Abdul Hakim Vs. Rajob Ali

Appellate Division Cases

(Civil)

PARTIES

Abdul Hakim being dead his heirs Abdul Gani and others ……………………Appellants

-VS-

Rajob Ali being dead his heirs Yusuf Ali and others ………………………Respondents

JUSTICE

Syed J.R. Mudassir Husain CJ

Mohammad Fazlul Karim J

Amirul Kabir Chowdhury J

JUDGEMENT DATE: 25th January 2006.

Dispute between the parties being as to whether Alam Gazi and Karimuddin together took settlement of the suit land on 5.10.1874 and that the plaintiff having proved the same on production of their registered Kubuiyat Exhibit-1 and the entry in the C.S. Khatian No. 30, the learned Judges of the High Court Division erred in law in holding that the others sons of Alam Gazi are entitled to the suit land in excess of the what they have inherited from Alam Gazi. The learned Counsel further submitted that the learned Judges of the High Court Division failed to notice that C.S. Khatian No. 30 records larger share in favour of the successors of Karimuddin in comparison of these of Karamuddin which is on evidence of the fact that the settement obtained on. 5.10.1874 by Alam Gazi and his son Karimuddin in equal shares. The learned Counsel further submitted that the learned Judges of the High Court Division have committed an error of law in modifying the decree passed by the learned Subordinate Judge on a wrong reading of the entry of C.S. Khatian and the same is also “based on no evidence”. The learned Counsel further submitted that the plea of the benami to the effect that Karimuddin was a name lender on behalf of Kutubuddin lor obtaining the settlement of the suit land on 5.10.1874 has no evidence on record to stand and as such the judgment and decree passed by the High Court Division in modifying the one passed by the Subordinate Judge is liable to be set aside…………………….(5)

Civil Appeal No. 16 of 1997 (From the judgment and order dated 12.12.1995 passed by the High Court Division in Appeal from Original Decree No. 176 of 1970).

Md. Fazhd Karim, Senior Advocate, instructed by Md. Nawab Ali, Advocate-on-Record………………For the Appellants

Mahbubey Alam, Senior Advocate, instructed by Chowdhury Zahangir, Advocate-on-

Record ……………………… For the Respondent No.l

Respondent Nos.2-141………………….. Not represented.

JUDGMENT

1. Mohammad Fazlul Karim J. This appeal by leave is directed against the judgment and decree dated 12.12.1995 passed by the High Court Division in Appeal from Original

Decree No. 176 of 1970 allowing the appeal in part holding that those dated 21.7.1969 passed by the learned Subordinate Judge, 2nd Court, Comilla in Partition Suit No.45 of 1964 is modified to the extent of finding in respect of the share of the plaintiffs and the concerned defendants in lands of the first and second schedules of the plaint, setting aside the same and directing to rewrite the order portion according within three months from the date of receipt of the record by him and for hearing the learned Advocate for the parties strictly in this respect, if necessary, and in no case time-limit of three months fixed by the High Court Division can be allowed to pass.

2. The case of the plaintiff in short is that Alam Gazi along with his son Karimuddin took pattan of the suit land on 5.10.1874 by a registered kabuliyet; that the said Alam Gazi died leaving behind sons Karimuddin, Karamuddin. a wife and 4 daughters; that the plaintiffs predecessors, Yakub, was one of the son of Karimuddin; that the said Alam Gazi and Karimuddin sold to Kutubuddin the predecessor of defendant Nos. 27-43 8 annas share of the properties taken settlement by said Alam Gazi and Karimuddin the predecessors the plaintiffs, that accordingly, land was recorded in the C.S. Khatian. it was stated that Karamuddin had no share in the property in suit as was taken settlement by Alam Gazi and Karimuddin.

3. That the case of defendants is that the said Alam Gazi had 3 sons namely, Karimuddin,

Karamuddin and Azimuddin and the contesting defendants belong to the group of

Karamuddin; that the defendants state that Alam Gazi and Kutubuddin in fact took settlement of the suit land and Karimuddin was a benamdar of Kutubuddin that the defendants state that there was no sale of a portion of the suit land of Kutubuddin by Alam Gazi and Karimuddin.

4. This Court granted leave to consider the submission of Mr. Md. Fazlul Karim, the learned Counsel as under: “Mr. Md. Fazlul Karim, learned Advocate appearing for the plaintiff-petitioners submits that the learned Judges of the High Court Division committed error of law in modifying the decree passed by the learned Subordinate Judge on a wrong reading of the entry of C.S. Khatian and the same is also based on no evidence.”

5. Mr. Md. Fazlul Karim, the learned Counsel appearing for the appellants submits that the dispute between the parties being as to whether Alam Gazi and Karimuddin together

took settlement of the suit land on 5.10.1874 and that the plaintiff having proved the same on production of their registered Kubulyat Exhibit-1 and the entry in the C.S. Khatian No. 30, the learned Judges of the High Court Division erred in law in holding that the others sons of Alam Gazi are entitled to the suit land in excess of the what they have inherited from Alam Gazi. The learned Counsel further submitted that the learned Judges of the High Court Division failed to notice that C.S. Khatian No. 30 records larger share in favour of the successors of Karimuddin in comparison of these of Karamuddin which is on evidence of the fact that the settement obtained on. 5.10.1874 by Alam Gazi and his son Karimuddin in equal shares. The learned Counsel further submitted that the learned Judges of the High Court Division have committed an error of law in modifying the decree passed by the learned Subordinate Judge on a wrong reading of the entry of C.S. Khatian and the same ic also “based on no evidence”. The learned Counsel further submitted that the plea of the benami to the effect that Karimuddin was a name lender on behalf of Kutubuddin for obtaining the settlement of the suit land on 5.10.1874 has no evidence on record to stand and as such the judgment and decree passed by the High Court Division in modifying the one passed by the Subordinate Judge is liable to be set aside.

6. Mr. Mahbubey Alam, the learned Counsel appearing for the respondents submits that the land of Khatian No. 34 alleged to have been transferred to Kutubullah’by an oral sale are not partitioned by metes and bounds, the learned trial Court should have held that those lands are also ejmali land and as such the suit is bad for defects for non inclusion of 2 parties. The learned Counsel further submitted that the High Court Division holds that

Karimuddin, Karamuddin and Azimuddin had jointly 8 annas and Kutubyddin had 8 annas share in three plots recorded both in C.S. Khatian Nos. 30 and 34 as described in second schedule of the plaint and affirms other findings of the learned Subordinate Judge and as such the High Court Division has committed no error of law in allowing the appeal in part.

7. The suit property as recorded in C.S. Khatian No. 30 and 34 of Mouza Bernaiya were the khas land of the landlord Gayanin Shukul and others and Alam Gazi and his son Karimuddin took settlement of 13 Kanis, 15 gds, 3 crant and 15 tils of land at a jama or Rs. 34 from the landlords on the basis of Kabuliyat dated 5 m October, 1964. The case of the plaintiff as appeared in the plaint and the material on record that Alam Gazi and his son Karimuddin, predecessors of plaintiffs sold half of the suit land orally to one

Kutubuddin which has been duly recorded in C.S. Khatin No. 34 at a jama of Rs. 17/-. But the remaining half of the kabuliyat land remained with Alam Gazi and Karimuddin as

recorded in C.S. Khatian No. 30 at a jama of Rs.17/-. Though the defendants alleged that

Karimuddin was benamder of Kutubuddin but neither any documentary or oral evidence was adduced in support of the defendants’ contention on the face of the plaintiffs’ case that the purchase was in the name of Alam Gazi and Karimuddin duly supported by

Dhakhilas, Ext,2A, 2B. 2H, 2J, 2K, 2L and 2M stretching over a period from 1325 B.S. to 1354 B.S. Thus the material on record proved that C.S. Khatian No. 30 belong to Alam Gazi and Karimuddin, predecessors of the plaintiff each having 8 annas share but the land recorded in C.S. Khatian No. 34 belonged to Kutubuddin alone. The land in second schedule Kutubuddin had 8 annas as against the Alam Gazi and Karimuddin had 8 annas share. The Courts below also concurrently found that Alam Gazi had three sons namely Kadimuddin alias Karimuddin. Karamuddin and Nazimuddin. It is in evidence that

Nazimuddin died first leaving two brothers Karimuddin and Karamuddin and daughter

Delza.

8. In view of the above the trial Court found that: “Kutubuddin was owner of the 2nd schedule properties to the extent of 8 annas share and Alam Gazi and his son Karimuddin were owners of the extent of the remaining 8 annas, each having 4 annas share. Thus I find that Karimuddin got 4 annas share by virtue of settement, vide Ext. 1.1 have also already that Alam Gazi left behind 3 brothers Karamuddin, Karimuddin and Azimuddin. Son, Karimuddin inherited 1 anna 6 gds. 2 karas 2 karant share from his father Alam Gazi, brother Azimuddin and nice Diljan, the daughter of Azimuddin. Thus I hold that Karimuddin got 5 annas 16 gods.2 Karas 2 Krant share. I also find that Karimuddin the predecessor of the defendant Nos. 1 to 14 got 1 anna 16 gds. 2 Karas 2 Krant share and Atakjan the daughter of Diljan inherited 6 gds. 2 Karas 2 Krant share. Out of Karimuddin’s share in the 2nd schedule 1 anna was gifted to Azrimuddin alias Jamiruddin. So, Karimuddin had 4 annas 16 gds. 2 Karas 2 Krant share in the 2nc’ schedule properties. The area of the 2nd schedule properties is 3’07. So, Karimuddin in his annas 16

gds. 2 Karas 2 Karant share was entitled to have ’93 acre. Out of this his son Ibrahim Khalil was entitled to have 416 acre and the defendants 16 to 19, the heirs of Ibrahim Khalil, were entitled to get ’11 3/7 acre in the 2nd schedule properties. I find that the plaintiffs are entitled to get ’77 acre in the 2nd schedule property by inheritance, by virtue of gift on the basis of Ext. 4 and by virtue of purchase from defendant No. 50 on the basis of Ext. 36. I find that defendant No.92 Atakjan is entitled to get “06 cents in the 2™ schedule land in her 6 gds, 2 Karas 2 Krant share. I have that already observed that defen

dant No.92 was entitled to get ’34 2/3 acre in the 1st schedule. Thus she was entitled to get ’40 2/3 acre in her share in all. But it appears that she had sold 1’21 acres on the basis of Ext. Bl and Ba(4) which is much more in executes of her legal share. So, she is not entitled to get any saham in this case. I find that defendant No. 20 is entitled to have 6 gds. 2 Karas 2 Krant share in the 2nd schedule land in suit which is equivalent to ’06 acre of land. I have already observed that Kutubullah was owner of 8 annas share in the 2nd schedule properties. So, he was entitled to get 1’52 ½ acres. Admittedly, he died leaving a son Yakub Ali, 4 daughters Latifa, Jolekha defendant No. 33. Kukumjan and Ayesha. So the son inherited ’54 1/6 acre and each daughter inherited ’25 1/7 acre. I find that Alimuddin, son of Latifa inherited ’25 7/12 acre in the 2nd schedule. He died leaving 3 sons defendant Nos. 30 to 32 and one daughter defendant No. 33 and a widow defendant No. 34. So. defendant No. 33 and defendant No. 34 each inherited “30 19/96 acre and defendant Nos. 30 to 32 inherited to ’19 3/6 acre by purchase. The defendant Nos. 30 to 32 further appears to have got ’23 acre from Ayesha daughter of Kutubullah by purchase. So, the defendant Nos. 30 to 32, 34, 38 to 42 who are the heirs of Kutubllah together got ’48 acre out of the 2nd schedule property in this saham.”

9. The learned Counsel for the appellants could not show any metrical to support the judgment of the High Court Division to substantiate that the finding of the High Court

Division that the Kutubuddin in fact took pat-tan of the land recorded in C.S. Khatian No.34 and the recording of the name of Alam Gazi and his son in equal share with Kutubuddin. That Alam Gazi took pattan of half of the kabuliyat along with Kutubuddin and in that view of the matter the oral purchase by Kutubuddin from Alam Gazi and Karimuddin as alleged by the plaintiff is after thought, false and that Karimuddin, Karamuddin and Nizamuddin each had 3/1l th share in the land of C.S. Khatian No. 30 as described in first schedule or the finding of the High Court Division that Karimuddin, Karamuddin and Nizamuddin had jointly 8 annas and Kutubuddin had 8 annas share recorded both in C.S. Khatian Nos. 30 and 34 as described in second schedule of the plaint.

10. This appeal is accordingly allowed setting aside the impugned judgment of the High

Court Division and those of the trial Court are accordingly restored, without any order as to costs.

Ed.

Source: IV ADC (2007), 313

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