1. Code of Civil Procedure:-

 Service of Summons where there are more than one defendat.

ORDER 5 RULE 11 of the C.P.C:- Where there are more than one defendant, the legislature has made it mandatory to serve summons upon each and every defendant separately ………Para 23..….Page…23

1. ORDER 5 RULE 19 B OF THE CODE OF CIVIL PROCEDURE

After amendment of the code of Civil Procedure vide ordinance No. XLVIII of 1983 it has been made mandatory upon a court to simultaneous issue of summons for service through usual court`s process as well as through registered Post.

                                                                                             Para 24……..Page 24.

1. PARTITION

What is the pre-liminary decree in a suit for Partition?

By the preliminary decree, the court, at first ascertains the share of the plaintiff and the defendant as well in an undivided estate, in a separate Saham.

1. What is the final decree in a suit for Partition?

The final decree proceeding is the 2^nd stage of a suit for Partition. After the preliminary decree has been passed the final decree proceeding starts. An advocate commissioner is appointed for effecting final partition or separation of shares who follow the procedure as provided in order 26 Rule 13 and 14 of the Code of Civil Procedure……………..Para………..28………..Page………27

1. What are the stage of a partition suit?

There are 3 (three) stage of a partition suit. The first stage is the pre-liminary decree.       The 2^nd stage is the final decree proceeding and the 3^rd stage is the execution of the decree by which a decree holder gets separate possession through court in the decreetal land…………….Para……….28………Page……27

                        IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

CIVIL REVISION NO. 284 OF 1999

IN THE MATTER OF:

Abdul Gani Munshi

….. Petitioner

-Versus-

Md. Mominul Huque and others

… Opposite Parties

Mrs. Farida Khan with

Mr. Md. Musharraf Husain

…. For the Petitioner

Mr. Abdul Quayum with

Mr. Md. Abdul Awal for

Mrs. Chowdhury Nasima

… For the Opposite Parties

Heard on 15.2.2012, 16.2.2012

Judgment on 22 February 2012

Present;

Mr. Justice Shahidul Islam

1. The Rule was issued calling upon the opposite party No. 1 to show cause as to why the judgment and decree dated 18.8.1998 passed by the learned Additional District Judge, Patuakhali in Title Appeal No. 102 of 1996 dismissing the appeal and affirming those dated 29.6.1996 passed by the learned Sub-ordinate Judge, Patuakhali in Title Suit No. 12 of 1995 should not be set aside and / or such other or further order or orders passed as to this Court may seem fit and proper.
2. Facts relevant for disposal of the Rule are that the opposite party Nos. 1 and 7 as plaintiff`s instituted Title Suit No. 114 of 1984 in the Court of Sub-ordinate Judge, 1^st Court, Patuakhali impleading the sister of the opposite party No. 1 and 12 others as defendant seeking for a preliminary decree for partition to the extent of 19.93 acres of land out of the land of settlement plot No. 1187, 1194, 1191, 1190 of mouza Tiakhali under Police Station Khepupara District-Patuakhali and also out of the land of pattani settlement khatian No. 56 of mouza Tiakhali. That suit was decreed ex parte on 14.7.1991 (exhibt-6). That decree was made final on 13.3.1991 and that was sealed and signed on 31.7.1991 (exhibit-7). The plaintiff of that suit got delivery of possession through Court on 17.1.1992. Thereafter the defendant No. 15 of Title Suit No. 114 of 1994 as plaintiff instituted Title Suit No. 12 of 1995 in the Court of learned Sub-ordinate Judge, 1^st Court, Patuakhali seeking for a declaration that the preliminary judgment and decree as well as final decree passed in Title Suit No. 114 of 1984 to be collusive, illegal obtained by fraud and without serving any summons upon the defendants, void, without jurisdiction and cancelled contending, inter alia, that the land of suit namely C.S. Khatian No. 158 belonged to Sadem Ali and Ibrahim each to the extent of 8 annas share and the land of C.S. Khatian No. 56 belonged to Ibrahim in 16 annas share. Sadan Ali is the son of Ibrahim. Ibrahim died leaving behind 2 sons named Sadem Ali and Mominul Haque and 3 daughters Joytun, Amena Begum and Umme Kulsum and wife Momina. Sadem Ali was the owner and possessor in 4.69 acres of land out of 10 annas share of petty settlement Khatian No. 158, 2 annas was inherited from father Ibrahim, which was subsequently recorded in the revisional survey khatian No. 40. Sadem Ali inherited 5.20 ½ acres of land out of 4 annas share in petty settlement khatian No. 56, which subsequently recorded in revisional survey khatian No. 16. Sadem Ali transferred .12 acres land from the revisional survey khatian No. 40 and 2.66 acres of land from the revisional survey khatian No. 16 in total 2.78 acres to the plaintiff as well as to the defendant No. 1 by a registered kot karsh patta dated 29.8.1958 and delivered possession over 1.39 acres of land on the basis of the said patta. The defendant No. 1 acquired right, title and possession in respect of 1.39 acres of land and also purchased some properties by registered kabala deed dated 12.7.1956 and 5.7.1956 from Bishnu Charan and others. The defendant No. 1 transferred 1.30 acres of land in favour of the plaintiff by a registered deed of gift dated 16.9.1957. The plaintiff acquired right, title and possession in 2.69 acres of land on the basis of the aforesaid patta and gift who got mutated his name and paid rent. The plaintiff is the domesticated son in law of Momina Bibi and brother-in-law of defendant No. 1. The further case of the plaintiff is that, as a domesticated son-in-law he used to look after the defendant No. 1, his sister and also looked after their properties. The defendant No. 1 instituted Title Suit No. 114 of 1984 for partition in the Court of the Sub-ordinate Judge at Patuakhali by showing false cause of action against plaintiff and others and obtained a preliminary decree dated 14.7.1991 by fraudulent means, suppressing of summons and notices and obtain preliminary decree, final decree fraudulently. The plaintiff came to know about the said preliminary and final decree on 01.4.1995 from one Muzaffor Hossain in presence of Ismail Howlader and Abdul Mannan and filed the suit.
3. The defendant Nos. 1 and 35-36 contested the suit by filing two separate written statements. The defendant No. 1 in his written statement denied all the material allegations of the plaint and stated, inter alia, that the suit is barred by limitation and bad for defect of parties. The case of the defendant No. 1 in short was that, Ibrahim Munshi being the owners and possessor of property to the extent of 8 annas in petty settlement Khatian No. 158 and to the extent of 16 annas in the petty settlement khatian No. 56 died leaving behind one wife Momina Bibi, two sons, Sadem Ali, Mominul Hoq and three daughters, Joytun, Amena Begum and Umme Kulsum. Momona Khatun died leaving behind one son Mominul Huq and two daughter`s Amena Begum and Ummekulsum. Joytun died leaving behind husband Rattan Gazi, one son Abul Hashem and one daughter Joynab Bibi. Sadem Ali transferred 2.71 acres of land out of petty settlement khatian No. 158 to one Abul Hashem Mia and Abul Hashem Mia transferred 1.50 acres out of his purchased land to one Bishnu Charan Howlaer. Bishnu Charan Howlader sold his purchased 1.50 acres of land to Khepupara co-operative supply and sale society by a registered deed dated 12.7.1956. Abul Hashem sold the rest of the purchased land to the said society by way of two registered kabala deeds. That Khepupara co-operative society sold 2.16 acres of land to the defendant No. 1 by a registered kabala dated 17.6.1956. The defendant No. 1 acquired 3.79 acres of land of petty settlement khatian No. 158 by way of inheritance and on the basis of the said kabala. Successive heirs of Joytun, Abdul Aziz and Abdul Mazid transferred their shares by a registered kabala deed dated 23.5.1983 to the defendant No. 10-11, two sons of defendant No. 1. Hanif, successive heirs of Joytun transferred his shares to defendant Nos. 10-11 and Rahima Khatun the successive heir of Joytun transferred her share to the defendant No. 9, wife of the defendant No. 1 by two registered kabala dated 23.5.1980 and 27.5.1980 respectively. The defendant No. 1, his sister Ummekulsum, his wife, two sons of Rattan Gazi and daughter of Joytun were plaintiff Nos. 1, 2, 3, 4, 5, 6, 7 an 8 in the Title Suit No. 114 of 1984. The defendant No. 1 acquired right, title and interest over 6.50 acres of land by way of inheritance, 3.33 acres of land on the basis of two kabala dated 18.9.1946 and 31.6.1948 executed by Sadem Ali and .32 acres of land on the basis of kabala executed by Joynab in total 10.15 acres of land out of petty settlement kahtian No. 56. The further case of the defendant is that the plaintiff No. 2 of Title Suit No. 114 of 1984 inherited 3.25 acres of land under petty settlement khatian No. 56 and in that way the defendant Nos. 1-11 acquired 15.88 acres of land by inheritance and on the basis of kabala out of petty settlement Khatian No. 56. The Title Suit No. 114 of 1984 had been instituted, by the predecessor of the defendant No. 2-8 and defendant No. 9-14 with respect to 19.23 acres of land under petty settlement khatian No. 158 and 56, that summons of Title Suit No. 114 of 1984 had been duly served upon the defendants and the defendant No. 1 and the defendant Nos. 4-8 started contesting the suit by filing written statement and ultimately they did not proceed with the suit and the suit was decree exparte. Preliminary decree was passed lawfully and that was made final on the basis of the Commissioner’s report submitted by an Advocate Commissioner. The plaintiff has no right, title and possession over the said land and the suit is liable to be dismissed with costs.
4. The defendant No. 35 and 36 filed written statement stating, inter alia, that Sadem Ali sold 1.98 acres of land out of petty settlement khatian No. 158 in favour of Ramanikanta and others and delivered possession from plot No. 1198. Ramanikanta, Sreenath and Kalisnath transferred their entire share to Ramnarayan Barui alias Biswas, predecessor of the defendant Nos. 35 and  36 by way of two registered kabalas dated 12.3.1955 and 3.6.1959 and handed over possession thereof. The predecessor of the defendant Nos. 35 and 36 had not been made party in Title Suit No. 114 of 1984 and the judgment and preliminary decree was obtained exparte by suppressing summons and on the basis of the said preliminary decree a final decree was made by suppressing notices and by showing wrong name and address of the defendant.
5. The learned Assistant Judge, Patuakhali framed the following issues:-

(i)                 Is the suit maintainable in its present form?

(ii)               Is the suit bad for defect of parties?

(iii)             Is the suit barred by limitation?

(iv)             Whether the decree impugned in the suit and as shown in schedule-Ka to the plaint are lawful?

(v)               Has the plaintiff any title and possession in the suit land?

(vi)             What more relief the plaintiff is entitled to get?

1. The trial was taken up by the learned Sub-ordinate Judge, 1^st Court, Patuakhali. The plaintiffs examined 4 PWs and his documentary evidence were admitted as exhibit-1, 2 series, 3, 4 series, 5, 6, 7, 8 series. The defendants examined in total 17 DWs and their documentary evidences were admitted as exhibit-Ka series, Kha series, Ga, Gha, Uma, Cha, Chha, Ja, Jha series, Neo, Ta, Tha, Da, Dha, Na series.
2. The learned Sub-ordinate Judge, 1^st Court, Patuakhali by the judgment and decree dated 29.6.1996 although found the suit to be bad for defect of parties and a found that, the plaintiffs have got more land, than that of their actual share in the final decree and although opined that, the preliminary decree passed in Title Suit No. 114 of 1984 was not lawfully passed but ultimately dismissed the suit by the judgment and decree dated 29.6.1996 holding the suit to be barred by limitation.
3. Being aggrieved by the said judgment and decree the petitioner preferred Title Appeal No. 102 of 1996. That appeal was heard by the learned Additional District Judge, Patuakhali who by the impugned judgment and decree dated 18.8.1998 dismissed the appeal and affirmed the judgment of the trial Court.
4. Being aggrieved by the said judgment and decree the plaintiff as petitioner has obtained the instant Rule.
5. Mrs. Farida Khan with Mr. Md. Mosharraf Husain, the learned Advocates appeared for the plaintiff petitioner. Mr. Abdul Quayum with Mr. Md. Abdul Awal, the learned Advocates appeared for the defendant petitioner.
6. Mrs. Farida Khan, the learned Advocate taking me through the judgments of the Courts below submitted that the plaintiff No. 1 of Title Suit No. 114 of 1984 and the defendant No. 1 are brothers and sisters. She submitted that no summons was served upon the defendant No. 1 of that suit. She further submitted that the plaintiffs of the instant Title Suit No. 12 of 1995 is the husband of Amena Khatun, the defendant No. 1 of Title Suit No. 114 of 1984. She submitted that, no summons were served upon the defendant No. 15 and keeping the plaintiff of the instant Title Suit No. 12 of 1995 as well as the defendant No. 1 of Title Suit No. 114 of 1984 in darkness the plaintiffs of that suit managed to obtain an exparte decree and final decree taking more lands in their saham than that of their actual share. She further submitted that the plaintiffs of the instant suit was not aware of the fact of exparte decree and final decree passed in Title Suit No. 114 of 1984 earlier, Only on 1.4.1995 he came to know about the decree through Mozaffar Hossain, Ismail Howlader and Abdul Mannan and took the certified copy of the judgment and decree in question and instituted the suit within limitation. Taking me through the judgment of the trial Court in Title Suit No. 12 of 1995, She submitted that the trial Court upon discussing the evidence on record came to a finding that the exparte judgment and decree passed in Title Suit No. 114 of 1984 was bad for defect of parties and managed to get excess land in the final decree than that of actual share but thereafter dismissed the suit on point of limitation without assigning any cogent reasons. She further submitted that the decree holder although submitted a cross objection in the appeal but the learned Additional District Judge without controverting the finding of facts arrived at by the trial Court, upon the question of non-joinder of necessary parties and upon the question of inclusion of excess land in their share has dismissed the appeal by the impugned judgment and decree in a slipshod manner. She submitted that, the Court of appeal being the last Court of fact has hopelessly failed to investigate the question of due service of summons as well as the share of the plaintiff and as such the impugned judgment and decree are illegal and void and not sustainable in law. She prayed for setting aside the impugned judgment and decree and for sending the suit back on remand.
7. Mr. Abdul Quayum, the learned Advocate on the other hand submitted that, the plaintiff of the instant suit has no locus standi to file the suit. In elaborating his submissions he pointed out that earlier in 1980, the plaintiff of the instant suit instituted Title Suit No. 414 of 1980 in the 3^rdCourt of Munsif, Patuakhali seeking for declaration of title to 1.39 acres of land and that suit was dismissed for default on 8.12.1993 and without restoring that suit to its file and number, the plaintiffs cannot file the instant suit. He further submitted that, the summons upon the defendant No. 1 and defendant No. 15 (present plaintiff) was duly served by hanging by the process server and the said process server made a declaration with regard to due service under Order 5 Rule 19A of the Code of Civil Procedure and as such the allegation raised by the plaintiff was not acceptable and the Courts below have correctly dismissed the suit. He further submitted that the process server was examine as DW6 who proved due service of summons and as such the Courts below did not commit any illegality in dismissing the suit. He further submitted that after inclusion of Order 5 Rule 19A of the Code of Civil Procedure the onus of proving due service of summons has been shifted upon the defendant whenever the process server was examined before the Court. In support of his argument he relied upon the case law reported in 40 DLR (AD) 193. He further submitted that the plaintiff with a view to prove his title in the suit land produced certified copy of two deeds without furnishing any explanation about the original. Referring to the case law reported in 47 DLR (AD) 45 para 12, he submitted that secondary evidence adduced without furnishing any explanation cannot be accepted and as such the Courts below lawfully dismissed the suit. Lastly he submitted that no suit should be dismissed for the ground of non-joinder of necessary parties and he relied upon the case law of Shafaruddin –v- Fazlul Haque, reported in 49 DLR (AD) 151. Thereafter he submitted that the judgment and decree impugned in the suit have already been ended with a final decree and completed with the delivery of possession and as such there is nothing left before the Court to consider the points raised by the petitioner. With these submissions he prayed for discharge of the Rule. After making those submissions Mr. Quayum formulated the following point for determination by this Court:-
   1. The plaintiff got no locus standi to institute the suit as he failed to prove his title and possession in the suit land.
   2. Suppression of summons was not proved.
   3. Title of the plaintiff has been exhausted after the dismissal for default order was recorded in Title Suit No.  414 of 1980.
   4. Setting aside of the impugned judgment and decree would be meaningless inasmuch as the Courts below correctly found that, the plaintiff has no title and possession in the suit land.
   5. I have considered the submissions made by the learned Advocates for both the parties very carefully. I have gone through the judgments of the Courts below very carefully. Since the question of fraud and non service of summons have been raised by the full sister and sister’s husband of the plaintiff of Title Suit No. 114 of 1984 and since an allegations of inclusion of excess land was allegedly allotted to the saham of the plaintiff have been canvassed, I have gone through the entire record of Title Suit No. 114 of 1984, evidence on record adduced in Title Suit No. 12 of 1995 very carefully and meticulously.
   6. Considering the submissions, set forth before this Court by the learned Advocates for both the parties, I am inclined to frame the following points for determination for deciding the matters in controversy once for all:-

(a)                Whether the preliminary judgment and decree dated 14.7.1990 and 21.7.1990 were obtained by the plaintiff of Title suit No. 114 of 1984 without serving any summons upon the defendant No. 1 as well as others/?

(b)               Whether any fraud was practiced in obtaining service return of Title suit No. 114 of 1984?

(c)                Whether the said preliminary decree was a lawful decree in the eye of law?

(d)               Whether the preliminary decree in question without ascertaining any share of the plaintiff or defendant could be made final, as per law?

(e)                Whether the plaintiff petitioner had any locus standi to institute Title Suit No. 12 of 1995 after the Title Suit No. 414 of 1980 was dismissed for default?

(f)                Whether the Title Suit No. 12 of 1995 was barred by the law of limitation as found by the Courts below?

(g)                Whether the findings of the Courts below upon the question of title of the plaintiff as well as possession in the suit land were lawfully made?

(h)               Whether the impugned judgment and decree are sustainable in law, if not what would be the consequence?

1. Let us take up the points for determination (a) for decision. The plaintiff of Title Suit No. 114 of 1980 is the brother of the defendant No. 1 of that suit and the defendant No. 15 of that suit is the husband of the defendant No. 1. Initially the plaintiff No. 1 along with 7 others as plaintiff`s instituted Title Suit No. 114 of 1984 impleading 12 defendants and prayed for a preliminary decree for partition in 2 schedule of lands.  Upon perusal of the plaint of Title Suit No. 114 of 1984 it appears that the plaintiff No. 1 had impleaded his sister Amena as defendant No. 1 but did not mention her address in the plaint. The record of Title Suit No. 114 of 1984 has been tagged with the record of Title Suit No. 12 of 1995 and that is available before this Court now. Upon perusal of the order sheet of Title Suit No. 114 of 1984 it shows that the said suit was instituted on 25.8.1984. Only one set of summons was put in on 06.9.1984 against the defendant No. 1-9. Summons were issued from the Court for service on 3.11.1984. By order No. 9 dated 28.5.1985 the service of summons were recorded to have been served upon all the 12 defendants and the Court fixed the suit on 24.7.1985 for ex parte disposal. The deposition of PW1 (plaintiff No. 1) was recorded exparte but the Court was not satisfied with the service of summons upon the defendants and directed the plaintiff to issue noticees through registered acknowledgement upon the defendants. In compliance of the said order the plaintiffs put in registered notices through covered envelope with A/D on 15.8.1985. By order No. 13 dated 22.9.1985, the notices through registered post was recorded to have been served. Those covered envelopes containing notices are very much available with C-File of the record. I have perused the said record and examined each and every envelope containing notices. It appears that almost all the envelopes with A/D were returned back unserved with the endorsement “3bs we‡U cvIqv †Mj bv, 1bs we‡U wewji Rb¨ †`Iqv nj|” and thereafter was returned back with the endorsement “not found”. The registered notice with acknowledgement issued against the defendant No. 1 Amena was returned unserved with the endorsement “refused”. It is admitted that the defendant No. 15 and the defendant No. 1 of Partition Suit No. 114 of 1984 are husband and wife and living in the same homestead. The address of the defendant No. 15 in the plaint of Title Suit No. 114 of 1985 was disclosed as “village Nachnapara, Thana Kalapara” but the address on the registered notice issued against the defendant No. 1 was mentioned as “Amena Khatun Jong (Sw) Abdul Gani Munshi Shang (p¡w) Khepupara, Post: Khepupara”.
2. In view of the above it is crystal clear like sunshine of broad day light that no notice through Court or through registered post was addressed to the defendant No. 1 at her proper address or was served upon her in as much as the plaint does not bear any address of defendant No. 1 of Title suit No. 114 of 1984.
3. It further appears that the summons upon the defendant Nos. 1, 2, 4, 5, 6, 7,8, 9, of Title Suit No. 114 of 1984 was issued by a single notice against all those defendants. The addresses of those defendants as well as the defendant No. 1 were mentioned in the summons as village Khepupara, Thana Kalapara although admittedly the defendant No. 1 resides at village Nachnapara. In the service return made by process server it has been mentioned that the defendant Nos. 1-9 were found present and the summons were tendered to the husband of the defendant No. 1 who refused to receive the notice. That report was prepared on 26.12.1984 by the process server Sekandar Ali. Said Sekandar Ali gave a declaration of his service return,the contents whereof runs thus:-

“Avwg †mKv›`vi Avjx, PS (process server) GK Lvbv mgb cÖvß nBqv Dnv Dc‡i wjwLZ g‡Z Rvix KwiqvwQ BwZ 26/12/84| Dc‡i wjwLZg‡Z” described that, he found none of the defendants present and the summons were tendered upon the husband of the defendant No. 1. If the said declaration was accepted as a whole it presumed that no service of summons were made upon any of the defendants as a single notice or summon cannot be issued against 9 defendants and cannot be tendered upon a person who was not the karjakar of the defendant Nos. 2-9. I am inclined to hold that no summon`s were served upon the defendants Nos. 1-9 of Title Suit No. 114 of 1984.

1. Now let us see as to whether any summon was served upon the defendant No. 15 of Title Suit No. 114 of 1984 who is the plaintiff of the instant Title Suit No. 12 of 1995? From the record of Title Suit No. 114 of 1984 it shows that the plaintiffs at their own accord have made the defendant Nos. 13-15 as parties on 6.4.1986 and that has been recorded vide Order No. 19 of the suit. In the plaint, the address of defendant No. 15 has been given as village Nachnapara. The addresses of defendant Nos. 13 and 14 namely, Ram Narayan and Rabindra Nath were respectively shown as of village Nachnapara. The service return against those defendants are very much available in the C-File of the record. From the record it appears that a single summon was issued for service against the defendant No. 13-15 and that was made hawla on the process server on 22.5.1986. The process server allegedly went to serve summons on 23.5.1986. In the back of the summon the process server has given his report regarding his service of summons in the following manner:-

“wePvicwZ †gvKv‡ejv e¨w³M‡Yi cwiPq g‡Z AÎ mg‡b wjwLZ mvwK‡b †cŠwQqv mgb cÖPvi Kivq 13/14/15bs weev`xMY‡K nvwRi cvBqv mg‡bi gg© AeMZ KivBqv Zvnv‡`i bv‡g bKj mgb I AviRxi Kwcmg~n iwk` w`qv ivwL‡Z hvPbv Kivq D³ weev`xMY mg‡bi gg© ÁvZ nBqv iwk` w`qv bv ivLvq Zvnv‡`i bvwgK bKj mgb I AviRxi Kwc mg~n wbR wbR N‡ii mvg‡b †eovi ms‡M SyjvBqv ivwLqv Rvix Kwijvg| †gvKv‡ej e¨w³MY‡K m¦v¶i Kwi‡Z ejvq Zvnviv m¦v¶l bv Kivq Avwg Zvnv‡`i bvgÐavg wj‡L w`jvg| BwZ 23/5/86 Pvb wgqv wc.Gm.” Avwg †gvt  Pvb wgqv GKRb RvixKviK cÖKvk Kwi‡ZwQ  †h AÎ mgbLvbv Rvixi Rb¨ cÖvß nBqv Dnv Dc‡iv³ wjwLZ g‡Z Rvix KwiqvwQ| Rvix weeiY Avgvi Ávbg‡Z mZ¨| BwZ 23/5/86 Pvb wgqv, wc.Gm.  evgcv‡k 1| BmgvBj gvwS, wcZvÐbvwRg Avjx gvwS, 2| Rûi“b m¦vgx, wcZvÐ g„Z Avãyj ReŸvi gyÝx me© mvs bvPbvcvov ZvwiL 23/5/86 mgq Abygvb 10.00 Uv| The process server Chand Miah was examined as DW6 who in his cross-examination admitted the following:- “13/14/15 bs weev`x GK evoxi gvbyl b‡n| Zvnv‡`i evoxNi †Kvb RvqMvq ewj‡Z cvwi bv| †bvwUk myZv w`qv jUKvBqv w`qvwQ| Ni¸wj †Kvb wfwU‡Z Avgvi g‡b bvB|” From the said admission of process server it becomes clear that he did not visit the village Nachnapara for service of summons against the defendant No. 15 or any of the defendants. In the case of Shontosh Kumar v.s Motaleb 36 DLR (A.D) – 284 summon was served by hanging and it was decided that it is incumbent upon the court to make an inquiry under Rule 19 and to record a distinct declaration of sue service, if satisfied or to order service afresh and thereafter to examine the serving officer on oath touching his proceedings. In the instant case that was not done.

1. Mr. Abdul Quayum, the learned Advocate submitted that the service return was made under Rule 17 of Order 5 of the Code of Civil Procedure and the declaration so made by the process server was made satisfying the requirement of Order 5 Rule 19(A) of the Code of Civil Procedure. Order 5 Rule 17 of the Code of Civil Procedure provides the following provisions:-

“17. Where the defendant or his agent or such other person as aforesaid refused to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant orginarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.”

1. Since the process server himself has admitted that the defendant No. 14 and 15 do not reside in the same homestead the return as quoted above does not prove the fact that, summons were tendered to the defendants and that was refused. Moreover if any report is made by the process server under Order 5 Rule 17 of the Code of Civil Procedure he must follow the provisions of Order 5 Rule 19 of the Code of Civil Procedure for service of summons which runs thus:-

“Order 5, Rule 19”. Where a summons is returned under rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further inquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit.

19A. A declaration made and subscribed by serving officer shall be received as evidence of the facts as to the service or attempted service of summons.”

1. On a careful reading to the provisions of Order 5 Rule 19 and 19A of the Code of Civil Procedure it appears to me that the declaration if any made, to be made by the process server and that must be made on oath. In the instant case no such declaration was made by the process server to satisfy the requirement of Order 5 Rule 19 and 19A of the Code of Civil Procedure.
2. In view of the above I have no hesitation but to hold that no summon were served upon the defendant No. 15. The declaration as available in the service return is no declaration in the eye of law and as such the benefit of Order 5 Rule 19A is not available before the plaintiff of Title suit No. 114 of 1984. The case law cited by Mr. Abdul Quayum reported in 40 DLR (AD) 193 got no manner of application in the instant case as the summons were not served and a mechanical service return was obtained in collusion with the process server. From the facts and circumstances and the discussions made above I am constrained to hold that no summons of Title Suit No. 114 of 1984 was served upon the defendant No. 1 or defendant No. 15 or any of the defendants. The Courts below without going through the service return and without discharging their judicial responsibility have illegally held due service of summons and the finding is not sustainable in law and is liable to be set aside.
3. LET US TAKE THE POINT FOR DETERMINATION NO. (b) FOR DECISION AS TO WHETHER ANY FRAUD WAS PRACTISED IN OBTAINING SERVICE RETURN IN TITLE SUIT NO. 114 OF 1980?

Upon going through the service return as available on record it appears that, the plaintiff No. 1 of Title Suit No. 114 of 1984 with a view to keep his sister and sister’s husband in darkness has purportedly abstained from giving any address of the defendant No. 1 in the plaint and purposely sent a registered notice at Khepupara, although the defendant No. 1 resides at Nachanapara. The plaintiff of that suit managed to obtained a collusive service return and managed to get exparte decree behind the back of the defendant No. 1 and 15.  In the suit there were more than one defendants. Order 5 Rule 11 provides the procedure for service of summons where there are more than one defendant and the said provision runs thus:-

“11. save as otherwise prescribed, where there are more defendants than one, service of the summons shall be made on each defendant.” In the instant case that provision was violated and the summons against the defendant No. 1-9 was issued by a single notice. The mode of service of summons upon more than one defendants has been provided in Order 5 Rule 12 of the code of Civil Procedure which runs thus:-

“12. Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient.” Upon a careful reading of order 5 Rule 11 of the code of Civil  Procedure it appears that the legislature has made it mandatory to serve summons on each of the defendants separately.

1.  Upon perusal of the return as made against the defendant No. 1 and 15 it appears that the process server has not followed the provisions of Order 5 Rule 12 and has submitted a mechanical and false report showing service of summons. When no summons was served upon the defendants, the trial Court had to take proper steps directing the plaintiff to serve summons as per law. The Code of Civil Procedure has been amended in 1983 vide ordinance No. XLVIII of 1983. By that amendment of the code of Civil Procedure the order 5 Rule 19B has been made introduced providing mandatory to a court simultaneous issue of summons through Court`s process as well as through registered post mandatorily. The Title Suit No. 114 of 1984 was instituted after the said amendment came into operation. From the record it appears that no simultaneous registered notice was issued against the defendant No. 15. The Courts below have deliberately failed to discharge their onus lawfully and failed to follow the relevant provisions of Order 5 Rule 10, 11, 12, 17, 19, 19A and 19B of the Code of Civil Procedure and without being aware of the law have recorded good service of summons against the plaintiff of the instant suit. The plaintiff of Title suit No. 114 of 1984 managed to obtain due service return by practicing fraud upon the court.
2. In view of the above I have no alternative but to hold that the finding with regard to the service of summons are although concurrent but those have been made without going through the record. The return which are available on record are against law and as such those concurrent findings of the Courts below are not sustainable in law and is liable to be set aside. I hold that the plaintiff of Title Suit No. 114 of 1984 obtained the preliminary decree without issuing any summons against the defendant No. 1 and without serving any summons against the defendant No. 15 and managed to procure false service return by practicing fraud upon the court.
3. Let us take up the points for determination No. “c” and “d” together for decision as to whether the preliminary and final decree passed in Title Suit No. 114 of 1984 are lawful and sustainable in law? Mr. Abdul Quayum, the learned Advocate for the opposite party submitted that the defendant No. 1 had appeared in the suit through a lawyer and submitted a written statement. Thereafter she failed to appear and contest the suit and as such the decree cannot be set aside on the ground of non-service of summons. He further submitted that the defendant No. 1 of Title Suit No. 114 of 1984 as well as the defendant No. 15 lived in the same homestead and as such the fact of pendency of the suit was very much within the knowledge of the defendant No. 15 and as such it could not be assumed that, the preliminary decree and final decree in question are sustainable in law.
4. I have examined the record of Title Suit No. 114 of 1984. I have already seen that no summons was served upon those defendants. From the record it appears that the defendant No. 1 submitted Vokalatnama by signing her name at the top of the Vokalatnama. The handwriting so put in appears to be very good and seasoned handwriting but in the written statement she has allegedly executed her name by putting thumb impression. The person who attested the thumb impression of the defendant No. 1 was not examined as witness in the Court at the trial. The signature as appearing in the Vokalatnama has also not been proved by any reliable witness. Whenever no summons were issued to her or upon the defendant No. 15, how could they knew about the fact of filing of the suit is not understandable to me. I have already observed that the plaintiff No. 1 of Title suit No. 114 of 1984 named Mominul Haque, from the very beginning of filing of the suit has started taking resort to fraud in serving summons by concealing the actual address of defendant No. 1 in the plaint and by giving a false address in the registered notice and as such the argument as advanced by Mr. Abdul Quayum does not find merit and the same is rejected.
5. To answer the issues let us see, what is the preliminary decree? (a) In a suit for partition there are 3 stages for deciding the suit completely. 1) The first stage is the preliminary decree by which the Court settles the share of the parties in an undivided estate. In a suit for partition the position of the plaintiff as well as the position of the defendants are equal and any defendant can be treated as plaintiff and any plaintiff can be treated as defendant after transposition. In a suit for partition only the co-sharers are impleaded as parties. At the final trial the Court decides and ascertains the share of the plaintiff and the defendants as well for separate possession in a separate Saham. 2) The adjudication, so made, is taken up in the second stage of the proceedings, which is known as the final decree proceeding. In the second stage an Advocate Commissioner is appointed for effecting partition by metes and bounds and the Commissioner so appointed follows the procedure as laid down in the Order 26 Rule 13 and 14 of the Code of Civil Procedure. Usually an Advocate Commissioner so appointed goes to the land under partition after serving due notices to the parties and effects partition by making due survey and classifying the nature of the land and making equitable partition, as per share ascertained by the Court. Thereafter the Commissioner submits his report along with field book, saham chita before the Court and if that report is accepted by the Court that becomes final decree. The 3^rd stage is the execution of the decree by which a decree holder gets possession into his decretal land or a defendant into his saham of land through Court. Unless any share is ascertained in the preliminary decree the second stage of the suit i.e. final decree proceedings becomes impossible to undertake. In the instant case the preliminary decree passed in Title Suit No. 114 of 1984 has been admitted into evidence as exhibit-6. I have perused the exhibit-6 very carefully.
6. Upon perusal of the exhibit-6 it appears to me that the shares of the plaintiff has not been ascertained in the preliminary decree. For our better understanding the contents of the preliminary decree is reproduced hereunder:-

“nvB‡KvU©  dig bsÐ 5713

dig Ae AW©vi wmU

wRjvÐcUyqvLvjx

‡gvKvg t 1g mveÐRR Av`vjZ, cUyqvLvjx

Dcw¯nZ tÐ gwbi DwÏb Avng¥`, mveÐRR,

‡`t †gvs bsÐ 114/84

1| †gvnvg¥` gwgbyj nK Ms ebvg Av‡gbv LvZyb Ms

ev`x                             weev`xwb,

69

14/7/90

ev`xc¶ nvwRiv `vwLj Kwiqv‡Qb| weev`xc¶ nvwRiv `vwLj K‡ib bvB| Ges †Kvb ZØxi I K‡ib bvB| weev`xc¶‡K evi evi WvKvWvwK m‡Z¡I nvwR‡i cvIqv ‡Mj bv| †gvKÏgv GKZidv ïbvbxi Rb¨ jIqv nBj| ev`x †gvt  gwgbyj nK Gi njdv‡š— Revbe›`x MªnY Kiv nBj ev`xc‡¶i KvM‡Ri cÖ`k©wb bsÐ1, 1(G), 1(we), 1(wm), 2, 3 Ges 4 i“‡c wPwýZ Kiv †Mj|

cÖ`Ë †KvU© wd mwVK Ges †gvKvÏgv cÖgvwYZ nBj|

AZGe Av‡`k nBj|

†h  AÎ †gvKÏgv cÖv_wgK AvKv‡i GKZidv m~‡Î wWµx nq weev`xMY‡K AvR nB‡Z 60 w`‡bi g‡a¨ ev`xi `vexK…Z Rwg e›Ub Kwiqv w`‡Z wb‡`©k †`Iqv †Mj| D³ mg‡qi g‡a¨ weev`xMY ev`xi Rwg e›Ub Kwiqv bv w`‡j ev`x wbR LiPvq Kwgkbvi‡hv‡M wbR  LiPvq D³ Rwg e›Ub Kwiqv jB‡Z cvwi‡eb|

m¦vÐgwbi DwÏb Avng¥`

mveÐRR, cUyqvLvjx|”

1. It appears that the learned Sub-ordinate Judge, 1^st Court, Patuakhali without being satisfied about the shares of the plaintiff and without ascertaining share has passed the nine sentences judgment and without ascertaining the share of the plaintiff. It is not a decree in the eye of law. Acting upon the said decree an Advocate Commissioner cannot make any final partition and can not allot shares to the parties. Final decree was marked as exhibit-7. Upon perusal of the final decree it appears that the plaintiffs were given land measuring an area of 19.23 acres and 6.82 acres were given to the defendant. Which defendants got the said land is not mentioned in the decree.
2. In view of the above I am of the view that the said final decree is not a valid decree in the eye of law. It further appears that the preliminary decree was passed on 14.7.1990, the decree was sealed and signed on 22.7.1990. The plaintiff made a prayer for making the decree final on 14.1.1991 and Mr. Abdul Khaleque, an Advocate was appointed as Advocate Commissioner on 10.3.1991, who submitted his report on 20.4.1991 which is within one month 10 days after being appointed as Commissioner. It is the usual practice that an advocate Commissioner appointed for making final decree should issue usual notices upon all the defendants and should execute commission work in the presence of the parties but in the instant case that is absent and the said report was accepted by order dated 13.5.1991 and the preliminary decree was made final. That decree was sealed and signed on 31.7.1991. So everything was done very promptly. Making measurement of properties and making partition of properties is a very difficult job. It is not usually practicable to make partition physically within a very short span of time. In the instant case everything was done within a very few days and since the final decree was passed upon vague ascertainment of share, I hold that, the final decree is out and out an illegal decree and that is not sustainable in law and is liable to be set aside.
3. Let us take up the points for determination (e) as to whether the plaintiff has locus standi to institute Title Suit No. 12 of 1995 after the earlier Title Suit No. 414 of 1980 was dismissed for default? The Title Suit No. 414 of 1980 was a suit for declaration of title upon 1.39 acres of land and the cause of action of that suit was different. That suit was dismissed for default on 4.12.1983 for failure to take steps. Without restoring that suit to its file and number the plaintiff was debarred from filing any fresh suit upon the same cause of action. But in the instant case the defendant Nos. 1 and 7 and others as plaintiffs instituted the suit for partition being Title Suit No. 114 of 1984. Initially the defendant No. 15 (present plaintiff) was not made party. Thereafter the plaintiff`s of Title Suit No. 114 of 1984 made the defendant No. 15 as a party in the suit accepting him as a co-sharer. Cause of action in a suit for partition is recurring. It is the settled law that every co-sharer shall be presumed to have his right, title, interest and possession on every inch of undivided properties. Since the suit for Partition No. 114 of 1984 was filed by the defendant No. 1 and others and the present plaintiff was made a defendant, it cannot be argued that he got no locus standi to challenge the exparte decree passed in Title Suit No. 114 of 1984. The said judgment and decree have been passed exparte against the plaintiff. From the plaint of Title Suit No. 12 of 1995, it appears that, the plaintiff has claimed to have acquired property jointly with the defendant No. 1 (plaintiff No.1 of Title Suit No. 114 of 1984) and also by another registered Kobala deed dated 29.8.1951, from admitted co-sharer Sadem Ali as well as by another Kobala deed dated 16.9.1957. The plaintiff could not produce the original deed at the trial but produced the certified copy of those deeds. Those documents have not been cancelled by any competent Court of law. The instant suit is not a suit for setting aside of those deeds. The only issue had to be decided by the Courts below as to whether the preliminary decree and final decree passed in Title Suit No. 114 of 1984 was legal or illegal. In deciding that issue, the Courts below, in a very slipshod manner have come to a finding that the plaintiff’s deeds were not proved and as such he had no title and possession. Admittedly the plaintiff resides in his homestead which is within the land under partition and that possession is enough for maintaining the suit.
4. In a suit for partition a plaintiff has to prove his ejmali possession but not the actual possession. The decision upon the question of title and possession arrived at by the Courts below are illegal, unlawful and not sustainable in law and the said decision is liable to be set aside. The cause of action of Title Suit No. 12 of 1995 and the cause of action of Title Suit No. 414 of 1980 are quite different and as such the dismissal for default order recorded in Title Suit No. 414 of 1980 can not disentitle the plaintiff of Title Suit No. 12 of 1995 from filing the suit. So the submissions as made by Mr. Abdul Quayum are not acceptable. I hold that the plaintiff got locus stand in to file the suit.
5. Let us take up the points for determination (f) whether the suit being Title Suit No. 12 of 1995 is barred by limitation? The question of limitation is a mixed question of law and fact. Upon perusal of the statements made in the plaint of Title Suit No. 12 of 1995 it appears that there is no statement made in the plaint bringing the plaint within the mischief of barred by limitation. The date of knowledge of the decree in question has been specifically mentioned as 1.4.1995. The plaintiff has substantiated his date of knowledge. The person, who gave out the fact of the decree to the plaintiff, about the judgment and decree in question was examined. Moreover we have seen that no summons were served upon the plaintiff. In view of the above the Courts below were not justified in holing the suit to be barred by limitation. The said finding is without being based upon any evidence on record and as such the said finding is liable to be set aside.
6. Let us take up the points for determination No.(g)-(h) together whether the findings of the Courts below upon the question of title of the plaintiff as well as possession in the suit land were lawful? The title suit No. 12 of 1995 is not a suit for declaration title or asking for possession in the suit land. The suit was for challenging the legality of the preliminary and final decree passed in title suit No. 114 of 1984 on the grounds of nonservice of summons. In that suit the question of title is immaterial. The plaintiff of the instant suit is an admitted co-shares. So the finding with regard to title and possession is illegal. In the case of Government of Bangladesh –v- Ijrail Ali, 1981 BLD (A) 371 a decree was passed exparte which was almost identical to the preliminary decree in question (exhibit-6). In the said case the plaintiff was examined and the learned Judge in passing decree simply recorded that the plaintiff examined, exhibited his documents, Court fees paid and the suit is decreed. That decree was called in question. Our Appellate Division held that the Court should observe minimum requirement to passing a preliminary decree. The Judge should show application of Court’s judicial mind as to whether the plaintiff’s witness and the papers produced were sufficient to prove the plaintiff’s case. The said exparte decree was set aside and the suit was sent back on remand. The judgment and decree in question stands on the same footing. I have no hesitation but to hold that the judgment and the decree in question are not sustainable in law and is liable to be set aside. I hold that the Courts below committed an error of law resulting an error in the decision occasioning a failure of justice in dismissing the plaintiff’s suit. I find merit in the Rule.
7. In the result, the Rule is made absolute without any order as to costs. The judgment and decree dated 18.8.1998 passed by the learned Additional District Judge, Patuakhali in Title Appeal No. 102 of 1996 dismissing the appeal and affirming those dated 29.6.1996 passed by the learned Sub-ordinate Judge, Patuakhali in Title Suit No. 12 of 1995 are set aside. The judgment and decree dated 14.7.1990 and 21.7.1991 passed in Title Suit No. 114 of 1984 and the final decree dated 31.7.1991 are hereby set aside. The Title Suit No. 12 of 1995 is decreed with costs. The Title Suit No. 114 of 1984 is sent back on remand to the Court of learned Joint District Judge, 1^st Court, Patuakhali for trial afresh. The said Court is directed to issue fresh summons upon all the defendants and to try the said suit as per law.
8. The office is directed to send down the lower Court’s record.