Present:

Mr. Justice Sheikh Abdul Awal

and

Mr. Justice Md. Mansur Alam

First Appeal No. 412 of 2013 In the  Matter of:

Memorandum of appeal from the original order.

-and- In the Matter of:

Siraj Miah being dead his legal heirs Akbar Hossain and others.

                          .......Defendant-appellants.

        -Versus-

Ataur Rahman being dead his heirs Siddika Begum and others

......Plaintiff-respondents.

Mr. Md. Aminul Islam, Advocate

  ……. For the appellants.

Mr. Mrinal Kanti Biswas with

Mr.  Chowdhury  Morshed  Kamal  Tipu, Advocate.

......For the respondent Nos. 1-3. Heard on 01.12.2024, 10.12.2024 and Judgment on 10.12.2024.

Sheikh Abdul Awal, J:

This First Appeal at the instance of the defendant-appellant

is directed against the judgment and preliminary decree dated 17.01.2001 (decree signed on 23.01.2001) and final decree dated

23.06.2013 (decree signed on 25.08.2013) passed by the learned Joint District Judge, 2nd Court, Sylhet in Title Suit No. 82 of 1989

decreeing the suit on contest against defendant Nos. 1-7, 10-12 and ex-parte against the rest defendants.

The  relevant  facts  briefly  are  that  the  respondents  as plaintiffs filed Title Suit No. 82 of 1989 in the Court of the then learned Subordinate Judge, 2nd Court, Sylhet praying saham of .63 acre  (6.73  decimals)  out  of  70  decimals  of  schedule  land  as described in schedule of the plaint.

Defendant Nos. 8-9 and 11-16 entered appearance in the suit and filed written statements denying all the material averments made  in  the  plaint  stating,  inter-alia,  that  the  suit  is  not maintainable in its present form and manner, the suit is bad for defect  of  parties,  the  plaintiffs  have/had  no  right,  title  and possession over the suit land and as such, they are not entitled to get any saham whatsoever and the suit is liable to be dismissed.

At  the  trial  plaintiff  side  examined  3  witnesses  and defendant  side  examined  2  witnesses  and  both  the  parties exhibited some documents to prove their respective cases.

The learned Joint District Judge on the pleadings of the parties framed the following issues for determination:-

1. Whether the suit is maintainable in its present form and manner?
2. Whether the suit is barred by limitation?
3. Whether the suit is bad for defect of parties?
4. Whether the suit is bad for any hots-potch?

5. Whether the plaintiffs are entitled to get saham as prayed for?
6. Whether the plaintiffs are entitled to get any other relief? The learned Subordinate judge upon hearing the parties and

on  considering  the  materials  on  record  by  his  judgment  and decree dated 17.01.2001 (decree signed on 23.01.2001) decreeing the suit on contest against defendant Nos. 1-7, 10-12 and ex-parte against the rest defendants.

Being aggrieved by and dissatisfied with   the aforesaid judgment  and  decree  dated  17.01.2001  (decree  signed  on 23.01.2001)  and  final  decree  dated  23.06.2013  the  appellant preferred this appeal before this Court.

Mr. Md. Aminul Islam, the learned Advocate appearing for the  appellant  submits  that  in  this  case  the  Advocate Commissioner submitted 2 perfunctory report and it is apparent from his report that he gave excess saham of preliminary decree beyond law inasmuch as the suit was decreed for 6.73 decimals of land  and  the  Advocate  Commissioner  gave  saham  of  6.80 decimals and the learned trial Judge most illegally accepted the same,  which  occasioned  a  failure  of  justice.  This  is  the  sole ground  urged  by  the  learned  Advocate  for  the  defendant- appellants.

Mr.  Mrinal  Kanti Biswas with Mr. Chowdhury Morshed Kamal Tipu, the learned Advocates appearing for the respondents, on the other hand, supports the impugned judgment and decree as well  as  2  consecutive  reports  submitted  by  the  Advocate Commissioner, which were according to him just, correct and proper. He submits that the Advocate Commissioner found some more land with suit land, who stated the same in his report as to giving saham of  6.80  decimals.  The learned  Advocate further submits  that  the  instant  appeal  is  misconceived  and  not maintainable  in  law  inasmuch  as  it  is  on  record  that  before accepting the report the defendant appellants filed an application against the said Advocate Commissioner’s report although the said application was rejected as no one appears to press the said application  on  repeated  calls.  The  learned  Advocate  further submits  that  the  matter  did  not  end  there,  the  unsuccessful defendants again filed a review application before the learned Joint District Judge, who after hearing the application rejected it by order dated 12.06.2013 but against the said rejection order the defendants did not file any Revision, who finally filed the instant first appeal challenging the preliminary and final decree.

Having heard the learned Advocates for both the sides and perused the memo of appeal along with other materials on record including the Advocate Commissioner’s reports. 

On  scrutiny  of  the  record,  it  appears  that  the  Advocate Commissioner in his report allotted saham to the plaintiffs 0.0673 acres  although  in  the  chita  0.0680  acres  saham  was  given (wherein 0.0007 acres excess) and it is shown in the chita that total quantum of the 2nd scheduled land was 0.1779 acres instead of  0.1700  (0.0079  acre  in  excess)  which  explained  by  the Advocate Commissioner   in his report in the following language that-

“

”

It further appears that the Advocate Commissioner allotted residue saham 0.0235 acres to the defendant Nos. 3 and 4 and also allotted separate saham 0.0566 acres to the defendant Nos. 8-9, 11-16. These defendants were satisfied with their allotted saham inasmuch as they did not raise any objection. The excess allotted 0.0007 acres to the plaintiff does not affect the saham of the defendants.

However, at the end of the day the learned Advocate for the defendant  appellants  submits  with  force  that  the  property  in question is ejmali property possessed bothers, cousins and other close relatives and if the excess saham beyond decree is allowed that will abolish a part of the only homestead of defendant Nos. 8-9.

To this, Mr. Mrinal Kanti Biswas submits that the plaintiff respondents  in  no  way  cause  any  damage  of  the  building  of defendant Nos. 8-9 whatsoever.

In reply, Mr. Aminul Islam submits that if the plaintiffs are not allowed to cause any damage of building of the appellants, they will have no objection against the impugned judgment and decree.

Considering  the  facts  and  circumstances  of  the  case  as revealed from the materials on record, we are inclined to direct the plaintiff respondents not to do any damage of the building of defendant Nos. 8-9 and 11.

However, Mr. Mrinal Kanti Biswas under takes that he will inform  this  direction  to  his  client  forthwith.  In  the  facts  and circumstances of the case there will be no order as to costs.

In the result, the appeal is disposed of with the aforesaid

direction.

Send down the LC Records at once. Md. Mansur Alam, J:

I agree.