IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISIOIN

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Moinul Islam Chowdhury

CIVIL REVISION No. 2937 of 1992 Golam Taher Mridha and others

---------- Petitioners. -Versus-

Golam Quddus Mridha and others

---------- Opposite parties.

Mr. Nitai Roy Chowdhury with

Mrs. Jusna Maher Chowdhury, Advocates ---------- For the petitioners.

Mr. Imam Khaled Rahim, Advocate ---------- For the Opposite Parties.

Hard on and Judgment on: 04.12.2016

At the instance of the present defendant-respondent-petitioners, Md. Golam Taher Mridha, this Rule was issued calling upon the opposite party Nos. 1-4 to show case as to why the impugned Judgment and decree dated 21.07.1992 passed by the Subordinate Judge, Magura in Title Appeal No. 21 of 1990 reversing the judgment and decree dated 30.11.1989 passed by the Assistant Judge, Mohammadpur in Title Suit No. 184 of 1987 should not be set aside.

The relevant facts for disposal of this Rule, inter-alia, are that the present opposite party Nos. 1-4 as the plaintiffs filed the Title Suit No. 184 of 1987 for a declaration of title, and confirmation of possession upon the suit land described as schedule ‘Ka’ land and partition for schedule ‘Kha’ land of the plaint. The plaintiffs case is that the land originally belonged to one Moksed Mridha, who died leaving behind 4 sons 6 daughters and 2 wives as legal heirs. One of wives Moksed Mridha sold of portion of land

to the defendant No. 4 on 16.06.1980 and Moksed daughter Rasheda Begum sold her share on 08.04.1982 to the present plaintiff opposite party Nos. 1-8 and similarly other daughter also sold to the plaintiff opposite party Nos. 1 and 3 on 18.05.1982 thereby plaintiffs filed the suit for decree for title and possession upon the land measuring 793 decimals of land out

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of total land measuring 2.18 acres described as schedule ‘Ka’ in the plaint.

The suit was contested by the present defendant petitioners by filling the written statement contending that the suit land original belong to one Moshammat Hossne Ara Khatoon and thereafter, upon to her son Golam Moksed Mridha who died leaving behind 4 sons (defendant Nos.1-4), 6 daughters and 2 wives. The plaintiffs fail to mention about the succession of land under the Mohammadan law therefore, the claim of the plaintiff should fail.

After hearing the parties the learned Assistant Judge, Mohammadpur Magura, decree the suit in part on 30.11.1989 declaring 50 decimals of land. Being aggrieved the present plaintiffs as the appellant filed the Title Suit No. 21 of 1990 in the court of learned District Judge, Magura, which was heard by the then subordinate Judge, who allowed the appeal by his judgment and decree dated 21.07.1992 decreeing for the land measuring

793 decimals. This revisional application has been filed challenging the

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said judgment and decree and the Rule was issued thereupon.

Mr. Netai Roy Chowdhury, the learned Advocate appearing for the present petitioners submits that the learned Appellate Court failed to consider the defendants specific case that the plaintiff included more land in the kabala than that of the share and the learned Appellate Court without adverting the same, allowed the appeal, as such, committed an error of law resulting in an error in the decision occasioning failure of justice.

The learned Advocate also submits that the learned appellate court without discussing the respective kabala deed dated 12.06.1980, 08.04.1982 and 18.05.1982 allowed the appeal of the plaintiffs for 793

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decimals of land which is wrong and thus the learned Appellate Court committed an error of law resulting in an error in the decision occasioning failure of justice. The present petitioners are the sons and daughters of Moksed Mridha and on 25.05.1967 their father sold 50 decimals from Dagh No. 483 in favour of one Badrudozza, as such, the present plaintiff opposite parties have only inherited 50 decimals.

The Rule has been opposed by the present opposite parties.

Mr. Imam Khaled Rahim, the learned Advocate submits that after considering the evidence both in oral and documentary forms both the courts below concurrently found ownership of land as stated in the plaint by the plaintiff opposite parties.

However, the learned trial court committed an error of law as to the deed dated 25.05.1967, therefore, erroneously reduced the measurement of

land from 793 decimals to 50 decimals which is an utter mistake of reading

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of the facts as it appears from the judgment of the learned appellate court below noticed the above mistake and thereby came to a right conclusion as to the measurement of land and corrected the total land claimed by the present plaintiff opposite parties, as such, the Rule is liable to be discharged.

The learned Advocate also submits that the present plaintiff opposite parties filed the title suit describing schedule ‘Ka’ land for declaring title and confirmation of possession upon 793 decimals out of 0.84 decimal and

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in the schedule ‘Kha’ share partition of total land measuring 2.18. The learned appellate court below properly considered the documents adduce and produce by the parties and hotchpots and calculating for the partition of the land declared the suit land measuring 793 decimals as such there is no

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legality in the judgment and decree, thus the Rule should be discharged.

Considering the above submission made by the learned Advocates and also considered the application filed under section 151(1) of the Code of Civil Procedure along with its annexure, in particular, the impugned judgment and decree passed by the appellate court below and also considered the lower court records, it appears to me that the present opposite parties as the plaintiff filing the title suit claiming title, confirmation of possession and also for partition of the suit land from the schedule ‘ka’ of the plaint.

It also appears that the admitted position is that one Moksed Mridha was the original owner of the suit land and who died leaving behind 4 sons 6 daughters and 2 wives as his legal heirs. However, there are disputes between the parties about the succession of land and transfer of land among the heirs of the said Moksed Mridha.

The above mentioned disputed matters should be resolved first. In this regard I have carefully examined the sale deed executed by Moksed Mridha on 25.05.1967 in favour of one Badruzzaman from Dag No. 483, where, as the present plaintiff opposite parties, Claimed that one heir of the said Moksed Mridha sold a portion of land by the deed dated 16.06.1980 and Moksed daughter Rashida Khatoon sold her portion of land by the deed dated 08.04.1982 and other daughters of Moksed Mridha also sale land in favour of plaintiff-opposite parties No. 1-3 by the deed dated 18.05.1982, as such, the plaintiff-opposite parties became owners and possessor of the suit land measuring 793 decimals.

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I have considered the judgment passed by the learned trial court who reduce the land from 793 decimals to 50 decimals by wrongly mentioning

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that by the deed dated 25.05.1967 Moksed Mridha executed deed in favour of the plaintiff-opposite parties, whereas the admitted position of the both the parties is that the deed was executed in favour of one Badroduzza regarding the land measuring 50 decimals.

There is a misreading on the part of the learned trial court as to the said document and the factual aspects of the case. The above given wrong finding has been noticed by the learned appellate court below, who lawfully examined the said document and rightly found that the suit judgment and decree passed by the learned trial court made a mistake as to the deed dated 25.05.1967 and stated that the document has given entitlement to one Badroduzza. The learned appellate court below correctly

found that the present plaintiff opposite parties claim the above 793

4 decimals measurement of land is established pursuant to the deeds dated

12.06.1980 (16.06.1980) dated 08.04.1982 and 18.051982. In the above circumstances, it is clearly that the plaintiff-opposite parties have succeed to prove their entitlement upon the land pursuant to the said deed and also

could prove the possession upon the land measuring 793 decimals of land.

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As such there is no illegality in the impugned judgment.

The learned trial court came to finding on the basis of mistake, non considering and misreading the factual aspects of this case, however, he preliminary decreed the suit in favour of the present plaintiff-opposite parties. The learned trial court came to a conclusion on the basis of the following findings:

“GLb †`Lv hvK Dfq c¶ Zvnv‡`i †gvKÏgvi `vex cÖgv‡Y KZUyKz m¶g n‡q‡Qb| ev`x c‡¶ 3Rb Ges weev`x c‡¶ 3Rb mv¶x mv¶¨ cÖ`vb K‡i‡Qb|

ev`vxi `wjj ch©v‡jvPbv K‡i †`Lv hvq †h, Zvi wjj Bs 25/05/1967

Zvwi‡Li Ges D³ `wj‡ji ci ev`xi bv‡g Gm, G †iKW© †`Lv hvq Ges 25/05/1967 Zvwi‡Li `wj‡j 0.50 kZK Rwg †`Lv hvq | myZivs ev`x D³ As‡ki eve`B wWµx cvB‡Z AwaKvix nB‡Z‡Q| weev`x c‡¶i wjj ¸wj

cieZ©x‡Z nBqv‡Q weavq Ges Zvnviv bv: Rwg‡Z kwiK weavq Zvnv‡`i wnm¨v Abyhvqx Ask cvB‡Z AwaKvix nB‡Z‡Q| ”

The learned appellate court below came to the concurrent finding in favour of the present plaintiff-opposite parties by modifying the decree of the trial court on the basis of the following findings:

“weev x-†imcb‡W›U c‡¶i 25 -05-1967Bs Zvwi‡Li †iwRw÷« Kejv `wjj gy‡j bvwjkx 483 `v‡Mi 0.50 kZvsk Rwg‡Z ew`D¾vgv‡bi ¯^‡Z¡i D™¢e nBqv‡Q| Abyiƒcfv‡e †gvK‡Q` g„avi Iqvwik‡`i †`Iqv 12-06-1980, 08-04-1982 I 18-05-1982 Bs Zvwi‡Li 3 Lvbv †iwRw÷« Kejv `wjj gy‡j bvwjkx ÔLÕ Zckx‡ji Rwg‡Z ev`xc‡¶i ¯^‡Z¡i D™¢e nBqv‡Q| GB †¶‡Î weÁ wbb¥ A`vjZ bvwjkx ÔKÕ Zckx‡ji m¤úwË eve` ev`xc‡¶i AbyKy‡j †h ivq I wWµx cÖ`vb Kwiqv‡Qb Zvnv AvB‡bi cwicwš’| weÁ wbb¥ A`vjZ Zvnvi cÖ`Ë iv‡q ev`x Ges weev`xi †gvKÏgvi eb©Yv m¤ú~Y© f~jfv‡e ewb©Z Kwiqv‡Qb| myZivs, cwi‡k‡l ejv

hvq †h, ÔLÕ Zckx‡ji 793 kZvsk Rwg‡Z ev`xc‡¶i AbyKz‡j ev‡Uvqvivi

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cÖv_wgK wWµx nq| cÖ`Ë †KvU© wd mwVK|”

After carefully examining the above two judgments concurrent found in favour of the present-plaintiff-petitioner as to the ownership, title and possession and after considering carefully the evidence, both oral and documentary of the respective parties, I am not inclined to interfere into the judgment and the preliminary decree passed by the learned appellate court below.

Accordingly, I do not find merit in the Rule.

In the result, the Rule is discharged.

The judgment and decree passed by the learned appellate court below is hereby upheld.

The interim order of stay granted at the time of issuance of the rule upon the proceeding and the operation of the impugned judgment and decree dated 21.07.1992 and 27.07.1992 respectively passed by the Subordinate Judge, Magura in Title Appeal No. 21 of 1990 is hereby recalled and vacated,

The Office is directed to take communicate this Judgment and order to the concerned court immediately and office is directed to send down the Lower Court Records at once.