দায়বর্জন বিবৃতি (DISCLAIMER)

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Microsoft Word - CIVIL REVISION No.05 of 2015 Single Bench _Kh Mollha Disposed of_

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Present:

Mr. Justice Md. Kamrul Hossain Mollah

Civil Revision No.05 of 2015

IN THE MATTER OF:

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

- AND -

IN THE MATTER OF:

Mosammat Fatema Begum and others

                                 ... Plaintiff-Petitioners

-Versus –

Siddiqur Rahman and others

                    ... Defendant-Opposite Parties Mr. Md. Akmol Hossain, Advocate 

             …. For the petitioners Mr. Sazzad-Ul-Islam, Advocate

…For the Opposite Parties

  Heard on 21.01.2024 and   Judgment on 05.02.2024

Md. Kamrul Hossain Mollah, J:

On an application filed by the petitioner, under section 115(1) of the

Code of Civil Procedure, this Rule was issued calling upon the opposite parties No.1 and 2 to show cause as to why the judgment and decree dated 28.08.2014 (decree signed on 04.09.2014) passed by the learned Joint District Judge, 3rd Court, Cumilla in Title Appeal No.151 of 2012 dismissing the Appeal and thereby affirming the judgment and decree dated 13.10.2010 (decree signed on 20.10.2010) passed by the learned Senior Assistant Judge, Laksham, Cumilla in Title Suit No.05 of 2005 decreeing the suit in part should not be set-aside and/or pass such other or further order or orders as to this Court may seem fit and proper. 

At the time of issuance of the Rule this Court stayed the further proceedings of Title Execution Case No.1 of 2012, now pending in the Court of learned Senior Assistant Judge, Laksham Cumilla till disposal of the Rule. 

Facts necessary for disposal of the Rule, in short, are that the present petitioners as plaintiff instituted the instant Title Suit No.05 of 2005 for partition the suit land against the present opposite parties impleading them as defendants contending in brief inter alia that the predecessor of the plaintiffs namely Abdul Mannan and the defendants No.1-4 became owner and possessor of the suit 1st and 1st kha schedule land to the plaint by way of registered exchange deed No.7821 executed on 27.03.1990 and registered on 28.03.1990 vide Ex(P) Case No.2273 of 1968-1969. Abdul Mannan being owner in possession of 1.206 acres of land in his 1/5th share and he died leaving behind the plaintiff No.1 as his wife, the plaintiffs No.2/3 as his two sons and the plaintiff No.4 as his daughter. In this way the plaintiffs became owner and possessor of 1.206 acres of land by way of inheritance and have been possessing the same in ejmali with the defendants. The suit property is not partitioned by meats and bound. It is very urgent need to partition the property for peaceful use and ppossession. The plaintiffs requested the defendants to partition the disputed property repeatedly but the defendants did not pay any heed to the request and as such the plaintiffs constrained to file this suit for partition.

Being notified the defendants No.1 and 2 having entered appearance contested the suit by filing written statement denying all the material allegations made in the plaint contending in brief inter alia that Rajani Kumer Namah, Brindaban Namah, Ashiram Namah sons of Golak Chandra Namah and Prasanna Kumer Namah, Satendra Chandra Namah sons of Gagan Chandra Namah and Dino Bandhu Bhowmik Namah son of Ram Sundra Bhowmik, Chapala Sundari Namah wife of Binod Namah were owner and possessors of the suit land who exchange the same with Syeder Rahman predecessor of the plaintiffs in the year of 1964 by an irrevocable Power deed. Syeder Rahman submitted the said Power deed for registration before the Deputy Commissioner (Revenue) Comilla and accordingly Ex(P) Case No.2273/1968-69 was started. Syeder Rahman sold 203 decimals of land to different persons by registered deeds and gifted 31 decimals of land to his daughter Firoza Begum orally and being owner in possession of the rest 444.24 decimals of land gifted the same orally to his three sons the defendants No.1/2 and A. Mannan by 1st wife and to the defendants No.3/4 by his 2nd wife and being title less died leaving behind three sons the defendants No.1/2 and A. Mannan predecessor of the plaintiff and three daughters namely Hanufa, Rasheda, Rowshanara by 1st wife and two sons the defendants No.3/4 and three daughters namely Chand Bibi, Rahima, Nurunnahar by his 2nd wife. The defendants No.3/4 being owner in possession of 177.7 acres of land sold the same to the defendants No.1 and 2 and A. Mannan and others and became title less. The Deputy Commissioner Revenue registered the exchange deed in favour of five sons of Syeder Rahman on 27.03.1990. Among the three sons of

Syeder Rahman by 2nd wife Siddiqur Rahman was elder who maintained his younger brothers and sisters with the income of the joint family and for meet up the maintenance and other expenditure of his brothers and sisters he sold 118.75 decimals of land by different kabalas and subsequently he purchased 29.25 decimals of land from the defendants No.3/4 vide saf- kabala deed dated 05.03.1976 with the joint income and in this way they were owner and possessors of 177.95 decimals of land jointly. A. Mannan being owner in possession of 59.16 decimals of land he separated and died leaving behind the plaintiffs as his heirs who got the said land and are in possession thereof but the plaintiffs filed this suit on the basis of series of lies and the suit is liable to be dismissed with costs.

Both the parties adduced witnesses and exhibited documents to prove their case and upon hearing the parties the learned Senior Assistant Judge, Lakshm, Cumilla passed the judgment and decree dated 13.10.2010 (decree signed on 20.10.2010) in Title Suit No.05 of 2005 decreeing the suit in part.

 Being aggrieved by and dissatisfied with the judgment and decree dated 13.10.2010 (decree signed on 20.10.2010) passed by the learned Senior Assistant Judge, Lakshm, Cumilla in Title Suit No.05 of 2005 decreeing the suit in part the plaintiff-petitioners filed Title Appeal No.151 of 2012 before the learned District Judge, Cumilla. Thereafter, the said Title Appeal was transferred to the learned Joint District Judge, 3rd Court, Cumilla for hearing and disposal. After hearing both the parties and upon considering the materials on record the learned Joint District Judge, 3rd Court, Cumilla passed the impugned judgment and decree dated

28.08.2014 (decree signed on 04.09.2014) in Title Appeal No.151 of 2012

dismissed the said Title Appeal.

Being aggrieved by and dissatisfied with the judgment and decree

dated 28.08.2014 (decree signed on 04.09.2014) passed by the learned Joint

District Judge, 3rd Court, Cumilla in Title Appeal No.151 of 2012

dismissing the said Title Appeal and thereby affirming the judgment and

decree dated 13.10.2010 (decree signed on 20.10.2010) passed by the

learned Senior Assistant Judge, Lakshm, Cumilla in Title Suit No.05 of

2005 decreeing the suit in part, the petitioners filed this revisional

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

obtained the present Rule and order of stay.

Mr. Md. Akmol Hossain, the learned Advocate appearing on behalf

of the petitioners submits that the plaintiffs stated in their plaint that

“বাদীগেনর পূব  বত   আবদলু  মা ান ও ১-৪ নং িববাদীগন ১৯৬৮ ইং-১৯৬৯ ইং সেনর ২২৭৩ নং EX (P) Case মূেল  িম া অিতির    জলা  শাসক রাজ খ কতৃ ক ২৭/০৩/১৯৯০ ইং তািরেখর

  ািদত ও ২৮/০৩/১৯৯০ ইং তািরেখর  রিজ ীকৃত৭ ৮২১ নং দিলল মূেল নািলশী ১ম ও ১ম (খ)

তপিছেলা   ভূিম  েত েক ১/৫ অংেশ মািলক দখলকার হয় থােক and prayed for

separate saham in respect of the said 1/5th share equivalent to 1.205 acres of land of Abdul Mannan as his heirs out of 6.0250 acres of suit land i.e. the land of deed No.7821 dated 27.03.1990. But both the Court below committed error of law in decreeing the suit in part calculating the share of Abdul Mannan from 444.25 decimals of land after deducting 31+203=234 decimals of land in mentioning that Syeder Rahman transferred the said land without referring any document on the basis of claim by the defendants and in misreading the deposition of the P.W.1. The P.W.1 stated

in her deposition that, “সত  নয়  য, আমার ।শরু িবিনময় কৃত ভূিম হইেত ২৯৩ দােগ ৩২

শতক ২১৫ দােগ ৭৮ শতক, ৩২০ দােগ ৩৩ শতক, ২১০ দােগ ৩০ শতক ১৫৯ দােগ ৩০ শতক এ েন ২০৩ শতক িব য় কের  দয়।” and the defendant No.2, A. Salam son of

Syeder Rahman as D.W.1 stated in his cross-examination that “আমার বাবা

সয়দ রহমান।  সয়েদর রহমান fÅbL fbÅL কবলা মেূল  য ভূিম ি  বিয় কের  সই কবলা দািখল দািখল

কিরিন সত  নয়  য,  সয়েদর রহমান িব য় কেরেছ মেম িমথ বেলিছ িক আিম এই মেম িমথ

বেলিছ।” but the learned trial Court distributed the suit land among the five

sons of Syeder Rahman after deducting 203 decimals of land in misreading

the deposition of the P.W.1 with a finding that, “Hja¡hÙÛ¡u ®cM¡ k¡­µR ®k, h¡c£¢e

a¡l nÄöl ¯pu­cl lqj¡e La«ÑL c¡eL«a 31 naL J ¢h¢œ²a 203 naL i¨¢jl Lb¡ ®Sl¡­a ü£L¡l

L­l­Rez Hja¡hÙÛ¡u 31 naL c¡e J 203 naL i ¨¢j ¢hœ²u h¡c hœ²£ 444.25 naL i ¢¨j

°pu­cl lqj¡e j¡¢mL qu Hhw h¡c£ ¢hh¡c£ La«ÑL ü£L«a ®k, Eš² 444.25 naL i ¢¨j ¯pu­cl

lqj¡e a¡l f¡Qy ®R­m­L c¡e L­lez” and the learned Appellate Court also affirmed

the judgment and decree of the trial Court in finding that, “Eiu f­rl ü£L«a

j­a 2273/1968-69 eðl ¢h¢eju ®j¡LŸj¡ j§­m e¡¢mn£ i¨¢j h¡c£ J ¢hh¡c£Ne fСç qez

h¡c£N­el fh§hÑa£Ñ °pu­cl lqj¡e a¡l Sl¦l£ B¢bÑL fЭu¡Se 293 c¡­N 32 naL, 215 c¡­N 78

naL, 320 c¡­N 33 naL, 210 c¡­N 30 naL HL¥­e 203 naL i ¨¢j fªbL fbªL p¡g Lhm¡

­m ¢h¢i æ hÉ¢š²l ¢eLV ¢hœ²u L­l 291 c¡­N 31 naL i ¢§j 1j Ù»£ Ni SÑ¡a LeÉ¡ ¢g­l¡S¡

®hNj­L ®j±¢ML i ¡­h c¡e L­l hœ²£ 444.2 naL i ¨¢j­a j¡¢mL cMmL¡l ®b­L 1j Ù»£l Ni SÑ¡a

¢ae f¤œ J 2u Ù»£l Ni SÑ¡a c¤C f¤œ ®j¡V 05 fœ¤­L ®j±¢MLi ¡­h c¡e L­l ¢e:üaÅh¡e AhÙÛ¡u j¡l¡

k¡ez”,which resulting in an error in the decision occasioning failure of

justice.

The learned Advocate lastly submits that both the Court below failed to consider that Abdul Mannan predecessor of the plaintiffs became owner and possessor of 1.205acres of land on the basis of registered exchange

deed executed on 27.03.1990 and registered on 28.03.1990 vide Ex (P) Case No.2273 of 1968-69 and also became owner and possessor of 1/3rd

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share of .294 acre= .0975 acre in total 1.3025 acres of land and the

plaintiffs became owner and possessor of the same by way of inheritance and the D.W.1 also admitted in his cross examination stated that, “j¡æ¡e ®kVL¤¥ pÇf ¢š f¡Je¡ ®pV¤L¥ pÇf¢š h¡c£l f ¡Je¡z j¡æ¡e S£hŸn¡u ®L¡e pÇf ¢š ¢hœ²u L­l¢ez”  and also stated that, “B¢j J h¡c£N­el f§hÑha£Ñ j¡æ¡e pÇf¢š ¢hœ²u L¢l¢ez” and as such the plaintiffs are entitled to get separate saham in respect of the said 1.3025 acres of land, but the Court below did not consider the said matter, which resulting in an error in the decision occasioning failure of justice. Accordingly, he prays for making the Rule absolute.

Mr. Sazzad-Ul-Islam, the learned Advocate appearing on behalf of the opposite parties submits thatRajani Kumer Namah, Brindaban Namah, Ashiram Namah sons of Golak Chandra Namah and Prasanna Kumer Namah, Satendra Chandra Namah sons of Gagan Chandra Namah and Dino Bandhu Bhowmik Namah son of Ram Sundra Bhowmik, Chapala Sundari Namah wife of Binod Namah were owner and possessors of the suit land who exchange the same with Syeder Rahman predecessor of the plaintiffs in the year of 1964 by an irrevocable Power deed. Syeder Rahman submitted the said Power deed for registration before the Deputy Commissioner (Revenue) Comilla and accordingly Ex(P) Case No.2273/1968-69 was started. Syeder Rahmann, sold 203 decimals of land to different persons by registered deeds and gifted 31 decimals of land to his daughter Firoza Begum orally and being owner in possession of the rest

444.24 decimals of land gifted the same orally to his three sons the defendants No.1/2 and A. Mannan by 1st wife and to the defendants No.3/4 by his 2nd wife and being title less died leaving behind three sons the defendants No.1/2 and A. Mannan predecessor of the plaintiff and three daughters namely Hanufa, Rasheda, Rowshanara by 1st wife and two sons the defendants No.3/4 and three daughters namely Chand Bibi, Rahima, Nurunnahar by his 2nd wife. The defendants No.3/4 being owner in possession of 177.7 acres of land sold the same to the defendants No.1 and 2 and A. Mannan and others and became title less. The Deputy Commissioner Revenue registered the exchange deed in favour of five sons of Syeder Rahman on 27.03.1990. Among the three sons of Syeder Rahman by 2nd wife Siddiqur Rahman was elder who maintained his younger brothers and sisters with the income of the joint family and for meet up the maintenance and other expenditure of his brothers and sisters he sold 118.75 decimals of land by different kabalas and subsequently he purchased 29.25 decimals of land from the defendants No.3/4 vide saf- kabala deed dated 05.03.1976 with the joint income and in this way they were owner and possessors of 177.95 decimals of land jointly. A. Mannan being owner in possession of 59.16 decimals of land he separated and died leaving behind the plaintiffs as his heirs who got the said land and are in possession thereof but the plaintiffs filed this suit on the basis of series of lies. Therefore, he prays for discharging the Rule.

I have heard the submissions of the learned Advocates for the parties, perused the revisional application, the impugned judgment and decree of the Courts’ below, the papers and documents as available on the record.  

It appears from the record that the plaintiff-petitioners claimed that they will get 203 decimals of suit land. On the other hand, the opposite parties claimed that the predecessors of the petitioners sold 203 decimals of suit land, but they did not submits any deed before the trial Court in support their claim. But, they filed a counter affidavit along with photo copies of the four sale deed of the predecessor of the petitioners in this Court mentioning that some portion of land in kabala deed No.5675 dated 02.09.1967 measuring area is 15 decimals in C.S. Dag No.215, Kabala Deed No.1634 dated 12.02.1968 measuring area is 33 decimals in C.S. Dag No.320, Kabala Deed No.5599 dated 26.09.1970 measuring area is 30 decimals in C.S. Dag NO.59 and Kabala Deed No.5994 dated 27.09.1970 measuring area is 39 decimals in C.S. Dag No.215 total area of land is 117 decimals have been sold out  by late Sayedur Rahman father of the opposite party No.2.

In the light of the above discussion, it appears that this case needs to be remanded to determine by evidence whether the sale of the plaintiff's predecessors is correct or not and it is also be proved submitting by the certified copy of the said documents and also be marked as exhibits.

Considering the above facts and circumstances and materials on record, I think that it will be best serve for ends of justice, if I send back this case to the learned concerned Appellate Court for further hearing and disposal on basis of the oral and documentary evidences.

 In the Result, the Rule is disposed of with direction.

The judgment and decree dated 28.08.2014 (decree signed on 04.09.2014) passed by the learned Joint District Judge, 3rd Court, Cumilla in dismissing the Title Appeal No.151 of 2012 and thereby affirming the judgment and decree dated 13.10.2010 (decree signed on 20.10.2010) passed by the learned Senior Assistant Judge, Laksham, Cumilla in Title Suit No.05 of 2005 decreeing the suit in part is hereby set-aside.

The learned Appellate Court, Cumilla is hereby directed to give opportunity both the parties for submitting the additional evidence and upon hearing the parties to disposed of the Title Appeal No.151 of 2012 within 01(one) year from the date of receipt of this judgment and order.

The order of stay granted earlier by this Court is hereby recalled and vacated.

Send down the LCR along with a copy of this judgment and order to the learned concerned Appellate Court at once.

Md. Anamul Hoque Parvej Bench Officer