IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Moinul Islam Chowdhury

CIVIL REVISION NO. 2322 OF 2014

IN THE MATTER OF:

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

-And-

IN THE MATTER OF:

Sadequl and others

--- Defendant-Respondent-Petitioners. -Versus-

Sadir Ahmmod and others

---Plaintiff-Appellant-Opposite Parties.

No one appears

--For the Defendant-Respondent-Petitioners. Mr. Syed Khalaquzzaman, Advocate

--For the Plaintiff-Appellant-Opposite Parties.

Heard  on:  27.02.2024,  29.02.2024  and 04.03.2024.

Judgment on: 04.03.2024.

At  the  instance  of  the  present  defendant-respondent- petitioners,  Sadiqul  and  others,  this  Rule  was  issued  upon  a revisional application filed under section 115(1) of the Code of Civil Procedure HC j jÑ 1 ew Aflf rl fË¢a L¡lZ cnÑ¡ e¡ f§hÑL l¦m S¡l£ Ll¡ qCm, ®Le Qy¡f¡Ceh¡hN ”l ¢h‘ k¤NÈ ®Sm¡ SS, fËbj Bc¡ma Hl ®cJu¡e£ 88/ 2011 ew Bf£ m fËQ¡¢la 02/03/2014 a¡¢l Ml a¢LÑa l¡u Hhw 06/03/2014 a¡¢l­Ml ü¡r¢la ¢X¢œ² lc J l¢qa Ll¡ qC­h e¡, k l¡u J

¢X¢œ²j§­m Qy¡f¡Ceh¡hN” ®Sm¡l e¡­Q¡­ml ¢h‘ pqL¡l£ SS Bc¡ma Hl AeÉ fËL¡l 87/ 2009 ew ®j¡LŸj¡u fËQ¡¢la 23/05/2011 a¡¢l Ml l¡u Hhw 26/05/2011 a¡¢l­Ml ü¡r¢la ¢X¢œ² f¢lhaÑe f§hÑL Bf£m¢V j”¤l qCu¡ R Hhw clM¡Ù¹L¡l£NZ

Aœ Bc¡ma Hl ¢h­hQe¡u Bl ®k pLm fË¢aL¡l f¡C a f¡ le a¡q¡lJ B cn ®Le ®cJu¡ qC h e¡z

The relevant and important facts for disposal of this Rule, inter-alia,  are  that  the  present  opposite  party  No.  1  (Sadir Ahmmod now deceased and substituted) as the plaintiff filed the

Other Class Suit No. 87 of 2009 in the court of the learned Assistant Judge, Nachole, Chapainawabgonj for declaration of

title and recovery of khas (M¡p) possession. The plaint contains

that Ohi Bhushan Roy, Bibhuti Bhushan Roy and Foni Bhushan

Roy were the Zamindars who settled the land in favour of Ayesh Uddin  on  8th  June,  1944  (25  ®~SÉÖW,  1351  h¡wm¡  pe)  and  the possession of the suit land was handed over described in the plaint.  The  said  Ayesh  Uddin  paid  rent  (M¡Se¡)  to  the aforementioned  Superior  Landlords.  However,  when  the settlement record was prepared erroneously the measurement of

land was written as 74 decimals instead of the land measuring as

64 decimals in the Plot No. 346 and as a result, the total area of

land was recorded in the settlement record erroneously written as

2.00 acres instead of 1.90 acres. The S. A. Record of Rights was also mistakenly published in the names of Superior Landlord, Ohi Bhushan Roy and others. The predecessor of the present plaintiff- opposite party, Ayesh Uddin, filed earlier the Other Class Suit No. 277 of 1978 in the court of the learned Munsif, Nawabgonj,  Chapainawabgonj  and  the  suit  was  decreed  on 22.04.1980. When the decree was in existence one Abul Hossain and Omar Faruk as the plaintiffs filed Other Class Suit No. 323 of  1980  in  the  court  of  the  learned  Munsif,  Nawabgonj, Chapainawabgonj challenging the decree passed earlier in the Other Class Suit No. 277 of 1978. In the Other Class Suit No. 323  of  1980  a  compromise  petition  was  filed  and  upon compromise petition, the suit was dismissed as per the prayer of the parties. The R. S. record of rights was mistakenly published in  the  name  of  Hossain  Ali  and  Omar  Faruk  as  to  the measurement of land. The said predecessor (Ayesh Uddin) of the plaintiff-opposite party transferred 1.20 acres of land vide a deed of exchange dated 19.09.1984. The plaintiff-opposite party No. 1 got another land measuring 56 decimals by way of exchange deed  No.  8796  dated  30.12.1989  (Exhibit-  2).  The  plaintiff mutated  the  land  in  his  favour  and  was  in  possession.  The defendant-petitioners dispossessed the plaintiff- opposite party No. 1 on 03.06.2009 under threat.

The present petitioners as the defendants contested the suit by filing a written statement denying the claim of the plaintiff- opposite  parties.  The  present  defendant-petitioners  contended that the suit land was khas land and Zaminder given settlement by paying salami (p¡m¡j£) on 25 ®~SùÉ, 1352 and possession of the land was handed over in favour of Ayesh Uddin. The petitioners also contended that the Other Class Suit No. 277 of 1978 and the Other  Class  Suit  No.  323  of  1980  were  created  by  false personation. The compromise petition is not binding upon the petitioners  as  the  plaintiff-opposite  parties  did  not  have  any possessions  because  the  defendant-petitioners  were  in possession.

The learned Judge, Nachole, Chapainawabgonj heard the parties  and  obtained  evidence  from  the  opposite  parties  and dismissed the suit on 23.06.2011. Being aggrieved the present plaintiff-opposite parties preferred the Other Class Appeal No. 88  of  2011  in  the  court  of  the  learned  District  Judge, Chapainawabgonj which was heard by the learned Joint District Judge,  Court  No.  1,  Chapainawabgonj  who  after  hearing  the parties  allowed  the  appeal  by  the  impugned  judgment  dated 02.03.2014 by reversing the judgment of the learned trial court.

This matter has been appearing in the daily cause list of this court for a long period of time but no one appears to support the Rule, however, the present petitioners taken a ground that the learned  appellate  court  below  upon  misconception  of  law misreading  the  evidence  erroneously  allowed  the  appeal  by reversing the judgment and decree of the learned trial court and thereby committed an error of law resulting in an error in the decision occasioning failure of justice.

The  Rule  has  been  opposed  by  the  legal  heirs  of  the present  plaintiff-  opposite  party  No.  1,  Sadir  Ahmmod  (now deceased and substituted).

Mr.  Syed  Khalaquzzaman,  the  learned  Advocate, appearing on behalf of the opposite party No. 1 (now deceased and substituted) submits that the plaintiffs the judgment passed in the Other Class Title Suit No. 277 of 1978 and also Other Class Suit No. 323 of 1980 have been exhibited which were regarding the exchange deed dated 19.09.1984 and the exchange deed  dated  30.12.1989  (as  Exhibits-  2  and  7)  which  are  the exchange  deeds  by  and  between  Ayesh  Uddin  and  present opposite party No. 1. Regarding the suit land measuring 1.90 acres appertaining to at Mouza- Megh Dohor, R. S. Khatian No. 229, Police Station- Nachole, Chapainawabgonj but the learned trial court failed to consider the exhibits produced and submitted by the plaintiff-opposite parties and therefore came to a wrongful conclusion to dismiss the suit. However, the learned appellate court below properly considered the deed of the plaintiffs, as such,  lawfully  allowed  the  appeal  and  thereby  reversing  the judgment of the learned trial court but the present petitioners obtained the Rule by misleading the court, as such, the Rule is liable to be discharged.

The  learned  Advocate  also  submits  that  the  plaintiff- opposite parties were dispossessed by force which compelled them to file this title suit after obtaining title and possession by the exchange deeds mentioned above.

Considering the above submissions made by the learned Advocate appearing on behalf of the plaintiff-opposite party No. 1  (leaving  behind  his  legal  heirs)  and  also  considering  the revisional application filed by the present defendant-respondent- petitioners under section 115(1) of the Code of Civil Procedure along with the annexures therein, in particular, the impugned

judgment and decree passed by the learned appellate court below allowing  the  appeal  and  thereby  reversing  the  judgment  and decree of the learned trial court and also perusing the relevant and required documents available in the lower courts records, it appears  to  me  that  the  present  opposite  party  No.  1  as  the plaintiff filed the Other Class Suit No. 87 of 2009 in the court of the  learned  Assistant  Judge,  Nachole,  Chapainawabgonj  for declaration of title and also for recovery of khas (M¡p) possession upon the suit land described in the schedule of the plaint. It also appears that the predecessor of the plaintiff-opposite party No. 1 earlier filed the Other Class Suit No. 277 of 1978 claiming title of the suit land measuring 1.90 acres and the same predecessor of the plaintiff-opposite party No. 1 filed this title suit after getting the suit land by exchanging of lands deed on 19.09.1984 and also the exchange deed dated 30.12.1989 which have been filed as the exhibits by the plaintiff-petitioners but the record of rights was published erroneously in the name of other persons disregarding the above mentioned 2 exchange deeds. The learned trial court misread and failed to consider the exchange deeds filed by the plaintiff-opposite party because of non-application of the judicial mind.  The  learned  appellate  court  below  allowed  the  appeal preferred by the present plaintiff-opposite party No. 1 against the judgment and decree of the learned trial court.

Now, I am going to examine the findings of the learned courts below:

The learned trial court came to a wrongful conclusion to dismiss the suit on the basis of the following findings:

…“The other PW- 5 did not to each other in respect  of  dispossession  of  the  plaintiff  by  the defendants. That plaintiff party as put himself deposed

that the latest record of right has not been prepared after the name of him or his predecessor in interest. That no document of settlement has also been by him.

In this circumstance, heavy burden upon the plaintiff

lies upon to prove his title but he failed to do this which led this court to and decide that the plaintiff has

no proper title and possession over the suit land.”…

On the other hand, the learned appellate court below came

to  a  lawful  conclusion  to  allow  the  appeal  by  passing  the impugned  judgment  and  thereby  reversing  the  impugned judgment on the basis of the following findings:

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Cpm¡j Sh¡­hl hš²hÉ pjbÑe L¢lu¡ p¡rÉ fËc¡e L¢lu¡­Rez ¢a¢e h¢mu¡ Re 12 hR ll A¢dLL¡m k¡hv d¢lu¡ e¡¢mn£ S¢j a h¡s£-Ol

¢ejÑ¡Z L¢lu¡ hph¡p L¢l­a­Rez a¡q¡l Eš² hš²hÉ pjbÑe L¢lu¡ ¢X.

X¢hÔE-2 gSm¤l lqj¡e Sh¡eh¢¾c a h¢mu¡ Re e¡¢mn£ S¢j a ¢hh¡c£ cl h¡s£ B R 10/12 hRl qC az ¢X. X¢hÔE-3 Sh¡eh¢¾c a

h¢mu¡ Re e¡¢mn£ S¢qj a h¡s£ B R e§eÉaj 8/9 hRl qCmz ¢hh¡c£

f rl p¡r£ cl h š²hÉ cª ÖV ®RM¡ k¡u pLm ¢hh¡c£ 12 hR ll ®hn£ pju qC a cMm L l j jÑ c¡¢h L l e¡Cz ¢hh¡c£ f rl p¡r£NZ L

h¡c£ fr ®Sl¡ L¢lu¡ Rz ¢hh¡c£ f rl p¡r£NZ ®Sl¡u h¡c£ f rl

®Lp ü£L¡l e¡ L¢l­mJ ¢hh¡c£ f­rl p¡r£­cl hš²hÉ à¡l¡ ¢hh¡c£ fr

a¡q¡­cl ®Lp fËj¡Z L¢l­a prj qu e¡C j­jÑ Aœ¡c¡m­al ¢eLV fËa£uj¡Z qC­a­Rz ®k­qa¥, e¡¢mn£ afn£m h¢ZÑa pÇf¢š­a h¡c£- Bf£mL¡l£ fr üaÄ Hhw Cw 03/06/09 a¡¢lM fkÑ¿¹ cMm fËj¡Z L¢l a prj qCu¡ R, ®pC qa¥, h¡c£-Bf£mL¡l£ fr j§m ®j¡LŸj¡l

¢X¢œ² f¡C­a qLc¡l qC­a­R j­jÑ Hhw j§m ®j¡LŸj¡¢V Bl¢Sl h¢ZÑa BL¡ l lrZ£u j jÑ ¢pÜ¡¿¹ Ll¡ qCmz”…

In view of the above conflicting decisions, I have carefully examined the judgments and decrees passed by both the courts below and I found that the learned trial court failed to examine the  relevant  exchange  deeds  dated  19.09.1984  and  also 30.12.1989  which  were  transferred  by  way  of  the  Superior Landlord, as such, the deeds contains that the plaintiff-opposite party No. 1 had proper title. I have also examined the judgments and decrees as to the findings of the possession by the plaintiff- opposite party No. 1 upon the suit land which was dispossessed by force by the present defendant-petitioners. Accordingly, the learned trial court committed an error of law by misreading and

non-considering the prayer of the present plaintiff-opposite party No.  1.  On  the other  hand, the  learned  appellate  court  below examined  the  validity  of  the  documents  in  support  of  the plaintiffs’ case. The learned appellate court below came to a lawful  conclusion  to  allow  the  appeal  by  finding  that  the plaintiffs could prove their case as to the title and possession after cross-examining the defense witnesses as to the title and also possession until 03.06.2009 and dispossession therefore. As such, the plaintiffs claimed both the title and recovery of khas (M¡p) possession.

In view of the above conflicting facts and circumstances as well as conflicting decisions passed by the learned courts below and also exchange deeds executed by the one Ayesh Uddin in favour of the present plaintiff-opposite party No. 1 as mentioned above, I am therefore not inclined to interfere upon the impugned judgment and decree passed by the learned appellate court below who allowed the appeal and thereby reversing the judgment and decree passed by the learned trial court.

In view of the above, I do not consider that this is an appropriate and proper case for interference from this court and I do not consider that this Rule requires any further consideration.

Accordingly, I do not find merit in the Rule.

In the result, the Rule is hereby discharged.

The  judgment  dated  02.03.2014  passed  by  the  learned Joint District Judge, Court No. 1, Chapainawabgonj in the Title Appeal No. 88 of 2011 allowing the appeal and thereby reversing the judgment dated 23.05.2011 passed by the learned Assistant Judge, Nachole, Chapainawabgonj in the Other Class Suit No. 87 of 2009 by dismissing the suit is hereby confirmed and upheld.

The  interim  order  passed  by  this  court  at  the  time  of issuance of the Rule staying the operation of the Title Appeal No. 88 of 2011 for a period of 6 (six) months and subsequently the same  was  extended  from  time  to  time  and  lastly,  it  was extended  until  disposal  of  the  Rule  are  hereby  recalled  and vacated.

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 learned courts below immediately.