IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Moinul Islam Chowdhury

CIVIL REVISION NO. 1271 OF 2015

IN THE MATTER OF:

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

(Against Order)

-And-

IN THE MATTER OF:

Rustom Ali alias Rustom and others

--- Plaintiff-Respondent-Petitioners. -Versus-

Md. Osman Ali and others {O. P. No. 4 died leaving behind his legal heirs: 4(a)-4(d)}.

---Opposite Parties.

No one appears

---For the Petitioners. Mr. Nitai Roy Chowdhury with

Mr. Md. Badsha Alamgir, Advocates

---For the Opposite Parties.

Heard on: 20.11.2023, 26.11.2023, 28.11.2023 and 07.12.2023.

Judgment on: 07.12.2023.

At  the  instance  of  the  present  plaintiff-respondent- petitioners, Rustom Ali alias Rustom and others, this Rule was issued upon a revisional application filed under section 115(1) of the Code of Civil Procedure calling upon the opposite party Nos. 1-4{O. P. No. 4 now deceased, leaving behind his legal heirs: 4(a)-4(d)} to show cause as to why the impugned judgment and

decree  dated  30.11.2014  passed  by  the  learned  Additional District Judge, Kurigram in the Other Appeal No. 29 of 2002 allowing the appeal in part and thereby modifying the judgment and  decree  dated  20.02.2002  passed  by  the  learned  Senior Assistant Judge, Sadar, Kurigram in the Other Suit No. 118 of 1994 should not be set aside.

The relevant facts for the disposal of this Rule, inter-alia, are  that  the  present  petitioners  as  the  plaintiffs  filed  the Title/Other Suit No. 118 of 1994 in the court of the learned Senior Assistant Judge, Sadar, Kurigram praying for declaration of title and partition of the suit land described in the schedules “Ka” and “Kha” to the plaint.

The plaintiffs' case is that the suit land originally belonged to Dhanai Sheikh and others appertaining to C. S. Khatian No. 170/173/175/177/187. In the course of the succession of C. S. recorded owners got measuring 6 anna (Be¡), 13 gonda (Nä¡), 1 kora (Ls¡), and 1 kranti (œ²¡¢¿¹) in the suit land described in the schedules “Ka” and “Kha” of the plaint. Accordingly, the total

land measuring 4.20 acres. After hearing the parties the learned trial court decreed the suit, and a preliminary decree was passed in favour of the present plaintiff-petitioners. The plaint further

contains that the suit land was never sold on auction for arrears of rent and the same was never auction purchased or possession thereof was taken over by the ex-landlord.

The  defendant  Nos.  6/15  and  9/31  filed  two  separate written  statements  but  the  contents  of  these  two  written statements  are  the  same  and  similar.  Contesting  defendants claimed that Dhanai Sheikh, Kanai Sheikh, Monai Sheikh alias Mona and Poatu Sheikh were the C. S. recorded tenants in suit C. S. Khatian Nos. 175 and 177 under the landlord Charubala and Hari Charon and after the death Poatu Sheikh his share devolved upon  a  daughter,  namely,  Nabijan,  and  three  sons,  namely, Dhanai Sheikh, Kanai Sheikh @ Kanai and Monai Sheikh @ Mona. Charu Bala and Hari Charon instituted Rent Suit No. 2391 of 1932 and Rent Suit No. 2076 of 1931 before the Munsif, Court No. 2, Kurigram and obtained decrees therein and took delivery of the auction land through court of the C. S. Khatian No. 175 and 177, thus, tenancy right of C. S. Khatian No. 175 and  177  extinguished  upon  the  auction  purchasers.  The contesting  defendants  denied  the  plaintiffs’  right,  title,  and interest in the land of the suit. Boen Ullah constructed a dwelling hut in a portion of the suit land and started residing therein and

cultivating the remaining nal (e¡m) land. After the death of Hari Charan his four sons instituted Rent Suit No. 995 of 1959 for arrear rent against Keramot, Boen Ullah, and others including Mofiz  Uddin,  and  the  said  rent  suit  was  dismissed  on compromise. Thereafter, Keramot Sheikh sold 2.07 acres of land on 02.12.1957 to Niamot Shaikh, Joshmot Sheikh and Shakomot Sheikh.  Accordingly,  the  said  land  stood  recorded  in  R.  S. Khatian No. 149 in their names, thus, the contesting defendants denied the plaintiffs’ right, title and interest.

Being aggrieved the defendant-appellant-opposite parties preferred the Title/Other Appeal No. 29 of 2002 in the court of the learned District Judge, Kurigram which was subsequently transferred  for  hearing  before  the  learned  Additional  District Judge, Kurigram who after reexamining the evidence presented by the parties modified the judgment and preliminary decree of the learned trial court and allocating saham (p¡q¡j) measuring 1.4896  acres  in  favour  of  the  plaintiff-petitioners  by  the impugned  judgment  and  decree  dated  30.11.2014.  Being aggrieved the present plaintiff-respondent-petitioners filed this Revisional application and obtained the present Rule thereupon.

This matter has been appearing in the daily cause list for a long period of time but no one appears to support the Rule. However, the present petitioners’ have taken the ground that the impugned  judgment  and  decree  passed  on  30.11.2014  in  the Other Appeal No. 29 of 2002 by the learned Additional District Judge, Kurigram partly allowing the appeal and partly affirming with  modification  the  judgment  and  decree  dated  20.02.2002 passed by the learned Senior Assistant Judge, Sadar, Kurigram in the Other Suit No. 118 of 1994 which is not proper judgment and decree  as  the  same  is  not  based  on  proper  scrutiny  and appreciation of evidence on record in their true perspective, as such, the impugned judgment and decree passed by the learned appellate court below is liable to be set aside.

The plaintiff-petitioners have taken another ground that the learned appellate court below, in fact, misdirected itself in its total  approach  to  the  matter  in  controversy  and  thereby committed an error in law resulting in an error in the decision occasioning failure of justice.

The  Rule  has  been  opposed  by  the  present  defendant- opposite party Nos. 1-17.

Mr.  Nitai  Roy  Chowdhury,  the  learned  Advocate, appearing  along with  the learned Advocate,  Mr. Md. Badsha Alamgir for the defendant-opposite party Nos. 1-17, submits that the learned trial court allocated sahams (p¡q¡jp) of the present plaintiff-petitioners’  land  measuring  4.201/2  acres  but  the learned  appellate  court  below  reduced  the  sahams  (p¡q¡jp) measurement of land measuring 1.4896 acres after examining the documents filed by the parties by modifying the judgment of the learned trial court, as such, the learned appellate court below committed no error of law and facts by modifying the judgment of the learned trial court, as such, the present Rule issued by impugning the judgment passed by the learned appellate court does not need to interfere by this court.

The learned Advocate further submits that both the courts below examined the documents those were exhibited and also examined  the  depositions  by  the  PWs  and  DWs  the  learned appellate court below came to a lawful conclusion and decision to pass the decree by modifying the judgment and decree passed by the learned trial court, as such, the learned appellate court came  to  a  decision  and  passed  the  preliminary  decree  by

modifying the judgment of the learned trial court, as such, the Rule is liable to be discharged.

Considering the above submissions made by the learned Advocates  for  the  opposite  parties  and  also  considering  the revisional  application  filed  by  the  plaintiff-petitioners  under section 115(1) of the Code of Civil Procedure along with the annexures  therein,  in  particular,  the  impugned  preliminary judgment and decree as well as perusing the needed documents available in the lower courts record with depositions made by the PWs and DWs, it appears to this court that the present plaintiff- petitioners filed a suit for title and partition of land described in the schedule of the plaint. After examining the documents the learned trial court preliminarily decreed the suit by allocating

saham 4.20 1 acres of land in favour of the present petitioners.

2

However, the learned appellate court below modified the said preliminary  judgment  and  decree,  thereby,  allocating  sahams (p¡q¡jp) for the plaintiff-petitioners' land measuring 1.4896 acres. It  also  appears  to  me  that  the  learned  trial  court  passed  the preliminary judgment and decree by allocating sahams (p¡q¡jp) on the basis of the following findings:

…“Eiu f­rl p¡rÉ fËj¡Z fkÑ¡­m¡Qe¡u Bc¡m­al ¢eLV fËa£uj¡Z qu ®k, h¡c£fr ‘L’ afn£­m Ju¡¢ln j­§m 3.22 HLl “M’’ afn£­m Ju¡¢ln j§­m .54 HLl Hhw œ²up§­œ .81 HLl pÇf¢š f¡Ëç

quz a¾j­dÉ h¡c£f­rl ¢h¢œ²a 361 HLl h¡c Ah¢nø 4.201 HLl

2 2

pÇf¢š­a h¡c£NZ üaÄh¡e J HSj¡­m cMmL¡l l¢qu¡­Rez ¢hh¡c£f­rl c¡h£L«a ¢em¡j àu Bc¡m­al ¢eLV ®k¡Np¡S¢pL J AL¡kÑLl ¢h­h¢Qa qJu¡u Bc¡ma j­e L­le ®k, h¡c£fr a¡q¡­cl f¡ËbÑ£a Aw­nl pÇf¢š

h¡hc üaÄ fËQ¡lf§hÑL h¡­V¡u¡l¡l fË¡b¢jL ¢X¢œ² f¡C­a qLc” ¡… lz

However, the learned appellate court below reexamined the  documents  for  allocating  saham  (p¡q¡jp)  for  validly  and lawfully modified the judgment of the learned trial court on the basis of the following findings:

…“h¡c£-®lpfe­X¾Vfr c¡h£ L­l ®k, a¡q¡l¡ 28/07/1976 Cw a¡¢l­M 7583 ew c¢mm j­§m 60 1 naL Hhw 10/08/1992 Cw

2

a¡¢l­M 3950 ew c¢mm j§­m 201 naL HL¥­e 81 naL S¢j œ²u

2

L¢lu¡­R Hhw 27/09/73 Cw a¡¢l­Ml 9882 ew c¢m­m 16 naL Hhw 23/02/1979 Cw a¡¢l­Ml 3867 ew c¢m­ml 20 naL HL¥­e 36 naL S¢j ¢hœ²u L¢lu¡­Rz 28/07/1976 Cw a¡¢l­Ml 7583 ew c¢mm fËcnÑe£-‘ 3’, 10/08/92 Cw a¡¢l­Ml 3950 ew c¢mm fËcnÑe£- ‘3(N)’, 27/09/73 Cw a¡¢l­Ml 9882 ew c¢mm fËcnÑe£-‘ 3(L)’

Hhw  23/02/1979  Cw  a¡¢l­Ml  3867  ew  c¢mm  fËcnÑe‘ £-3(M)’ ¢qp¡­h  fjË¡Z  ¢Q¢q²a  B­Rz  g­m  ¢hœ²u  h¡­c  œ²u  j§­m  h¡c£- ®lpfe­X¾Vfr 45 naL S¢j­a üa ÄASÑe L¢lu¡­R j­jÑ fjË¡¢Za

qCu¡­Rz Ef­l¡š²i¡­h ®cM¡ k¡u ®k, h¡c£-®lpfe­X¾Vfr Bl¢Sl ‘L’ J ‘M’ agn£m h¢ZÑa S¢jl j­dÉ phÑ­j¡V 1.4896 HLl S¢j­a

üaÄ fjË¡­Z pr j qCu¡­Rz”…

In  view  of  the  above  discussions,  I  have  carefully examined the documents adduced and produced by the parties and I also found that the learned trial court allocated saham in favour of the plaintiff-petitioners which was reexamined by the learned appellate court below on the basis of the other litigations between the parties, in particular, the judgment and findings was given earlier by this court regarding sahams (p¡q¡jp) to reallocate by the learned lower appellate court being in the Civil Revision No. 4901 of 2005 and therefore modified the measurement of the land  by  the  lower  appellate  court  which  should  have  not challenged by the present plaintiff-petitioners. Even though the learned appellate court below found that the plaintiff-petitioners are  entitled  to  get  sahams  (p¡q¡jp)  after  reexamining  the documents filed by the present petitioners and opposite parties and I am, therefore, not inclined to interfere upon the judgment of the learned appellate court below, as such, this Rule does not have merit for any further consideration.

Accordingly, the Rule issued earlier by this court does not have any merit for interference.

In the result, the Rule is hereby discharged.

The interim order of direction passed by this court at the time  of  issuance  of  the  Rule  to  maintain  status  quo  by  the respective parties in respect of the possession and position of the suit land and subsequently the same was extended from time to time and lastly the same was extended till disposal of the Rule are hereby recalled and vacated.

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