High Court – Sharif Uddin Chaklader – C.R. No.999 of 1997

Present:

Mr. Justice Sharif Uddin Chaklader

Civil Revision No.999 of 1997.

   In the matter of:

         Abdul Barek Mondal

                                                          …petitioner.

versus

                              Mst. Romela Khatun and others.

                                                                   …opposite parties.

                                   Mr. Mohammad Hossain, Advocate

                                                                          for the petitioner.

                         Mr. Shashti Sarker, Advocate

                                                                     for the opposite party.

                                                 Heard on2.3.2011.

                                                          Judgment on 3.3.2011.

          This rule by the plaintiff directed against judgment and decree dated 14.11.1996 passed by the learned Subordinate Judge, Artha Wrin Adalat, Kustia allowing Title Appeal No.37 of 1991 thereby reversing those dated 17.3.1991 passed by the learned Assistant Judge,Additional Court, Kustia in Title Suit No.49 of 1990.

          The plaint case, is that, the suit land was recorded in the names of Haws Shiekh and others in C.S. khatian and while they were in possession about 60/65 years, settled the suit land with Irfan Sheikh and Munai Mondal in equal share. Irfan Sheikh died leaving daughter, Shantanessa as only heir.  Irfan Sheikh during his life time gave marriage of Santannessa with Hamed Ali and kept Hamed in his house. Shantannessa died leaving behind her husband, Hamed Ali and one son, who is plaintiff. Shantannessa inherited 8 annas share of 1.54 acres of land from her father, Irfan Sheikh and after her death, out of her 8 annas share, 2 annas share was inherited by her husband, Hamed Ali i.e. .19 ¼ acres of land and .57 ¾ acres of land in six annas share was inherited by the plaintiff who was then aged about 3 months. At the time ofS.A.operation, plaintiff was a minor boy and rent receipts and title documents of the suit land were lying with Munai Mandal. Hamed Ali during his life time sold his inherited land, two annas share, to Ansar Ali, the father of pro-defendant Nos.4 to 7. Plaintiff out of his saham .57 ¾ acres of land inherited, sold 10 decimals of land to pro-defendant No.3 and retained possession over .47 ¾ acres of land. After the death of Shantannessa, her husband, Hamed Ali married for the second time with Lutfunnessa and two sons were born out of their wedlock in Bahadur Ali and Omar Ali. Hamed Ali thereafter, gave out that Munai Mondal took the suit land in settlement in equal share.

          It is further case of the plaintiff that out of 1.54 acres of land rest 8 annas share were possessed by Munai Mondal. After his death, his daughter, defendant No.2, inherited the same. Defendant No.2 used to cultivate the land through her husband, defendant No.1. DuringS.A.operation the suit land was recorded in the name of the plaintiff, his father, Hamed Ali, defendant No.2 and defendant No.1 but plaintiff retained his possession. During the present record, defendant No.3 and defendant No.2 jointly recorded some lands separately from the plaintiff and claiming title upon that land. Then the plaintiff demanded partition of his land and that having been refused, the suit was filed.

          The case of the defendant Nos.1 and 2 is that, defendant No.2, Anwara Begum is the daughter of Munai Mondal and defendant No.1 is her husband. Defendant No.8, Lutfunnessa, is the second wife of Hamed Ali. It is their case that C.S. recorded tenant of the suit land was Haws Sheikh and others. They became unable to pay rent and verbally surrendered the land to its landlord, Noorjahan Begum. The land was kept in khash for 2 years and thereafter, about 55/56 years ago, settled the suit land with Munai Mandal and Hamed Ali in equal share. Monai Mondal while possessing his 8 annas share died, leaving his wife, Nabirannessa and a daughter in defendant No.2. Hamed Ali while possessing his 8 annas share measuring .77 acres of land, sold .30 acres of land from plot Nos.1517 and 3978 to defendant No.1 on 23.4.1956. Later on, Hamed Ali sold .38 ½ acres of land to his wife, Lutfunnessa on 5.6.1967. Hamed Ali while died had .8 ½ acres of land for his heirs. Hamed Ali died leaving the plaintiff, who is the son by his first wife, his second wife Lutfunnessa and two sons in Bahadur Ali and Omar Ali by his second wife as his heirs. The plaintiff inherited .08 ½ acres of land from his father which he sold to defendant No.3 on 5.1.1967. Thereafter, the plaintiff has no right title and interest in the suit land.

          The case of defendant No.8 is that the C.S. recorded tenants Haws Sheikh and others surrendered the land to the land lord who settled the same with Munai Mondal and Hamed Ali in equal share. After the death of Munai Mondal, his heir, defendant No.2 inherited his 8 annas share. Hamed Ali out of his 8 annas share sold .30 acres of land to defendant No.1 on 23.4.1956. He also sold .38 ½ acres of land to defendant No.8 on 6.6.1967. Hamed Ali left behind .8 ½ acres of land, died, leaving his heirs in the plaintiff, his wife Lutfunnessa and two sons in Bahadur Ali and Omar Ali. The plaintiff sold the land which he inherited. The plaintiff has no right, title and interest in the suit land.

          Trial Court decreed the suit. While decreeing the suit trial Court found that neither the plaintiff nor the defendant filed settlement dakhilas in Court, as such, learned judge relied on the oral depositions and evidence of the witnesses, found that plaintiff during his life time sold 10 decimals of land which he inherited from his first wife to defendant No.1 on 23.4.1956 and his right title and interest in the suit land as such son of Hamed Ali and his 2nd wife two sons, Bahadur Ali and Omar Ali did not inherit anything as such they are not sharers.

          Only defendant No.8, Lutfunnessa, preferred Title Appeal No.37 of 1991 which was heard by the learned Subordinate Judge, Artha Wrin Adalat, Kustia. Learned Judge allowed the appeal and held that in partition suit co-sharers are required to be brought on record and dismissed the suit although learned Judge was in agreement with other findings arrived at the learned Assistant Judge.

          Mr. Mohammad Hossain, learned Advocate, appearing for the plaintiff-petitioner, submits that, defect of parties as found by the learned judge is not legal as Hamed Ali inherited only .10 acres of land from his first wife which he having sold in 1956 he has no  subsisting interest in the suit land, as such, after his death, his son may be a heir but cannot be co-sharer which the learned judge of the trial Court rightly found and decreed the suit. Learned Advocate further submits that, when the learned judge of Court of Appeal below affirmed the other findings of the learned Assistant Judge, as such finding on defect of parties was arrived wrongly and contrary to the record as such the judgment and decree passed by the learned Subordinate judge is liable to be set aside.

          Mr. Shashti Sarker, learned Advocate, appearing for the opposite party No.8, submits that, plaintiff did not produce in Court his title deed i.e. settlement from the superior landlord, as in a partition suit title of the parties required to be considered as such the decision arrived at by the Court of Appeal below was justified. Learned Advocate further submits that in a suit for partition all the co-sharers to joma or jot are required to be brought on record. It is admitted fact that sons of Hamed Ali, who are co-sharers, were not made party, as such learned Judge committed no illegality in dismissing the suit in allowing the appeal holding that the suit is bad for defect of parties. Learned Advocate referred, in support of his submission the decision of Rezaul Karim and others vs. Md. Shamsuzzoha and others, 17 BLD(AD)-179, wherein it has been held that in a suit for partition the Court will no doubt consider the title of the parties in the suit land in some details more than in a suit for permanent injunction, but it cannot in either case convert itself into a court for determination of respective title of the parties involving serious disputes of title emerging from the pleadings. Thereafter, Learned Advocate relied on the decision of Monindra Mohan Kar vs. Ranadhir Dutta and others, 38 DLR-240, wherein it is held that decisions arrived at by the trial Court and Appellate Court in some question goes against defendant but defendant can argued the case without filing any appeal or any cross-objection.

          Let me consider the case.

 Learned Assistant Judge after finding that neither the plaintiff nor the defendant produced the document as to the settlement of the land with their predecessor, considering the oral depositions of the witnesses of the plaintiff and also deposition of defendant No.8-appellant and on the admission of the defendant, the learned Judge found Irfan Sheikh and Munai Mondal took settlement from C.S. tenant Hatem Sheikh Digor. Learned Assistant Judge also found on consideration of S.A. khatian that the name of the plaintiff also been recorded and further held that if the plaintiff sold the entire land then in S.A. khatian the name of Barek never recorded. Learned Assistant Judge further held on consideration of the case of defendant No.1, 2 and 8 in their oral depositions that  defendants failed to prove their so called settlement. On the question of defect of parties, learned judge found that:-

‘ü£L«a j­aC Hlg¡e ®nM HLj¡œ LeÉ¡ n¡¿¹¤­eR¡­L Ju¡­ln ®l­M j¡l¡ ®N­m n¡¿º­eR¡ Ju¡­ln ¢qp¡­h Hlg¡­el Eš² .77 naL pÇf¢š fСç quz Hhw n¡¿¹ ®eR¡ Eš² .77 naL pÇf¢š ®i¡N cMm Ll¡L¡­m HL f¤œ h¡c£ J ü¡j£ q¡­pe Bm£­L Ju¡­ln ®l­M j¡l¡ k¡e g­m n¡¿¹ ®eR¡l Ju¡­ln ¢qp¡­h h¡c£ a¡l Aw­n .67 naL Bl q¡­jc Bm£ a¡l Aw­n .10 naL pÇf¢š fСç quz 1 J 2 ew ¢hh¡c£ a¡­cl c¡¢Mm£ Sh¡­h h­me ®k, 23/4/56 Cw a¡¢l­M q¡­jc Bm£ e¡¢mn£ M¢au¡­hl .30 naL S¢j 2 ew ¢hh¡c£l ¢eLV ¢hœ²u L­lez AbÑ¡v 1 ew ¢hh¡c£ 23/4/56 Cw a¡¢l­Ml M¢lc¡ j¤­m .30 naL S¢j c¡h£ L­le ¢L¿º HM¡­e ¢h­no i¡­h E­õMÉ ®k, e¡¢mn£ Sj¡S¢jl j­dÉ q¡­jc Bm£ n¡¿¹ ®eR¡l Ju¡­ln ¢qp¡­h j¡œ .10 naL pÇf¢š fСç quz L¡­SC H ®r­œ q¡­jc Bm£l e¡¢mn£ M¢au¡­el .30 naL pÇf¢š ¢hœ²­ul ®L¡e A¢dL¡l e¡Cz g­m 1ew ¢hh¡c£ Eš² 23/4/56 Cw a¡¢l­Ml c¢mm j¤­m q¡­jc Bm£l j¡œ 0.10 naL pÇf¢š­a üaÅ ASÑe L­lez Hhw 8ew ¢hh¡c£ 6/6/67 Cw a¡¢l­Ml c¢mm j¤­m k¢cJ .381/2  naL S¢j q¡­jc Bm£l ¢eLV ®b­L M¢lc L¢lu¡­Re h¢mu¡ E­õM L­le ¢L¿º 23/4/56 Cw a¡¢l­Ml ¢hœ²­ul fl e¡/S¢j Sj¡­a q¡­jc Bm£l ®L¡e üaÅ e¡ b¡L¡u 8 ew ¢hh¡c£ 6/6/67 Cw a¡¢l­Ml Lhm¡ j¤­m e¡¢mn£ M¢au¡­el ®L¡e pÇf¢š fСç qu e¡Cz’

Thereafter, learned Assistant Judge held that after selling of the entire inherited land by Hamed Ali to defendant No.1 neither Hamed Ali nor his son inherited the land in their hands as such they are not co-sharer in the suit land as such the son of Hamed Ali and 2nd wife have not been made party in the suit as they are not proper and necessary party in the suit.

          Learned Subordinate Judge affirmed the other findings of the learned Assistant Judge but dismissed the suit on the ground that two sons and second wife of Hamed Ali have not been made parties as such the suit is bad for defect of parties and dismissed the suit.

          I have considered the judgments of the Courts below. It is not denied that Hamed Ali inherited 2 annas share from his 1st wife Shantannessa and also from the evidence and from the aforesaid findings of the learned Assistant Judge I find that Hamed Ali sold his entire land so inherited from his first wife as such his title to the suit land to be impleaded as party extinguished and Hamed Ali’s sons inherited nothing from their  father to be co-sharer to the suit land and since there is no land in their possession either by inheritance or by purchase, it is my view that two sons of Hamed Ali i.e. Bahadur Ali and Omar Ali are not required to be brought on record. I find that the Court of appeal below committed gross illegality in dismissing the suit on this score. I find substance in this rule. On reference to the judgments of the Courts below I find that some findings arrived at by the Appellate Court are directly given against the defendants as the trial Court found that defendants also did not produce their title document as such in my view defendant-appellant-opposite party No.1 ought to file revision or even revision in the nature of cross-appeal before this Court and in absence of any revision in the nature of cross-appeal, he may argue but he cannot challenge the findings arrived at by the appellate Court against her as these findings are concurrent findings of fact. I find substance in this rule.

          In the result, this rule is made absolute. No costs.

           The impugned Judgment and decree dated 14.11.1996 passed by the learned Subordinate Judge, Artha Wrin Adalat, Kustia in Title Appeal No.37 of 1991 is set aside.

          Send down the lower Court records at once.

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