Appellate Division Cases
(Civil)
PARTIES
Meher Banu and others. ……………Appellants(in C.A.No.228/03)
Haji Abdul Barek & Moslem Bepari ………Appellants(in C.A.No.11/03)
-Vs-
Abdul Barek and Muslim Bepari Respondents …………(in C.A.No.228/03)
Meher Banu and others…………………. Respondents(in C.A.No. 11/03)
JUSTICES
Md. Ruhul Amin J
M.M. Ruhul Amin J
Md. Tafazzul Islam J
Judgment Dated : 28th March 2005
The plaintiff’s contention is that the said deed of gift is forged, fabricated and fraudulent and has been created to grab the suit land ………..(2)
Section 107 of the Code of Civil Procedure provides that subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power to determine a case finally and to take additional evidence or to require such evidence to be taken and subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits………….. (8)
It is needless to mention here that the power of appellate court can be exercised by the revisional court in appropriate cases and in our view, the present case is one of such nature. In this connection it is to be noted that if the matter was sent back on remand to the appellate court, it would have consumed much more time in the disposal of the matter and in that view of the matter also the impugned judgment of the High Court Division does not suffers from any legal infirmity………………. (11)
Md. Raficjul Islam, Senior Advocate, instructed by Md. Nawab Ali, Advocateon-Record ……………………….For the Appellants (in C.A.No.228 of 2003)
Md. Abdus So lam Khan, Senio r Advocate, instructed by Aftab Hossain, Advocate-on-Record ………………For the Appellants (in C.A.No. 11 of 2003)
Aftab Hossain, Advocate-on Record ……………For Respondent No.l (in C.A.No.228 of 2003)
Respondent Nos.2-12 (in C.A.No.228 of 2003) ………….Not represented.
Md. Nawab Ali, Advocate-on-Record. …………….For Respondent Nos.l-7 (in C.A.No. 11 of 2003)
Respondent Nos.8-17 (in C.A.No. II of 2003) …………..Not represented.
Civil Appeal Nos.228 & 11 of 2003
(From the judgment and order dated 22.04.2002 passed by the High Court Division in Civil Revision No. 1548 of 1994.)
JUDGMENT
M. M. Ruhul Amin J: These two appeals by leave are directed against the common judgment and order dated 22.04.2002 passed by a Single Bench of the High Court Division in Civil Revision No. 1548 of 1994 reserving the judgment and giving some directions to the appellate court as detailed in the impugned judgment.
2. Short facts are that the plaintiffs filed Title Suit No.40 of 1984 in the Court of
Assistant Judge, Keranigonj, District-Dhaka stating, inter alia, that the suit land originally belonged to Abdul Gani Bepari and the C.S. Khatian was finally published in his name. One Kailash Chandra Das filed Money Suit No.43 of 1911 against Abdul Gani Bepari and obtained a decree and in execution of the decree the said suit land of C.S. Khatian was put to auction and the same was purchased by the decree holder. The decree holder Kailash Chandra Das died leaving sons, Satish Chandra Das and Subodh Chandra Das
and they sold the land to Moslem Bepari and Abdul Barek Bepari by kabala dated 12.03.1923 and the purchasers made waqf of the property. The plaintiff is the successive
Mutawalli of the Waqf Estate. One Nasiruddin, the predecessor of the defendant Nos.1-10 was allowed to stay in a portion of the suit land and on 23.06.1923 Nasiruddin executed a kabuliyat in favour of Abdul Barek Bepari and Muslim Bepari and after the death of Nasiruddin his heirs continued to stay on the land and in the building. On 17.11.1990 the Chairman of the local Union Parishad called the present Mutwalli and disclosed that the defendant No.l claimed the suit land on the basis of the gift made by his mother on 26.06.1934. The plaintiffs contention is that the said deed of gift is forged, fabricated and fraudulent and has been created to grab the suit land.
3. The defendant Nos.l and 2 contested the suit by filing written statement denying the material averments made in the plaint and contended, inter alia, that their father Nasiruddin was the owner in possession of the suit land for the last 40 years by constructing building and he adversely possessed the suit land long over statutory
period to the knowledge of all concerned and after the death of Nasiruddin his heirs are possessing the suit land. During the life time of Nasiruddin he made a gift of .32 acres of land from Plot No. 10 to his wife by the Heba deed and the remaining portion of the land devolved upon the heirs of Nasiruddin after his death and the last record of rights was correctly prepared in the name of the heirs of Nasiruddin. They further contended that
the plaintiffs have no right, title, interest and possession in the suit land.
4. The trial court dismissed the suit and on appeal, the suit was sent back on remand
for fresh hearing. The defendant as against the order of remand moved the High Court Division in revisional. jurisdiction and a Rule was obtained in Civil Revision No.358 of 1989. The High Court Division after hearing made the Rule absolute and upon setting aside the order of remand directed the appellate court to dispose of the appeal. Thereafter the appellate court set aside the judgment and decree of the trial court and decreed the plaintiffs suit. The appellant then moved the High Court Division in revisional jurisdiction and obtained a Rule as mentioned above. The High Court Division upon hearing the parties passed judgment but later on recalled the “unsigned judgment and thereupon keeping the same reserved directed the appellate court to take additional evidence in respect of certain documents of the years 1923, 1924 and 1934 and also
directed the appellate court to obtain the report of the Thumb Impression Expert as
regards the thumb impressions appearing in the above mentioned documents and to call the relevant officials of the office of the Sub-registrar, Sadar, Dhaka, as court witness.
5. Leave was granted to consider the submission that while keeping the judgment reserved the impugned direction to the lower appellate court to perform some jobs which is not in siesin of the matter, is not sustainable in law and the submission that while exercising revisional jurisdiction, the High Court Division committed illegality in directing the lower appellate court to take further evidence as to the matters as mentioned in its order keeping the judgment reserved, which is beyond the scope of law.
6. We have heard Mr. Md. Rafiqul Islam, the learned Counsel for the appellants and Mr. Aftab Hossain, learned Advocate-on-Record for the respondent No.l. in Civil Appeal No.228 of 2003 and Mr. Md. Abdus Salam Khan, learned Counsel for the appellants and Mr. Md. Nawab Ali, learned Advocate-on-record for respondent Nos.1-7 in Civil Appeal No. 11 of 2003 and perused the judgment of the High Court Division and other connected
papers.
7. The learned Counsels for the parties submit that the High Court Division committed illegality in directing the court of appeal to take additional evidence and get the disputed L.T.I, examined by expert without setting aside the judgment of the appellate court and without sending back the appeal on remand and as a result there has been miscarriage of justice. No other point has been urged by the learned Counsels.
8. Section 107 of the Code of Civil Procedure provides that subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power to determine a case finally and to take additional evidence or to require such evidence to be taken and subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of
original jurisdiction in respect of suits.
9. For ready reference let us quote below section 107 of the Code of Civil Procedure:”(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power(a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken
(2) Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein “
10. The learned Counsels tried to argue that section 107 confers power on the court of appeal but the High Court Division as revisional court passed the impugned order and as such commtitted , illegality.
11. It is needless to mention here that the power of appellate court can be exercised by the revisional court in appropriate cases and in our view, the present case is one of such nature. In this connection it is to be noted that if the matter was sent back on remand to the appellate court, it would have consumed much more time in the disposal of the matter and in that view of the matter also the impugned judgment of the High Court Division does not suffer from any.legal infirmity.
12. In view of the discussion above, we are of the view that there is no substance in the Appeals.
13. Accordingly, the appeals arc dismissed without any order as to costs.
Source : V ADC (2008),618