IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Moinul Islam Chowdhury

     Civil Revision No. 4164 of 2014                                             with

     Civil Revision No. 4163 of 2014

IN THE MATTER OF:

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

     And

IN THE MATTER OF:

Zilla  Parishad,  Noakhali  represented  by  its  Chief Executive Officer

--- Plaintiff-Respondent-Petitioner. -versus-

Md.  Abul  Kalam  and  others  {O.P.  No.  2  died leaving behind his legal heirs: 2(a)-2(d)}

      --- Defendant-Appellant-Opposite Parties (In C. R. No. 4164 of 2014).

Zilla  Parishad,  Noakhali  represented  by  its  Chief Executive Officer

--- Defendant-Appellant-Petitioner. -versus-

Md.  Abul  Kalam  and  others  {O.P.  No.  2  died leaving behind his legal heirs: 2(a)-2(d)}

      --- Plaintiff-Respondent-Opposite Parties (In C. R. No. 4163 of 2014).

Mr. Mahbub Shafique with Mr. Gazi Hossain, Advocates

--- For the petitioner (In both cases).

Mr. Abul Kalam Chowdhury with

Mr. Iqbal Kalam Chowdhury, Advocates

--- For the opposite party Nos. 1 and 2. (In both cases).

Mr. Md. Elyas Ali Mandal, Advocate

--- For the O. P. Nos. 3 and 6 (in the C. R. No. 4164)

--- For the O.P. Nos. 6 and 7 (in the C. R. No. 4163).

Heard on: 08.05.2023, 09.05.2023, 10.05.2023, 11.05.2023, 16.05.2023, 18.05.2023 and 22.05.2023.

Date of Judgment: 30.05.2023.

The  above  2  (two)  civil  revisions  were  filed  by  and between the same parties upon similar matters of law and facts, as such, these 2 Rules have been taken up together by passing for delivery the following single judgment as the facts of both cases involved similar parties and also related to a similar law.

At  the  instance  of  the  present  plaintiff-respondent- petitioner,  Zilla  Parishad,  Noakhali  represented  by  its  Chief Executive  Officer,  the  Rule  was  issued  upon  a  revisional application being Civil Revision No. 4164 of 2014 filed under section 115(1) of the Code of Civil Procedure calling upon the opposite  party  Nos.  1  and  2  to  show  cause  as  to  why  the impugned judgment and decree dated 04.05.2014 passed by the learned Additional District Judge, Court No. 1, Noakhali in the Title Appeal No. 155 of 2002 allowing the appeal and reversing those dated 19.06.2002 passed by the learned Senior Assistant Judge,  Hatiya,  Noakhali  in  the  Title  Suit  No.  14  of  1998 decreeing the suit should not be set aside.

Another Rule was issued, at the instance of the present defendant-appellant-petitioner,  Zilla  Parishad,  Noakhali represented by its Chief Executive Officer, the Rule was issued upon a revisional application being Civil Revision No. 4163 of 2014 filed under section 115(1) of the Code of Civil Procedure calling upon the opposite party Nos. 1 and 2 to show cause as to why the impugned judgment and decree dated 04.05.2014 passed by the learned Additional District Judge, Court No. 1, Noakhali in the Title Appeal No. 153 of 2003 dismissing the appeal and affirming those dated 13.03.2003 passed by the learned Senior Assistant Judge, Hatiya, Noakhali in the Title Suit No. 45 of 1999 decreeing the suit should not be set aside.

The relevant facts for the disposal of these 2 Rules, inter- alia, are that the present opposite party Nos. 1 and 2 as the plaintiffs filed the Partition Suit No. 45 of 1999 in the Civil Revision No. 4163 of 2014 and the Title Suit No. 14 of 1998 in the Civil Revision No. 4164 of 2014.

Both the plaintiffs claimed that the common suit property originally  belonged  to  one  Purna  Chandra  who  died  leaving behind  3  sons,  namely,  Moti  Lal,  Gourango  Chandra  and Monmohon. The plaintiff-opposite parties purchased 2.50 acres of land from the said 3 sons of Purno Chandra by executing a sale  deed  where  there  are  shops  buildings,  a  pond  and  a graveyard  of  the  plaintiffs.  The  plaintiffs  possessed  the  suit property measuring 2.10 acres of the suit property and the same was recorded in the names of the plaintiffs in Diara Khatian No. 49. The plaint further contains that earlier the plaintiffs filed the Title Suit No. 180 of 1981 for the rest of land measuring 40 decimals and in the said suit was decreed in their favour.

The defendant Nos. 1 and 2 earlier filed the Title Suit No. 180  of  1981  against  the  present  petitioner  and  others  and obtained an ex-parte decree against the present petitioner and the suit was decreed by a compromise decree against the others.

The present defendant Nos. 1 and 2 contested the suit by filing a written statement stating that the suit property originally belonged to Purno Chandra Pal who died leaving behind 3 sons, namely, Monmohon, Moti Lal and Gouranga Chandra who sold the land measuring 2.85 acres by executing 4 registered sale deeds. The plaint further contains that the Diara Record of Right in Khatian No. 49 was wrongly recorded in the names of the plaintiffs' land measuring 2.10 acres of the suit property.

The  learned  Senior  Assistant  Judge,  Hatiya,  Noakhali heard both the suits filed by the present opposite party Nos. 1 and 2. After examining the documents adduced and produced by the respective parties decreed the said partition suit and passed the  judgment  and  decree  in  the  preliminary  form.  Being aggrieved  the  defendant-petitioner  preferred  2  appeals  being Title Appeal No. 153 of 2003 and the Title Appeal No. 155 of 2002 before the learned District Judge, Noakhali which were subsequently  heard  by  the  learned  Additional  District  Judge, Court No. 1, Noakhali. The learned Additional District Judge, Court  No.  1,  Noakhali  after  hearing  the  respective  parties allowed the Title Appeal No. 155 of 2002 and thereby reversing those dated 19.06.2002 passed by the learned trial court as well as the same court dismissing the Title Appeal No. 153 of 2003 and thereby affirming the judgment dated 13.03.2003 passed by the learned trial court.

Being aggrieved these 2 (two) revisional applications were filed  by  the  same  petitioner  as  the  plaintiff/defendant  under section  115(1)  of  the  Code  of  Civil  Procedure  against  the judgment  and  decree  of  the  appellate  court  below  who  by affirming the judgment and decree on the preliminary form of the judgment of the learned trial court and these 2 (two) Rules were issued thereupon.

Mr. Mahbub Shafique, the learned Advocate, appearing along  with  the  learned  Advocate,  Mr.  Gazi  Hossain  for  the petitioner in both cases, submits that the plaintiff-respondent- opposite parties are not the owner of the suit land in question hence the preliminary decree passed in favour of the plaintiffs is illegal,  as  such,  both  the  learned  courts  below  without considering  the  facts  and  evidence  on  record  passed  the impugned judgment which resulted in an error in the decision occasioning failure of justice.

The learned Advocate also submits that the learned trial court  wrongfully  came  to  a  conclusion  to  decree  the  suit  in preliminary form by allocating Shaham (p¡q¡j) land measuring 2.50 acres without allocating any Shaham (p¡q¡j) to the present petitioner and other opposite parties who also claimed Shahams (p¡q¡j) of the opposite parties who were impleaded as parties by the present opposite party Nos. 1 and 2 and the learned appellate court below also wrongfully came to a decision and passed the impugned judgment in favour of the present opposite party Nos. 1  and  2  without  allocating  any  p¡q¡jp for  the  other  relevant parties, even though, admitting the interest and title of the other defendant-opposite parties, as such, came to a erroneous decision occasioning failure of justice, as such, the Rules should be made absolute.

Both the Rules have been opposed by the present opposite party Nos. 1, 2, 3, 6 and 7.

Mr.  Abul  Kalam  Chowdhury,  the  learned  Advocate, appearing along with the learned Advocate, Mr. Iqbal Kalam Chowdhury, appearing for the opposite party Nos. 1 and 2 along with the learned Advocate Mr. Md. Elyas Ali Mandal for the opposite party Nos. 3, 6 and 7, submits that the learned trial court passed a  decree  in a preliminary form  by allocating  Shaham (p¡q¡j) of the land measuring 2.50 acres which was affirmed by the  learned  appellate  court  below  but  the  present  petitioner obtained these 2 (two) Rules by misleading the court, as such, the Rules are liable to be discharged.

The learned Advocate also submits that both the courts below allocated the land measuring 2.50 acres on the basis of the documentary evidence presented by the PWs and DWs and the learned  appellate  court  below  clearly  mentioned  that  the plaintiff-opposite party Nos. 1 and 2 proved their case but the present petitioner and other opposite parties could not prove their case by providing any documents, as such, the Rules are liable to be discharged.

Considering the above submissions made by the learned Advocates  appearing  for  the  respective  parties  and  also considering  both  the  revisional  applications  filed  by  the petitioner under section 115(1) of the Code of Civil Procedure along with the annexures therein, in particular, the impugned judgment and decree passed in a preliminary form and as well as perusing  the  materials  available  in  lower  courts  records,  it appears to this court that the present opposite party Nos. 1 and 2 as  the  plaintiffs  filed  both  the  suits  claiming  the  Shahams (p¡q¡j¡p) upon the total land measuring 3.89 + 01 = 3.90 acres at Mouza- Jahajmara, K. M. Khatian No. 30, M. R. R. Khatian No. 32, K. M. Dag Nos. 1006 and others, Police Station- Hatiya, District- Noakhali and the learned appellate court below decreed the partition suit by the separate judgment in the preliminary form by allocating Shahams (p¡q¡jp) out of the said total land measuring 3.90 acres.

These 2 (two) revisional applications were filed by the Zilla Parishad, Noakhali and obtained those Rules calling upon the opposite party Nos. 1 and 2 with proforma opposite party Nos. 3-9. The learned appellate court below accepted that all the opposite parties were entitled to get Shahams (p¡q¡jp) upon the suit land. The learned trial court found that the present petitioner and other opposite parties should have been given opportunities to submit the relevant documents in the trial court at the trial stage even by decreeing the suit in favour only opposite party Nos. 1 and 2 despite allocating Shahams for the petitioner and other relevant opposite parties in the partition suit.

I have carefully examined the judgment and decree passed by the learned trial court and found that the present petitioner and the opposite parties had some measurement of land in the following manners:

…“As it is proved that the district council has purchased  40  decimals  and  the  union  parishad  has purchased  1  acre  of  suit  properties  which  is  also admitted by the plaintiffs and as the plaintiffs have been able to prove their case that they have title over the land measuring 2.50 acres of suit properties as per their  claims.  So,  the  plaintiffs  can  get  Shaham  as prayed for.”…

The learned appellate court below concurrently found and allocated Shaham in favour of only the present opposite party Nos. 1 and 2 without allocating any Shaham in favour of the present  petitioner  and  other  proforma-opposite  parties  and affirmed the judgment of the learned trial court by describing of other parties which read as follows:

…“h¡c£ ®lpfe­X¾VNZ a¡q¡­cl j¡¢mL£ cMm£u Eš² i ¢¨j­a

®c¡L¡e Ol, L«¢o hÉ¡wL, f¤L¥l J LhlÙÛ¡e L¢lu¡ ®i¡N cMmL¡l B­Rz ¢hNa ¢cu¡l¡ S¢l­f ®L. Hj. 1006 J 1007 c¡­Nl 3.90 HLl i ¢¨j

¢cu¡l¡ 1331 c¡­Nl 1.18 ¢Xw, 1334 c¡­N .15 ¢Xw, 1335 c¡­N .32

¢Xw, 1336 c¡­N .46 ¢Xw, HL¥­e 2.10 ¢Xw h¡c£ ®lpfe­X¾VN­Zl e¡­j 49 ew M¢au¡­el ¢cu¡l¡ 1333 c¡­N .70 ¢Xw, ¢Sm¡ f¢lo­cl

e¡­j 4 ew M¢au¡­e 1332 c¡­Nl 1.06 ¢Xw ®Mm¡l j¡­W 10 ew S¡q¡Sj¡l¡ CE¢eue f¢lo®cl e¡­j Hhw 1337 c¡­N .3 ¢Xw i ¢¨j 1 ew

M¡p M¢au¡­e plL¡­ll e¡­j ®lLXÑ qCu¡­Rz ¢cu¡l¡ 1333 c¡­Nl

pj¤cu 70 ¢Xw i ¢¨j h¡c£ j¡¢mL£u cMm£u i ¢¨j j­jÑ ®cM¡ k¡uz ®Sm¡

f¢lo­cl e¡­j ¢cu¡l¡ i¥m ®lL­XÑl ¢hou S¡e¡l fl h¡c£NZ 180/1981 ew ®cJu¡e£ j¡jm¡ c¡­ul L¢lu¡ üaÄ ®O¡oZ¡l ¢Xœ²£ fË¡ç quz ®Sm¡ f¢loc pÇf¢šl cMm ¢eu¡ HLM¡e¡ ¢Ve ®nX O­l c¡ahÉ ¢Q¢Lvp¡mu ÙÛ¡fe L­lez h¡c£l j¡¢mL£ cMm£u .15 HLl i¨¢j pq ¢hcÉ¡m­ul cMm£u 1.06 HLl i ¢¨jl lLj ®Mm¡l j¡W ¢m¢f L¢lu¡

1332 c¡­Nl i ¢¨j CE¢eue f¢lo­cl e¡­j 5 ew M¢au¡­e ®lLXÑ

L¢lu¡­R Hhw h¡c£l cMm£u 1331 c¡­Nl f§hÑ¡w­n .15 J f¢ÕQj¡w­nl .55 HLl i ¢¨j ¢hcÉ¡m­ul cMm£u .48 ¢Xw i ¢¨j pq h¡c£l e¡­j ¢cu¡l¡

49 ew M¢au¡­el 1.18 HLl i¨¢j ®lLXÑ L¢lu¡ l¡¢Mu¡­Rz h¡c£NZ Eš² 1.18 HLl i ¢¨j j­dÉ 70 ¢Xw i ¨¢j c¡¢h L­lz h¡c h¡L£ 48 ¢Xw S¡q¡Sj¡l¡ EµQ ¢hcÉ¡mu cMm L¢l­a­Rz h¡c£f­rl Eš² c¡¢h ¢ejÀ Bc¡m­a p¡r É fjË¡­Zl j¡dÉ­j fËj¡Z L¢l­a pr j qCu¡­Rz”…

From the above 2 concurrent findings of the learned courts below in favour of the present petitioner and other proforma- opposite parties who were added parties a| substituted persons from the opposite party No. 2 but the courts below could not allot any Shahams in favour of the petitioner and other opposite parties despite the facts the learned courts below concurrently found only in favour of the opposite party Nos. 1 and 2 not giving Shaham to the petitioner and the other proforma-opposite party No. 3, the Chairman, Jahajmara Union Parishad, proforma- opposite party No. 4, the Headmaster, Jahajmara High School and the present proforma-opposite party Nos. 6 and 7 who are the added parties in the present suit and also did not consider for allocating Shaham in favour of the present opposite party Nos. 8 and 9 which were not considered in the impugned judgment and decree in a preliminary form.

I have carefully examined the judgment and decree in a preliminary form and also the impugned judgment and decree passed by the learned appellate court below. In a partition suit the learned trial court could allocate Shahams in favour of both the plaintiffs and the defendants but the learned trial court did not consider the petitioner and other proforma- opposite parties

by considering their entitlement and possession which has been recognized by the courts below but failed to give/allocate any Shahams out of total land measuring 3.90 acres. In such an event the  learned  trial  court  and  the  learned  appellate  court  below recognized the title on behalf of the other than the plaintiff- opposite party Nos. 1 and 2. The plaintiff-opposite party No. 2, namely,  Meheraj  Afzal  Chowdhury,  now  deceased  and substituted by the Order of this court on 01.12.2020. The present petitioner  and  other  opposite  parties  should  be  given  an opportunity  to  prove  their  entitlement  for  claiming  Shahams upon their claiming measurement of land.

I have also carefully noticed in the impugned judgment wherein the learned appellate court below recognized the right and title of all the concerned parties impleaded in the plaint or Added/substituted but no Shahams were given in their favour which is not a complete decision in the partition suit.

I  consider  that  all  the  parties  as  the  plaintiffs  and  the defendants  as  the  present  petitioner  and  the  opposite  parties should have given an opportunity to adduce and produce their documents in court in order to get right and title as well as saham (p¡q¡j) upon the suit land.

In such a situation, I am of the view that the learned trial court must have considered the rights and titles of all the parties in order to allocate Shahams. The present petitioner should be given an opportunity to prove their title by providing all kinds of documents  needed  for  allocating  Shahams  in  favour  of  the parties.  The  present  petitioner  has  given  a  supplementary affidavit containing their claims on the basis of some additional evidence and documents in order to claim their right and title upon the suit land which could not be filed in the trial court. I, therefore, consider that the learned trial court should hear the title suit by giving and allocating Shahams if any parties are entitled to it. As such, I am inclined to dispose of the Rules on remand and a fresh hearing of all the parties for the ends of justice.

Accordingly, the Rules should be disposed of.

In the result, the Rules are hereby disposed of on the basis of the following directions:

The parties who are claiming any Shahams in the partition suit should be given a final opportunity taking into consideration the entitlement by the learned trial court.

As such, the cases be remanded to the learned trial court for hearing afresh of the parties. In such a situation, the decree passed by the learned trial court and also by the learned appellate court below are hereby set aside.

The interim order was passed by this Court at the time of issuance of the Rule in the Civil Revision No. 4164 of 2014 staying the operation of the impugned judgment and decree dated 04.05.2014 which was passed by the learned Additional District Judge, Court No. 1, Noakhali in the Title Appeal No. 155 of 2002 for a period of 1 (one) year and subsequently the same was extended from time to time are hereby recalled and vacated.

The  respective  parties  are  hereby  directed  to  maintain status quo until a final decision is passed by the learned Senior Assistant Judge, Hatiya, Noakhali.

The learned Senior Assistant Judge, Hatiya, Noakhali is hereby also directed to continue the hearing of the cases on the basis of the documentary evidence already submitted before the trial  court  by  the  parties  and  also  have  to  accept  the  fresh documents if the parties want to file as to the title and possession of the suit land for the ends of justice.

The learned Senior Assistant Judge, Hatiya, Noakhali is also hereby directed to hear the partition suit in order to allocate Shahams  and also  conclude the partition suit after giving all opportunities of hearing the Partition Suit No. 45 of 1999 and the Partition Title Suit No. 14 of 1998 within 4 (four) months from the date of receipt of this judgment and order without allowing any unnecessary adjournment either of the parties.

The concerned section of this court is hereby directed to send down the lower courts records along with a copy of this judgment and order to the concerned court below immediately.