Appellate Division Cases
(Civil)
PARTIES
Mosammat Ashrafee Begum and others ………………Petitioners
-Vs-
Md. Siddiqur Rahman Patwari and others……………. Respondents
JUSTICES
Md. Ruhul Amin CJ
M.M. Ruhul Amin J
Md. Joynul Abedin J
Judgment Dated: 14th March 2007
We have noticed on previous occasions that the learned Judge of the High Court Division dispose of the case in the manner, as the instant one, which can in no way be considered as the accepted way of disposal of the case by the Court of the kind the learned Judge is a Judge. The accepted and settled principle is that a Court, either appellate or revisional, is required to dispose of the case upon assigning reasoning because of which it is persuaded either to affirm the judgment of the courts below or to set aside the judgment of the courts below. The learned Judge in disposing of the instant case has not given any reason from which it can be said that the result arrived at by the learned Judge is on the basis of the reasoning that persuaded him to set aside the judgment of the courts below. We hope in future the learned Judge would dispose of the case in the accepted manner i.e. upon discussion of the materials on record and thereupon assigning reason in support of his judgment ……………………(8)
A.J. Mohammad AH, Senior Advocate, instructed by Syed Mahbubar Rahman,
Advocate-on-record ………………For the Petitioners
Md. Aftab Hossain, Advocate-on-record For Respondent Nos.l, 2, 9-72
Respondent Nos.3-8 & 13-17………………. Not represented
Civil Petition For Leave To Appeal No. 1685 of 2003
(From the Judgment and Order dated June 29, 2003 passed by the High Court Division
in Civil Revision No.46 of 2000)
JUDGMENT
Md. Ruhul Amin J: This petition for leave to appeal has been filed against the judgment dated June 29, 2003 of a Single Bench of the High Court Division in Civil Revision No.46 of 2000 making the Rule absolute obtained against the judgment and decree dated August 26, 1999 of the Court of Additional District Judge, Chandpur in Title Appeal No.60 of 1989 affirming the judgment and decree dated March 19, 1989 of the Court of Assistant Judge, Faridganj, Chandpur in Title Suit No.581 of 1984 decreeing the suit in part.
2. The suit was filed seeking declaration that the judgment and decree dated September 25, 1978 of the Court of Assistant Judge, Faridganj in Title Suit No. 19 of 1978 is fraudulent, illegal and not binding upon the plaintiffs. As it appears the said decree was obtained in respect of 6.28 acres of land. Title Suit No.581 of 1984 was filed by the predecessor of the Opposite Party Nos.l(a-h), 2-7, 8(a-c), 9(a-i) and 10-12 as plaintiffs seeking the aforementioned relief. In the aforesaid suit i.e. Title Suit No.581 of 1984
Nuruzzaman Patwari i.e. predecessor of the petitioner Nos.l(a-h) in the revisional application, Upazilla Nirbahi Officer, Faridganj, Government of Bangladesh, Chitta Ranjan Chakravarty and Nakuleswar Chakravarty were impleaded as defendants.
3. It was the case of the plaintiffs that Umcsh Chandra Chakravarty and Nakuleswar Chakravarty were the owners of the land in suit as well as some lands of Mouza Chawranga. They had also property in India. Umesh Chandra Chakravarty and Nakuleswar Chakravarty on the basis of family arrangement between them, Nakuleswar Chakravarty got the property in India and Umcsh Chandra Chakravarty got the property in Pakistan. Umesh Chandra Chakravarty had a son by name. Biggya Ranjan and he became untraceable long back, that Umcsh Chandra Chakravarty had a daughter Labonya
Probha, that said Labonya was married to Monoranjan and he was living in the house of his father-in-law. Umesh gifted his property to Monoranjan and Labonya. Monoranjan sold to the plaintiff 65 decimals of land by the kabala dated March 28, 1973 and the said kabala was presented for registration on March 29, 1973. Labonya died leaving sons, Haradhan Chakravarty and Arun Kumar Chakravarty. They inherited the property
of their parents. Haradhan Chakravarty gifted his entire property to Arun Kumar Chakravarty by the deed of gift dated December 28, 1973, that Arun sold 1.30 acres of land to the plaintiff Nos.1-4 by the kabala executed on November 1977. Arun Kumar Chakravarty also sold 221/2 decimals of land to the plaintiff No.5. Arun Kumar Chakravarty sold 26V2 decimals of land to the plaintiff No.6 and also sold 26l/z decimals of land to the plaintiff No.7. Arun Kumar Chakravarty sold 1 acre of land to plaintiff No.8 and also sold 821/2 decimals of land to the plaintiff No.9. Arun Kumar Chakravarty sold 26’/4 decimals of land to plaintiff No.7 and 333/4 decimals of land to plaintiff No. 10. Arun Kumar Chakravarty also sold 52!/2 decimals of land to plaintiff No.6 and 333/4
decimals of land to plaintiff No.ll. Arun Kumar Chakravarty sold 48 decimals of land to plaintiff No. 12, that plaintiffs and Monoranjan filed Suit No. 10 of 1974 inthe 2nd Court of Munsif (now Assistant Judge), Chandpur and in the said suit Siddiqur Rahman and others were the defendants and in the said suit son of the defendant No.l entered into a compromise, that defendants having had the knowledge about the transfers to the plaintiffs created fabricated documents showing Monoranjan as the executent of the
said kabalas and that filed a suit being No.29 of 1978 and obtained ex-parte decree resorting to fraud.
4. The suit was contested by the defendant No.l denying the material averments made in the plaint and claiming right, title and interest in the land in suit and also claiming that the decree obtained by him was quite genuine.
5. The trial Court decreed the suit in part upon declaring the decree obtained in Title Suit No. 19 of 1978 illegal. The defendants went on appeal.
6. The appellate Court affirmed the judgment and decree of the trial Court. | Thereupon the defendants moved the High Court Division in revisional jurisdiction and obtained Rule. The High Court Division made the Rule absolute as the plaintiffs, whose cross objection was dismissed by the appellate Court, did not prefer any revisional application. It appears that the trial Court while decreeing the suit in part observed that the Advocate
Commissioner in his report has mentioned that the plaintiffs’ claim of possession in plot No.363 is in the land of Mouza Sunkishail but in the plaint they have described the land in suit as of Mouza Chawranga. Finally the trial Court held that the plaintiffs are in possession of the .land of Plot No.363 on the view that description of the Mouza given in the plaint was an inadvertent mistake. It is seen from the judgment of the appellate Court that plaintiffs filed the cross objection claiming title in the land in suit, but the same was dismissed.
7. The learned Counsel for the petitioner primarily submitted that the plaintiffs having had filed the suit for declaration that the decree obtained in Title Suit No. 19 of 1978 was fraudulent and not binding upon the plaintiffs and the courts below having had decreed the suit, the High Court Division was in error in making the Rule absolute and thereby setting aside the concurrent judgment and decree of the courts below. From the pleading of the plaintiffs it is seen that serious question of title of the plaintiffs as to the land in suit was involved in the suit but they instead of filing the suit seeking declaration of their
title filed the suit merely for declaration as to the decree passed in Title Suit No. 19 of 1978 to which they were not parly.
8. The learned Counsel for the petitioner took serious exception as to the nature and quality of the judgment.. We have noticed on previous occasions that the learned Judge of the High Court Division dispose of the case in the manner, as the instant one, which can in no way be considered as the accepted way of disposal of the case by the Court of the kind the learned Judge is a Judge. The accepted and settled principle is that a Court, either appellate or revisional, is required to dispose of the case upon assigning reasoning because of which it is persuaded either to affirm the judgment of the courts below or to set aside the judgment of the courts below. The learned Judge in disposing of the
instant case has not given any reason from which it can be said that the result arrived at by the learned Judge is on the basis of the reasoning that persuaded him to set aside the judgment of the courts below. We hope in future the learned Judge would dispose of the case in the accepted manner i.e. upon discussion of the materials on record and thereupon assigning reason in support of his judgment.
9. It may be mentioned in the instant case inspite of the quality of the judgment we do not feel to interfere with the same since on perusal of the materials on record we are convinced that although the judgment do not confront to the accepted forms or kind, the judgment ought have but the result arrived at call for no interference.
10. Accordingly the petition is dismissed.
Source : V ADC (2008),659