extent of the lawful ownership of the seller. A buyer cannot get a better title than his or her seller. As such by Exhibit No.4Ka plaintiff acquired 1 decimal land although in above document Anjumer Nessa transferred two decimal land which was more than her lawful share. But it turns out from the plaint that on the basis of above kabala deed dated 24.01.1984 (Exhibit No.4Ka) plaintiff has claimed a separate saham from one decimal land and the plaintiff did not claim title and possession or saham for two decimal land.

On consideration of above facts and circumstances of the case and evidence on record I hold that the learned Judge of the Court of Appeal below  committed  serious  illegality  in  dismissing  the  appeal  and affirming  the  flawed  judgment  and  decree  of  the  trial  Court  on an erroneous perception of facts and law which is not tenable in law.      

In above view of the materials on record I find substance in this civil 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, this Rule is hereby made absolute. The impugned judgment  and  decree  dated  08.07.2010  passed  by  the  learned  Joint District Judge, 1st Court, Feni in Title Appeal No.16 of 2009 disallowing the appeal and affirming the judgment and decree dated 19.03.2009 passed  by  the  learned  Assistant  Judge,  Parsuram, Feni  in  Title  Suit No.33 of 2007 is set aside and above suit is decreed on contest against defendant  Nos.1  and  3  and  ex-parte  against  the  rest  without  costs. Plaintiff  is  granted  a  separate  saham  for  one  decimal  land  and defendants are directed to effect an amicable partition for above land within 60 days from this date but if they fail to do so the plaintiff shall get the same through Court. 

However, there is no order as to costs.

Send down the lower Courts record immediately.

MD. MASUDUR RAHMAN     BENCH OFFICER