Jasiron Nesa Vs. Hamida Bewa

Appellate Division Cases

(Civil)

PARTIES

Jasiron Nesa and another…………. .Appellants.

-vs-

Hamida Bewa and others……………Respondents.

JUSTICE

M. M. Ruhul Amin, J.

Md. Tafazzul Islam, J.

JUDGEMENT DATE: 31st August, 2004.

High Court Division committed an error of law in sending the suit back on remand to the trial court on the ground that the order of remand passed earlier was not carried out inasmuch as from the judgment of the appellate court and that of the trial court it is clear that after the suit was sent back on remand to the trial court by the appellate court for fresh hearing with direction to allow the parties to make amendment of their pleading and also to adduce evidence if any, the plaintiffs did not take any step in the suit although they were informed about the said fact and

time was allowed to them ……………………..(3)

It is the settled principle of law that it is the plaintiffs, who have to prove their case and the plaintiffs cannot succeed on the sneakiness of the defendant’s case if there be any and in the instant case but the plaintiffs to prove their case, the defendants cannot be harassed and put to suffering and in that view of the matter the learned Single Judge of the High Court Division committed error of law in sending the suit back on remand to the trial court to dispose of the same ion accordance with law………………….. (3)

Civil Appeal No. 181 of 2000. (From the judgment and order dated 2(F July. 1999 passed by the High Court Division in Civil Revision No. 767 of 1997).

Sufta Khatun, Advocate-on-Record……………………For the Appellants.

Md. Nawab AH, Advocate-on-Record……………For Respondent No. 1

JUDGMENT

1. Md. Tafazzul Islam, J: – This appeal by leave arises out of the leave petition granted by this Court in Civil Petition for leave to Appeal No. 1315 of 1999 against the judgment and order dated 20.7.1999 passed by a Single Bench of the High Court Division in Civil Revision No. 767 of 1997 making the Rule absolute and setting aside the judgment and decree dated 31 JO. 1995 passed by the Subordinate Judge, 2nd Court, Pabna in Other Class Appeal No. 206 of 1993 dismissing the appeal and affirming the judgment and decree dated 29.8.1993 passed by the Senior Assistant Judge, Sujanagar in Other Suit No. 48 of 1983 dismissing the suit.

2. The respondent as plaintiffs instituted Title Suit No. 48 of 1983 in the Court of the then Munsif. Sujanagar for declaration of title in the suit property against the present appellants as defendants alleging inter alia, that the suit properly belonged to Mojiruddin in 8 annsa share and Latifun Nessa in 4 annas share. Since before C.S. record. Mohirun Nessa was in possession through exchange and her name was recorded correctly in C.S. record. While Mohirunnessa was in possession as they registered on her. she died leaving behind her son Abul Hossain and husband Mojiruddin as her heirs who while had been in possession sold the same to the original plaintiff on 28.8.1961 by a registered kabala; that the suit property was wrongly recorded in the name of defendant Nos. 1 and 2. the original plaintiff Other Class Suit No.225 of 1968 in the Court of the then Munsif for correction of record. The defendant Nos. 1 and 2 filed written statement contending inter alia that they got the property by way of settlement. In that suit at the time of hearing Mojiruddin deposed that he did not transfer the land to the defendants by Pattan. The defendants have no title and possession in the suit property yet they claimed the property for which created cloud on the title of the plaintiff’s property and hence the suit was instituted; that defendant Nos.l and 2 contested the suit by filing written statement denying the material allegations made in the plaint and contending inter alia that Mojiruddin and Mohirunnessa were the owssners of the suit jot to the extent of 8 and 4 annas respectively and the C.S. records correctly prepared in their names; that after the death of Mohiromiessa her husband Mojiruddin and son Abdul Hakim became the owner of the property left by Mohiron. Thereafter, Abdul Hakim died leaving his father Mojir as the only heir was inherited his property. That Mojiruddin married second time and Abdul Hossain was born from the womb of second wife of Mojiruddin. Mojiruddin settled the suit land with the defendants on 5.3.1948 and since then they have been possessing the same. That in S.A. Khatian the suit property was firstly recorded wrongly in the name of Mojir. The plaintiffs have no right and title in the suit land. The suit is liable to be dismissed. That the learned Assistant Judge after conclusion of the hearing of the suit and on proper consideration of the facts and circumstances of the case and the evidence on record by his judgment and decree dated 3.8.1986 dismissed the suit. That against the said judgment and decree the respondent preferred Other Class Appeal No. 233 of 1986 before the District Judge, Pabna which was eventually heard by the learned Subordinate Judge and Artha Rin Adalat. Pabna who by his judgment and decree dated 19.11.1990 allowed the appeal and sent the suit back on remand to the trial court for fresh hearing giving the parties chance to amend the leading and adduce evidence if so desire; that after the remand of the suit the trial court intimated the said fact to the plaintiff-respondents and gave them time to take steps in the matter but the plaintiffs did not take any step and consequently the trial court by his judgment and decree dated 29.8.1993 dismissed the suit on proper consideration of the facts and circumstances of the case and the evidence on record. That against the said judgment and decree of the trial court the plaintiff-respondents preferred Other Class Appeal No.206 of 1993 before the learned District Judge. Pabna, which eventually heard by the learned Subordinate Judge, 2nd Court, Pabna who by his judgment and decree dated 31.10.1995 dismissed the appeal and affirmed those passed by the trial court. That against the said judgment and decree of the appellate court the plaintiffrespondents preferred Civil Revision No. 767 of 1997 before the High Court Division of the Supreme Court of Bangladesh, which was contested by the defendant-petitioners by filing counter affidavit. Hon’ble Single Bench of the High Court Division by judgment and order dated 20.7.1999 and the Rule absolute and sent the suit back on remand to the trial court after setting aside the judgment and decree of the court below. That being aggrieved by and impugned judgment and order the appellants filed Civil Petition for leave to Appeal No. 1315 of 1999. Tin’s Hon’ble Court on consideration of the facts and circumstances of the case granted leave to the appellants. The appellants beg to file this concise statement before this Hon’ble Court on the following amongst other.

3. The learned counsel appearing for the appellant submits that the learned Single Judge of the High Court Division committed an error of law in sending the suit back on remand to the trial court on the ground that the order of remand passed earlier was not earned out inasmuch as from the judgment of the appellate court and that of the trial court it is clear that after the suit was sent back on remand to the trial court by the appellate court for fresh hearing with direction to allow the parties to make amendment of their pleading and also to adduce evidence if any, the plaintiffs did not take any step in the suit although they were informed about the said fact and time was allowed to them, the instant suit was filed as far back as in 1986 and once the suit was remanded to the trial court for no fault of the contesting defendants and this time the trial court on consideration of the evidence on record both oral and documentary dismimssed the suit with the clear finding to the effect that the plaintiffs did not acquire any title by virtue of their alleged purchase dated 14.2.1961 as they failed to prove that the suit land belonged to mojiruddin and Abdul Hossain and that the plaintiffs have got no possession in the suit land the contesting defendants proved their Pattan and possession in the suit land and the said finding having been affirmed by the appellate court, learned Single Judge of the High Court Division committed error of law in sending the suit back on remand to the trial court and as such the impugned judgment and order is liable to be set aside, it is the

settled principle of law that it is the plaintiffs, who have to prove their case and the plaintiffs cannot succeed on the sneakiness of the defendant’s case if there be any and in tlie instant case but the plaintiffs to prove their case, the defendants cannot be harassed and put to suffering and in that view of the matter the learned Single Judge of the High Court Division committed error of law in sending the suit back on remand to the trial court to dispose of the same ion accordance with law.

4. The learned counsel appearing for the respondent submits that the High Court

Division passed the judgment and order sending the case back on remand to the trial court for fresh trial court legally inasmuch as the trial court did not comply with the order of remand and did not serve any notice to the plaintiff respondent to appear before that court and the Hon’ble High Court Division for the ends of justice passed the order of remand for both the parties and the High Court Division did not commit any error of law in sending the suit back on remand to the trial court to dispose of the same in accordance with law………….. Dictation

The appeal is allowed. There is no order as to cost.

Ed.

Source: I ADC (2004), 513

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