Appellate Division Cases
(Civil)
PARTIES
Kazi Naimul Huq and others……………. Petitioners.
-Vs-
Md. Abdus Sattar Bhuiyan and others ……………… Respondents.
JUSTICES
Md. Ruhul Amin J
Md. Tafazzul Islam J
Judgment Dated: 25th June 2006
The Code of Civil Procedure. Order 1, Rule 10(2)
Rejecting application filed by the petitioners praying for adding them as parties ………………..(1)
During pendency of the above appeal the respondent Nos. 1 and 2 herein got themselves added as respondent Nos. 17 and 18 in the above appeal stating that they purchased .23 acres of land of Plot No.’ 1014 and .29 acres of land from Plot No. 1016 from Sharat Chandra Barai and Satish Chandra Barai through four registered deeds of sale out of which three were registered on 20.8.1979 and the remaining one on 20.11.1979 and their names have also been mutated and they also paid rents and taxes; the High Court Division, after hearing, by judgment and decree dated 13.11.83 dismissed the above appeal and thereby affirmed the judgment and decree of the trial court; the defendant Nos. 1-7 in the early part of 1976 trespassed in the suit land and illegally raised kutcha huts thereon and the defendant No.8 also trespassed in the suit land in the early part of 1981 and illegally raised kutcha huts thereon and they did not vacate the suit land inspite of repeated requests and hence the suit………………… (2)
No appeal having been filed against the above decree dated 13.11.79, the very foundation of the claim of the petitioners ceased to exist and so they can not claim that they are necessary parties in Title Suit No.81 of 1987 and further the presence of the petitioners in the Title Suit No.81 of 1987 is also not necessary in order to enable the court to adjudicate and settle all the questions involved in the suit effectually and completely and accordingly the learned court below did not commit any illegality in rejecting the said application dated 10.9.2001……………………. (3)
Mustafa Niaz Muhammad, Senior Advocate, instructed by Md. Nawab Ali, Advocate-on-Record………………….. For the Petitioners
Munsur Habib, Advocate, instructed by Zahirul Islam, Advocate-on-Record. …………………For Respondent No. 1
Respondent Nos. 2-23 ……………………Not represented.
Civil Petition I-“or Leave To Appeal No. 1472 of 2005
(From the judgment and order dated 24th April. 2005 passed by the High Court
Division in Civil Revision No. 6082 of 2001 with Civil Rule No.409(R) of 2004).
JUDGMENT
Md. Tafazzul Islam J: This petition for lcave to appeal arises out of the judgment and order dated 24.4.2005 of the High Court Division in Civil Revision No. 6082 of 2001 discharging the Rule obtained against the judgment and order dated 20.9.2001 of the learned Joint District Judge, 3rd Court Dhaka in Title Suit No. 81 of 1987 rejecting application filed by the petitioners praying for adding them as parties.
2. The respondent Nos. 1 and 2 instituted the above suit for declaration of their title in the suit property and also recovery of khas possession of the same on the averments that Sharat Chandra Barai, Satish Chandra Barai and Jogesh Chandra Barai, three brothers, acquired the suit property by way of purchase and also by inheritance and as per amicable partition Sharat Chandra Barai got entire .24 acres of land in C. S. Plot No” 1014 and .18 acres out of .43 acres in C.S. Plot No. 1016 and the aforesaid lands were recorded in the name of Sharat Chandra Barai in S.A. Plot Nos. 247 and 251 respectively, Satish Chandra
barai got .11 acres of land from C.S. Plot No. 1016 which was recorded in his name in S.A. Plot No. 2049; Jogesh Chandra Barai got .13 acres land in C.S. Plot No. 1016 which was recorded in S.A. Plot No.2028; the said three brothers filed a suit being Title Suit No. 220 of 1967, which was subsequently renumbered as Title Suit No. 99 of 1977, for cancellation of Sale Deed No. 4979 dated 22.12.1963, which was obtained from them by intimidation and coercion by Kazi Abdul Halim a police officer, showing transfer of portion of the suit land to Hosnc Ara, Mir Wazcd Ali, Abdul Hakim and Kazi Abdul
Halim, respectively the defendant Nos. 2, 4, 4(a) and 13 of the above suit; the above vendees of the said sale deed i.e. Hosne Ara and others appeared and contested the suit; the trial court after hearing, decreed the suit on 18.4.1978 holding that the above Sale Deed No: 4979 is illegal and void; the above defendants then preferred First Appeal No. 84 of 1979 before the High Court Division and during pendency of the above appeal the respondent Nos. 1 and 2 herein got themselves added as respondent Nos. 17 and 18 in the above appeal statins that they purchased .23 acres of land’of Plot No. 1014 and .29
acres of land from Plot No. 1016 from Sharat Chandra Barai and Satish Chandra Barai through four registered deeds of sale out of which three were registered on 20.8.1979 and the remaining one on 20.11.1979 and their names have also been mutated and they also paid rents and taxes; the High Court Division, after hearing, by judgment and decree dated 13.11.83 dismissed the above appeal and thereby affirmed the judgment and decree
of the trial court; the defendant Nos. 1-7 in the early part of 1976 trespassed in the suit land and illegally raised kutcha huts thereon and the defendant No.8 also trespassed in the suit land in the early part of 1981 and illegally raised kutcha huts thereon and they did not vacate the suit land inspite of repeated requests and hence the suit. The defendant Nos. 1-8 and defendant No. 11 contested the present suit by filing two sets of written statements and Jogcsh Chandra Barai, who was added as defendant No. 14 in the present suit, also
filed a written statement.
3. Then trial commenced and after the evidence was closed, the petitioners, on 10.9.2001. filed an application under Order 1 Rule 10(2) of the Code of Civil Procedure praying for adding them as defendants stating that they purchased portion of the suit land from Hosene Ara and Mir Wazcd Ali; the respondent Nos. 1 and 2 opposed said application by filing written objection; after hearing, the trial court rejected the above application; the
petitioners then moved the High Court Division and obtained Rule but after hearing the High Court Division discharged the Rule holding that the records of Title Suit No.99 of 1977 (previously Title Suit No. 220 of 1967) show that Hosne Ara, Mir Wazcd, Abdul Hakim and Kazi Abdul Halim, as defendants, contested the above Title Suit No. 99 of 1977 by filing written statement and the said suit was ultimately decreed cancelling the Sale Deed No. 4979 dated 22.12^1963; the respondent Nos. 1 and 2 then filed Title Suit No.81 of 1987 on 19.2.1987 and the petitioners, on 10.9.2001, filed application under order 1 Rule 10(2) of the Code of Civil Procedure praying for adding them parties in Title
Suit No. 81 of 1987 claiming that they became owners by purchasing portion of the suit land from Mir Wazed Ali, the defendant No.4 in the above Title Suit No. 99 of 1977 and they, being the heirs of Hosne Ara Akhter the defendant No.2 in the above Title Suit No. 99 of 1977, also became owners of the portion of the suit land but the Sale Deed No.4979 being declared illegal and void by judgment and decree dated 18.4.1978 passed in Title
Suit No.99 of 1977 which has also been affirmed by the High Court Division by the judgment and decree passed in First Appeal No.84 of 1979 and no appeal having been filed against the above decree dated 13.11.79, the very foundation of the claim of the petitioners ceased to exist and so they can not claim that they arc necessary parties in Title Suit No.81 of 1987 and further the presence of the petitioners in the Title Suit No.81 of 1987 is also not necessary in order to enable the court to adjudicate and settle all the questions involved in the suit effectually and completely and accordingly the learned court below did not commit any illegality in rejecting the said application dated
10.9.2001.
4. The learned counsel for the petitioners submits that admittedly the names of Sarat Chandra Barai and Shatish Chandra Barai were expunged from the category of plaintiffs
in the above Title Suit No.99 of 1977 and accordingly it will be implied that they did not challenge the Sale Deed No.4979 dated 22.127l963 executed in favour of Hosnc Ara and others to the extent of their shares and so the trial court as well as the High Court Division erred in law in not allowing the application dated 10.9.2001 for addition of party on an erroneous view that the very basis of the claim of the petitioners has already been decided earlier by civil court: the petitioners have acquired title and possession in the suit
land on the basis of purchase from Mir Wazed Ali as well as by inheritance through Hosnc Ara respectively the defendant Nos. 4 and 2 in the above Title Suit No.99 of 1977 and that Title Suit No.81 of 1987 being filed against the transferee from Mir Wa/.cd Ali, the petitioners, who are claiming possession in the suit land along with defendants, arc proper and necessary parties and their presence is necessary for adjudication of the suit completely and effectively; from the contents of Order No. 138 dated 25.4.1977 passed in
the above Title Suit No. 99 of 1977 by which the names of Sarat Chandra Barai and Satish Chandra Barai were expunged from the category of plaintiffs, the deed of release in favour of Bahar Ali. orders dated 4.4.1984 and 2.5.1984, the applications dated 19.12.1985 filed by Jogesh and the application dated 23.4.1986 of Sarat filed in Title Execution Case No.96 of 1985 it will appear that the title of the petitioners have not been extinguished in the suit land.
5. As it appears the High Court Division in its decision, after discussing’ the very points raised now by the petitioners held that the Trial Court by judgment and decree dated 18.4.1978 passed in the above Title Suit No. 99 of 1977 decreed the suit holding that the predecessors of the petitioners had no title in the suit land and the High Court Division by judgment and decree dated 13.11.83 passed in First Appeal No. 84 of 1979 also affirmed the said decree and as such the very basis of the claim of the petitioners having already
been decided against them and no appeal having been filed against the above judgment and decree dated 13.11.83 of the High Court Division, the learned Joint District Judge did not commit any illegality in rejecting the application dated 19.2.87 filed by the petitioners for adding them as parties and consequently High Court Division was not in error in discharging the Rule.
6. Accordingly the petition is dismissed.
Source : V ADC (2008),605