Appellate Division Cases
(Civil)
PARTIES
Bishwanath Baishnah and others………………… Petitioners
-Vs-
Narayan Chandra Baishnab …………….Respondent
JUSTICES
Md. Ruhul Amin J
Md. Tafazzul Islam J
Judgment Dated: 2nd July 2006
The Suit was filed seekind partiting of the land ……………(2)
The High Court Division on consideration of the materials on record held that the trial Court as well as the appellate Court were in serious error in not allotting .90 acre of land in the saham of the plaintiff which was mortgaged to plaintiffs father Tarini by Brindaban since finding of the appellate Court as well as the trial Court as to redemption of the mortgage was based on no evidence and thereupon held that plaintiff is entitled to the said .90 acre of land………………………… (9)
The High Court Division held that plaintiff by inheritance got .58 r.cre of land and he purchased .59 acre from Tin Kari Baishnab and by Ext.l (Ka) plaintiff acquired title to 1.65 acres of land by purchase from heirs of Brindaban and thus he will get in all 3.72 acres of land and Out of that he sold 2.48 acres of land and thereupon there remained 1.24 acres of land with him and accordingly he will get 1.24 acres of land in schedule No.l. In the background of the aforesaid fact High Court Division held that plaintiff proved his case as regard the claim of 1.24 acres of land out of the land described in the schedule No.l and thereupon modified the decree of the courts below upon allotting 1.24 acres of land from the land of schedule No.l. ……………………(10)
Khalequzzaman, Advocate-on-record ………………….For the Petitioners
Bivash Chandra Biswas, Advocote-onrecord ……………….For the Respondent
Civil Petition For Leave To Appeal No.896 of 2005
(From the Judgment and Order dated April 6, 2005 passed by the High Court Division in Civil Revision No. 178 of 1991)
JUDGMENT
Md. Ruhul Amin J : This petition for leave to appeal is directed against the judgment dated April 6, 2005 of a Single Bench of the High Court Division making the Rule absolute obtained against the judgment and decree dated July 22, 1990 of the Court of Subordinate Judge, (now Joint District Judge), Madanpur in Title Appeal No. 167 of 1988 dismissing the same. The appeal was filed against the judgment and decree dated September 28, 1988 of the Court of Assistant Judge, Kalkini Upazila, Madaripur in Title Suit No.401 of 1984 decreeing the same in preliminary form allotting saham for .46 acre
of land out of 1.24 acre in respect of the land described in the schedule No.l, .81 2/3 acre of land in respect of the land described in schedule No.2, .49/3 acre of land in respect of the land described in the schedule No.3 and .54 acre of land in respect of the land described in schedule No.4.
2. The suit was filed seeking partition of the land as described in the schedule Nos.1,2,3 and 4 attached to the plaint claiming 1.24 acres of land from schedule 1, .82 acre of land from schedule No.2. .50 acre of land from schedule No.3 and .73 acre of land from schedule 4.
3. Plaintiffs case is that land measuring 10.22 acres owned by Tin Kari in 4 annas share, Brindaban Baishnab in 4 annas share, Joychandra Baishnab 17 gandas 3 karas one kranti 6 tial (f^i) along with Rattan Baishnab and Tarani Baishnab in equal share and Jaga Bandhu Baishnab and Balaram Baishnab each 2 annas 13 gandas one kara one kranti share, that before C.S. operation Brindaban Baishnab sold .90 acre of land to Tarani by a registered deed and at the time of preparation of C.S. record same was recorded in the
name of Tarini, that the land being mortgaged land the same was also recorded in
the name of Brindaban Baishnab who died leaving Mohon Baishnab and Bilash Moni
Baishnab and they sold the land whatever they inherited from Brindaban Baishnab
to Tarani Baishnab, That Tarani Baishnab purchased .59 acre of land from Tin Kari
Baishnab and thus Tarani Baishnab acquired in all 3.72 acres of land including homestead, that Tarani Baishnab died leaving the plaintiff as the sole heir, that plaintiff sold 2.48 acres of land to different persons and thereupon remained the owner of 1.24 acres of land, that R.S. record was wrongly prepared in the name of the persons who had no interest in the land, that plaintiff is in possession of his share in the land of other schedules but felt difficulty to possess land of schedule No.l in ejmah with the defendants and thereupon made demand for partition but the defendants refused to make amicable
partition.
4. The suit was contested by the defendant Nos.l, 2 and 5-14 by filing joint written statement. The defendant No.4 filed written statement supporting the plaintiffs case.
5. It was the case of the contesting defendants that Tarani Baishnab was the owner of .56acre of land, that Tarani Baishnab acquired in total 3.11 acres of land and therefrom sold 2.98 acres and thus Tarani Baishnab had only .03 ‘9 acre of land in schedule 1, that Upendra’s heir sold .32 acre from the land of schedule 1 to Bidhu Bhushon Baishnab and Kutiswar Baishnab, that plaintiffs mother on behalf of the plaintiff who was minor sold .59 acre of land to Bidhu Bhushon Baishnab and Kutiswar Baishnab, that plaintiff sold .50 acre of land to Kutiswar Baishnab and also sold .40 acre of land to Kutiswar Baishnab, that plaintiff sold .31 acre of land to Juran Baishnab and Bisheswar Baishnab and in the aforesaid manner plaintiff rold 2.98 acres of land, that plaintiff remain owner of. 12 acre of land in the homestead but in exchange thereof he got
land in another mouza and leaving there by erecting hut, that plaintiffs assertion that R.S. and S.A. record were wrongly prepared not correct.
6. The trial Court decreed the suit as stated hereinbefore. The plaintiff preferred appeal taking exception to the decree passed by the inal Court as regard the land of schedule one. The appellate Court affirmed the decree passed by the trial Court. It may be mentioned that plaintiff has not taken any exception as to the decree of the trial Court which was affirmed by the appellate C”ourt in respect of the saham allotted out of the schedule Nos.2-4. The plaintiff was only aggrieved by the allotment of saham made out of the land of schedule 1.
7. As against the judgment and decree of the appellate Court plaintiff moved the High Court Division and obtained Rule.
8. It was contended before the High Court Division that total land in schedule 1 is 10.22 acres and out of the said land Tin Kari Baishnab got 2.55 acres. Brindaban got 2.55 acres, Joychandra, Rattan and Tarini got .58 acre of land each, Jaga Bandhu Baishnab and Balaram got the rest of the land. It was the contention of the plaintiff that he inherited .58 acre of land from his father Tarini, that Brindaban Baishnab mortgaged .90 acre of land to Tarini, that the successor of Brindaban transferred .2 % acre of land to the plaintiff
and Tin Kari transferred .53 acre of land to the plaintiff. It was also contended that the undisputed case is that Brindaban Baishnab mortgaged .90 acre of land to Tarini and that there is no evidence that Brindaban’s heirs redeemed the said mortgage and as such the point for determination was whether these .90 acre of land belonged to Tarini or to Brindaban. It was further contended that since the property was not redeemed and as such by lepse of time mortgage became a sale and thus court below was in error in not holding
that the plaintiff being son of Tarini is entitled to .90 acre of land which was mortgaged to his father Tarini by the admitted owner Brindaban. It was the contention of the plaintiff that the appellate Court as well as the trial Court were in serious error in holding that Brindaban redeemed the mortgage since the said finding is based on no evidence as no evidence was brought on record from the side of the defendants that Brindaban or his
heirs redeemed the mortgage.
9. The High Court Division on consideration of the materials on record held that the trial Court as well as the appellate Court were in serious error in not allotting .90 acre of land in the saham of the plaintiff which was mortgaged to plaintiffs father Tarmi by Brindaban since finding of the appellate Court as well as the trial Court as to redemption of the mortgage was based on no evidence and thereupon held that plaintiff is entitled to the said .90 acre of land.
10. The High Court Division held that plaintiff by inheritance got .58 acre of land and he purchased .59 acre from Tin Kari Baishnab and by Ext.l (Ka) plaintiff acquired title to 1.65 acres of land by purchase from heirs of Brindaban and thus he will get in all 3.72 acres of land and Out of that he sold 2.48 acres of land and thereupon there remained 1.24 acres of land with him and accordingly he will get 1.24 acres of land in schedule No.l. In the background of the aforesaid fact High Court Division held that plaintiff proved his case as regard the claim of 1.24 acres of land out of the land described in the
schedule No. 1 and thereupon modified the decree of the courts below upon allotting
1.24 acres of land from the land of schedule No.l.
11. We have heard the learned Advocate-on-record and perused the materials on record. The learned Advocate-on-record could not point out that the facts considered by the High Court Division as reflected in the judgment were erroneous in any respect or in other words High Court Division was in error in holding on consideration of the materials as reflected in the judgment that plaintiff is entitled to 1.24 acres of land in his saham out of the land of schedule No. 1.
12. In the background of the discussions made hereinbefore we find no substance in the petition.
13. Accordingly the petition is dismissed.
Source : V ADC (2008), 211