IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Moinul Islam Chowdhury

CIVIL REVISION NO. 1537 OF 2012

IN THE MATTER OF:

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

-And-

IN THE MATTER OF:

Nurul Azam Munshi

--- Defendant-Appellant-Petitioner. -Versus-

Nurul Amin and others

--- Plaintiff-Respondent-Opposite Parties. Mr. Humayun Kabir Sikder, Advocate

--- For the Defendant-Appellant-Petitioner. Mr. S. M. Munir, Senior Advocate with

Mr. Md. Shaheen Mridha, Advocate

---For the Plaintiff-Res.-Opposite Parties.

Heard on: 10.07.2023, 16.07.2023 and 17.07.2023.

Judgment on: 31.07.2023.

At  the  instance  of  the  present  defendant-appellant- petitioner, Nurul Azam Munshi, this Rule was issued upon a revisional application filed under section 115(1) of the Code of Civil  Procedure  calling  upon  the  plaintiff-respondent-opposite party Nos. 1-5 to show cause as to why the judgment and decree dated  22.02.2012  passed  by  the  learned  Joint  District  Judge, Court No. 1, Gopalgonj in the Title Appeal No. 19 of 2010

dismissing the appeal and thereby affirming the judgment and decree  dated  21.10.2009  respectively  passed  by  the  learned Assistant Judge, Sadar, Gopalgonj in the Title Suit No. 31 of 2000 decreeing the suit on contest should not be set aside.

The relevant facts in short for disposal of this Rule, inter- alia,  are  that  one  Nurul  Halim  Munshi  (predecessor  of  the plaintiff-respondent-opposite party Nos. 1-5) as the plaintiff filed the Civil/Title Suit No. 31 of 2000 in the court of the learned Assistant Judge, Sadar, Gopalgonj for declaration of title upon the suit land described in the schedule- 1, 2 and 3 of the plaint and also for a declaration that the record of right of the suit land in the name of the defendant No. 1 in the S. A. Khatian was illegal,  inoperative  and  not  binding  upon  the  plaintiff.  After filing this suit the plaintiff died and he was substituted by his legal heirs by the opposite party Nos. 1-5. The plaint contains that the suit land measuring 26 decimals appertaining to Plot No. 1381,  R.  S.  Khatian  No.  11  and  S.  A.  Khatian  No.  24  was originally belonged to one Purna Charan Mondal and Nil Moni Mondal in equal shares. Subsequently, the said suit land was transferred to several persons from 1944 to 1950. The plaint further contains that the said 26 decimals of land Plot No. 1381,

R. S. Khatian No. 11 and S. A. Khatian No. 26 was purchased by the said deceased-plaintiff, Nurul Halim Munshi, by a registered Kabala Deed dated 27.01.1950 and the same land was recorded in the name of deceased-plaintiff and the defendant No. 1, Nurul Azam Munshi in equal shares. The plaint further contains that the plaintiff did not know about the wrong record of the suit land and  the  defendant  No.  1  as  being  his  full  brother.  The responsibility of record was given to the defendant No. 1 and the defendant No. 1 always told and informed that the land was correctly recorded in the name of the plaintiff but the defendant No. 1 with the collusion of the Surveyor wrongly recorded equal shares of the suit land in names of plaintiff and defendant No. 1 and  after  having  knowledge  of  wrong  record,  the  plaintiff instituted the suit for correction of the same as the record was wrongly published which he (plaintiff) challenged by filing the suit.

The suit was contested by the defendant No. 1 by filing a written statement contending, inter alia, that while Afsar Uddin Munshi  had  been  possessing  the  suit  land  by  purchasing  on 27.01.1950  at  a  consideration  money  of  Tk.  1,000/-  (One Thousand) and at that time the plaintiff Nurul Halim Munshi was not even born, as such, no question arises about purchasing the land by the plaintiff rather his father, Hazi Sadek Ali Munshi, paid  the  entire  consideration  money  out  of  his  own  income sources and his father purchased the said land for himself and for own benefit and when S. A. Survey had been started the record of right in S. A. Survey was rightly published regarding the suit land.  The  defendant  also  contended  that  at  the  time  of  the concerned purchaser of the suit land, the plaintiff was originally aged  10  years  old.  The  other  defendant-opposite  parties  also contested  the  suit  by  filing  a  joint  written  statement  and supporting their case.

After receiving the said suit the learned trial court heard both the parties by obtaining evidence adduced and produced by the  parties  by  way  of  documentary  evidence  and  by  way  of depositions  in  court.  The  learned  Assistant  Judge,  Sadar, Gopalgonj  came  to  a  conclusion  after  hearing  the  parties  to decree the suit by the judgment and decree dated 21.10.2009. Being aggrieved the present petitioner as the appellant preferred the Civil/Title Appeal No. 19 of 2010 in the court of the learned District Judge, Gopalgonj which was eventually heard by the learned Joint District Judge, Court No. 1, Gopalgonj who passed the  impugned  judgment  and  decree  in  favour  of  the  present plaintiff-respondent-opposite parties by affirming the judgment and decree of the learned trial court.

This revisional application has been filed by the present defendant-petitioner under the provision of section 115(1) of the Code of the Civil Procedure challenging the legality of the said impugned judgment passed by the learned Joint District Judge, Court No. 1, Gopalgonj and the Rule was issued thereupon.

Mr.  Humayun  Kabir  Sikder,  the  learned  Advocate appearing for the petitioner submits that the learned courts below committed an error in law and caused a failure of justice by way of passing the impugned judgment and decree on misreading the evidence on record and misconstruing both law and facts, as such, the impugned judgment and decree passed by the learned courts below are liable to be set aside.

The  learned  Advocate  also  submits  that  admittedly  the plaintiff and the contesting defendant are co-sharers in the suit plot No. 286 of R. S. Khatian No. 65 and S. A. Khatian No. 83 and  according  to  the  statements  of  P.  W.  1  in  his  cross- examination the plaintiff sold some portion of the land of the said plot No. 286 to one Babar, the plaintiff ought to have filed a

suit  for  partition  but  the  plaintiff  instead  of  filing  a  suit  for partition filed a suit for simple declaration of title and the learned courts below without considering the aforesaid aspect arrived at a finding that the suit is not maintainable in its present form, thus, the learned courts below committed an error in law causing failure of justice, as such, the impugned judgment and decree is liable  to  be  set  aside,  therefore,  the  Rule  should  be  made absolute.

During the hearing of this Rule, the learned Advocate filed an  application  along  with  some  additional  documents  which could not be exhibited in the learned trial court and he prays to accept the same. I have considered that those documents were not  present  before  the  learned  courts  below,  as  such,  these documents  were  not  examined  by  the  parties  at  the  trial  or appellate stage, as such, I am not inclined to accept the same documents,  thus,  the  application  for  accepting  the  additional evidence is hereby rejected.

The Rule has been opposed by the present opposite party Nos. 1-5.

Mr. S. M. Munir, the learned Senior Advocate, appearing along with the learned Advocate Mr. Md. Shaheen Mridha on behalf of the present plaintiff-respondent-opposite party Nos. 1-5 submits  that  both  the  courts  below  considered  the  evidence adduced  and  produced  by  the  parties  in  support  of  their respective cases and the learned appellate court below passed the impugned  judgment  and  decree  dismissing  the  appeal  and thereby affirming the judgment and decree of the learned trial court, as such, this court should not interfere upon the impugned judgment of the learned appellate court below.

The learned Advocate further submits that the given facts by both parties there is no necessity to record the property in 2 names in the S. A. Khatian. If the claim of the plaintiff for purchasing the land in his name from the money of his own income source was such, thus, the learned trial court came to a proper decision and conclusion to decree the suit and the learned appellate  court  below  also  passed  the  impugned  judgment concurrently dismissed the appeal and thereby affirmed the said judgment and decree passed by the learned trial court, thus, the Rule is liable to be discharged.

The learned Advocate also submits that S. A. Record did not properly publish in the name of both the parties in equal shares. According to the right and title the record should have been published in the name of the plaintiff under the provision of law, however, the learned trial court committed no error of law by decreeing the suit.

Considering the above submissions made by the learned Advocates  appearing  for  the  respective  parties  and  also considering  the  revisional  application  filed  by  the  present petitioner 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 required documents available in the lower courts records, it appears to this court that the original plaintiff filed the title suit claiming title and for correction of record of right  publishing  in  the  S.  A.  Khatian.  The  plaintiff  (now deceased and substituted) stated in the plaint that the original plaintiff purchased  the suit  land  from the  money  of his  own income sources by conducting a business of cloth at Dhaka. He himself was present physically at the time of execution of deed of purchase but he was not present at the time of record of right at the Tahashil Office/ Surveyor because of his engagement of cloth business in Dhaka and due to his engagement in Dhaka he requested  his full  brother to  be present at  the time of S. A. Record by the Government Authority. However, the said brother being the present defendant No. 1 recorded the record of the right

1 portion in his own name and the  1 portion in the name of the 2 2

plaintiff in collusion with the government officials or employees as the authority of the record of right of the Tahashil Office. Regarding the above factual aspects, I have carefully considered the  findings  of  the  learned  courts  below  and  also  the circumstances that prevailed at that time for entering the correct name  of  the  owner  of  the  land.  In  this  regard,  I  have  also considered the depositions of the PWs and DWs who appeared in the court by the respective parties and I found it is clear that there were illegal actions/activities by the defendant-petitioner which  is  not  acceptable  within  the  ambit  of  law,  thus,  I considered that both the courts could realize and find that the plaintiff was the original owner and he was entitled to get a record in his name of the S. A. Khatian.

Regarding  the  title  of  the  plaintiff  over  the  suit  land described in the schedules- 1, 2 and 3 of the plaint as well as for a declaration of the record in the name of the defendant No. 1 is collusive  and  not  binding  upon  the  plaintiff.  The  defendant adduced and produced the evidence of the plaintiff at the time of claiming to purchase the suit land in his name. In this matter, the plaintiff claims as to the title of the suit land and the learned courts below committed no error of law by passing the impugned judgment.

In view of the above discussions and consideration of the evidence as well as also I have carefully examined the judgment of the learned courts below.

The  learned  trial  court  came to  a lawful  conclusion  to decree the suit on the basis of the following findings and manner:

…“Ef­l¡š² B­m¡Qe¡l ¢i¢š­a Bc¡m­al ¢eLV Øføl©­f

f¢Ëauj¡e qu ®k, j§m h¡c£ e¤l¦m q¡¢mj j¤¾p£ ¢eS A­bÑ e¡¢mn£ Bl¢Sl

afn£m h¢ZÑa pÇf¢š M¢lc L­l­Re ¢hd¡u Eš² pÇf¢š­a ¢a¢e üaÄ

fQË¡­ll ¢X¢œ² ®f­a qLc¡lz B­l¡ fË¢auj¡e qu ®k, a¡l ¢eS e¡­j

¢eS A­bÑ Eš² c¢mmpj§q ®l¢S¢ØVÊ j§­m M¢lc q­u­R ¢hd¡u afn£m h¢ZÑa Hp. H. 24 ew M¢au¡­el 1381 c¡­Nl 26 na¡w­nl j­dÉ BV

Be¡u 13 na¡wn Hp. H. 26 ew M¢au¡­el 1378 c¡­Nl 61

na¡w­nl j­dÉ BV Be¡u p¡­s 30 na¡wn Hhw 1382 c¡­Nl 37

na¡w­nl j­dÉ BV Be¡u p¡­s 18 na¡wn Hp. H. 83 M¢au¡­el

286 c¡­Nl 2.08 HL­ll h¡c£l e¡­j ®lL¢XuÑ 1.04 HLl h¡­c h¢œ² 1.98 HL­ll j­dÉ 94 na¡wn ®j¡V 1.56 HLl pÇf¢š 1 ew ¢hh¡c£l e¡­j ï j¡aÈLi ¡­h ®lLX Ñq­u­R k¡ h¡c£N­Zl Efl h¡dÉLl eu j­jÑ

f¢Ëauj¡e quz”…

The learned appellate court below concurrently found and dismissed the appeal and affirmed the judgment and decree of the learned trial court upon findings of the following manner:

…“­k­qa¥ 1954 p¡­m 1 ew ¢hh¡c£ ü£L«a j­a e¡h¡mL ¢R­me Hhw ®k­qa¥ 1954 p¡­m M¢acL«a S¢j 1 ew ¢hh¡c£ ¢eS A­bÑ J ü¡­bÑ M¢lcL«a j­jÑ c¡h£ L­le ®p­qa¥ Cq¡C fËa£uj¡e qu ®k, 1943/1944/1950 Cw p¡­m j§m h¡c£l A­bÑ J ü¡­bÑ e¡¢mn£ S¢j M¢ac Ll¡ quz ¢h‘ ¢ejÀ Bc¡ma 1 ew ¢hh¡c£l ®Sl¡l HC ü£L¡­l¡¢š²l ¢hou¢V B­m¡Qe¡ e¡ L¢l­mJ HC ¢pÜ¡­¿¹ p¢WL i¡­h Efe£a qCu¡­Re ®k, e¡¢mn£ S¢j­a j§m h¡c£ ab¡ haÑj¡e h¡c£ f­rl üaÄ ü¡bÑ J cMm ¢hcÉj¡ez”…

On  the  basis  of  the  above  concurrent  findings  by  the learned courts below in favour of the present opposite parties and in light of that I am not inclined to interfere upon the impugned judgment  and  decree  passed  by  the  learned  appellate  court below,  as  such,  the  Rule  does  not  merit  any  further consideration.

Accordingly, I do not find merit in the Rule.

In the result, the Rule is hereby discharged.

The interim direction passed by this court at the time of issuance of the Rule to maintain status quo by the parties in respect of the possession and position of the suit land for a period of 6 (six) months and subsequently the same was extended from time to time and lastly, it was extended till disposal of this Rule are hereby recalled and vacated.

The  impugned  judgment  and  decree  dated  22.02.2012 passed  by  the  learned  Joint  District  Judge,  Court  No.  1, Gopalgonj in the Civil/Title Appeal No. 19 of 2010 dismissing the appeal and thereby affirming the judgment and decree dated 21.10.2009 passed by the learned Assistant Judge, Sadar Senior Assistant Judge Court, Gopalgonj in the Civil/Title Suit No. 31 of 2000 is hereby upheld.

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