Present:

                               Mr. Justice Sheikh Abdul Awal

and

                               Mr. Justice Md. Mansur Alam

                               First Appeal No. 381 of 2009

                               In the  Matter of:

                               Memorandum of appeal from the original decree.

-and-

                               In the Matter of:

                               Mossammat Maleka Begum and others.

                               .....Defendant-appellants.

        -Versus-

                               Most. Jarina Begum and others

                   ...Plaintiff-respondents.

                               Mr. S.M. Obaidul Haque, Advocate

……. For the appellants.     Mr. Md. Sajjad Ali Chowdhury, Advocate with     Mr. Md. Fazla Rabby, Advocate

    ......For the respondent Nos. 1 and 2

Heard on 07.11.2024 and 14.11.2024 and Judgment on 27.11.2024.

Sheikh Abdul Awal, J:

This first appeal at the instance of the defendant-appellants is directed against the judgment and decree dated 28.10.2009 (decree signed on 02.11.2009) passed by the learned Joint District Judge, 1st. Court, Rangpur in Other Class Suit No. 10 of 2002 decreeing the suit.

Material  facts  of  the  case,  briefly,  are  that  respondents  as plaintiffs filed Other Class Suit No. 10 of 2002 in the Court  of learned Joint District Judge, 1st Court, Rangpur for declaration of

title and partition of .58  acre land out of 1.17 acre  land as

described  in  the  "Ka"  schedule  to  the  plaint.  The   plaintiff- respondents’  case  in  short  is  that  Tufan  Sheikh  was  owner  in possession in 50 acre land in Plot 3374 and 0.67 acre land in Plot

3464 corresponding to CS Khatian 1060 (Exhibit- Kha) and the land in total was 1.17 acre. Tufan Sheikh died leaving behind 2 daughters named Azizon and Mofizon. Md. Asan is the husband of Azizon and he was entrusted for preparation of SA record of the land in question but he deceived Mofizon and prepared the SA record in respect of the entire suit land in the name of his wife Azizon. Mofizon, who was the mother of plaintiff No. 1, she maintained in joint possession in the suit land. In this background after the death of Mofizon her heirs being plaintiffs 1-8 having been possessed  the suit land, who went to the Tahsil Office on 25.05.2000 for payment of rent but Tahsilder informed that they could not pay the rent because the SA record was prepared in the name of Azizon. Soon thereafter the plaintiffs  demanded  partition  on  27.05.2000  but  the  defendants refused to do so and hence the  suit for declaration of title and partition.

Defendant-appellant Nos. 2-4 entered appearance in the suit and  filed  written  statements  denying  all  the  materials  averments made in the plaint stating inter alia that the suit is not maintainable in its proper form and manner. The suit is bad for defect of parties, all properties are not brought into hotchpotch. The suit is barred by section 42 of the Specific Relief Act. The defendants’ case in brief is that   Tufan Sheikh was the owner in possession over 1.17 acre land and  he died leaving behind 1 son and 2  daughters  Azizon  and Mofizon and his son died without any issue. Mofizon as daughter of Tufan Sheikh as well as the predecessor of the plaintiffs died leaving behind 1 son Mozaffar and 1 daughter named Jorina. Mofizon died before 15.07.1961. Tufan Sheikh during his lifetime settled the suit land in favour of his only daughter Azizon on 25th Kartik 1360 B.S. and delivered possession to her and accordingly, SA Khatian 1036 was prepared. Plaintiffs have/had no title and possession in the suit

land. Upon request of the plaintiffs some local persons asked Azizon to give share to her sister and accordingly she gave eight anna shares in favour of Jorina and Mozaffor in SA Khatian 1319 (Exhibit- Kha) which  covers  an  area  of  60  acre.  Azizon  sold  33  decimal   to defendant-1, Azizon also transferred 81 decimal of land out of 1.17 acre of land in favour of defendants 3-4 by virtue of a Heba bil Awaz document dated 29.11.1973 (Exhibit- Gha). Accordingly defendant Nos.  3-4  mutated  their  names  and  having  been  maintaining possession upon payment of rent, Exhibit- Uma series. Azizon also made a gift for the rest 36 decimal of land in favour of her son Aziruddin  defendant-1.In  this  way  the  defendants  have  been maintaining title and possession in the suit land. The plaintiffs filed the suit on false averments, which is liable to be dismissed. During pendency of the suit defendant No. 3 died and his heirs were duly substituted, who also filed a written statement adopting the earlier written statements.

On considering the pleadings of the parties the learned trial Judge framed as many as 5 issues such as maintainability of the suit, defect of parties, hotchpotch, whether plaintiffs have right title and  interest  in  the  suit  land,  whether  the  plaintiffs  can  get  any reliefs, as prayed for.

At the trial the plaintiffs examined 3 witnesses and defendants examined 4 witnesses and adduced some documentary evidence to prove their respective cases.

The trial court on consideration of the facts and circumstances of the case and evidence on record decreed the suit by the impugned judgment and decree dated 28.10.2009.

Being  aggrieved  the  unsuccessful  defendants  preferred  this first appeal before this court.

Mr. S.M. Obaidul Haque, the learned Advocate appearing on

behalf of the appellants contends that the learned Judge of the trial

court had a misconception of law as to the principles of hotchpotch

and defect of parties thereby committed an error of law in coming to

a finding that the plaintiffs are entitled to get a decree in respect of 58.5   decimals  of   suit  land  .  Mr.  S.M.  Obaidul  Haque  further contends that Law is by now well settled that Plaintiff in order to

succeed must establish his own case to obtain a decree and weakness

of defendant's case is no ground for passing a decree in favour of the

plaintiff and in this case, it is on record that the plaintiffs to prove

their suit for declaration of title and partition could not adduce any

documentary evidence at all and admittedly in this case the plaintiffs

did not bring all the joint properties into hotchpotch inasmuch as

PW-1 stated in his deposition that- h¡hm¤ ¢ju¡, A¡î ¡p ¢ju¡, eSl¦m Cpm¡j

hl¡hl A¡j¡l ü¡j£ 33 naL pÇf¢š qÙ¹¡¿¹l L¢lu¡¡¢R z ¢p, Hp 1319 M¢au¡­el pÇf¢š

c¡h£ L¢l e¡C Hhw Aœ j¡jm¡ qQf­V A¡¢e e¡C z Ef­l¡š² hÉ¢š²­cl Aœ j¡jm¡u fr

L¢l e¡C z although the trial court below without considering all these 

vital aspects of the case most illegally decreed the suit.

The learned Advocate further submits that the defendants

claimed Mofizon died before Muslim Family Laws Ordinance, 1961

came into force on 15.07.1961 and in this context PW- 1 herself

admitted in cross on 23.02.2005 that " A¡j¡l ü¡j£l 3-4 hRl hu®p A¡j¡l

nÄ¡ös£ j¢gSe  j¡l¡ z A¡j¡l ü¡j£ 50 hvpl hu®p j¡l¡ ¢Nu¡®R z A¡S q®a

8 hvpl A¡®N j¡l¡ ¢Nu¡®R z ®pC ¢qp¡®h A¡S q®a 54 hvpl A¡®N j¢gSe ®eR¡ j¡l¡ ¢Nu¡®R z " which suggests that Mofizon died in 1951 and as such, the

plaintiffs being heirs of Mofizon Nesa have acquired nothing as per

Muslim Family Laws Ordinance, 1961 and the findings of the trial

court that defendants could not prove the date of death of Mofizon is

contrary to the evidence on record. Finally, the learned Advocates

submits  that the  defendant-appellants  filed  written  statement  on 02.06.2004 in which in paragraph 9 the Heba-bil-Awaz document dated 21.11.1973 was introduced and the original of the document dated  21.11.1973  marked  in  evidence  as  Exhibit-  Gha  but  the plaintiffs  did  neither  challenge  the  said  registered  document  by amendment of their pleadings nor prayed any relief against such document and it is on record that this is not only a suit for partition simpliciter but also a suit for declaration of title and until and unless title is ascertained and declared in accordance with law, the partition can't be given. He adds that the Exhibit- Gha stands as a bar against the relief of the plaintiffs because law is settled that a registered document carries presumption until the same is rebutted by cogent and reliable evidence and in the instant case there is no pleading on behalf of the plaintiff-respondents against “Exhibit- Gha”  and  as such “Exhibit- Gha” remains unharmed and stands good and unless “Exhibit- Gha” is dislodged the instant suit for declaration of title and partition can't be decreed but the learned trial Court did not consider  it  thereby  wrongly  decreed  the  suit  upon  fanciful consideration and as such at any rate the impugned judgment and decree  is  liable  to  be  set-aside.  The  learned  Advocate  for  the appellants  to  fortify  his  submissions  has  relied  on  the  decisions reported in 39 DLR 237 and 8ADC760.

Mr. Sazzad Ali Chowdhury, the learned Advocate appearing on  behalf  of  the  plaintiff-respondent  Nos.  1  and  2  supports  the impugned judgment, which was according to him just, correct and proper. He submits that admittedly the plaintiffs are co-sharer and they are in ejmali possession and as such, they are entitled to get decree for partition and title. The learned Advocate for the plaintiff- respondent Nos. 1 and 2 to fortify his submission has relied on the decision reported in 10 BLC170.

These  are  the  points  which  were  argued  by  the  learned Advocates  for  the  respective  parties.  Now,  to  deal  with  the contentions raised by the parties before us it would be convenient for us to decide first how far the learned Joint District Judge, 1st Court, Rangpur was justified in decreeing the suit.

On scrutiny of the record, it appears that the respondents as plaintiffs filed  Other Class Suit No. 10 of 2002 in the Court of learned  Joint  District  Judge,  1st  Court,  Rangpur  impleading  the appellants as defendants praying the following reliefs:

It  further  appears  that  the  defendant  Nos.  2-4  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 proper form and manner. The suit is bad for defect  of  parties,  all  ajmali  properties  are  not  brought   into hotchpotch. The suit is barred by section 42 of the Specific Relief Act. At the trial the plaintiffs examined 3 witnesses and defendants examined 4 witnesses and adduced some documentary evidence to prove their respective cases. The trial court on consideration of the

facts and circumstances of the case and evidence on record decreed

the suit by the impugned judgment and decree dated 28.10.2009.

The learned trial Judge  found that the death Certificate of

Tufan Sheikh “Exhibit- “Chha” ( was collusively obtained after

filing of the suit and there is no proof to show that Mofizon died

before 15.07.1961 and also found that the settlement as claimed by

the defendants was not proved in evidence.

On scrutiny of the record, it is found the defendants claimed

that Mofizon died before the Muslim Family Laws Ordinance, 1961

came into force on 15.07.1961 and in this context PW- 1 herself

admitted in cross on 23.02.2005 that " A¡j¡l ü¡j£l 3-4 hRl hu®p A¡j¡l

nÄ¡ös£ j¢gSe ®eR¡ j¡l¡ ¢Nu¡®R z A¡j¡l ü¡j£ 50 hvpl hu®p j¡l¡ ¢Nu¡®R z A¡S q®a 8 hvpl A¡®N j¡l¡ ¢Nu¡®R z ®pC ¢qp¡®h A¡S q®a 54 hvpl A¡®N j¢gSe ®eR¡ j¡l¡ ¢Nu¡®R z " and this admission of PW-1 speaks that Mofizon died in

1951 and as such the plaintiffs being heirs of Mofizon Nesa have

acquired nothing but the learned trial judge did not consider it from

a correct angle and thus the findings of the learned trial Court that

defendants  could  not  prove  the  date  of  death  of  Mofizon  was

uncalled  for   and  thus  the  learned  trial  Judge   erred  in  law  in

decreeing the suit upon wrongful consideration.

Now, let us advert to the evidence of PWs and DWs for having

a better view of the dispute in question.  P.W – 1 stated in his

evidence that - h¡hm¤ ¢ju¡, A¡î ¡p ¢ju¡, eSl¦m Cpm¡j hl¡hl A¡j¡l ü¡j£ 33

naL pÇf¢š qÙ¹¡¿¹l L¢lu¡®R z ¢p, Hp 1319 M¢au¡­el pÇf¢š c¡h£ L¢l e¡C Hhw Aœ j¡jm¡ qQf­V A¡¢e e¡C z Ef­l¡š² hÉ¢š²­cl Aœ j¡jm¡u fr L¢l e¡C zThis witness

also stated that e¡x c¡­Nl pÇf¢š­a p¡l¢je p­l¡u¡l , A¡x l¢nc, p¡¢cu¡ nq£c

hl¡hl ¢hh¡c£l¡  S¢j  ¢hœ²£  L¢lu¡­R  z f­l¡š²  hÉ¢š²l¡  e¡x  c¡­Nl  S¢j­a  hph¡p

L¢l­a­R z a¡­cl HC j¡jm¡l fr L¢l e¡C z j¡jm¡l h¡s qC­a A¡j¡l h¡s c§laÅ

LaM¡¢e h¢m­a f¡lh e¡ z P.W - 2 stated in his evidence that

u

zP.W - 3 stated in his evidence that  h¡c£ ¢hh¡c£ ¢Q¢e z

e¡x S¢j ¢Q¢e z A¡¢j ¢hh¡c£l ü¡j£l ¢eLV 1985 p¡­m .11 naL M¢lc L¢lu¡ ®i¡N cMm L¢l­a¢R z

DW - 1 stated in his evidence that

• This witness exhibited documents such

as -  

This witness also stated that  

DW – 2 stated that This witness also stated that -

DW – 3 deposed in his evidence that

• This witness also stated that -

Square DW – 4 stated in his evidence that  

Extract of death Register Extract

Extract This

witness also stated that

From a reading of the entire evidence of PWs and DWs, it appears that the plaintiffs by adducing evidence could not prove their  clear  title  and  specific  possession  in  the  suit  land.  DW-  1 deposed  the  defendants  case  in  details  and  exhibited  a  series  of documents. In cross examination the plaintiff side could not able to discover anything as to the credibility of this witness on the matter to which he testifies.

 Weighing the evidence of both the parties, we find that the evidence in defendant side is credible and tenable in Law. Findings of the trial court that the death Certificate of Tufan Sheikh (Exhibit- Chha ( was collusively obtained after filing the suit and there is no proof to show that Mofizon died before 15.07.1961 are perverse being contrary to the evidence and materials on the record inasmuch as D.W – 4 stated in his evidence that

• Extract of death

Register Extract

Extract  

Furthermore, the trial Court below having failed to consider

that the suit was not maintainable for not bringing the entire ejmali

property into hotchpotch and bad for defect of parties in spite of fact

that PW-1admited in his evidence: h¡hm¤ ¢ju¡, A¡î ¡p ¢ju¡, eSl¦m Cpm¡j

hl¡hl A¡j¡l ü¡j£ 33 naL pÇf¢š qÙ¹¡¿¹l L¢lu¡®R z ¢p, Hp 1319 M¢au¡­el pÇf¢š c¡h£ L¢l e¡C Hhw Aœ j¡jm¡ qQf­V A¡¢e e¡C z Ef­l¡š² hÉ¢š²­cl Aœ j¡jm¡u fr L¢l e¡C z

There is another aspect of the matter to which we think the attention of the trial Court ought to have been drawn. It is found that the defendant-appellants filed written statement  on 02.06.2004 in which in paragraph 9 the Heba-bil-Awaz document dated 21.11.1973 was  introduced  and  the  original  of  the  said  document  dated 21.11.1973 was tendered and marked in evidence as Exhibit- Gha but the  plaintiffs  did  neither  challenge  the  registered  document  by amendment  of  their  pleading  nor  prayed  any  relief  against  such document and it is on record that this is not only a suit for partition simpliciter but also a suit for declaration of title and until and unless title is ascertained and declared in accordance with law partition can't be granted and it transpires that this document stands as a bar against the relief of the plaintiff-respondents because law is settled that a registered document carries presumption until the same is rebutted by cogent and reliable evidence and in the instant case there is no pleading on behalf of the plaintiff-respondents against Exhibit- Gha (Heba-bil-Awaz) and as such Exhibit- Gha remains unharmed and stands good and unless Exhibit- Gha is dislodged the instant suit for declaration of title and partition can't be decreed although the learned Trial Judge erred in law and fact as he failed to properly evaluate the evidence  on  record  thereby  reaching  a  wrong  decision  that  the plaintiffs have been succeeded to prove their case and accordingly decreed the suit against the defendant appellants, which occasioned a miscarriage of justice.

In a suit for partition, Civil Court cannot go into the question of  title,  unless  the  same  is  incidental  to  fundamentals  of  claim. In this case it is found no family partition has not ever been made between the parties and plaintiffs’ possession and title in the suit property is not clear and specified, who are not entitled to get a decree for partition.

For the foregoing reasons stated above, both on law and fact, we hold that the judgment and decree of the trial Court is liable to be set aside. Consequently, the appeal succeeds.         In the result, the appeal is allowed. The judgment and decree dated  28.10.2009  (decree  signed  on  02.11.2009)  passed  by  the learned Joint District Judge, 1st. Court, Rangpur in Other Class Suit No. 10 of 2002 decreeing the suit is set-aside and thus the suit being Other Class Suit No. 10 of 2002 is dismissed without any order as to costs.

Since the appeal is allowed, the connected Rule being Civil Rule No. 10(F) of 2010 is disposed of. The order of stay granted earlier by this Court stands vacated.

Let a copy of this judgment along with lower Courts’ record be sent down at once.

Md. Mansur Alam, J:

I agree.