Md. Baki Vs. Md. Fazlul Haque and others

Appellate Division Cases

(Civil)

PARTIES

Md. Baki…………………… Petitioner.

-VS-

Md. Fazlul Haque and others ………………..Respondents.

M. M. Ruhul Amin J

Md. Hassan Ameen J

Judgment Dated:  28th May 2007

The plaintiff and the defendant jointly purchased the said homestead. The plaintiff and defendant used to possess the said homestead jointly through bharatia. The defendant have been abstaining from paying rent of the homestead in favour of the plaintiff since June, 1999. The plaintiff demanded partition on May, 1999 and the same was refused by the defendant and as such the suit was filed………………. (2)

The fact of payment of rent to the plaintiff is not true and accordingly, the defendant prayed for dismissal of the suit ………………………(3)

Syed Mahbubar Rahman, Advocate-on-Record ………………….For the Petitioner

Sufia Khatun, Advocate-on-Record ………………….For Respondent Nos. 1-2.

Respondent Nos.3 -6………………………. Not represent.

Civil Petition For Leave To Appeal No. 1678 of 2005

(From the judgment and order dated 15th June, 2005 passed by the High Court Division in Civil Revision No.3028 of 2003.)

JUDGMENT

Md. Hassan Ameen J: This petition for leave to appeal has been filed by the defendant-petitioner against the judgment and order dated 15th June,2005 passed by the High Court Division in Civil Revision No.3028 of 2003 making the Rule absolute reversing the judgment and decree dated 29-03-2003 passed by the Joint District Judge, 1st Court, Mamkgonj in Title Appeal No.114 of 2001 allowing the appeal reversing the judgment and decree dated 24-05-2001 passed by a Senior Assistant Judge, Saturia, Manikgonj in Title Suit No.91 of 1999 dismissing the same.

2. The case of the petitioner (oppositeparty-plaintiff) before the trial Court was that he (plaintiff) instituted Title Suit No.91 of 1999 in the Court of Senior Assistant Judge, Saturia, Manikgonj praying for a preliminary decree for partition of .10 decimals of land out of R. S. Plot Nos. 172 and 178 of Mouza Dasra under Police Station and District Manikgonj, stating in nutshell that the land under partition belonged to Amit Kumar Roy, who being in right, title and possession transferred 10 decimals of land by kabala No.966 dated 12-02-1996 in favour of the plaintiff and also transferred 15 decimals of land by another kabala being No.965 dated 12-02-1996 in favour of the defendant No.l. There is a homestead on the land under partition. The plaintiff and the defendant jointly purchased the said homestead. The plaintiff and defendant used to possess the said homestead jointly through bharatia. The defendant have been abstaining from paying rent of the homestead in favour of the plaintiff since June, 1999. The plaintiff demanded partition on

May, 1999 and the same was refused by the defendant and as such the suit was filed.

3. The defendant No. 1 contested the suit by filing written statement, alleging, inter-alia, that the suit land measures an area of .30 decimals out of which .3 decimals of land fell into the road. Thereafter Amit Kumar Roy gave a proclamation for transfer of .30 decimals of land and also gave a proclamation separately for transfer for ‘pucca’ homestead standing upon the suit land. The price of the homestead was settled at Tk. 1,00,000/- the defendant purchased 15 decimals of land along with homestead and the plaintiff purchased only 10 decimals of land. The plaintiff as well as the defendant got possession in their purchased land. The defendant made a boundary wall covering his land, mutated his name and paid rent. The plaintiff did not purchase the homestead. The

defendant possessed the same. The fact of payment of rent to the plaintiff is not true

and accordingly, the defendant prayed for dismissal of the suit.

4. The trial Court in consideration of the evidence on record dismissed the suit by the judgment and decree dated 24th May, 2001 against which the plaintiff-preferred

Title appeal No. 114 of 2001 which was allowed directing the plaintiff to file a separate

suit in respect of the homestead property and further directed Advocate Commissioner, if appointed for allotment of necessary land providing an access of the plaintiff with the existing road. Being aggrieved and dissatisfied by the said judgment and decree, the defendant moved the High Court Division and obtained Rule. The High Court Division

thereafter in consideration of evidence on record as well as facts and circumstances

of the case discharged the Rule. Hence, this leave-petition.

5. Mr. Syed Mahbubur Rahman, the learned Advocate for the petitioner, submits that the High Court Division failed to appreciate that the petitioner-respondent Nos. 1 and 2 purchased the suit property in question by two separate registered deeds. He further submits that the High Court Division failed to show that the defendant-petitioner after purchase of . 15 decimals of land from the same vendor mutated his name and paid rent to the Government and got water, gas and electricity connection as well as constructed boundary wall which was not objected by the plaintiff and as such the direction of the High Court Division for giving passage is beyond pleading and as such committed illegality in the decision and it merits consideration to dispose of the matter. Learned Advocate lastly submits that the High Court Division failed to appreciate the pleadings of the parties in their true perspective and traveled beyond the pleadings and thereby committed illegality and as such required to be interfered with.

6. We have heard the learned Advocate for the petitioner and perused the petition so filed and reasons to believe that there is no substance in the matter and as such no interference is called for in the findings and decisions of the High Court Division and accordingly it is dismissed.

Source : V ADC (2008), 209

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