1
IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
(CIVIL APPELLATE JURISDICTION)
Present:
Mr. Justice Md. Badruzzaman.
And
Mr. Justice Sashanka Shekhar Sarkar
First Appeal No. 262 of 2012.
With
Civil Rule No. 784 (F) of 2012.
Monoranjan Ghosh and others
...Appellants. -Versus-
Mohammad Jashim Uddin Khan and others
....Respondents. Mr. M. Ataul Gani, Advocate
… For the appellants
Mr. Moinuddin, Advocate
… For the respondents
Heard on: 06.03.2024, 10.03.2024, 25.07.2024 and 31.07.2024.
Judgment on: 04.08.2024,
Md. Badruzzaman, J:
This Appeal is directed against judgment and decree dated 13.02.2012 (decree signed on 19.02.2012) passed by learned Joint District Judge, 2nd Court, Manikgonj in Title Suit No. 30 of 2007 decreeing the suit in preliminary form allotting a saham of 2.8375 acre land in favour of the plaintiff by allowing buy up of .7950 acre land and a saham of 1.48375 acre land in favour of defendant Nos. 40-41, appellants.
During pendency of this appeal and upon an application filed by the appellants for staying operation of the impugned judgment and decree, Rule was issued and the operation of impugned judgment and decree was stayed for period of 4 (four) months which was registered as Civil Rule No. 784 (F) of 2012.
Since common facts and law are involved in both appeal and Rule, those have been heard together and now are being disposed of by this common judgment.
Facts, in short, are that respondent No. 1 as plaintiff instituted Title Suit No. 30 of 2007 before the learned Joint District Judge, 2nd Court, Manikgonj praying for a decree of partition of total 5.3250 acre land claiming 2.0425 acre land in his saham. His positive case was that his father Hazi Ekram Ullah and mother Basirunnesa were owners in possession of total 532.90 acre land (4.4350 acre of schedule ‘Ka’ plus .89 acre of schedule ‘Kha’ to the plaint) by sale deed Nos. 4534 dated 20.11.1976, 1450 dated 01.04.1977, 36176 and 36177 dated 13.12.1997, 4828 and 4829 dated 20.12.1977, 7367 dated 27.09.1997, 25 dated 02.01.1983, 4277 dated 01.12.1977, 2397 dated 10.07.1980, 5043 dated 04.12.1978 and 1248 dated 10.03.1991 and had been owning and possessing the same. Out of total land they were living with their family members, by erecting dwelling house in .08 acre land of S.A plot No. 1819 and .29 acre land of S.A plot No. 1563. Adjacent to the dwelling house, Hazi Ekram Ulla dug pond in .7450 acre land of S.A plot No. 1564 and .20 acre land of S.A plot No. 1819 and was owning and possessing the same by the same as part of the dwelling house. They had been owning and possessing another .52 acre land as Palanbhumi (courtyard). Said ponds and courtyard are appertaining to the dwelling house. Ekram Ullah and his wife had been owning and possessing the same as a compact block. Thereafter, Basirunnessa and Ekram Ullah died leaving behind one son (the plaintiff), two daughters (defendant Nos. 1 and Khairunnessa) and then Khairunnessa died leaving behind
defendant Nos. 2-3 as her son and daughter who inherited the share of Khairunnessa. The daughters of Ekram Ullah and Basirunnessa were leaving elsewhere in their respective husband’s houses after their marriage and after death of Khairun Nessa her heirs, defendant Nos. 2 and 3, have been living in their respective houses and they never got possession of the suit property. The plaintiff has been residing in the dwelling house with his family members. The suit property had never been partitioned by metes and bounds and when dispute arose among the co-sharers, the plaintiff requested the defendants to partition the suit property. The plaintiff has eight anna share in the ejmali property and since the defendants refused to make partition, the plaintiff filed the instant suit.
Added defendant Nos. 40-41 contested the suit by filing joint written statements contending, inter alia, that Ekram Ullah was was owner in possession of the suit property who died leaving behind one son (the plaintiff), two daughters (defendant Nos. 1 and Khairunnessa) and Khairunnessa died leaving behind one son and one daughter (defendant Nos. 2-3) who inherited the share of Khairunnessa. Defendant Nos. 1-3 became owners in possession of total 2.27875 acre land out of the suit land and after mutating their names, transferred to defendant Nos. 40-41 by registered sale deeds being No. 8172 dated 18.12.2000 and 1077 dated 23.2.2009 and after purchase defendant Nos. 40-41 have been owning and possessing said 2.27875 acre land and accordingly, they prayed for a separate saham of 2.27875 acre land.
After filing written statements by defendant Nos. 40-41, the plaintiff on 26.04.2009 filed an application under section 4 of the Partition Act for buying up of total .795 acre land contending, inter alia, that defendant Nos. 40-41 are stranger-purchasers to the suit holdings and .7950 acre land which has been purchased by defendant Nos. 40-41 from his co-sharers ( defendant Nos. 1-3) is part and parcel of his dwelling house and accordingly, he is entitled to buy up said .7950 acre land. Defendant Nos. 40-41 filed written objection against the application contending that after purchase they got possession of their purchased land and the plaintiff, without filing any pre-emption case, filed the application under section 4 of the Partition Act causing inordinate delay and said .7950 acre land is not a part and parcel of the dwelling house of the plaintiff and as such, the application was liable to be rejected.
During trial, both parties adduced evidence to prove their respective case and the trial Court, upon considering the materials and evidence on record and allowing the application for buying up of .7950 acre land decreed the suit in preliminary form vide impugned judgment and decree dated 13.02.2012 and thereby allotted total 2.8375 acre land in the saham of the plaintiff and 1.48375 acre land in the saham of defendant Nos. 40-41.
Being aggrieved by and dissatisfied with the judgment and decree of the trial Court, defendant Nos. 40-41 have preferred this appeal.
Plaintiff-respondent No. 1 has entered appearance by filing Vokalatnama to contest the appeal.
Mr. M. Ataul Gani, learned Advocate appearing for the appellants by taking us to the impugned judgment, the pleadings of the parties, the application filed under section 4 of the Partition Act, the written objection and the evidence adduced by the parties submits that in view of the provision under Rule 774 of the Civil Rules and Orders, the application under section 4 of the Partition Act was not registered as ‘miscellaneous juridical case’ for which the plaintiff is not entitled to any relief upon the application. Learned Advocate further submits that only .37 acre land out of .7950 acre land is dwelling house and rest land is not part and parcel of the dwelling house and as such, the trial Court committed illegality in allotting .7950 acre land by applying the principle of buy up under section 4 of the Partition Act. Learned Advocate further submits that the suit land was transferred within the knowledge of the plaintiff to defendant Nos. 40-41 and the plaintiff should have filed pre-emption case to get said land by enforcing the right of pre-emption but the plaintiff did not do so and accordingly, the application filed under section 4 of the Partition Act for buy up of .7950 acre land, after inordinate delay, is barred by limitation. Learned Advocate further submits that the defendants filed written objection against the Advocate Commissioner’s report and since the report was not proved by evidence as genuine the trial Court should have kept the said report out of consideration and should have rejected the claim of the plaintiff. Learned Advocate further submits that the plaintiff failed to prove his case by oral and documentary evidence but the trial Court, upon misreading of evidence and misconception of law, illegally decreed the suit by allowing the application for buy up and as such, interference is called for by this Court.
As against the above contention, Mr. Moinuddin, learned Advocate appearing for plaintiff-respondent No. 1 submits that admittedly, the plaintiff and defendant Nos. 1-3 are co-sharers of the suit holdings and the plaintiff could prove by adducing oral and documentary evidence that .7950 acre land, which was sold by defendant Nos. 1-3 to defendant Nos. 40-41, is part and parcel of his dwelling house and defendant Nos. 40-41 are stranger-purchasers. Learned Advocate further submits that the application for buy up has been contested by defendants by filing written objection as well as both parties adduced evidence on this point and accordingly, non registering the application as a miscellaneous judicial case is a mere technical error for which the defendants have not been prejudiced inasmuch as that it has been proved by evidence that the ponds and palan land (courtyard) are adjacent to and part of the dwelling house of the plaintiff which comes within the definition of ‘homestead’ and as such, trial committed no illegality in allowing buy up of the shares of the homestead. Learned Advocate finally submits that the trial Court, upon proper appreciation of the evidence and materials on record, rightly decreed the suit in favour of the plaintiff by allowing the application under section 4 of the Partition Act and as such, interference is not called for by this Court.
We have heard the learned Advocates, perused the impugned judgment, the pleadings of the parties, the application filed under section 4 of the Partition Act, the written objection, evidence adduced by the parties and the judgment and decree of the trial Court
It appears that, upon considering the pleadings of the parties the trial Court framed four issues as follows:
During trial, the plaintiff adduced three oral witnesses and the contesting defendants adduced one witness. Moreover, the plaintiff produced documentary evidence which were marked as Exhibit Nos. 1- 5 series and the contesting defendants adduced documentary evidence which were marked as Exhibit Nos. ‘Ka’-‘Kha Series’.
The trial Court, upon consideration of the evidence and materials on record, decided all issues in favour of the plaintiff and also allowed the application for buy up filed under section 4 of the Partition Act by allotting .7950 acre land in favour of the plaintiff taken that as homestead of the plaintiff and decreed the suit in preliminary form allotting total 2.8375 acre land in the saham of the plaintiff and 1.48375 land in the joint saham of defendant Nos. 40-41 vide impugned judgment and decree dated 13.02.2012.
On scrutiny of the evidence adduced by the parties, it appears that though the defendants contended that the suit was bad for defect of parties and hotchpotch but they could not adduce any oral or documentary evidence to prove their claim. The learned Advocate for the appellants does not raise these issues before us. Accordingly, we are of the view that the trial Court rightly decided these issues in favour of the plaintiff.
The plaintiff claimed that Hazi Ekram Ullah and his wife Basirunnessa were owners in possession of total 5.329 acre by registered transfer deeds. In support his claim the plaintiff produced original and certified copies of those deeds being Nos. 4534 dated 20.11.1976, 1450 dated 01.04.1977, 36176 dated 13.12.1977, 36177 dated 13.12.1977, 4828 dated 20.12.1977, 4829 dated 20.12.1977, 7367 dated 27.09.1978, 25 dated 02.01.1983, 4277 dated 01.12.1977, 2397 dated 10.07.1980, 5043 dated 04.12.1978 and 1248 dated 10.03.1991 and those were marked as Exhibit Nos. 4, 4(Ka)-4(Neo) and 5 without any objection from the defendants. On perusal of those deeds, it appears that the mother and father of the plaintiff and
predecessor of defendant Nos. 1-3 acquired title to total 5.329 acre land and after their death their son, the plaintiff inherited 2.6625 acre land, defendant No. 1 and Khairunnessa as daughters inherited 1.33125 acre land each and after death of Khairunnessa, her one son (defendant No. 2) inherited .8875 acre land and one daughter (defendant No. 3) inherited .3375 acre land as per Mahmedan Law of Inheritance. Entitlement of the shares, as above, is not disputed by the parties. It is also admitted that the plaintiff transferred .62 acre land from his share to other defendants and he remained in ownership of 2.0425 acre land. The trial Court allotted said 2.0425 acre land in the saham of the plaintiff as co-sharer by inheritance. The contesting defendant- appellants admitted said saham and did not challenge such entitlement in this appeal.
Defendant-appellant Nos. 40-41 produced certified copies of registered sale deed No. 8172 dated 18.12.2000 and No. 1077 dated 23.2.2009 which were marked as Exhibit Nos. Kha and Kha (1). By those deeds they purchased the shares of defendant Nos. 1-3 measuring total 2.27875 acre land. Admittedly, defendant Nos. 40-41 are stranger- purchasers. The trial Court allowed the application of the plaintiff filed under section 4 of the Partition Act and deducted .7950 acre land from 2.27875 acre land and allotted 1.48375 acre land in the saham of defendant Nos. 40-41, the appellants, as co-sharer by purchase and allotted said .7950 acre land in the saham of the plaintiff holding that .7950 acre land is a part and parcel of his dwelling house. The plaintiff by admitting the allotments as above did not prefer any appeal. But defendant Nos. 40-41 have only challenged the impugned judgment so far it relates to allotment of .7950 acre land in favour of the plaintiff by way of buy up under section 4 of the Partition Act.
Section 4 of the Partition Act was enacted to afford a special opportunity to a co-sharer of an undivided homestead or dwelling house against a stranger purchaser for buying up his share through the Court. The object of this legislation is to preserve the sanctity of an undivided dwelling house against the intrusion of stranger on the basis of purchase of a portion of such a dwelling house from a co-sharer or some of the co-sharers. This was obviously to safeguard the interest of the existing co-sharer or co-sharers against forcing entry into an undivided dwelling house by a stranger by providing an opportunity to buy up the share purchased by a stranger thereto. This is indeed a beneficial legislation for the co-owners of an undivided homestead or dwelling house against the onslaught of an outsider. The object of this legislation is reasonable and it is quite in consonance with the principle of equity, justice and good consonant. [Ref: Promita Sen vs. Chitra Rani Dey 52 DLR 219 ]
The right of pre-emption in relation to a dwelling house as envisaged and authorized in section 4 of the Partition Act is exercisable by a member of an undivided family not only when a stranger transferee figures as a plaintiff, but also a defendant in a partition suit, and claims a saham out of the homestead (Ref: Bhaba Kanta Joddar and others vs. Satish Chandra Mondal and others 12 DLR 649).
In Sree Jugal Kishori Sarker vs. Azizur Rahman and others 40 DLR (AD) 150 the Hon’ble Appellate Division endorsed the view taken in Damodar vs. Banwarilal A.I.R 1960 Cal. 467. As to the meaning of dwelling house for the purpose of section 4, it was noticed in Damodar as follows:
“The terms ‘house’ or ‘dwelling house’ are ambiguous terms and for the purpose of section 4 of the Partition Act must be liberally construed. The terms should be taken to mean not only the structure or building but also adjacent buildings, garden, courtyard, orchard, and all that is necessary for the convenient occupation of the house.”
As per section 2(14) of the State Acquisition and Tenancy Act “homestead” means a dwelling house with the land under it, together
with any courtyard, garden, tank, place of worship and private burial or cremation ground attached and appertaining to such dwelling house,
and includes any out-buildings used for the purpose of enjoying the dwelling house or for purposes connected with agriculture or horticulture and such lands within well-defined limits, whether vacant
or not, as are treated to be appertaining thereto.
In the instant case, the plaintiff specifically claimed that .08 acre
land of S.A plot No. 1819 and .29 acre land of S.A plot No. 1563 i.e total
.37 acre land is covered by the residential home of the plaintiff where
he is living with his family members. He further claimed that .7450 acre
land of S.A plot No. 1564 and .20 acre land of S.A plot No. 1819 are
ponds and .52 acre land is palan land (courtyard) and those ponds and courtyard are part and parcel of his dwelling house. As per claim of the plaintiff (.29+.08+.7450+.20+.52=) 1.8350 acre land is a compact area
and homestead of the plaintiff. Defendant Nos. 1-3 transferred .7950
acre out of said 1.8350 acre land to defendant Nos. 40-41.
In support of his claim the plaintiff as P.W.1 deposed, “1563 c¡−Nl
29 nw 1819 c¡−Nl 8 naL S¢j−a a¡l hpah¡s£z h¡s£l f¢ÕQ−j 1564 c¡−N f¤L¥lz c¢r−e f¡m¡e J f¤L¥l B−Rz M af¢Rm S¢j ®b−L ¢LR¤ S¢j ¢hœ²u L−lz HLl¡j M¡ jl−e 1 f¤œ J 2 LeÉ¡ b¡−Lz 1 ®j−u jl−Z 2/3 ew ¢hh¡c£ B−Rz Bj¡l 2 ®h¡e ü¡j£l h¡s£−a b¡−Lz a¡l¡ p−lS¢j−e e¡¢mn£ S¢j cMm L−l e¡Cz B¢j e¡x S¢j cMm L¢lz 1-3 ew ¢hh¡c£ ®k S¢j ¢hœ²£ L−l−R a¡ a¡l¡ cMm L−l e¡z B¢j I S¢j h¡−V¡u¡l¡ BC−el 4 d¡l¡ Ae¤k¡u£ M¢lc L¢l−a Q¡Cz” In cross-examination by the defendants he did not deviate from his aforesaid assertion. P.W.2 Jamal Uddin, who is a neighbor, deposed,
“HLl¡j M¡ jl−e 1 f¤œ h¡c£ 2 ®j−u b¡−Lz h¡c£ pj ¤cu S¢j h¡s£ f¤L¥l cMm L−lz ¢hh¡c£l¡ cMm L−l e¡Cz a¡l¡ k¡−cl L¡−R ¢hœ²£ L−l−R a¡l¡J cMm L−l e¡C z” P.W.3, Piar Ali
stated in his deposition, “HLl¡j M¡l ®j−ul¡ a¡−cl ü¡j£l h¡s£−a b¡−Lz a¡l¡ ¢fa¡l
S¢j cMm L−le¡z j−e¡l”e ®O¡o e¡x S¢j cMm L−l e¡z ” In cross-examination he
stated, “h¡c£ ph S¢j cMm L−lz ®h¡−el¡ j¡¢mL z LuV¡ c¡N ¢e−u j¡jm¡ S¡¢ee¡z a¡l 4/5
V¡ q−a f¡−lz ph S¢j B¢j ¢Q¢e z ph S¢j ¢e−u j¡jm ¢Le¡ S¡¢e e¡z”
D.W.1, Md. Mizanur Rahman is defendant No. 41. He stated in
his cross-examination, “1563 c¡−N HLl¡j p¡−q−hl hpa h¡s£z 1819 c¡−Nl c¢r−el S¢j f¡m¡e ¢qp¡−h hÉhq©a quz a¡l c¢r−e f¤L¥lz hpa h¡s£l f¢ÕQ−j f¤L¥l B−Rz H…−m¡ h¡s£l f¡−nz HLl¡−jl ®R−m h¡c£ I …−m¡ M¡C−a¢Rmz B−f¡o h¾Ve LMe qu S¡¢e e¡z h¡c£l ®h¡−el¡ p−lS¢j−e S¢j cMm Lla e¡z h¡c£l ®h¡e, i¡−NÀ-i¡¢NÀ Awn f¡−h, a¡−cl ®b−L Bjl¡ ¢L−e¢Rz e¡j M¡¢l−Sl ®e¡¢Vn ¢cu¡¢Rm ¢Le¡ S¡¢e e¡z Bjl¡ p−lS¢j−e cMm L¢l e¡z”
On a careful perusal of the above testimonies of P.Ws and D.W 1
it has proved that the plaintiff, after the death of his father, got possession of the dwelling house, ponds and palan land (courtyard) and
has been residing in the dwelling house. It has further proved that defendant No.1 and Khairunnessa (predecessor of defendant Nos. 2-3)
got married and they had been living elsewhere and could not get
physical possession of their paternal property. As per admission of D.W.
1, after purchase from defendant Nos. 1-3, defendant Nos. 40-41 could
not get physical possession of their purchased land and the suit
property has never been partitioned by metes and bounds.
During trial, at the instance of the plaintiff, Mr. Rafiqul Islam learned Advocate was appointed for holding local investigation of the suit property who, after investigation, submitted his report on 17.8.2010. The learned Advocate Commissioner deposed before the trial Court and proved his report, field book and sketch map which were marked as Exhibit X Series. He deposed that after serving notice upon the learned Advocates, he physically went to the suit property and held local investigation as per writ on 11.8.2010 and submitted the report on 17.10.2010. In his cross-examination he stated that he went to the suit property in-person and he measured the suit plots and both parties identified the suit land. He denied the suggestion that he mentioned the quantum of land upon assumption or he submitted the report beyond the writ. In his report (Exhibit X) learned Advocate Commissioner stated that he found two tin shed house, one latrine, one bathroom and one tube well as well as fruit bearing and other trees in total .37 acre land appertaining to .29 acre land of S.A plot No. 1563 and .08 acre of S.A plot No. 1819. He found two ponds; one measuring .20 acre land appertaining to S.A plot No. 1819 and another measuring .7450 acre land appertaining to S.A plot No. 1564. He also found a palan land (courtyard) measuring .52 acre appertaining to S.A plot No. 1819. He showed the homestead, ponds and palan land in his sketch map [Exhibit X(1)] with different colours and with reference to concerned S.A and R.S plots. The contesting defendants could not disprove contents of the report of the Advocate Commissioner by adducing any evidence. On perusal of the report and sketch map it appears that the courtyard (.52 acre land) and ponds (.9450 acre land) are adjacent to the dwelling house (.37 acre land) and comprised of a compact area adjacent to each other and accordingly, we are of the view that total 1.4650 the ponds and courtyard are appertaining to the dwelling house of the plaintiff and comes within the definition of “homestead” under section 2(14) of the State Acquisition and Tenancy Act.
From the testimonies of the P.W.s and D.W.1 it is clear that total 1.8350 acre homestead has been possessing by the plaintiff and said property has not been partitioned by metes and bounds on any point of time before institution of the suit. Defendant Nos. 1-3 have been residing elsewhere with their respective family members and they never got possession of the suit land and after purchase of the shares of defendant Nos. 1-3 measuring .7950 acre land out of 1.8350 acre land defendant Nos. 40-41, who are admittedly stranger-purchasers, could not get physical possession from them. Moreover, the plaintiff has been possessing the same as a part of his dwelling house. Accordingly, we are of the view that the plaintiff is entitled to buy up the shares of defendant Nos. 1-3, measuring .7950 acre land, under section 4 of the Partition Act.
Learned Advocate for the appellants submitted that the application under section 4 of the Partition Act was barred by limitation. In this regard the case of Sayesta Bibi and others vs. Juma Sha and others 42 DLR (AD) 53 is relevant in which the hon’ble
Appellate Division held as follows:
“There is no time limit for filing an application under section 4 of the Partition Act…………..If an application under section 4 of the Partition Act is filed to buy-out a stranger- purchaser after an inordinate delay from the date of the purchase then the applicant himself may suffer. When an applicant’s prayer is allowed under section 4 of the Partition Act it involves a kind of forced sale for the stranger-purchaser. And hence the Court would in equity determine the valuation of the transferred share on the date of the filing of the application for permission to purchase the share of the stranger purchaser.
By now it is well settled that there is no time limit for filing an application under section 4 of the Partition Act but if filed after an inordinate delay from the date of the purchase, and is allowed by the Court, the valuation of the transferred share is to be determined on the date of the filing of the application.
Learned Advocate for the appellants further contended that the plaintiff is not entitled to get any relief as the application filed under section 4 of the Partition Act was not registered as a ‘miscellaneous judicial case’ in view of the provision under rule 774 of the Civil Rules and Orders. It is true, under sub-rule (36) of rule 774 of the C.R.O the cases under sections 2, 3 and 4 of the Partition Act are to be registered as miscellaneous judicial cases. On perusal of the evidence on record it appears that the defendants contested the application by filing written objection and both parties adduced evidence to prove their respective claim. Accordingly, non-registration of the application as a “miscellaneous judicial case” under rule 774 of the C.R.O was a mere technical error for which the defendants were not prejudiced and no injustice was caused. As such, we find no substance in the submission of the learned Advocate for the appellants on this point.
On perusal of the impugned judgment and decree, it appears that the trial Court upon proper appreciation of the evidence and materials on record found that the suit was maintainable and decreed the suit by allowing the application of the plaintiff filed under section 4 of the Partition Act and as such, interference is not called for by this Court.
Accordingly, we find no merit in this appeal.
In the result, the appeal is dismissed, however without any order as to costs.
The order of stay granted in the Civil Rule is hereby vacated. Consequently, Civil Rule No. 784 (F) of 2012 is discharged.
Send down the L.C.R along with a copy of this judgment to the Court below at once.
(Justice Md. Badruzzaman)
I agree.
(Mr. Justice Sashanka Shekhar Sarkar)