Case No: Civil Revision No. 1215 of 2016
Judge: Md. Moinul Islam Chowdhury, J
Court: High Court Division,
Advocate: Mr. Md. Mostafizur Rahman, Advocate,
Citation: 2018(2) LNJ
Case Year: 2018
Appellant: Badol Sarker
Respondent: Jaynal Khan and another
Subject: Code of Civil Procedure
Delivery Date: 2019-12-02
HIGH COURT DIVISION
(CIVIL REIVSIONAL JURISDICTION)
Md. Moinul Islam Chowdhury, J
. . . Defendant-Appellant-Petitioner
Jaynal Khan and another
. . . Plaintiff-Respondent-Opposite parties
Code of Civil Procedure (V of 1908)
Order XXVI, Rule 9
The Advocate Commissioner’s Report was given after a field survey and an appropriate measurement of land becomes binding upon a party, even, any inconvenience is caused because the report has been accepted by passing a final decree in this partition suit. In this regard my observation is that if the parties could not reach to an amicable partition then the partition by a court proceeding must be accepted. ...(13 and 14)
Mr. Md. Mostafizur Rahman, Advocate
. . . For the petitioner.
Mr. Shasti Sarker, Advocate
. . . For the opposite parties.
Md. Moinul Islam Chowdhury, J. At the instance of the present-defendant-appellant-petitioner, Badol Sarker, this Rule has been issued calling upon the opposite-party Nos.1-5 to show cause as to why the impugned judgment and decree dated 14.03.2016 passed by the learned District Judge, Manikganj in Title Appeal No.14 of 2015 affirming those date 28.08.2014 passed by the learned Assistant Judge, Harirampur, Manikganj in Partition Suit No.10 of 2000 should not be set aside.
2. The relevant facts for disposal of this Rule, inter-alia, are that the present-opposite parties as the plaintiffs filed the Title Suit No.10 of 2000 in the court of the learned Assistant Judge, Manikganj for partition of the suit described in the plaint. The case of the plaint, is that, the suit land was originally belonged to C.S. recorded tenant Kantu Pramanik, Nargarbasi, Dhanmani and Hriday Pramanik in course of inheritance and transfer by way of sale deed and heba-bill-ewaj one Hossain Ali became the owner of 90 decimals of land, who transferred the land to his son Hafizuddin Biswas on 24.02.1964 by a deed of heba-bil-ewaj, who again sold 20 decimals of land to the present-plaintiff-opposite parties thereby the plaintiffs became the owner of 19 decimals of land in Dag No.303 and 1 decimal of land in Dag No.305 but when the plaintiffs claimed for partition the defendant denied.
3. The present-petitioner as the defendant contested the suit by filing a written statement denying the statement of the plaint in the suit along with others. The suit was originally owned by Raj Krishna and Baru Pramanik but the C.S. record was prepared only in the name of Raj Krishna, even though, he was enjoying only ½ decimal of land and he died leaving behind a son Lusmon who died leaving behind Hriday Pramanimk and wife Nanda Rani as the legal heirs in course of inheritance and the suit land was sold to one Hossain Ali on 02.07.1934 from Dag No.424, 145, 303 and 305 but the S.A. record was wrongly published for the land measuring 1.06 acres in different Dags, particularly, 10 decimals of land in Dag No.305 and 25 decimals of land in Dag No.303 and R.S. record was also published in the name of Hafizuddin Biswas, son of Hossain Ali, who claimed that his father purchased 37 decimals of land in Plot No.303. The defendant claimed that he was the owner of the land measuring 3.33½ acres of land but he was in possession of total land measuring 2.35 acres of land as the heir of Kokaram Pramanik.
4. After hearing the parties the learned trial court decreed the suit in preliminary form by his judgment and decree dated 16.08.2001. After the preliminary decree the Title Appeal No.73 of 2005 was filed to the learned appellate court, who remanded the suit to the trial court. However, a Civil Revision No.2212 of 2006 was filed in this Court which was discharged on 24.01.2010 in order to get a fresh Advocate Commissioner Report for making the decree final. On 06.021.2011 an Advocate Commissioner was appointed who submitted a report allocating saham of the present-plaintiff-opposite parties upon the land measuring 6 decimals from Dag No.303 and 14 decimals of land in Dag No.305 and the present-defendant-petitioner No.1 along with other defendants got saham of .20 acres accordingly, the final decree was passed on 28.08.2014. Being aggrieved by the said final decree the present-petitioner preferred the Title Appeal No.14 of 2015 which was heard and dismissed on 14.03.2016 by the impugned judgment and decree. This revisional application has been filed under Section 115(1) of the Code of Civil Procedure challenging the legality of the said impugned judgment and decree passed by the learned appellate court and the present Rule was issued thereupon.
5. Mr. Md. Mostafizur Rahman, the learned Advocate appearing for the petitioner submits that both the courts below misread, non considered about the saham allotted to defendant No.1 on the basis of wrong report of Advocate Commissioner, as such, committed an error of law resulting in an error in the decision occasioning failure of justice and the same is liable to be set aside.
6. The learned Advocate further submits that the courts below did not consider the defendant No.1 has constructed his residence in 80 decimals of land in Plot No.303 and the written objection upon the said Advocate Commissioner’s Report and thus, it has committed an error of law resulting in an error in the decision, and the said decree is liable to be set aside.
7. The Rule has been opposed by the present-opposite party No.1-5.
8. Mr. Shahsti Sarker, the learned Advocate appearing for the opposite parties submits that the preliminary decree was passed on 16.08.2001 after considering the appropriate measurement of 20 decimals of land in favour of the plaintiffs from Dag Nos.303 and 305, however, after the fresh Advocate Commissioner’s Report on remand of the suit the plaintiffs were given 6 decimals of land in Dag No.303 and 14 decimals of land in Dag No. 305 and the plaintiffs could prove their entitlement upon the said measurement of land in all the courts below through the Exhibits-1-5, as such, the courts below committed no error of law by a concurrent judgment in favour of the plaintiffs but the present-petitioner obtained the instant Rule by misleading the court, therefore, the Rule is liable to be discharged.
9. The learned Advocate further submits that the Advocate Commissioner’s Report was accepted by the learned trial court before making the decree final and after examining all the relevant documents, therefore, no interference from this Court is called for.
10. Considering the above submissions made by the learned Advocates appearing of the respective parties and also considering the revisional application filed under Section 115(1) of the Code of Civil Procedure along with Annexures therein, in particular, the impugned judgment and decree passed by the appellate court and also considering the materials in the lower court records, it appears to me that the present-opposite parties as the plaintiffs filed a title suit for a partition upon the land measuring 20 decimals of land in Dag Nos.303 and 305, appertaining to Khatian No.53, Mouja East Khalilpur, Police Station Harirampur, District-Manikganj. In support of the plaintiffs’ case Exhibit-1 was submitted as the record of right, Exhibit-2 was the deed dated 02.07.1934 and also a record of the earlier Title Suit No.144 of 1932 among others.
11. On the other hand, the defendant had submitted as Exhibits-Ka and Chcha’ in support of his claim of land measuring 2.35 acres. After examining the above Exhibits the learned trial court passed the preliminary decree in preliminary form for the land measuring 20 decimals of land out of which 19 decimals of land from Dag No.303 and 1 decimal of land from Dag No.305. However, the said decree was made final by the trial court after a lengthy process of litigation between/among the parties and in the final decree the present-opposite parties as the plaintiffs got 20 decimals of land out of which 6 decimals of land from Dag No.303 and 14 decimals of land from Dag No.305. The present-petitioner as the defendant No.1 got saham 2.1075 acres of land under the final decree as per the learned Advocate Commissioner’s Report submitted in the trial court pursuant to the order of this Court upon a revisional application.
12. I have considered the final decree and the exhibits for entitlement of the parties and I found that the trial court and the learned appellate court have properly read and understood by considering those documents, particularly, the Advocate Commissioner’s Report finally submitted on 12.04.2011, therefore, I consider that the courts below committed no error of law by allocating saham of 20 decimals of land for the plaintiff-opposite parties and the saham of 2.1075 acres of land in favour of the present-petitioner.
13. The learned Advocate for the petitioner drawn an attention of this Court that the land and final Advocate Commissioner’s Report caused serious difficulty as the home land has been taken away from the petitioner by the final decree. In this regard, I consider that the Advocate Commissioner’s Report was given after a field survey and an appropriate measurement of land becomes binding upon a party, even, any inconvenience is caused because the report has been accepted by passing a final decree in this partition suit.
14. In this regard my observation is that if the parties not could reached to an amicable partition then the partition by a court proceeding must be accepted.
15. I am now inclined to examine the judgment and decree passed by the learned courts below. The learned trial court came to a lawful conclusion by passing the final decree on 28.08.2014 on the basis of the following finding:-
¢L¿¹ e¢b fkÑ¡‡m¡Qe¡ L‡l ®cM¡ k¡u ®k, 1 ew h¡c£ 303 c¡‡Nl 19 ¢Xw Hhw 305 c¡‡Nl 1 ¢Xw i¨¢j 3/6/74 Cw a¡¢l‡Ml 16002 ew c¢mm j§‡m H²u L‡l Hhw 3/8 ew ¢hh¡c£‡L HL‡H 303 J 305 c¡N ®b‡L R¡q¡j fËc¡e Ll¡ quz 3ew ¢hh¡c£ q¡‡Sl¡ 1/2/60 Cw a¡¢l‡Ml 598 ew c¢mmj§‡m 305 c¡‡N 23 ¢Xw, 8 ew ¢hh¡c£ Q¡e M¡ J ®N¡f¡m M¡ (®N¡m¡f My¡) 3/10/73 Cw a¡¢lM 3792 ew c¢mmj§‡m ®j¡V 13 ¢Xw i¨¢j 303 c¡N q‡a H²u L‡lz Hja¡hÖq¡u ®k‡qa¥ ¢h‘ HÉ¡X‡i¡‡LV L¢jne¡l ¢hS· Bc¡m‡al l¡‡ul B‡m¡L (fË¡b¢jL ¢X¢H²) h¡c£l fË¡fÉ 20 na¡wn S¢j h¡hc R¡q¡j fËc¡e L‡l‡Rez AeÉ¡eÉ ¢hh¡c£cl J fË¡b¢jL ¢X¢H²l B‡m¡‡L R¡q¡j heY~e L‡l‡Re j‡jÑ Bc¡m‡al ¢eLV p¢WL fËa£uj¡e quz
16. The learned appellate court concurrently found in favour of the present-plaintiff-opposite parties on the basis of the following finding:-
flha£Ñ®a ¢e®u¡NfË¡ç ¢hS· HÉ¡X®i¡LV L¢jne¡l 303 c¡®N h¡c£®L 06 ¢Xw J 305 c¡®N 14 ¢Xw i¨¢j HL¥®e 20 ¢Xw i¨¢j fËc¡e L®lez AeÉ¢c®L, 3 ew ¢hh¡c£®L 303 c¡®N 6 ¢Xw R¡q¡j fËc¡e Ll¡u Bf¢J c¡¢Mm L®lz ¢L¿¹ e¢b fkÑ¡®m¡Qe¡ L®l ®cM¡ k¡u ®k, 1 ew h¡c£ 303 c¡®Nl 19 ¢Xw Hhw 305 c¡®Nl 01 ¢Xw i¨¢j 3/6/74 Cw a¡¢l®Ml 16002 c¢mmj§®m H²u L®l Hhw 3/8 ew ¢hh¡c£®L HL®H 303 J 305 c¡N ®b®L R¡q¡j fËc¡e Ll¡ quz 3 ew ¢hh¡c£ q¡®Sl¡ 01/02/60 Cw a¡¢l®Ml 598 ew c¢mmj§®m 305 c¡N 23 ¢Xw, 8 ew ¢hh¡c£ Q¡e M¡ J ®N¡f¡m M¡ (®N¡m¡f My¡) 03/10/73 Cw a¡¢l®Ml 3792 ew c¢mmj§Ñ®m ®j¡V 13 ¢Xw i¨¢j 303 c¡N ®b®L H²u L®lz ®k®qa¥ ¢hS· H¨¡X®i¡®LV L¢jne¡l ¢h‘ Bc¡m®al l¡®ul B®m¡®L (fË¡b¢jL ¢X¢H²) h¡c£l fË¡fÉ 20 na¡wn S¢j h¡hc R¡q¡j fËc¡e L®l®Re Hhw HLC pw®N AeÉ¡eÉ ¢hh¡c£®cl J fË¡b¢jL ¢X¢H²l B®m¡®L R¡q¡j heVe L®l®Re, ®p®qa¥, ¢h‘ HÉ¡X®i¡®LV L¢jne¡®ll ¢l®f¡VÑ, ¢gmX h¤L, ®ÖLQ jÉ¡f J ®nu¡l®Vh¤®m ®L¡el²f ApwN¢a h¡ fËi¡¢ha qJu¡u fËj¡e f¢lm¢ra qu e¡z
17. In view of the above discussions and after perusal of the judgment and decree passed by the learned courts below, I consider that the learned appellate court below committed no error of law by passing the impugned judgment and decree. I am therefore, not inclined to interfere into the impugned judgment and decree passed by the learned appellate court.
18. Accordingly, I do not find merit in the Rule.
19. In the result, the Rule is discharged.
20. The ad-interim order of stay granted at the time of issuance of the Rule upon proceedings in Execution Case No.3 of 2015 pending in the court learned Assistant Judge, Harrirampur, Manikganj is hereby recalled and vacated.
21. The office is directed to communicate this judgment and order to the concerned court immediately and the office is also directed to send down the lower courts’ record at once.
Civil Revision No. 1215 of 2016