Bench:
Mr. Justice Bhishmadev Chakrabortty
Civil Revision No. 4513 of 2016
Razia Khatun and others
......petitioners -Versus-
Md. Khokon Kha and others
......opposite parties
Mr. Md. Shah Alam Sarker, Advocate
...... for the petitioners
Mr. Golam Ahmed Bulbul, Advocate
...... for opposite parties 1-12
Judgment on 14.07.2024
At the instance of defendants 4(Ka)-4(Jha) this Rule was issued calling upon the plaintiff-opposite parties 1-12 to show cause as to why the judgment and order of the District Judge, Chandpur passed on 03.11.2016 in Title Appeal No.74 of 2016 dismissing the appeal summarily affirming the final decree drawn up on 19.01.2012 by the Senior Assistant Judge, Sadar, Chandpur in Title Suit No.75 of 1965 decreeing the suit on compromise should not be set aside and and/or such other or further order or orders passed to this court may seem fit and proper.
Facts relevant for disposal of the Rule, in brief, are that opposite parties 1-4 herein as plaintiffs instituted the aforesaid suit against the petitioners and others praying for partition of the suit land as described in the schedule to the plaint claiming saham to the extent of 2.32 acres. The predecessor of the present petitioners appeared in the suit as defendant 4 and claimed saham. But
1
subsequently he and the plaintiffs filed a solenama in the suit. The application was allowed and the suit was decreed on compromise in preliminary form on 20.06.1966 according to the terms of the solenama. The plaintiffs got 2.05 acres of land while petitioners got .705 acres. The plaintiffs then filed an application in the trial Court for getting saham as per the terms of the preliminary decree. The said application was allowed and an Advocate Commissioner was appointed for allocating the land as per the preliminary decree. The Advocate Commissioner submitted a report on 09.06.2010 with sketch map, chitta, field book and etc. The Court accepted the report on 29.09.2011 without any objection. In the said report it is found that the Advocate Commissioner also allocated saham to the above petitioners, i.e., heirs of defendant 4.
Against the aforesaid order of acceptance of the Commissioner’s report these petitioners filed Civil Revision No.07 of 2012 before the District Judge, Chandpur. The Additional District Judge, Chandpur heard the said revision on transfer and by the judgment and order passed on 02.04.2014 rejected the same. The petitioners filed Civil Revision No.1659 of 2014 against it before this Court. The Rule issued in the aforesaid revision was made absolute by this Division on 07.09.2014 and the report of the Commissioner was set aside. This Court further directed the trial Court to appoint a fresh Advocate Commissioner to relay the suit land as per present possession. The plaintiffs challenged the aforesaid judgment and order in the Appellate Division in Civil Petition for Leave to Appeal No.3255 of 2014. The appeal was allowed and the judgment and order passed by the High Court Division in the revision was set aside. The Appellate Division further directed the trial Court to proceed with the execution case and dispose of it expeditiously. Thereafter, the trial Court drawn up the final decree on 19.01.2012 but the petitioners challenging it preferred appeal before the District Judge. The District Judge heard the appeal and by the judgment and order dated 03.11.2016 dismissed the appeal summarily. Being aggrieved by the petitioners approached this Court challenging the appellate judgment and order as well as the final decree prepared by the trial Court and obtained this Rule.
Mr. Md. Shah Alam Sarker, learned Advocate for the petitioners taking me through the materials on record submits that the Court of appeal below did not enter into the merit of the appeal but dismissed it on the ground that against the acceptance of Commissioner’s report these petitioners approached this Court and finally the Appellate Division passed the judgment against them and the report of the Commissioner was finally accepted. The Court of appeal below failed to consider that the petitioners earlier moved in this Court against the acceptance of the Commissioner’s report passed by the Assistant Judge but in the present appeal they have challenged the judgment and final decree passed by the Assistant Judge. The Court of appeal below ought to have disposed of the appeal on merit and by not doing so committed error of law resulting in an error in such decision occasioning failure of justice. Mr. Sarker further submits that although preliminary decree was prepared in the year 1966 but the plaintiffs filed application for preparing final decree in 2009. In the meantime the position of the land has been changed. Some lands were transferred to other people and they are in possession of it and recent record of right has been prepared in their names. The Court of appeal below being the last Court of fact ought to have taken into account the aforesaid facts.
The learned Advocate for the petitioners has filed an application today under Order 41 Rule 27 of the Code of Civil Procedure (the Code) for acceptance of the annexed documents as additional evidence. He refers to the photostate copy of the deeds of transfer and submits that if those documents were taken by the trial Court or the Court of appeal below into evidence the result of the suit could have been otherwise. This Court in revision can accept an application for additional evidence. In this connection he refers to the case of Sona Mia Bepari and others vs. Jamila Khatun and others, 8 BLD (AD) 141 and relied on the ratio laid therein. In the supplementary affidavit he made statements about the suit schedule which has been transferred to the different persons. Mr. Sarker finally submits that although the plaintiffs got preliminary decree in respect of 2.053 acres but they transferred in the meantime 1.5 acres and it remains .52 acres to them and they can get saham to that extent. In view of the above position, the Rule would be made absolute and the case be sent on remand to the appellate Court to dispose of the appeal on merit.
Mr. Golam Ahmed Bulbul, learned Advocate for opposite parties 1-4 on the other hand opposes the Rule and submits that it is well settled position of law that a final decree is to be prepared in terms of the preliminary decree. Although the plaintiffs filed application for getting saham as per preliminary decree at the belated stage but that could not be a bar to accept it. The trial Court correctly accepted the report of the Commissioner and the field book, chitta and sketch map were treated in as part of the final decree. The petitioners earlier approached this Court against the report but finally the Appellate Division rejected their prayer and directed the trial Court to proceed with the execution case as per the report and to dispose of it expeditiously. There is no error in the impugned appellate judgment and final decree passed by the trail Court. The judgment and order passed by the Appellate Court may not be interfered with by this Court in revision. The Rule, therefore, would be liable to be discharged.
I have considered the submissions of both the sides and gone through the materials on record. This is a suit for partition where defendant 4 (predecessor of the petitioners) appeared and claimed saham. The suit was decreed on compromise with defendant 4. The plaintiffs were given saham of 2.05 acres and the predecessor of these petitioners as defendant 4 got .705 acres in terms of the solenama. Defendant 4 agreed with the terms of solenama and Court allowed the parties to compromise the suit as prayed for and allocated saham to them as above. It appears that the preliminary decree was prepared on 20.06.1966 and the plaintiffs filed application for getting saham by appointing an Advocate Commissioner long after. The Court passed order upon it on 26.10.2009. The appointed Advocate Commissioner performed his job and submitted report on 09.06.2010. The Assistant Judge by order No.55 dated 29.09.2011 accepted the report and accordingly final decree was prepared. The petitioners raised objection against the report that by the passage of time the position of the suit land has been changed because both the parties transferred some lands from suit land to third parties through kabalas and as such the Advocate Commissioner cannot allocate saham as per terms of the preliminary decree.
It is well settled position of law that a final decree is to be prepared in terms of preliminary decree. The Advocate Commissioner or the Court has nothing to do or go beyond the terms of the preliminary decree. The report submitted by the Commissioner is found as per the terms of the preliminary decree. Although defendant 4 raised objection against said report and claimed more land than that of allocated to him but such claim cannot be accepted by the Commissioner or by the Court in any manner whatsoever. Against the report of the Commissioner and rejection of the objection, the petitioner earlier approached in this Division. Although this division passed judgment in Civil Revision No.1659 of 2014 in their favour but it was set aside by the Appellate Division in Civil Petition for Leave to Appeal No.3255 of 2014. The Appellate Division observed that it is a device of the petitioners to delay the final adjudication of the suit and that the decree holder should not be deprived of enjoying the decree for indefinite period. The appellate division further directed trial Court to proceed with the execution case and to dispose of it expeditiously. According to the direction of the Appellate Division the trial Court proceeded with the decree and prepared final decree. Defendants 4(Ka)-4(Jha) then preferred appeal before the District Judge. The appeal was barred by limitation of 1683 days. An application with the appeal for condonation of delay under section 5 read with section 14 of the Limitation Act was filed. But the Court of appeal below on admission hearing dismissed the appeal summarily stating the aforesaid facts of moving defendant 4 up to the Appellate Division. On perusal of the memorandum of appeal filed with the revisional application, I do not find that any ground has been taken therein that the trial Court committed any error of law or of fact in preparing the final decree in the suit. In the appeal
On going through the application for taking additional evidence filed by the petitioners, I find that no statement has been made therein that prevented the petitioners to file those documents in the trial Court or in the appellate Court. The documents (photocopies) submitted with the application appears subsequent transfers, i.e., after pronouncement of the judgment and preliminary decree in the original suit. Since the documents and statements made in the application are beyond the pleadings and not relevant in disposing this suit, I find no reason to entertain it for taking additional evidence. The application is, therefore, rejected summarily.
I have already discussed about the present position of the final decree prepared by the trial Court. The appeal was preferred before the District Judge challenging the final decree. The appellate Court ought to have disposed of the appeal on merit subject to condonation of delay of 1689 days. Although learned District Judge did not enter into the merit of the case but on perusal of the judgment and decree passed by the trial Court and the judgment passed by the Appellate Division in Civil Petition for Leave to Appeal No.3255 of 2014, I find nothing to interfere with the judgment and order passed by the lower appellate Court. I find no ground in the revisional application that the trial Court committed any error in preparing the final decree as per the terms of the preliminary decree.
Therefore, I find no merit in this Rule. Accordingly, the Rule is discharged. No order as to costs. The judgment and order passed by the appellate Court dismissing the appeal summarily affirming the judgment and final decree of the trial Court is hereby affirmed.
Communicate this judgment and send down the lower Courts’ record.
Sumon-B.O.