Azizullah @ Azizur Rahman Vs. Abu Taher Chowdhury and others, 58 DLR (AD) (2002) 227

Case No: Civil Review Petition No. 43 of 2002

Judge: Syed J.R. Mudassir Husain ,

Court: Appellate Division ,,

Advocate: Mr. Md. Aftab Hossain,,

Citation: 58 DLR (AD) (2002) 227

Case Year: 2002

Appellant: Azizullah @ Azizur Rahman

Respondent: Abu Taher Chowdhury and others

Subject: Procedural Law,

Delivery Date: 2003-2-23

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Mainur Reza Chowdhury CJ
Md Fazlul Karim J
Syed JR Mudassir Hussain J
Abu Sayed Ahmed J
 
Azizullah @ Azizur Eahman
…………..……. Petitioner
Vs
Abu Taher Chowdhury and others
……………….. Respondents
 
Judgment
February 23rd, 2003.
 
The Bangladesh Supreme Court (Appellate Division) Rules, 1988
Order XXVI, rule 4
Review is not a matter of rehearing the Appeal as appeal is a matter of right but review is not. No new ground has been found and no new material has been placed before the Court requiring interference. The Petition having not been filed according to rule 4 of Order XXVI of the Supreme Court of Bangladesh (Appellate Division) Rules, 1988, is not maintainable.  …. (9)
 
Lawyers Involved:
S. M. Zillul Haque, Senior Advocate, instructed by Sufia Khatun, Advocate-on-Record- For the Petitioner.    
Md. Aftab Hossain, Advocate-on-Record- For respondent No.1.   
Not represented- For respondent No. 2.
 
Civil Review Petition No.43 of 2002.
(From the judgment and order dated 13th August, 2001 passed by this Division in Civil Petition for leave to Appeal No. 1030 of 1997).
 
JUDGMENT
 
Syed J. R. Mudassir Husain J.
 
Delay is condoned. This Civil Review Petition has arisen out of the judgment and order dated 13th August, 2001 passed by this Division in civil petition for leave to Appeal No. 1030 of 1997 dismissing the same.
 
2. The plain tiff-respondent herein filed Title Suit No.252 of 1974 for declaration of his title and recovery of khas possession of the suit land and also for mesne profits stating, inter alia, that he purchased the suit land as described in 'Ga', schedule land by 2 kabalas dated 5-4-1973 and 6-4-1973 followed by 2 rectification deeds dated 27-4-1974 and 29-4-1974. One Haran Chandra was in possession of 'Ga' schedule land as bharatia under the vendors of the plaintiff-respondent. Haran Chandra having defaulted in payment of rent, Haran Chandra abandoned and surrendered the suit land in favour of the plaintiff. Taking advantage of the opportunity of the political disturbances in the country, the defendant-petitioner No.1 forcibly and illegally entered into the suit land in the month of Bhadra, 1978 B.S. and he was still in possession in the suit land as a trespasser, the defendant-petitioner has no valid title in the suit property. The plaintiff or his vendor did not recognize the petitioner as bharatia and as such the plaintiff is entitled to get khas possession of the suit land by evicting the petitioner therefrom. The plaintiff is also entitled to get mesne profits for use and occupation of the suit land.
 
3. The said suit was contested by the defendant-petitioner and his case was that the suit land belonged to Kulsum Banu and one Bhupal Chandra Bardan took settlement of the suit land by bharatia agreement dated 5-1-1946 and used to run a tea stall there, Bhupal Chandra Bardan gave 'Bondabosta' of the suit land to Haran Chandra Das and the original owner of the suit land Kulsum Banu recognized Haran Chandra Das as a tenant under her and she realized rent from him. It was further alleged that the contesting defendant-petitioner purchased the suit land on 18th Bhadra, 1377 B. S. from said Haran Chandra Das and since then defendant-petitioner has been possessing the same by way of running tea stall there.
 
4. The learned Munsif decreed the suit upon consideration of materials on record. Against the said decree the petitioner filed Title Appeal No.150 of 1978 and the learned Subordinate Judge, who heard the appeal, allowed the same by judgment and decree dated 26-12-1981 and sent back the case on remand to the trial court for fresh decision. Thereafter, the suit was heard afresh and the learned Munsif upon consideration of materials on record again decreed the suit by his judgment and decree dated 14-2-1983 and against the said decree the defendant- petitioner preferred Title Appeal No.27 of 1983 in the Court of District Judge, Noakhali and on transfer the said appeal was heard by Subordinate Judge, Lakshmipur, who allowed the appeal by his judgment and decree dated 30-11-1985. Then the plaintiff-respondent moved the High Court Division in revision and the Rule was made absolute by judgment and order dated 9-3-1997. Against the aforesaid judgment and order of the High Court Division, petitioner filed civil petition for leave to Appeal No. 1030 of 1997 and upon hearing the parties this Division dismissed the leave-petition by judgment and order dated 13-8-2001. Now, the petitioner seeks review of the aforesaid judgment of this Division.
 
5. Md. S. M. Zillul Haque, learned Counsel appearing for the petitioner, firstly contended that the plaintiff-respondent having failed to prove that his vendor or he himself was ever in possession in the suit land within 12 years prior to the filing of the suit and as such the suit ought to have been dismissed.
 
6. Mr. Zillul Haque further argued that the finding of fact arrived at by the lower appellate court being the final court of fact was binding upon the High Court Division and this Division ought to have considered the case of the defendant-petitioner.
 
7. We have heard the submissions made by the learned Counsel. It appears that this Division found that the High Court Division after lengthy discussion and upon perusal of the 2 judgments of the courts below found that the bharatia agreement Exhibit-A executed by Bhupal Chandra Bardhan in favour of Kulsum Banu showed that kabuliyat did not attract the suit land. The High Court Division also found that the claim of the petitioner that Bhupal Chandra Bardhan took 'Bandabasta of the suit land of the Plot Nos. 5127 and 5126 was factually not correct and said Bhupal Chandra Bardan had no right, title or possession over the suit land to give 'Bondabasta in favour of Haran Chandra Das and the High Court Division found that the said Haran Chandra Das was not in possession of the suit land previously as bharatia of the vendors of the plaintiff and he was a defaulter and therefore surrendered the suit land. The High Court Division in consideration of materials on record found that the trial court rightly decreed the suit but the appellate court reversed the decision on the ground of adverse possession although the lower appellate court did not frame any issue of adverse possession and there was no such pleading in the written statement or in the evidence adduced by the defendant-petitioner and therefore the High Court Division found that the trial court correctly decreed the suit and the appellate court having made out a third case committed an error of law occasioning failure of justice in coming to a finding that possession of the defendant- petitioner as well as Haran Chandra Das was adverse.
 
8. It is a settled principle of law that review is not a matter of rehearing the appeal and appeal is a matter of right but review is not. The review must come within the short compos of Order 47 Rule 1 of the Code of Civil Procedure and Order XXVI of the  Supreme Court of Bangladesh (Appellate Division) Rules, 1988.
 
9. We have considered all points raised by the defendant-petitioner while dismissing the leave-petition and we do not find any new ground or any new materials, which could be produced before this Division. Having regard to the facts and circumstances of the case, we do not find any ground for review. Further, this petition appears to have not been filed according to Rule 4 of Order XXVI of the Supreme Court of Bangladesh (Appellate Division) Rules 1988 and therefore is not maintainable. Consequently, the Review Petition merits no consideration and accordingly it is dismissed.
 
Ed.