Appellate Division Cases
(Civil)
PARTIES
Rahmat Ali being dead his following substituted heirs;Md. Abdur Rashid and others. ……………………………….Petitioners.
-Vs-
Md. Abdul Gani and others ………………………. Respondents.
JUSTICES
Mohammad Fazlul Karim J
Md. Joynul Abedin J
Judgment Dated:16th May 2007
The Code of Civil Procedure, Section 115(1)
The scope of Section 115(1) of the Code of Civil Procedure is now well settled. Considered pronouncements by the highest Court of the Country have made it abundantly clear that a Court of revision under Section 115(1) of the Code of Civil Procedure can interfere with the findings of fact of the final Court of fact only in exceptional circumstances when the findings are shockingly perverse or these are vitiated by non reading and misreading of the material evidence or misconception of any important document affecting the merit’ of the case. The learned Advocate of the petitioner has not been able to point out any such legal infirmity in the impugned judgment which calls for any interference by this Court. Simply because the impugned judgment is not a speaking order of an elaborate one, could not by itself be a valid ground for interference by this revisional Court unless it can be shown that the Court below has committed an error of law in the decision occasioning failure of justice. The judgment and order of the Subordinate Judge may have been an improper one not having given any reason but before interfering with the same, this Court is required to examine whether the same has resulted in an erroneous decision occasioning failure of justice. The judgment passed by the lower appellate Court is supportable on merit and it cannot be pointed out by the learned lawyer for the petitioner that the lower appellate Court has committed any error of law that calls for interference. The lower appellate Court could have given an elaborate judgment giving reasoning in detail but simply because the judgment was a concise one, it cannot be said that an error of law has been committed error of law resulting in an error in the decision occasioning failure of justice.”………………………….. (10)
In view of the above, we find no substance in the submissions of the learned Advocate for the petitioners……………………………………………. (11)
The petition for Leave to Appeal is accordingly dismissed………………………. (12)
Mahbubey Alam, Senior Advocate, instructed by Mr. Chowdhury Md. Zahangir, Advocate-on-Record ………………………For the Petitioners.
Syed Mahbubur Rahman, Advocate-on-Record……………………. For Respondent Nos. 1, 3,4-8 and 11-13
For Respondent Nos.2, 5-7, 9-10 and 1431 …………………….None represented.
Civil Petition ………..For Leave To Appeal No.1165 of 2005
(From the judgment and order dated the 11th June, 2005 passed by the High Court Division in Civil Revision No.5127 of 2003.)
JUDGMENT
Mohammad Fazlul Karim J: Defendants-petitioners seek for Leave to Appeal against the judgment and order dated 11.06.2005 passed by the High Court Division in Civil Revision No.5127 of 2003 affirming the judgment and decree dated 09.08.2003 of the Joint District Judge, 2nd Court, Pabna in Other Class Suit No. 130 of 2000 reversing those dated 14.06.2000 by the Senior Assistant Judge, Sadar, Pabna in Other Class Suit No.68 of 2000 decreeing the suit in part in preliminary form.
2. Respondent Nos. 1-13 as plaintiffs instituted Other Class Suit No. 1186 of 1987 in the Court of the Senior Assistant Judge, Sadar, Pabna against the petitioners and others praying for a decree for partition to the extent of 3.062/3 acres of land in ‘Ka’ schedule out of 4.60 acres of land, 85’/2 acres of land in “Kha1 schedule and 65 Vi decimals acres of land in ‘Ga’ schedule land. The said suit was transferred to the Court of the Assistant Judge, Bera, Pabna and thereafter, to the Court of Senior Assistant Judge, Sadar, Pabna and renumbered as Partition Suit No.39 of 1994 and Other Class Suit No.68 of 2000 respectively.
3. The case of the plaintiffs, in short, is that the suit jote originally belonged to Latu Kha and Chadu Kha C.S. record was prepared in their names in equal share. Chadu Kha died leaving behind brother, Latu Kha and mother, Dalimjannessa. Thereafter, Latu Kha died leaving his mother Dalimjannessa. Dalimjannessa transferred the suit land in favour of Gaziur Rahman, Ahmed Ali and Rahmat Ali by a deed of settlement. The said Gaziur Rahman and others erected homestead in some portion of the suit 4and and thereby owned and possessed the said land for over 12 years by cultivation. Ahmed Ah died leaving behind wife Sohagi, two daughters, ‘Hamida and Rahima and two brothers Gaziur Rahman and Rahmat Ali.Sohagi died leaving behind two daughters, Hamida and Rahima. Gaziur Rahman died leaving son Abdul Gam, Wife Fuljan and four daughters Kulsum, Sahiman, Chebaran and Sahitan. Sahitan died leaving behind husband, Aziz, three sons-Rabbani, Sahidullah and Fazlul Haque and two daughters-Aklima and Aziran. Rahmat died leaving one son and five daughters i.e. defendant Nos.1-6. The suit jote was wrongly record in S.A. and R.S. Khatian in the name of the defendants. The defendants have no title and possession in the suit land. Rahmat All was given assignment to get the suit land recorded in S.A. Khatian who fraudulently and collusively got the suit land recorded in his name. The suit land was never partitioned through Court. As the defendants refused to effect partition and hence the suit.
4. Defendant Nos 1-6 contested the suit by filing a joint written statement denying the material allegations of the plaint and contended, inter alia, that C.S. tenant, Latu Kha had no issue and he used to look after his khalato Bhai, i.e. cousin Rahmat Ali (predecessor of the defendant Nos.1-6). Latu Kha transferred 1.82 acres of land of schedule ‘Ka’ along with other land by way of a registered deed of gift dated 22.01.1935 and subsequently made under gift of the remaining portion of the suit land and handed over possession to him. Rahmat Ali as rightful owner possesses 4.70 acres of land of the ‘Ka’ schedule S.A. Khatian No.383 was prepared in his name. After the death of mother of Latu Kha and Chadu Kha their father Oh Kha married the said Dalimjannessa who had no issue and she did not inherit the share of Latu Kha and Chadu Kha. The plaintiffs have had no title and possession in the suit jote at any point of time and as such the suit is liable to be dismissed with costs.
5. Defendant Nos. 11 and 12 also contested the suit by filing joint written statement denying the material allegations of the plaint and contended, inter alia, that they have got 0.37 decimals of land as heirs of Rahmat Ali and prayed for saham.
6. Mr. Mahbubey Alam, learned Counsel, appearing for the defendant petitioners submits that the plaintiffs having claimed the suit land on the basis of a patta dated 18.02.1938 exhibit-3(Kha) and the defendants having produced a registered deed of eift dated 22.01.1935 exhibit-‘Ga’ executed by Latu Kha, the admitted owner of the suit land in favour of Rahmat Ali, the appellate Court committed an error of law in decreeing the plaintiffs’ suit in respect of ‘Ka’ schedule land totally ignoring the said registered deed of gift Exhibit- ‘Ga’ executed by Latu Kha and the High Court Division erred in affirming the judgment of the Court of appeal below in respect of the land of schedule ‘Ka’. He also submits that in the alleged patta deed dated 18.02.1938 exhibit-3(Kha) Dalimjannessa having claimed to be a raiyat under the landlords, the Court of appeal below decreed the suit in respect of schedule ‘Ka’ without considering that the raiyat had no right to make any -settlement and the High Court Division erred in affirming the judgment of the appellate Court without considering this aspect of the case.
7. Mr. Alam further submits that Latu Kha, the predecessor of the defendants being a raiyati sthitiban in respect of the said suit land and his name along with the name of his brother Chadu Kha having been correctly recorded in C.S. Khatian and the plaintiffs having not claimed that tenancy of said Latu Kha was extinguished in any manner and Dalimjannessa having not claimed in the alleged deed of settlement {exhibit-3(Kha)} ‘Ka’ schedule land by way of inheritance, the Court of appeal below erred in not holding that the suit for simple partition is not maintainable without a declaration of title and the High Court Division erred in law in affirming the judgment of the appellate Court.
8. Mr. Alam also submits that the contesting defendants-petitioners having claimed that C.S. recorded tenant, Latu Kha transferred 1.82 acres of land from ‘Ka’ schedule land to Rahmat Ali by way of a registered deed of gift dated 22.01.1935 exhibit-‘Ga’ and also transferred 2.88 acres of land from the said schedule to the said Rahmat Ali by way of oral gift totaling
4.70 acres of land and subsequently S.A. and R.S. record having been prepared in the name of the said Rahmat Ali, the Court of appeal below as well as the High Court Division have failed to consider that the registered deed of gift as well as oral gift which was acted upon and Rahmat Ali acquired title and possession excluding others. Lastly, Mr. Alam submits that on the face of vehement challenge by the defendant-petitioners that Dalimjannessa never inherited the land of Latu Kha i.e. ‘Ka’ schedule land because he is a stepmother of Latu Kha and thereby the plaintiffs acquired no title with regard to 3.062/3 acres i.e. 2/3 share in ‘Ka’ schedule land.
9. Mr. Syed Mahbubur Rahman, learned Advocate, appearing for respondent Nos.l, 3, 4-8 and 11-13 submits that in view of the joint possession of the plaintiff-respondent in the suit having right, title and interest and the Courts below having found the title of the plaintiff in respect of their claimed saham in the paternal homestead and land possessed in ejmali, which was wrongly recorded in the name of Rahmat Ali. The learned Advocate further submitted that exhibit-3 (kha) the registered deed of settlement dated 18.02.1938 in favour of Gaziur Rahman, Ahmed Ali and Rahmat Ali showing that Dalimjannessa settled 4.74 acres of land in their favour which land has been devolved upon the plaintiff and accordingly S.A. and R.S. khatian were wrongly prepared and such wrong recording could not affect the right, title and possession of the plaintiffs therein disentitling their legal right.
10. We have perused the records and are of the view that though the trial Court partly decreed the suit but the Court of appellate below on consideration of the material on record decreed the suit in full duly affirmed by the High Court Division holding that “the scope of Section 115(1) of the Code of Civil Procedure is now well settled. Considered pronouncements by the highest Court of the Country have made it abundantly clear that a Court of revision under Section 115(1) of the Code of Civil Procedure can interfere with the findings of fact of the final Court of fact only in exceptional circumstances when the findings are shockingly perverse or these are vitiated by non reading and misreading of the material evidence or misconception of any important document affecting the merit’ of the case. The learned Advocate of the petitioner has not been able to point out any such legal infirmity in the impugned judgment which calls for any interference by this Court. Simply because the impugned judgment is not a speaking order of an elaborate one, could not by itself be a valid ground for interference by this revisional Court unless it can be shown that the Court below has committed an error of law in the decision occasioning failure of justice. The judgment and order of the Subordinate Judge may have been an improper one not having given any reason but before interfering with the same, this Court is required to examine whether the same has resulted in an erroneous decision occasioning failure of justice. The judgment passed by the lower appellate Court is supportable on merit and it cannot be pointed out by the learned lawyer for the petitioner that the lower appellate Court has committed any error of law that calls for interference. The lower appellate Court could have given an elaborate judgment giving reasoning in detail but simply because the judgment was a concise one, it cannot be said that an error of law has been committed error of law resulting in an error in the decision occasioning failure of justice.”
11. In view of the above, we find no substance in the submissions of the learned Advocate for the petitioners.
12. The petition for Leave to Appeal is accordingly dismissed.
Source : V ADC (2008), 131