Appellate Division Cases
Tara Mia and another……………….. Appellants
Babru Mia and others …………………Respondents
Mohammad Fazlul Karim J
Amirul Kabir Chowdhury J
JUDGEMENT DATE: 13th March 2007
The Code of Civil Procedure, Section 115(1)
Suit for declaration of title and partition…………………..(3)
A plea not made in the pleadings nor taken in any Court below cannot be taken for the first time before the Appellate Division…………………… (13)
Civil Appeal No. 299 of 2003 (From the judgment and order dated 12.01.2002 passed by the High Court Division in Civil Revision No. 2136 of 1997.)
T.H. Khan, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record. ………..For the Appellants
Mahbubey Alam, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record. ……………………For Respondent Nos. 1 (a) -l(i)
Respondent Nos. 2-21 ……………….Not represented.
1. Amirui Kabir Chowdhury J: This appeal on leave arises at the instance of the defendant Nos. 14 and 16 calling in question the judgment and order dated 12.01.2002 passed by a Single Bench of the High Court Division in Civil Revision No. 2136 of 1997 discharging the rule.
2. The plaintiff respondent instituted Title Suit No. 35 of 1993 renumbered as Title Suit No. 40 of 1985 before the learned Assistant Judge, Biswanath in the District of Sylhet who decreed the suit. The defendant appellant preferred Title Appeal No. 128 of 1995 which was heard by the learned Subordinate Judge, 3rd Court, Sylhet who affirmed the judgment and decree of the trial court. Thereupon the defendant moved the High Court Division under Section 115(1) of the Code of Civil Procedure against the aforesaid Judgment of the lower appellate court and the High Court Division as already mentioned discharged the rule.
3. The plaintiff respondent instituted the aforesaid title suit for declaration of title and
partition stating, inter alia, that the suit land belonged to one Md. Hekim, predecessor of
defendant Nos. 1-13, who died leaving behind two sons Md. Aslam and Md. Anfar and one daughter Mst. Sagira Bibi and that while they were in ejmali possession, Aslam died leaving two daughter Sonia Bibi and Konai Bibi defendant Nos.6 and 7 and his wife Eastar Bibi @ Ustarunessa, predecessor of defendant Nos. 6-13 and full brother Anfar and full sister Sagira and that Sagira died leaving son Jafar AH and thereafter he died leaving two sons defendant Nos.l and 2 and two daughters defendant Nos. 3-4 and widow defendant No. 5 and that by way of devolution and inheritance defendant Nos.l and 2 got 2 pons 16 gandas each and defendant Nos.3-4 got 1 pon 8 gandas each and widow defendant No.5 got 1 pon 3 gandas 3 Karas and 2 Kranti in the suit property and they were in ejmali possession with defendant Nos. 6 to 13 and that Ustari Bibi widow of Aslam died leaving daughters defendant Nos. 6-7 and full brothers defendant Nos. 8-13 and full sister aforesaid Tayeb Bibi and accordingly defendant Nos. 6-7 got from their mother 10 /5 gandas share and brother defendant Nos. 8-13 got 35/9 gandas share and the share of defendant Nos. 6-7 in the suit property is 05 Vi gandas equal to 4 pons 5’/5 gandas and defendant Nos. 8-13 got 3V9 gandas share in the property from Ustar Bibi and on the death of Tayeb Bibi defendant Nos. 8-13 got 1 pon 193/9 gandas share in the suit property; that while defendant Nos. 1-5 were in ejmali possession by constructing a shop house on the southern side of the suit property, the defendant Nos. 13 and 5 being in need of money transferred 2 pons 7 gandas of land out of their share in favour of the plaintiff by registered kabala dated 3.11.1984 and delivered possession thereof and since then the plaintiff has been possessing the shop house and land by way of aforesaid purchase and he is running Rice Mill business there. That previous to the said purchase the plaintiff was monthly bharatia under defendant No. 14 in respect of the shop home and land on a misrepresentation that defendant No. 14 was the owner of the said shop house and the suit land and the plaintiff in good faith was running Rice Mill business there and because of such misrepresentation a Title Suit No. 135 of 1983 of the First Court of Munsif, Upazila Sylhet cropped up between the plaintiff and defendant No. 14;
that defendant Nos. 6-16 are now trying to gain over defendant Nos. 1-5 by illegal means
and to this end are giving out various thereats since last part of Poush 1391 B.S. and consequently they created some paper transaction from defendant Nos. 1-5 in respect of their proprtionate share and those papers are fraudulent, collusive, inoperative and not binding upon the plaintiff and thereby a cloud has been created in the clean title of the plaintiff and hence was the Suit.
4. The defendant Nos. 14 and 16 contested that suit filing joint written statement contend-
ing, inter-alia, that the suit is barred by law and not properly valued and stamped as there
is prayer for both declaration of title and partition being consequential relief and that the
suit property is self acquired property of Md. Aslam, father of defendant No. 7 Konai Bibi and his brother Md. Anfar and it was properly recorded in their names during the last settlement operation and that after death of Aslam defendant No. 7 Konai Bibi was
inducted in specific possession of 13 decimals of lands from suothern portion of Plot No. 500 together with other lands by way of amicable partition and enjoying the usufructs therein. That Masuk Mia sold the Rice Mill to defendant No. 16 brother of defendant No. 14; that defendant No. 16 is serving abroad and as such the purchase receipt was executed in favour of defendant No. 14 on 14.11.1979 and that subsequently defendant No. 7 out of her necessity transferred her .13 decimals of land to defendant No. 16 by registered Kabala dated 6.12.1979 and that afterwards defendant No. 16 intended to sell the said Rice Mill and it was purchased by the plaintiff under receipt dated 4.5.1983 executed by defendant No. 14 brother of defendant No. 16 and the plaintiff obtained permission from defendant No. 14 and started running the Rice Mill for about 10/15 days till shifting the same to his own place and in spite of the said commitment, the cunning plaintiffs procured the paid up electric bills from aforesaid Masuk Mia and claimed himself to be a monthly tenant under defendant Nos. 14 and 16 and thereupon filed Title Suit No. 135 of 1983 in the First Court of Munsif, Sylhet Sadar, stating some false, baseless and concocted stories and began to contiune his Rice Mill business and the plaintiff also created fake and fictitious deed on 3.11.1984. That the defendant No.16 is in possession
of .13 decimals of land of Plot No. 500. That only to protract the litigation and to cause unecessary harassment to the defendant No. 16, the plaintiff is continuing with so many vexatious proceedings in the Court. That the motivated aforesaid Title Suit No. 135 of 1983 was dismissed; that in view of the above facts, circumstances and law, the suit is
liable to be dismissed.
5. As already mentioned the suit was dismissed by the trial Court which was affirmed
by the lower appellate Court. A learned Single Judge of the High Court Division by the
impugned judgment and order discharged the rule thereby affirmed the judgments of Courts below. Hence is this appeal.
6. Leave was granted to consider the submissions that the learned Single Judge of the High Court Division misdirected himself in discharging the rule on erroneous and misconceived findings as to original ownership of the suit property inasmuch as the High Court Division failed to decide that the suit property did not belong to Md. Kekim but by his two sons, namely, Aslam and Anfar and further submission made by the learned Counsel of the appellant that the suit property was settled by Khan Bahadur Asaddar Ali Khan Waqf Estate with Md. Aslam, son of Md. Hekim.
7. Mr. T.H. Khan, learned Counsel appearing for the appellants has taken us through the
impugned judgment and other materials on record and reiterating his earlier submissions
emphatically submits that the appellants have been able to collect certify copy of a registered kabuliat in the first week of April 2003 wherefrom it appears that the settlement of the suit property (plot) was taken by Md. Aslam son of Md. Hekim alone; the said document thus cuts the very root of the claim of the plaintiff respondent and, according to the learned Counsel, in consideration of the material now available on record the suit should stand dismissed and so the appeal is required to be allowed.
8. Mr. Mahbubey Alam, learned Counsel appearing for the plaintiff respondent opposed
the appeal submitting, inter-alia, that the defendant Nos.l to 5 being heirs of Anfar
transferred the suit property in favour of the plaintiff respondent by registered deed of sale dated 3 November, 1984 and the plaintiff has been possessing the suit property peacefully and the suit has therefore been legally decreed by the trial court, upheld by the lower appellate court as well as by the High Court Division. In this view of the matter, according to him, the appeal is liable to be dismissed.
9. We have considered the submissions and perused the materials on record.
10. The respective case of the parties have already been narrated by us. It appears that in
support of the plaintiffs claim, Babru Mia, the plaintiff deposed himself as P.W.I and
deposed that the suit property originally beloged to Md. Hekim and giving the genealogy
he deposed that the defendant Nos.l to 5 being heirs of Anfar, son of Hekim the original
owner, transferred the suit property to the plaintiff by registered deed of sale dated 3
November 1984 which was produced before the trial court. P.W.2 Ismail AH and P.W.4
Abdul Ali, in their deposition corroborated P.W.I. P.W.3 Abdul Wahid, witness to the
aforesaid deed of sale dated 03.11.1984 proved the same, which has been marked as
exhibit-3. The plaintiff therefore appears to have proved his case before the trial court and so the trial court decreed the suit.
11. The less is said of the defendant’s case it is better. The defendants claimed initially that the suit property did not belong to Md. Hekim; it belonged according to them, to
Aslam and Anfar, two brothers. But they could not establish their case nor could dislodge
the case of the plaintiff that the suit property originally belonged to Md. Hekim, father of Aslam and Anfar.
12. It appears that the defendant later changed their stand stating, inter-alia, that the suit
property was settled by Khan Bahadur Asaddar Ali Khan Waqf Estate with Aslam, son of Md. Hekim. This is in fact a third case made out at a very late end of the day. The case of alleged settlement is not available in the pleadings of the defendants or at any stage of hearing before the trial court or lower appellate court, the courts of fact. The story
thus produced now before us appears to be a vain bid to keep the ship afloat already
wrecked in the tempest tossed ocean. We are, therefore, unable to give any credence to such belated story.
13. We are of the view that a plea not made in the pleadings nor taken in any Court below
cannot be taken for the first time before the Appellate Division.
14. We have perused the judgments of the Courts below.
15. We do not find any grounds to allow the appeal. The appeal having no merits is therefore liable to be dismissed. The appeal is thus dismissed. The parties do bear their own costs.
Source: IV ADC (2007), 379