Appellate Division Cases
(Civil)
PARTIES
Mohammad Enayet Rabbi ……………………..………Appellant
-Vs-
Sree Sree Shoti Rani Kundho and another …………Respondents
JUSTICE
Md. Ruhul Amin J
Md. Tafazzul Islam J
JUDGEMENT DATE: 28th June 2006
The suit was filed seeking separate saham of 19 decimals of land upon partition of the land in suit described in the schedule attached to the plaint…………….(1)
Plaintiff did not prove her document on the basis of which she is claiming the land in suit and as such plaintiff has no locus standi to file the suit, that plaintiff although
claimed R.S. record wrongly prepared but she did not take any step as against the said wrong R.S. record and as such it is not possible to determine the share of the plaintiff and the defendant in the land in suit…………………… (4)
Failed to appreciate the materials on record while dismissing the suit on the
aforesaid ground. The appellate Court in detail discussed the materials on record
and noticed the face that defendant was not opposing the plaintiff’s claim rather admitted the plaintiff’s claim and he was also not against allotting .19 acre of land to the share of the plaintiff and thereupon decreed the suit………………. (9)
Civil Appeal No. 68 of 2002 (From the Judgment and Order dated May 10, 1998 passed by the High Court Division in Civil Order No. 3451 of 1998)
For the Appellant………………. Abdul Jabbar, Advocate, instructed by Md. Nawb Ali, Advocate-on-record
For Respondent No.1……………….. A.S.M. Khalequzzaman, Advocate-on-record
Respondent No.2……………. Not represented.
JUDGMENT
1. Md. Ruhul Amin J :- This appeal by leave is against the judgment dated May 10, 1998 of a Single Bench of the High Court Division in Civil Order No. 3451 of 1998 rejecting the revisional application summarily. The revisjonal application was filed against the judgment and decree dated April 23, 1998 of the 1st Court of Subordinate Judge (now Joint District Judge), Natore in Title Appeal No. 241 of 1989 reversing the judgment and decree dated October 29, 1987 of the Court of Assistant Judge, Sadar, Natore in Other Class Suit No. 72 of 1986 dismissing the same. The suit was filed seeking separate saham of 19 decimals of land upon partition of the land in suit described in the schedule attached to the plaint.
2. The case of the plaintiff in short was that the total quantity of the land of plot No. 1685
listed in the S.A. Khatin No. 87 is 20 decimals and out of that 1 decimal was of certain Narul Huq and the rest 19 decimals were of defendant No.2 and the said defendant No.2 settled the said 19 decimals of land to his son Ranjit Kumar Biswas and said Ranjit Kumar Biswas sold 19 decimals of land to the plaintiff, that during R.S. record the aforesaid 19 decimals of land was recorded in R.S. plot No. 1880 and 1886 comprising .2487 acre and .0500 acre respectively, in total .2987 acre, and taking advantage of the said wrong record of right the defendant in collusion with Lalona Bala Biswas created deed in respect of 10 decimals of land and thereupon tried to dispossess the plaintiff and then plaintiff filed Other Suit No. 63 of 1985, that in the said suit the land of the aforesaid plots was relayed and thereupon it was found that in fact the said plots comprise 19 decimals of land and as such plaintiff claimed separte saham for 19 decimals of land.
3. The suit was contested by defendant No.l denying the material averments made in the
plaint as well as taking the general objection, that the suit is bad for defect of party and the partition suit is bad for not bringing all the property into hotchpotch. It was the specific case of the defendant that quantity of land listed in R.S. khatian No. 1981 is .2687 acre and that while Lalona Bala Biswas was the owner and possessor of .1900 acres of land she gifted the said land to her son Ranjit Kumar Biswas and the remaining .1087 acre was remained with Lalona Bala Biswas and the same was recorded in R.S. plot No. 1880 comprising .04 decimals and in plot No. 1886 comprising .05 decimals and in total .09 decimals, that Lalona Bala Biswas by the kabala dated January 22, 1985 and February 20, 1985 transferred the said land to the defendant and thereupon defendant No.l mutated her name and possessing the land, that defendant also purchased .01 decimal of land from Ranjit Kumar Biswas and thus defendant is the owner and possessor of .10 decimals of land and while defendant was in possession of the said land plaintiff upon making incorrect statements filed the suit, that the suit of the plaintiff is liable to be dismissed.
4. The trial Court dismissed the suit on the finding that plaintiff did not prove her document on the basis of which she is claiming the land in suit and as such plaintiff has no locus standi to file the suit, that plaintiff although claimed R.S. record wrongly prepared but she did not take any step as against the said wrong R.S. record and as such it is not possible to determine the share of the plaintiff and the defendant in the land in suit.
5. The plaintiff went on appeal. The appellate Court allowed the appeal and thereupon
decreed the suit on the finding that in the background of the materials on record there is
no hurdle in decreeing the suit upon allotting the separate saham of .19 acre of land in
favour of plaintiff,’that from the defendant’s side it has not been disputed that plaintiff is in possession of the land claimed in her share, that the suit is not bad for defect of party, that plaintiff has right, title and interest in .19 acre of land and as such entitle to have a decree for the partition of the suit land described in the schedule attached to the plaint upon allotment of separate saham of .19 acre of land, that the trial Court failed to appreciate the evidence on record and thereupon arrived at a wrong decision and dismissed the suit.
6. The contesting defendant moved the High Court Division in revisional jurisdiction. The High Court Division rejected the revisional application summarily on the finding that as the claim of the plaintiff was not denied by the defendant, rather admitted by him the appellate Court has not committed any error in decreeing the suit. The High Court Division rejected the revisional application upon observing that the learned Counsel for the defendant petitioner has submitted that defendant has no objection against the claim of the plaintiff as regard .19 acre of land. In the afore state of the matter High Court Division while rejecting the revisional application summarily observed that the appellate Court did not commit any illegality in allotting .19 acre of land out of land described in the schedule of the plaint and the appellate Court has decreed the suit upon assigning cogent reason.
7. Leave was obtained for consideration of the contention that as the title of the plaintiff was seriously challenged and consequent thereupon a simple suit for partition as could not be maintainable and the trial Court on consideration of the materials on record dismissed the suit since the plaintiff failed to prove his claim for partition and title over the suit land, that High Court Division was in error in not interfering with the judgment and decree of the appellate Court, that the plaintiff failed to prove her title over the suit land as claimed by her and as such she being not entitled to get her suit decreed the High Court Division instead of rejecting the revisional application summarily ought to have interfered with the judgment of the lower appellate Court.
8.The learnd Counsel for the appellant submits that plaintiffs suit for simple partition
was not maintainable as her title was seriously challenged by the defendant and the record of right prepared in respect of the land claimed by her being on her own showing
wrong she was required to file suit for the correction of the said wrong record of right and
upon correction of the record of right she could have file the suit claiming the land
measuring .19 acre of land and this material aspect having been considered by the trial
Court and thereupon having had dismissed the suit the lower appellate Court as well as the High Court Division were in serious error in overlooking the aforesaid material aspect of the case and consequent thereupon in decreeing the suit. The submissions of the learned Advocate of the appellant in the background of the materials on record is not sustainable, firstly claim of plaintiff in respect of .19 acres of land is not disputed by the defendant and it is seen from the judgment of the appellate Court as well as High Court Division that defendant No.l was rather agreeable if the suit is decreed in favour of the plaintiff allotting .19 acre of land. It is seen from the materials on record that on earlier occasion when the defendant threatened the plaintiff to dispossess her from the land in suit she filed other Class Suit No. 63 of 1985 and in that suit the land claimed by the plaintiff in the background of the record of right was relayed and it was found in fact the land of the R.S. plots is .19 acre of land although the quantity of land recorded in the R.S. record was shown excess as against the claim of the plaintiff. In that state of the matter the defendant did not dispute the claim of the plaintiff rather he admitted the claim of the plaintiff and was not opposing in decreeing the suit in respect of .19 acre of land.
9. The trial Court dismissed the suit on the view that plaintiff has no locus standi to file
the suit because of the claim and counter claim of the plaintiff and the defendant and as
such it was not possible to ascertain the claim of the plaintiff as made in the plaint. On consideration of the materials on record we are of the view trial Court failed to appreciate the materials on record while dismissing the suit on the aforesaid ground. The appellate Court in detail discussed the materials on record and noticed the face that defendant was not opposing the plaintiffs claim rather admitted the plaintiffs claim and he was also not against allotting .19 acre of land to the share of the plaintiff and thereupon decreed the suit.
10. In the background of the aforesid discussions we do not find merit in the appeal.
11. Accordingly the appeal is dismissed with cost of Tk. 5,000/-.
Ed.
Source: IV ADC (2007),24