IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice S M Kuddus Zaman

CIVIL REVISION NO.688 of 2002. In the matter of:

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

And

Rakhal Chandra Majumder

                 ...Petitioner

-Versus-

Lalita Bala Majumder and others and others

           ...opposite parties

Mr.  Sherder  Abul  Hossain, Advocate

        ...For the petitioner

No one appears

   ...For the opposite parties.    

Heard on 07.11.2024 Judgment on 10.11.2024.  

This  Rule  was  issued  calling  upon  the opposite parties to show cause as to why the  judgment  and  decree  dated  17.06.2001  of  the learned Subordinate Judge and Artha Rin Adalat Noakhali in Title Appeal No.37 of 1990 affirming those dated 22.02.1990 of the learned Assistant Judge, Companiganj, Noakhali in Title Suit No.33 of 1988 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 declaration that  the  judgment  and  decree  passed  by  the learned Upazila Munsif, Companiganj in Title Suit No.357 of 1983 on 13.12.1983 is void, illegal and not binding upon the plaintiff.

It was alleged that Lalita Bala Majumder was the rightful owner and possessor of the disputed land who transferred the same to the plaintiff by a registered voguttar deed on 23.10.1976 and the plaintiff is in possession in above land by constructing a dwelling house. But the defendant as  plaintiff  of  Title  Suit  No.357  of  1983 obtained  an  ex-parte  judgment  and  decree  on 13.12.1983 by suppression of summons of above suit and registered deed of the plaintiff. Above defendant also fraudulently created Misc. Case No.15 of 1985 under Order 9 Rule 13 of the Code of Civil Procedure showing this plaintiff as petitioner  for  setting  aside  above  ex-parte judgment and decree of Title Suit No.357 of 1983. But actually this plaintiff did not file above Misc. Case under Order 9 Rule 13 of the Code  of  Civil  Procedure.  On  02.05.1888  the defendant  disclosed  the  existence  of  above impugned ex-parte judgment and decree of Title Suit No.357 of 1983.

 Defendant contested the suit by filing a written statement alleging that the defendant is an illiterate village woman of 90 years of age and she did not have any son. She has only one daughter who is living in the house of her husband. Defendant acquired 70 decimal land by inheritance  from  her  deceased  including  his dwelling house. The plaintiff was a domestic servant of the defendant and taking advantage of helplessness of the old and illiterate defendant the plaintiff has created above forged registered voguttar deed. But on the basis of above forged document plaintiff never got possession of the disputed land. After getting information about above forged document the plaintiff instituted Title Suit No.357 of 1983 and obtained impugned judgment and decree ex-parte in accordance with law.    

 At trial plaintiff and defendant examined two witnesses each and documents produced and proved by the plaintiff were marked as Exhibit No.1-2  but  defendant  did  not  exhibit  any document.

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 learned Assistant Judge the plaintiff as appellant preferred Title Appeal No.37 of 1990 to the District Judge, Noakhali which was heard by the learned Subordinate Judge, Artha Rin Adalat who  dismissed  the  appeal  and  affirmed  the judgment and decree of the trial court.

Being  aggrieved  by  above  judgment  and decree  of  the  court  of  appeal  below  above appellant as petitioner moved to this court and obtained this rule.

Mr. Sharder Abul Hossain learned Advocate for the petitioner submits that the plaintiff was the defendant of Title Suit No.357 of 1983 and above suit  was  decreed  ex-parte  on  13.12.1983.  No summons  of  above  suit  was  served  upon  the defendant nor he had any knowledge about above judgment and decree. For the first time the defendant  came  to  know  about  above  ex-parte judgment and decree on 29.03.1988 when defendant Padma Mala disclosed the same. Above defendant also filed Miscellaneous Case No.15 of 1985 in the name of the plaintiff under Order 9 Rule 13 for setting aside above ex-parte decree but in fact this plaintiff did not file above case. Plaintiff himself gave consistent evidence as P.W.1 in support of above claims. P.W.2 Suresh Chandra has given evidence as to the possession of the plaintiff in the disputed land and due execution of impugned registered voguttar deed. Above P.Ws were cross examined by the defendant but their evidence remained mutually supportive and credence inspiring. On the other hand the defendant did not make any endeavor to prove that the summons of Title Suit NO.357 of 1983 was properly  served  upon  the  defendant  by  legal evidence.  In  view  of  above  facts  and circumstances of the case and evidence on record the learned Judge of the court of appeal below should have allowed the appeal, set aside the flawed the judgment and decree of the trial court and decreed the suit. But the learned Subordinate Judge failed to appreciate above evidence on record properly and most illegally dismissed the appeal and upheld the erroneous judgment and decree of the trial court which is not tenable in law.        

No one appears on behalf of the opposite party at the time of hearing of this civil revision although the matter appeared in the list for hearing for several dates.

I have considered the submissions of the learned Advocate for the petitioner and carefully examined all materials on record.

It is admitted that disputed 70 decimal land belonged to defendant Padma Mala.

It is also admitted that above Padma Mala as plaintiff instituted Title Suit No.357 of 1983 for declaration that above voguttar deed dated 23.10.1976 was obtained by fraud and the same was not binding upon the plaintiff and above suit was decreed ex-parte on 13.12.1983.

While giving evidence as P.W.1 Rakhal Chandra Majumder  stated  in  cross  examination  that defendant Padma Mala is an illiterate and old village woman of 90 years of age. He has stated that above Padma Mala is a widow and she did not have any son but she has only one daughter who lives in the house of her husband. He further stated  that  above  Padma  Mala  was  not  his relative.

The plaintiff has claimed that no notice of Title Suit No.357 of 1983 was served upon him and the  defendant  in  collusion  with  the  process server of the court submitted a false service report and fraudulently obtained the impugned judgment and decree ex-parte. But the plaintiff did not call for the record of Title Suit NO.357 of 1983 to show above false or forged service of summon.

As to the date of his knowledge about above ex-parte judgment and decree plaintiff stated in the plaint that on 29.03.1988 he came to know about above impugned judgment and decree when the defendant disclosed the existence of the same. The plaintiff did not mention the place, time or the persons in whose presence the defendant made above disclosure. In his evidence as P.W.1 he further stated that he came to know about the impugned decree for the first time on 23.03.1988 which appears to be contradictory with the date of his knowledge as stated in the plaint.

The plaintiff further claimed that he did not institute Misc Case No.15 of 1985 for setting aside above ex-parte decree. But he did not call for the record of above Miscellaneous case to show that the signature of the petitioner of above  case  was  different  from  that  of  the plaintiff on the plaint of this suit.

On  consideration  of  above  facts  and circumstance of the case and evidence on record I hold  that  the  concurrently  findings  of  the learned Judges of the courts below that the plaintiff could not prove by legal evidence that defendant Padma Mala fraudulently obtained the impugned ex-parte judgment and decree of Title Suit No.357 of 1983 by suppression of summon of the plaintiff or she fraudulently filed Misc. Case No.15 of 1985 under Order 9 Rule 13 of the Code of Civil Procedure in the name of the plaintiff  for  setting  aside  above  ex-parte judgment and decree are based on evidence on record and in the absence of any allegation of non consideration or misreading of any material evidence on record this court cannot interfere with above concurrent findings of facts in its revisional jurisdiction.

In above view of the materials on record I am unable  to  find  any  substance  in  this  civil revision and the rule issued in this connection is liable to be discharged.             

In the result, the Rule is discharged without any order as to costs.     

Let the lower Court’s record along with a copy of this judgment be transmitted down to the Court concerned at once.

Md. Kamrul Islam Assistant Bench Officer