Appellate Division Cases
Sayed Ahmed Majumder. …………………Petitioner.
Samsul Hoque and others…………………… Respondents.
Md. Ruhul Amin J
Md.Tafazzul Islam J
Judgment Dated: 10th July 2006
The Specific Relief Act, Section 42
Partition suit on the averments that the suit land originally belonged to Fosi Gazi and after his death his two sons Hamid AH and Tukku Mia became owners of the same each getting 8 annas share …………………..(2)
It is a settled law that possession of one co-sharer is the possession of other cosharers and the plaintiffs, being admittedly co-sharers in the suit jote, the submission of the learned Advocate of the petitioner regarding the maintainability of the suit has no basis …………………….(5)
Abdul Wadud Bhuiyan, Senior Advocate, instructed by Nurul Islam Bhuiya, Advocate-on-Record………………… For the Petitioner.
Md. Nawab AH, Advocate-on-Record. ……………..For Respondent Nos. 1-4
Respondent Nos. 5-14…………………. Not represented.
Civil Petition For Leave To Appeal No. 954 of 2005
(From the judgment and order dated 28th March, 2005 passed by the High Court Division in Civil Revision No. 3645 of 2002).
Md. Tafazzul Islam J: This petition for leave to appeal arises out of the judgment dated 28.3.2005 passed by a Single Bench of the High Court Division in Civil Revision No. 3645 of 2002 discharging the Rule obtained against the judgment and decree dated 28.5.2002 passed by the learned Additional District Judge, 4th Court Comilla in Title Appeal No. 130 of 1998 allowing the appeal and thereby reversing those of dated 6.04.98 passed by the learned Senior Assistant Judge, Chowddagram, Comilla in Partition Suit
No. 135 of 1995 decreeing the suit.
2. The respondent Nos. 1-4 instituted the above partition suit on the averments that the suit land originally belonged to Fosi Gazi and after his death his two sons Hamid Ali and Tukku Mia became owners of the same each getting 8 annas share; Hamid Ali died leaving behind one son Nanna Mia and one daughter Wazedun Nessa, Nanna Mia died leaving behind one son Syed Ahmed, the defendant No.l, and one daughter, the defendant No.2; Wazedun Nessa died leaving behind two sons defendant No.3 and 4 and one daughter the defendant No.5: Tukku Mia while owning and possessing remaining 8
annas died leaving behind one son Shamsul Huq, the plaintiff No.l, and one daughter, the plaintiff No.2; the plaintiff Nos.3 and 4 are the sons of plaintiff No.l; the defendant No.3 got .30 decimals of land out of Plot No.489 from the defendant No.l by sale deed dated 23.1.81 and the defendant No.4 also got 30 decimals of land out of the above plot No. 489 from the defendant No.l by sale deed dated 23.1.81; S.A Khatian was prepared in the
names of Nanna Mia and the plaintiff No.l; the plaintiffs got right title and possession
in 1.69 acre of land; the suit land is possessed by the plaintiffs as well as the defendants in ejmali and since the defendants did not give due shares to the plaintiffs amicably inspite of request they were constrained to file the instant suit.
3. The defendant No.l contested the suit by filling written statement stating, inter alia, that the suit land originally belonged to Fosi Gazi and after his death his only son Hamid Ali became the owner of the suit land; the landlord filed Rent Suit No. 6769 of 1933 for realization of arrear rent and after obtaining; decree the landlord filed Rent Execution Case No. 124/1936 and Hamid Ali, the judgment debtor, paid the decretal dues with cost; Tukku Mia was not son of Fosi Gazi; the plaintiff Nos. 1 and 2 never possessed the suit land; the S.A. record was wrongly prepared in the name of plaintiff No.l along with the
defendant No.l; while owning and possessing the suit land the defendant No.l sold 20 decimals of land to the defendant Nos.6 and 7 and also sold 60 decimals in favour of defendant Nos.3 and 4 and the defendant Nos. 1-5 are in possession of the remaining 89 decimals of land and as such the suit is liable to be dismissed in limini. The trial court decreed the suit in part. On appeal by the plaintiff-, the learned Additional District Judge, 4th Court, Comilla, after hearing, allowed the appeal. The defendant No.l then moved
the High Court Division and obtained Rule in Civil Revi on No.3645 of 2002 and the High Court Division, after hearing, discharged the Rule.
4. The learned counsel appearing for the defendant No.l petitioner submit that the trial court on consideration of the oral and documentary evidence arrived at the finding that exhibit ‘Kha” shows that the landlord obtained a decree in respect of the suit land for non-payment of rent and Hamid Ali, by depositing the decretal amount with costs in the execution case, saved the suit land from auction sale and then he remained in possession of the same and rent receipts, Exts. Ga to G-8’ further show that before 1350 B.S. Hamid
Ali alone had been paying rent for the suit land and then Nanna Mia and then the defendant No.l had been paying rent for the suit land and there is nothing on record to show that before purchasing some land from the defendant No.l in 1381 B.S. the plaintiffs ever paid rent; that Tukku Mia had been living at the house of his fatherin
-law till his death at the age of-60-65 years and after his death his son, plaintiff No.l, also lived there; further till 1981 i.e.. for about 60 years, Tukku Mia or his successors had no relationship with the suit land and the plaintiffs also did not claim that they were in possession of the suit land through Hamid Ali or Nanna Mia or defendant No.l; since 1922 Hamid Ali owned and possessed the suit land openly, continuously and uninterruptedly denying the title of others and completely ousting Tukku Mia and after Hamid Ali his son Nanna Mia was in possession of the suit land in the same way. The learned counsel further submits that the above finding having not been reversed and the defendants having proved that fqr arrear of rent a rent suit was filed by the landlord in respect of suit land which was decreed and in Rent Execution Case ‘” 24 of 1936 Hamid
Ali, by paying the decretal dues with costs saved the suit land and had been in exclusive possession of the suit land and the witnesses of the plaintiffs in cross-examination also stated that the defendant No.l was in possession of the suit land and was also able to establish complete ouster of the plaintiffs from the suit land and hence the suit for partition, without declaration of title and recovery of khas possession, was barred by Section 42 of the Specific Relief Act.
5. As it appears the High Court Division discharged the Rule holding that the defendant No.l in his written statement admitted the transfer of 60 decimal of land by Ext.2 and 2(ka) in favour of plaintiff Nos.3 and 4 and so the only point which remained to be decided was whether Tukku Miah was the son of Fosi Gazi and the trial court on consideration of the evidence on record came to a clear finding that Tukku Miah was the son of Fosi Gazi and the said finding has been upheld by the appellate court and the learned Advocate for the petitioner appearing before the High Court Division could not
point out any misereading of evidence or non consideration of the materials on record; Tukku Miah having been found to be the son of Fosi Gazi by both the courts below and admittedly the plaintiff nos. 1 and 2 being the heirs of Tukku Miah, the appellate court did not commit any error in decreeing the suit specially when admittedly the defendant No.l himself has transferred 60 decimals of land in favour of the plaintiff Nos.3 and 4 by Ext.2 and 2 (ka) and the defendant No.l also admitted the possession of the plaintiffs in the said land and the plaintiffs are the heirs of Tukku Miah and Tukku Miah is son of
Fosi Gazi and so the plaintiffs are co-sharers of the jote; the evidence adduced by the defendant. 1 d^e^ not prove complete ouster of the plaintiffs from the suit land or adverse possession of the defendant No.l in the suit land as against the plaintiffs, it is a settled law that possession of one co-sharer is the possession of other co-sharers and the plaintiffs, being admittedly co-sharers in the suit jote, the submission of the learned Advocate of the
petitioner regarding the maintainability of the suit has no basis.
6. We are of the view that the High Court Division on proper consideration of the evidence and the materials on record arrived at a correct decision. The learned
counsel could not point at any error or infirmity in the decision of the High Court Division so as to call for any interference.
7. The petition is dismissed.
Source : V ADC (2008),673