High Court Division – Shahidul Islam – 2775 & 2776, 2336 & 3237-2009-FIANL Absolute-22.1.2012

Words and Phrases

Land Lord

         Section 2(6) of the Bengal Tenancy Act defines  “ Land Lord” as a person immediately under whom a tenant holds land and includes to Government, broadly means a person to whom rent is payable by tenant.

Words and Phrases :-“Korfa tenant” paying fixed rent as well as “cess” whether acquires occupancy raiyati right?

 

Rent paid was fixed at taka 14 and cess at annas 3(three) and a person holding land as such, as recorded in the C.S Khatian, must be held to be a raiyat with occupancy right and the rent recieverer must be held to be Jaminder only having rent receiving interest under section 2(17) and 2 (6) of the Bengal Tenancy Act……………………..Para-18

 

“Tenant”:- Section 2(17) of the Bengal Tenancy Act defines tenant as a person who holds land under another person and is or but for a special contract would be, liable to pay rent for that land to that person…………..Para-18

 

“Land lord”:- Section 2(6) defines Landlord as a person immediately under whom a tenant holds land, and includes to Government………………….Para-18

                   IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

CIVIL REVISION NO. 2775 OF 2009

 

IN THE MATTER OF:

Md. Foyez Sarkar and another

….. Defendant Nos. 10-11 / Petitioners

-Versus-

Md. Rois Uddin Prang being died his heirs Most. Hasna Bewa and others

… Plaintiff-Opposite Parties

Mr. Mohammad Jamiruddin Sircar with

Mr.Md.Iqbal Kabir and

Mr.Md.Zakir Hosain Bhuiyan

…. For the Petitioners

Mr.Md.Nurul Amin with

Mr. A. U. Ahmed

… For the Opposite Party Nos. 1-23, 26-28, 30-31, 33, 43-49

Mr.Md.Abdul Hamid Shah

… For the Opposite Party No. 24

-AND-

CIVIL REVISION NO. 2776 OF 2009

 

IN THE MATTER OF:

Md. Foyez Sarkar and another

….. Defendant Nos. 10-11 / Petitioners

-Versus-

Most. Hasna Bewa and others

… Plaintiff-Opposite Parties

Mr. Mohammad Jamiruddin Sircar with

Mr.Md.Iqbal Kabir and

Mr.Md.Zakir Hosain Bhuiyan

…. For the Petitioners

Mr.Md.Nurul Amin with

Mr. A. U. Ahmed

… For the Opposite Party Nos. 2-4, 13

Mr.Md.Abdul Hamid Shah

… For the Opposite Party No. 24

-AND-

CIVIL REVISION NO. 3236 OF 2009

 

IN THE MATTER OF:

Md. Jalal Uddin Sarkar and others

….. Defendants / Petitioners

-Versus-

Most. Hasna Bewa and others

… Plaintiff-Opposite Parties

Mr. Golam Rabbani with

Mr. Ahmed Nowshaed Jamil

…. For the Petitioners

Mr.Md.Nurul Amin with

Mr. A. U. Ahmed

… For the Opposite Party Nos. 1-4, 12-13, 17, 20

Mr.Md.Abdul Hamid Shah

… For the Opposite Party No. 26

-AND-

CIVIL REVISION NO. 3237 OF 2009

 

IN THE MATTER OF:

Md. Jalal Uddin Sarkar and others

….. Defendants / Petitioners

-Versus-

Most. Hasna Bewa and others

… Plaintiff-Opposite Parties

Mr. Golam Rabbani with

Mr. Ahmed Nowshaed Jamil

…. For the Petitioners

Mr.Md.Nurul Amin with

Mr. A. U. Ahmed

… For the Opposite Party Nos. 1-3, 5, 7-9, 15, 19, 20, 22

Mr.Md.Abdul Hamid Shah

… For the Opposite Party No. 26

Heard on 13.12.2011, 17.1.2012

Judgment on the 22nd day of January, 2012

 

Present;

Mr. Justice Shahidul Islam

  1. The Rules issued in Civil Revision No. 2775 of 2009, Civil Revision No. 2776 of 2009, Civil Revision No. 3236 of 2009 and Civil Revision 3237 of 2009 having arisen out of the same judgment, in a single suit for partition, those are taken up together for analogous hearing and disposal by a single judgment.
  2. Facts relevant for disposal of the Rules are that the opposite party Nos. 1-22 of the Rules were the plaintiffs in Partition Suit No. 68 of 2003 (77 of 1988) of the Court of Sub-ordinate Judge, Bogra who instituted the suit praying for a preliminary decree for partition to 2.10 acres of land out of 5.91 acres of land, recorded in C. S. Khatian No. 64, mouza Bujrukbaria, Police Station and District-Bogra. It was the specific case of the plaintiff that Josoda Sundari and Gurupada Sarder had 8 annas share each. They settled the suit land by a registered kabulyat dated 19.2.1923 for 9 years in favour Khairat Ali, Jobed Ali fixing a jama of Tk. 28 per annum but the C.S. record No. 64 was wrongly prepared in the name of Khairat Ali and Jobed Ali each having share to the extent of 7 annas share and Kanchan Bibi to the extent of 2 annas share. It was their case that after execution and registration of kabulyat dated 19.5.1923 (exhibit-5) Gurupada transferred his share by a kabala dated 12th Sraban 1334 B.S.  (exhibit-7) in favour of his daughter Priya Bala. Priya Bala transferred 2.10 acres of land by registered kabala deed dated 25.1.1928 (exhibit-2) in favour of Nazir Pramanik. Nazir Pramanik with a view to get possession in his purchased land gave Tk.200/= to Khairat Ali and got a deed of disclaimer duly executed and registered by Khairat Ali in his favour dated 16.2.1928 (exhibit-6). Nazir Pramanik while was in possession, the attested khatian No. 64/1 (exhibit-3) was prepared in his name. Thereafter the M.R.R. Khatian No. 74 (exhibit-8) was prepared in his name and he paid rent vide exhibit-4 series. Nazir died leaving behind the plaintiff Nos. 1 and 2, as two sons and a daughter named Kadavan. The plaintiff Nos. 3-8 being sons of the plaintiff Nos. 1 and 2 purchased the share of Kadavan, from her heirs. Khairat Ali died leaving behind 4 sons named Kachu Sarker, Jabbar Sarker, Aftab Sarker, Ansar Sarker and daughter Khaju Bibi. Kachu died leaving behind his widow Abedun Bewa and 4 daughters named Kanchan Bibi, Khairat Bibi, Piara Bibi, Gulpi Bibi. Jobed Ali died leaving behind the defendant Foyez Sarker, Ali Akbar as sons, a daughter Amena, and widow Tara Bewa. The defendant Nos. 14-16 are purchasers from korfa tenant. The plaintiffs demanded partition by metes and bound and that was refused on 18.2.1988 and as such the suit.
  3. The defendant Nos. 1-9, 14, 16 contested the suit by filing written statement contending, inter alia, that Kadam Bewa alias Kadar Bewa got the suit land by way of settlement by a kabulyat dated 1329, 9th Magh from Jaminder. For arrear of rent a Rent Suit being No. 887 of 1921 was filed. That suit was decreed. The decree was put to execution vide Execution Case No. 744 of 1921 and the suit land was sold in auction on 16.5.1922. That auction was purchased by Jamindar, Guru Chand Sarker and Josoda Sundari. Said Gurupada and Josoda settled the suit land for 9 years from 1329-1337 B.S. in favour of Khairat Ali. Khairat executed a kabulyat dated 3.1.1923 in favour of Jamindar and the later accepted the said Kabulyat. During his possession the suit land was recorded in the name of Khairat Ali, Jobed Ali and Kanchan Bibi wrongly. That land ought to have recorded in name of Khairat Ali. After expiry of the lease period, the tenant Khairat Ali started possessing the suit land by holding over of tenancy. Khairat Ali transferred 29 decimals of land including structures (homestead) standing thereon, by kabala deed dated 16.2.1928 in favour of his wife Asha Bibi. Asha Bibi died leaving behind husband Khairat Ali one son Kachu. Khairat transferred 12 decimals of land from plot No. 80, 24 decimals of land from plot No. 77 by a deed of heba-bil-ewaz in favour of his wife Khatemun and son Aftab Ali Sarker. Khairat died leaving behind widow Khatemun Nessa 4 sons, defendant Nos. 1-3 and Kachu and a daughter, defendant No. 9. Khatemun died leaving only son, the defendant No. 2. Kachu transferred 4 decimals of land by registered the kabala deed dated 9.4.1975 (exhibit-Ka) in favour of the defendant No. 2 and further transferred 4 decimal by a kabala deed dated 17.5.1968 (exhibit-Kha) in favour of the defendant No. 2. The defendant No. 2 transferred 20 decimals of land from plot No. 77 in favour of Jayeda Bibi. Josoda Bibi transferred 10 decimals of land by 2 kabala deeds dated 9.7.1987 in favour of the defendant No. 14 and further transferred 5 decimals of land in favour of the defendant No. 16. After that transfer Jayeda had 5 decimals of land in her possession. The M.R.R. record No. 73, 74, 77 and 78 were wrongly prepared. Those defendants did not make any prayer for saham.
  4. The defendant Nos. 10 and 11 submitted written statement contending, inter alia, that the plaintiffs are neither co-sharer to the suit land nor have any community of interest therein. It is their specific case that Jasoda Sundari and Gurupada Mandal transferred the suit land in favour of Khairat Ali and Jobed Ali and at that time Khairat Ali was the Karjakar of joint family consisting of Kadam Bewa, Khairat Ali and Jobed Ali. Accordingly the C.S. record was correctly prepared. It is their further case that Gurupada transferred the rent-receiving interest in favour of Priya Bala and that was purchased by the plaintiffs’ predecessor. The plaintiffs’ processor had no right, title and interest in thelandofC.S. KhatianNo. 64. Khaju Bibi being heirs of Khairat transferred 39 decimals of land by kabala deed dated 22.6.1969 exhibit-Ja (6) in favour of Jobed Ali. Khairat Ali transferred by 5 kabala deeds dated 14.2.1947, 7.10.1947, 16.12.1947, 25.4.1948 and 3.5.1948 (exhibit-Ja-(1) to Ja(6) in favour of Jobed Ali an area of 57 decimals of land out of the suit land. Khajurun, daughter of Khairat sold 5 decimals of land by kabala dated 3.10.1981 in favour of the defendant Nos. 10 and 11. Kachu sold 1½ decimals of land from homestead property by a kabala deed dated 24.3.1978 (exhibit-Ja-8) in favour of Akbar Ali, the defendant No. 12. Thereafter Jobed Ali transferred 1.64 decimals of land by kabala deed dated 2.3.1977 (exhibit-Ja-7) in favour of the defendant Nos. 10 and 11. Jobed Ali died leaving behind the defendant Nos. 10 as widow, the defendant No. 11 and Akbar as sons. Khajurun Bibi sold 5 decimals of land by kabala deed dated 31.10.1981 in favour of the defendant Nos. 10 and 11. This way the defendant Nos. 10 and 11 are in possession in the suit land. Those defendants also did not make any prayer for saham for any area out of the suit land.
  5. The defendant No. 24 submitted written statement contending, inter alia, that Jaminder Josoda Sundari and Gurupada transferred 1.65 acres of land (the date of the kabala was not mentioned in the written statement) in favour of Sifatullah and Kijhratullah,s the predecessor-in-interest of the defendant Nos. 24-31, the M.R.R. was prepared in their names. Josoda and Gurupada settled the rest of the land by registered kabulyat dated 3.1.1923 (exhibit-5) in favour of Khairat Ali. Lease money was paid jointly by Kadam Bibi, Khairat Ali and Jobed Ali. The C.S. was wrongly prepared in their names for the entire area of the lands covered by C.S. Khatian No. 64. It was their case that out of the total land an area of 1.65 acrs was required to be recorded in C.S. Khatian, in the name of Sifatullah and Khairat Ali. Those defendants also did not make any prayer for saham.
  6. Upon the pleadings of the parties the learned Joint District Judge framed the following issues for deciding the matter in controversies:-

(i)                Is the suit maintainable as it stands framed?

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

(iii)           Is the suit bad for non-joinder of parties and properties?

(iv)           Is there any cause of action in filing the suit?

(v)             Have the plaintiffs right, title and possession in the suit land as claimed?

(vi)           Are the plaintiffs entitled to get a decree as prayed for?

  1. The plaintiffs examined 2 PWs and produced the documents as stated in the forgoing paragraphs. The defendant Nos. 1-9 and 16 examined 2 DWs and the defendant Nos. 11 and 12 examined only one witness the DW3. The defendant Nos. 11 and 12 also exhibited the documents as mentioned in the forgoing paragraphs. The defendant No. 24 did not examine any witness but exhibited some rent-receipts of the landlord’s estate and those were marked as Ga series.
  2. The learned Sub-ordinate Judge by the judgment and decree dated 27.9.2006 decreed the suit, granting saham to the plaintiffs to 2.10 acres and allowed a saham to the defendant Nos. 10 and 11 to the extent of 1.70½ acres and also granted a saham for 32 decimals in favour of the defendant No. 14 subject to payment of Court fees. That judgment and decree was challenged by the defendant Nos. 1(ka)-1(ja)/2/3/5-9/16 by filing partition appeal No. 182 of 2006 and in the said appeal the defendant No. 24 and 33 submitted a cross written statement on 24.4.2007 but not in the form of cross appeal or cross objection as provided under Order 41 Rule 22 of the Code of Civil Procedure. By filing that cross written statement the defendants admitted the entire plaint’s case.
  3. The defendant Nos. 10 and 11 being aggrieved by the said judgment and decree preferred Partition Appeal No. 169 of 2006 and in the said appeal the defendant No. 24 submitted a cross written statement on 27.4.2009 but not in the form of Memo of appeal and without paying Court fees as required under Order 41 Rule 22 of the Code of Civil Procedure. Those appeals were heard by the learned Additional District Judge, 3rd Court, Bogra who by the impugned judgment and decree dated 15.6.2009 allowed the cross written statement, modified the judgment of the trial Court, cancelled the saham granted to the defendant No. 10/11/14 and allowed a saham to the plaintiff to the extent of 1.96 acres and granted a saham to the cross written statement submitters Chameli and Narayoni to the extent of 20 decimals of land.
  4. Being aggrieved by the said judgment and decree passed in Partition Appeal No. 169 of 2006 and 182 of 2006. The defendant Nos. 1(ka)-19Ja)/2/3/5/9/16 have preferred Civil Revision No. 3236 of 2009 and Civil Revision No. 3237. The defendant No. 10 and 11 have filed Civil Revision No. 2775 of 2009 and Civil Revision 2776 of 2009.
  5. All the 4 Rules have been taken up for hearing and for disposal by a single judgment.
  6. Mr. Golam Rabbani with Mr. Ahmed Nowshed Jamil, the learned Advocates appeared for the petitioner in Civil Revision No. 3236 of 2009 and Civil Revision No. 3237 of 2009.
  7. Mr. Md. Nurul Amin with Mr. A. U. Ahmed, the learned Advocates appeared for the opposite parties. Mr. Md. Abdul Hamid Shah, the learned Advocate appeared for the opposite party No. 24 and 25 and supported the cross-written statement filed before the appellate Court.
  8. At the time of hearing Mr. Mohammad Jamiruddin Sircar with Mr. Md. Iqbal Kabir, the learned Advocates appeared for the petitioner in Civil Revision No. 2775 of 2009 and Civil Revision No. 2776 of 2009. Mr. Mohammad Jamiruddin Sircar supported the defendant Nos. 10 and 11 and extraneously submitted that the kabulyat dated 19.2.1923 (exhibit 5) is the basic documents of title of the plaintiff for filing the suit for partition. By that kabulyat there accrued no title in favour of the plaintiff or their predecessor in interest and as such they are not co-sharers in the land under partition and they have no community interest. He submitted that both the Courts below have deliberately failed to misread the exhibit-5, 6, 7 and 8 and illegally decreed the suit allowing saham to the plaintiff who are nothing but strangers in the suit jote. He prayed for setting of the impugned judgment and decree. Mr. Sircar further submitted that the defendant Nos. 1(a)-1(ja)/3/5-9/16 are in possession in the homestead and in some other lands by purchase from Khairat and as such the plaintiff’s suit is liable to be dismissed. He further submitted that the defendant No. 10/11 are in possession in the suit land on the strength of Exbt’Ja’ Series. He prayed for making the Rules absolute, prayed for setting aside of the judgment and decree passed by the Courts below and also prayed for dismissal of the suit.
  9. Mr. Md. Nurul Amin the learned advocate advanced the main argument in favour of the plaintiff opposite party as well as of the defendant No. 24 and 25 submitting, inter alia, that prior to the leasing out of the land by (exhibit-5), the Jaminders transferred 1.65 acres of land in favour of Sifatullah and Kijratullah, the predecessor of the defendant Nos. 24-31. He submitted that the said land ought to have been recorded in C.S. Khatian in the name of Sifatullah an Kijratullah but those lands were wrongly recorded in C. S. Khatian No. 64 in the name of Kadam Bibi and Khairat Ali and Jabed Ali. Mr. Amin Submitted that the defendant No. 24 and 25 could not contested the suit by adducing evidence as the learned Advocate failed to give them proper instructions. He submitted that the appellate Court upon receiving cross written statements from them has considered the same and rightly granted a saham in favour of the cross written statement submitter for an area of 20 decimal. Mr. Nurul Amin after perusal of the contents of exhibit-5 submitted for remand of the appeals to the appellate Court with a direction to the said Court for taking additional evidence allowing the defendant to examine them and to adduce evidence in support of their case, if required by Court. Mr. Nurul Amin failed to show us any provision as to how does a non contesting defendant can file any cross-written statement before an appellate court, under any provision of the Code of Civil Procedure. Mr. Nurul Amin also failed to show us any law that anyCivil Courtcan allow any saham to a defendant who failed to adduce any evidence and failed to prove him to be a co-share in the land under partition. He also failed to show any law that the High Court Division can allow remand of any suit or appeal casually where there exists no ground for remand. The defendant No. 24/25 have not adduced any evidence and have failed to make out any case of their own or showing any interest in the suit land.
  10. I have considered the submissions made by the learned Advocates for the parties. I have gone through the impugned judgment and decree as well as the judgments passed by the learned Sub-ordinate Judge. I have gone through all the exhibited documents very carefully and meticulously. I have gone through the oral evidence adduced by the parties.
  11. Upon considering the arguments advanced by the learned Advocate for the parties and upon considering the case and counter case as made out by the plaintiffs as well as the defendants, it inspires me to answer decide the following questions for deciding the controversies existing between the parties:-

(1)             What was the status of Jashoda sundari and Gurupada in respect of the suit holding? Whether they were landlord having a right to receive rent?

(2)             Whether the plaintiff opposite parties are raiyati tenants having occupancy right in the suit jote as well as co-sharers therein and have any community interest in the land under partition?

(3)             Whether the defendant Nos. 1-9/16, the petitioners of Civil Revision No. 3236 of 2009 and Civil Revision No. 3237 of 2009 have any community of interest or possession upon any part of the suit land?

(4)             Whether the defendant Nos. 24, 25 are co-sharer tenants to the suit land and have any community of interest in the suit holding?

(5)             Whether the defendant Nos. 10 and 11 are co-sharer to the suit jote and are entitled to any relief as prayed for?

(6)             Whether the impugned judgment and decree are sustainable in law?

(7)             Whether the saham granted to the defendant Nos. 24, 25 by the appellate Court is sustainable in law?

  1. Let us take up the points for determination No. 1, (2) and (4) together for decision. The C.S record itself shows that, the name of “Joshoda” and “Gurupada” has been recorded in the colum of Land Lord. Section 2(6) of the Bengal Tenancy Act defines “ Land Lord” as a person immediately under whom a tenant holds land and includes to Government, broadly means a person to whom rent is payable by tenant Rent has been defined in section 2(13) of the said Act in the following “rent” means whatever is lawfully payable or deliverable in money or kind by a tenant to his landlord on account of the use or occupation of the land  held by the tenant. “Tenant” has been defined in section 2(17) of the B.T Act. Tenant means a person who holds land under another person and in or but for a special contract would be, liable to pay rent for that land to that person.
  2. Upon perusal of the entire materials on record as well as the evidence both oral and documentary it appears that the plaintiffs have brought out a case of their co-sharership on the strength of exhibit-5. It is their clear case that the land lord Josoda sundari and others settled the suit land in favour of Khairat Ali for 9 (nine) years and after expiry of 9 years the suit land went back to the landlords Josoda Sundari and Gurupada and they continued their possession. Jaminder Gurupada transfared his share to his daughter Priya Bala, who acquired title and possessed on the strength of exhibit-7 and thereafter she sold 2.10 acres of land by exhibit-2 in favour of the predecessor of the Plaintiff named Nazir Pramanik. I have gone through the contents of exhibit-5. It appears that by exhibit-5 the only rent-receiving interest of Josoda Sundari and Gurupada were transferred to Khairat Ali and others. It further appears that by exhibit-7 Gurupada transferred his rent-receiving interest in favour of Priya Bala and Priya had transferred the said interest to Nazir Pramanik. From exhibit-2, 5 and 6 it is crystal clear that only rent-receiving interest of the landlords were transferred in favour of the plaintiff’s predecessor Nazir Pramanik. The C.S.  record has been marked as exhibit-1. From the C.S. record it appears that in the column of landlord, the name of “Josoda Sundari” and “Gurupada Sarker” have been recorded, each having 8 annas share. In the right hand side of the C.S. Khatian and in the column of “rent”, the “rent” has been specifically recorded against each of the landlords to the extent of Tk.14 and “cess” has been recorded against each of the land lords at the rate of annas 3. In the lower part of the C.S. Khatian and in the column of tenant the name of Kachu Bibi, Khairat Ali and Jobed Ali were recorded as tenant having share to the extent of 2 annas, 7 annas and 7 annas respectively. In the right hand side of the khatian the status of the tenant has been recorded as Korfa `vwLjx m¦Ë¡ wewkó. The C.S record itself discloses that “Joshoda Sundari” and “Gurupada” each used to receive rent at the rate of Taka 14 and cess at the rate of annas there from Khairat Ali, Jobed Ali and Kachu Bewa. The PW1 in his cross-examination has admitted the C.S. Khatian to be correctly prepared adding “bvwjkx wm. Gm. LwZqvb mwVK”.  If that admission is read together with section 2(6), 2(13) and 2(17) of the Bengal Tenancy Act, 1885 the same bears a presumption that the C.S. recorded tenant Khairat Ali Jobed Ali and Kachu Bewa were tenant out and out having occupancy right and Josoda Sundari and Gurupada were landlord having rent-receiving interest. So Khairat Ali and others were although recorded as “Korfa” tenant but since they paid rent at a fixed rate along with “cess” they must be held to be raiyati tenant with occupancy right in the suit holding and Joshoda and others were jaminder having rent receiving interest. The exhibit 5 is the basic document of the plaintiffs. The fate of exhibit 2,6,7 and 8 are depending upon the fate of exhibit 5. save and except the Exhibit 5,2,6,7 and 8. The plaintiff could not adduce any evidence either oral and documentary to show that Khairat Ali, Jobed Ali and Kachu had handed over vacant possession in favour of Josoda Sundari and others. The plaintiff also failed to adduce any evidence showing that Joshoda Sundari and Gurupada or Kanchan Bibi being in possession had transferred the land to Nazir Pramanik. As soon as the PW1 had admitted the C.S. Khatian as correct, the whole claim of the plaintiff has become fruitless in as much as they purchased only rent receiving interest which was acquired by Government. The plaintiff are strangers to the suit holding without having any community of interest therein. On the other hand the defendant Nos. 10 and 13 has exhibited the exhibit-Ja series which are old documents of 1947 and 1948 from the heirs of Khairat Ali and Jobed Ali, the C.S. recorded tenants. Those documents were being supported by payment of rent. The State Acquisition and Tenancy Act come into operation on and from 6.5.1951. Section 3 of the said Act (Act No. XXVIII of 1951) provides the provision for acquisition of interest of certain rent-receiver and consequence thereof has been provided in  section 3(4) of the said Act which runs thus:-

“(4) On and from the date specified in a notification under sub-section (1)-

(a)  all interests of the rent-receivers in the estates, taluks, tenures, holdings or tenancies specified in notification, including their interests in all lands in their khas possession, and interests in all subsoil and rights to minerals, in such estates, taluks, tenures, holding or tenancies and also including the interests of any such rent-receiver in any building or part of a building standing on any such land and used primarily as office or kutchery for the collection of rent of any estate, taluk tenure, holding or tenancy, shall vest absolutely in the Government free form all encumbrances:

Provided that nothing in this clause shall apply to any building within the homestead of the rent-receiver concerned.” By section 3(4) (1) (a) of the Act xxviii of 1951 the plaintiff predecessors have been ceased to have any inters in the suit holding.

  1. Upon a careful reading to the said provisions of section 3(4)(a) of the State Acquisition and Tenancy Act it is crystal clear that the rent-receiving interest of the plaintiff’s predecessor whatever was there in the suit holding was transferred to the plaintiff and that had been ceased to exist after the State Acquisition and Tenancy Act came into operation.
  2. In view of the above I am constrained to hold that the plaintiffs are neither co-sharer tenants in the suit holding nor have any community of interest therein and as such the suit has been instituted upon baseless claim and without having any right. Accordingly these issues are decided negatively against the plaintiffs opposite parties. The plaintiff are not entitled to any share in the suit holding and are not entitled to a preliminary decree.
  3. Let us take up the point No. 7 for decision:-

Already we have seen that the defendant Nos. 24, 25 although submitted written statement in the suit but failed to adduce any evidence either oral or documentary. During hearing of the appeals before the lower appellate Court, the defendant No. 24 submitted a cross written statement admitting the plaintiff’s entire case but submitted no documents of his own. The appellate Court’s power has been provided in section 107 of the Code of Civil Procedure. The provision for filing any objection against the judgment and decree appealed from by a contesting or non-contesting defendant has been provided in order 41 Rule 22 of the Code of Civil Procedure. A defendant respondent have every right to submit cross objection or cross appeal satisfying the condition as laid down in Order 41 Rule 22 of the Code of Civil Procedure. A defendant who desires to submit cross objection is required to submit cross-objection in the form of Memo Memorandum of Appeal and paying necessary Court fees and must file within 30 days of receiving notices. In the instant case the defendant No. 24 deliberately failed to satisfy the mandatory requirements of Order 41 Rule 22 of the Code of Civil Procedure. He has only filed a cross written statement. There is no provision in the Code of Civil Procedure for filing any cross written statement before an appellate court. The provisions as laid in the Code of Civil Procedure provides only for filing cross-appeal or objection challenging the legality of the judgment and decree appealed from, in the form Memorandum appeal but not otherwise. In the instant case without acting as per law the defendant No. 24 by submitted cross written statement, supported the entire plaintiff’s case and the appellate Court without taking any evidence allowed his prayer and granted a saham for 20 decimals. Since the plaintiffs and the defendant No. 24 stands on the same footing, I am of the view that there is no community interest of the defendant No. 24 or 25 in the suit holding and they are not co-sharers within the meaning of 2(17) of Bengal Tenancy Act and as such this issue is decided negatively against the defendant No. 24. I am constrained to hold that he is neither a co-sharer in the suit holding nor have any community of interest therein. As such the prayer made by Mr. Md. Nurul Amin for sending the appeal back on remand does not merit consideration and the said prayer is rejected.

  1. Let us take up the issue No. 3 for decision:-

From the admission of PW1, the recorded tenants Khairat Ali, Jobed Ali and their mother became co-sharers to the suit holdings as their status was recorded as tenant. The defendant Nos. 1-9, 14.-16 submitted some registered documents, the exhibit-Ka and Kha showing purchse of some landed property from the heirs of C.S. recorded tenants. They have adduced evidence by adducing DW1 and DW2. Their evidence, read with the exhibit-1, exhibit-“Ka” and “Kha” clearly proved it beyond doubt that they are co-sharers and have some interest into the suit holding. Since they have not prayed for any saham, I am not inclined to calculate their share. Accordingly I decided the point No. 2 affirmatively in favour. of the defendant Nos. 1-9 and 16.

  1. Now take up the issue No. 5 for decision.

C.S. Khatian has been admitted as correctly prepared by PW1. The defendant No. 10 and 11 has examined only one DW3 and exhibited a lot of documentary evidence which are exhibit-Ja series. Those documents are registered and of more than 50 years old. They have submitted some rent-receipts. Those exhibit “Ja” series have not been denied by the plaintiffs. The defendant No.10 and 11 proved themselves to be co-sharer in the land under partition and proved their possession. Accordingly this issue No. 5 is decided affirmatively in their favour.

  1. Let us take up point No. 6 for decision.
  2. From the facts and circumstances and the discussions made above and the decision taken in the forgoing paragraphs it is crystal clear that the plaintiff’s whole claim has been founded upon a baseless claim of title in the suit land. They are nothing but strangers in the suit holding. The defendant No. 24 and 25 are also strangers. Strangers do not have any right to file a suit for partition and have no right to claim any saham. The Courts below have deliberately failed to consider the admission made by the PW1 and deliberately failed to discuss and consider the exhibit-Ka, Kha and Ja series. Both the Courts below upon imaginary views have granted Saham to the plaintiffs and to the defendant No.24 as well. The decree so passed is liable to be set-aside and the suit is liable to be dismissed. The courts below have committed error of law occasioning a failure of justice. Accordingly the Rules are made absolute. The judgment and decree impugned in this Rules are set-aside. The suit is dismissed as a whole. The Saham granted to defendant No. 24 is set-aside and cancelled.
  3. The office is directed to send down the lower Court records.

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