Appellate Division Cases
(Civil)
PARTIES
Abdul Malek and others…………………………………………Appellants.
-vs-
Faiz Ahmed and other………………………………………..….Respondents.
Judgment Dated
16th November 2003
That the High Court Division is competent to interfere with the findings of fact if those are based on non reading and misreading of material evidence on record and also could interfere for misinterpreting exhibit-5 (9)
There is no misreading or non-consideration of the material evidence on record by the appellate court who reversed the decision of the trial court and as such the judgment of the High Court Division calls for no interference (11)
Sved Ziaul Karim, Advocate, instructed by Santi Ranjan Karmakar, Advocate-on-Record ………………………………………………………………….For the Appellants.
A.J. Mohammad AH, Senior Advocate, instructed by Md. Nawab AH, Advocate-on-
Record. for Respondent Nos. I -4. Ex-parte………………………. Respondent Nos. 5-56
JUDGMENT
1. Syed J. R. Mudassir Husain J: – This appeal is from the leave granted by this Division in civil petition for leave to Appeal No. 654 of 1999 filed against the judgment and order dated 8.3.1999 passed by the High Court Division in Civil Revision No. 2181 of 1997 discharging the Rule and thereby affirming the judgment and decree dated 12.1.1997 of the learned Additional District Judge, First Court, Narayangonj allowing the Title Appeal No. 83 of 1994 decreeing the suit upon reversing those of dated 29.3.1994 of the learned Subordinate Judge, Artharin Adalat. Noakhali dismissing the Title Suit No. 25 of 1989.
2. The respondent Nos. 1-4 as the plaintiffs filed the aforesaid Title Suit No. 25 of 1989 impleading the appellants 1-3 who were respectively defendants Nos. 47-49 and other respondents for declaration of their title and partition in respect of Ka schedule land and also for partition and declaration of title and recovery of khas possession in respect of Kha schedule land after evicting the defendants Nos. 47-49 therefrom who are the appellant before us.
3. The plaintiff respondents averred that. 29 decimals of land of khatian 95,65 decimals of land of khatian no. 96 and 13 decimals of land of khatian no. 97 in total 107 decimals of land belonged to Serajul Haque Muktair who died leaving behind sons Ataul Haque Chowdhury, Abdul Kader Chowdhury and Azizur Rahman Chowdhury and one daughter Saleah Khatun. Later on Azizur Rahman Chowdhury died leaving behind one son and Ataul Haque Chowdhury died leaving behind two sons one daughter and a wife. In Khatian No. 98 Serajul Haque Mukter was the owner who settled the land with Abdus Satter and Abdur Razzaque was recorded as Khatian No. 99 in District Settlement. As the rent fell in arrear with regard to the land of Khatian No. 99 Abaul Haque Chowdhury. son of Serajur Haque Muktair instituted a Rent Case No. 179 of 1960 and after getting the decree he put the decree into the execution in Rent Execution Case No. 176 of 1961 and purchased the same in auction on 3.8.1961 and got possession of the same. The lands of khatians No. 95,96.97.98 and 99 were the lands of Sreepur Mouza of Khatian No. 93. The land of Khatian No. 93 was settled with Asaduzzaman Miah by a patta from Serajul Hoque Muktair on 15th Kartick 1291 B.S. and this Asaduzzaman Mia was possessing the same. The rent of Khatian No. 93 fell in arrear and as a result Ataul Haque Chowdhury filed Rent Suit No. 180 of 1960 and got a decree and put the decree into execution in Rent Execution Case No. 177 of 1961 and purchased in auction 2.06 acres of land on 3.8.1961.
4. One Munsur Ahmed the father of the plaintiffs became tenant of Plot No. 114 of Khatian No. 95 under Serajul Hoque Muktair and by constructing structure he had been living there. In the year 1946-47 the lands of khalian no. 93 went under the river and in the year 1950-51 it r-appeared and Munsur Ahmed again got possession of the land of Plot No. 144 of khatian No. 95 and within the knowledge of the heirs of Serajul Haque Muktair he constructed hut and had been living there. In such a situation the heirs of Ataul Haque Chowdhury instituted the Rent Case No. 177 of 1961 and purchased 16 annas land of kahtian No. 93 in auction in pursuance of the decree of Court and when they proposed to sell the property Munsur Ahmed purchased the land of khatian No. 93 and also khatians Nos. 94,95,96,97 and 99 in total 1.65 acres of land by virtue of an agreement dated 14.7.1968 and registered kabala dated 15.7.1968 and thereby he became the owner of the land. The aforesaid land was recorded as khatian No. 78 and 103 Mohabbatpur Mouza. The other lands of khatian No. 78 were in the name of the father of the plaintiffs and brother Nazir Ahmed. This Munsur Ahmed died leaving behind plaintiffs No. 1,2 and 3 Nazir Ahmed Anwar Ahmed and Abul Hossain, Nazir Ahmed sold his share to plaintiff No. 1 and Anwar Ahmed and Abul Hossain sold their shares to plaintiff No. 4 in Diara settlement when the name of Munsur Ahmed was not recorded in the record of rights, he filed the suit in the court of Assistant Judge, Sadar Upzilla vide Title Suit No. 23 of” 1972. In the above suit the predecessor of the defendant No. 2 to 14 namely Abdul Hye and Solaiman filed written statement from where it appears that Ibrahim Miah filed a suit being Title Suit No. 13 of 1964 challenging he auction purchase of Ataul Haque Chowdhury and got a decree of 63 decimals of land khatian No. 93 in the aforesaid suit. He also got 22 decimals of land of khatian no. 133 on the basis of the decretal cost of the aforesaid Civil Suit and decree execution case the plaintiff got 63 decimals and 22 decimals in total 85 decimals of land but they abandoned their claim of 85 decimals ofland and got from Serajul Haque Muktair 1.26 acres of land from Khatian No. 95,96,97 and 99. The names of some other persons were recorded in khatian No. 78 and defendant No. 48 to 52 created some documents and by virtue of that they dispossessed the plaintiff from ‘Ka’ schedule property in 1985. The lands as contained in the schedules were never partitioned among the co-sharers so, for recovery of ‘Kha’ schedule land for partition of ‘Ka’ schedule land the plaintiffs instituted the present suit.
5. Defendant Nos. 2-14 and defendants No. 47 to 49 contested the suit by filing separate written statements. Defendants No. 2 to 14 stated in short, that the lands of khatian No. 92 to 99 measuring 2.06 acres were settled with Abul Khair Moahmmad Mostafa Haider Chowdhury and under him Serjaul Haque Muktair was a korfa tenant and in such situation this Serajul Haque Muktair died leaving behind 6 sons, daughter Salma Khatun and wife Tahera Chowdhury. After the death of Serajul Hoque Muktair the rent fell in arrear and the landlord Abul Khair Mohammad Mostafa Haider Chowdhury instituted Rent Suit No. 1760 of 1951 and got a decree over the heirs of Serajul Haque Muktair. In pursuance of the aforesaid suit and Rent Execution Case No. 110 of 1959, 2.06 acres of land were purchased by Abdul Hye and Solaiman and on 17.1.1960 possession was received through court. On the death of Abdul Hye and Solamiand these 2006 acres of land devolved upon their namely, the contesting defendants. The claim of Rent Suit No. 179 of 1960 and Rent Decree No. 176 of 1961 getting possession on 3.8.1961 is false and fabricated. The papers and documents filed by the plaintiffs are fabricated.
6. Defendants No. 47 to 49 filed separate written statement stating that the original owner Abul Khair Mohammad Mostafa Haider Chowdhury obtained a rent decree in Rent Suit No. 1760 of 1958 against the resording of the khatian No. 293 and in pursuance of Rent Execution Case No. 110 of 1959, 2.06 acres of land of khatian No. 92 were sold in auction and purchased by Abduyl Hye and Solaiman and got possession of the same through court. Against the aforesaid rent decree Abdul Kader and others, the sons of Serajul Haque Muktair instituted Title Suit No. 254 of 1959 which was dismissed on 12.12.195, These defendants denied right and title of the plaintiff.
7. Considering the materials on record of the parties the trial court dismissed the suit of the plaintiffs. Against the judgment and decree of the Trial Court the plaintiff preferred appeal wherein the lower appellate court set aside the judgment and decree of the trial court and decreed the suit in favour of the plaintiff and the lower Appellate Court declared title of the plaintiff in ‘Kha’ Schedule land and directed for recovery of khas possession and also declared title in ‘Ka’ schedule land and directed for partition of the same as per prayer made in the plaint.
8. Being aggrieved by the judgment and decree of the lower appellate court the defendants preferred revisional application and obtained Rule. The learned Single Judge of the High Court Division upon hearing the parties discharged the Rule.
9. Mr. Syed Ziaul Karim, the learned Advocate, appearing for the appellant, having placed before us the impugned judgment of the High Court Division as well as the other materials on record contended firstly that the High Court Division is competent to interfere with the findings of fact if those are based on non reading and misreading of material evidence on record and also could interfere for mis-interpreting exhibit-5 the deed of executed by Ataul Iiaque Chowdhury in favour of the plaintiff-predecessor Mansur Ahmed and this having being not done, the High Court Division committed an error of law which resulted in an error causing failure of justice.
10. Mr. A. J. Mohammad Ali, the learned Counsel appearing for the respondents, on the other hand, contended that having regard to the facts and circumstances of the case and in view of the materials on record the learned Single Judge having applied his judicial mind rightly decided the case finding no error apparent on the face of judgment of the lower appellate court who as a final court of fact reversed the judgment and decree of the trial court upon proper consideration and assessment of the material evidence on record and in such view of the matter the high Court Davision committed no illegality in affirming the judgment of the lower appellate courts as a final court of fact.
11. Jt is further contended that there is no misreading or non-consideration of the material evidence on record by the appellate court who reversed the decision of the trial court and as such the judgment of the High Court Division calls for no interference.
12. We have heard the learned lawyers of both sides and considered their submissions. On perusal of the impugned judgment of the High Court Division, we find that the learned Single Judge of the High Court Division has found that the lower appellate court considered all the points raised by the parties and thereupon decreed the suit of the plaintiff-respondent for declaration of title in respect of ‘Ka’ schedule land and for partition and also passed decree for recovery of possession of Kha schedule land by evicting the petitioners therefrom.
13. We have read the impugned judgment of the High Court Division as well as the judgment of the lower Courts below. Having regard to the facts and circumstances of the case, we find that the learned Single Judge having applied his judicial mind in the exercise of revisional jurisdiction rightly found that the lower appellate Court noticed materials on record and thereafter came to the finding in favour of the plaintiff-respondent in decreeing the suit.
14. Mr. Syed Ziaul Karim, however, felt difficulty to fault with the impugned judgment of the High Court Division. We find no substance in the appeal, which is accordingly dismissed without any order as to cost.
Ed.
Source : III ADC (2006) 1.