Bashant Protima Nandi Vs. Bangladesh and others [4 LNJ AD (2015) 179]

Case No: Civil Appeal No. 79 of 2008

Judge: Md. Abdul Wahhab Miah,

Court: Appellate Division ,,

Advocate: Biswajit Deb Nath,Md. Abdul Quayum,,

Citation: 4 LNJ AD (2015) 179

Case Year: 2015

Appellant: Bashant Protima Nandi

Respondent: Bangladesh and others

Subject: Revisional Jurisdiction,

Delivery Date: 2015-03-10


APPELLATE DIVISION
(CIVIL)
 
Md. Abdul Wahhab Miah, J
Muhammad Imman Ali, J
A. H. M. Shamsuddin Choudhury, J


Judgment on
10.03.2015
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Bashant Protima Nandi
... Appellant
Versus
Government of Bangladesh, represented by the Deputy Commissioner, Chittagong and others
...Respondents
 
Code of Civil Procedure (V of 1908)
Sections 107 and 115(1)
While exercising jurisdiction under section 115 (1) of the Code, the revisional Court is not entitled to raise a point which fundamentally relates determination of facts. In a case of judgment of reversal it is the duty of the revisional Court to see whether the appellate Court reversed the decree of the trial Court adverting its findings and decision on proper and correct appreciation of the evidence on record and the law governing the field which the High Court Division as a revisional Court failed to discharge its obligation. Accordingly, the matter was sent back to the High Court Division to hear the revision afresh to dispose of the same according to the evidence on record and the law thereto.
In exercising jurisdiction under section 115 (1) of the Code of Civil Procedure, the revisional Court is not at all permitted to raise a new point which fundamentally relates determination of facts. The duty of the revisional Court in case of a judgment of reversal is to see whether the appellate Court reversed the decree of the trial Court adverting its findings and decision on proper and correct appreciation of the evidence on record and the law governing the field. But the learned judge of the Single Bench miserably failed to discharge this obligation. In view of the above, we find no other alternative but to send the matter back to the High Court Division to hear the revision afresh and dispose of the same in accordance with law on the evidence on record keeping in mind the observations made above. And in no case, the High Court Division shall send back the matter to either of the Courts below.....(10).
 
For the Appellant: Mr. Abdul Qyayum, Senior Advoate, with Mr. Md. Ali Reza, Advocate, instructed by Mr. Zainul Abedin, Advocate-On-Record.
For Respondents : Mr. Biswajit Deb Nath, Deputy Attorney General, instructed by Mrs. Mahmuda Begum, Advocate-on-Record.

Civil Appeal No. 79 of  2008
 
JUDGMENT

Md. Abdul Wahhab Miah, J:

This appeal, by leave, has arisen out of the Judgment and order dated the 31st day of August, 2006 passed by a learned Judge of the Single Bench of the High Court Division in Civil Revision No.163 of 2004 making the Rule absolute

Facts necessary for disposal of this appeal are that the present appellant as plaintiff filed Other Suit No.108 of 2001 in the Court of Assistant Judge, Sitakunda, Chittagong for declaration of title to the suit land and for further declaration that P.S and B.S Khatian in respect of the suit land was wrongly prepared and also for a direction for recording her name in the P.S and B.S Khatians.

The case of the plaintiff, in short, was that the suit land originally belonged to Gagan Chandra Shil who sold the same to Nagendra Kumar by registered Kabala No.231 dated 21.01.1912. R.S Khatian No.2 was prepared in the name of Nagendra Kumar. Nagendra  Kumar died leaving behind the plaintiff as the only heir and she has been possessing the suit land by cultivating paddy, planting trees and producing other crops and by paying rents. On 13-9-2001, when the plaintiff’s son went to the Tahshil office for paying rent, Tahshilder refused to accept the rent on the plea that P.S and B.S Khatians were not prepared in her name. Thereafter, the plaintiff on obtaining the certified copies of the Khatians was confirmed that those were prepared in the name of the Government in the Khas Khatian in P.S and R.S Khatian No.1 in dag Nos.219 and 311 respectively.

The suit was contested by the defendants by filing a joint written statement contending. inter alia, that the suit land was recorded in the name of Nagendra Kumar in R.S Khatian No.2 and R.S. dag No.219. The suit land was sold in auction for arrear of rents and the government purchased the same and accordingly, the suit land was recorded in the P.S. and the B.S. Khatian in Khas Khatian No.1 in the name of the government. In Case No.2 of 2002, proposal was made for settling the suit land to Samabay Samity Limited for long term.

The trial Court considering the evidence on record decreed the suit by judgment and decree dated 28.05.2002. Against the decree of the trial Court, the defendants preferred Other Appeal No.459 of 2002 before the District Judge, Chittagong. The learned Joint District Judge. 1st Court, Chittagong by his Judgment and decree dated 29.09.2003 allowed the appeal and dismissed the suit.

Being aggrieved by and dissatisfied with the Judgment and degree of the appellate Court, the plaintiff preferred Civil Revision No.169 of 2009 before the High Court Division and a learned Judge of the Single Bench of the High Court Division by the impugned judgment and order made the Rule absolute, set aside the judgment and decree of the appellate Court and sent the suit back on remand to the trial Court with direction to frame an issue as to “Whether plaintiff Bashanti Protima Nandi can inherit the suit land or not under Hindu Law” with the observations:

“ Admittedly the lower Court did not frame any” issue regarding the inheritance of plaintiff under Hindu Law and neither the learned Assistant Judge nor the learned Joint District Judge discussed about this vital point of inheritance of plaintiff in their Judgment, So, as provision of Section 88 and Section XII of Hindu Law plaintiff’s alleged son Bablu Nandi must be examined by the lower Court to determine the right title of plaintiff petitioner in the suit land. For the purpose learned lower Court is also to frame an issue”.

Leave was granted by this Court to consider following submission of the learned counsel appearing on behalf of the appellant:

“The learned counsel for the petitioner submitted that the High Court Division committed error in sending back the suit on remand as it is quite unnecessary to frame an issue as to within plaintiff got the suit land by inheritance as this issue is covered by the issue framed by the trial Court to the effect as to whether the plaintiff has title and possession in the suit land and further this new point regarding framing of issue is not based on the pleading of the parties and so remand can not be ordered for decision on that point and rather in the interest of justice the High Court Division ought to have decided the case on merit on the evidence or (sic, it would be on) record and further in the instant case no body other than Government raised any objection as to the claim of the plaintiff.”

Mr. Abdul Qyayum, learned counsel appearing for the appellant, has made his submission in the light of the leave granting order.

Mr. Biswajit Deb Nath, learned Deputy Attorney General, appearing for the respondents, tried to make out a new point that whether the plaintiff is the daughter of Nagendra needs to be decided in the suit afresh, the High Court Division rightly sent the suit back on remand to the trial Court. There being no merits in the appeal, the same  be dismissed.

From the impugned judgment and order, it appears that the High Court Division without considering the case of the respective parties and discussing the evidence on record raised a new point that an issue as quoted hereinbefore need be framed and decided. But the contesting defendants did not raise any such question in their written statement nor did they raise any issue nor any point in the Courts below in that regard. From the judgment of the trial Court, it also appears that issue No.2 was framed to the effect “bvwjkx f~wg‡Z ev`xwbi ¯^Z¡ ¯^v_© `Lj Av‡Q wK-bv ?Ó| We are of the view that this issue squarely covers the issue as suggested by the High Court Division. From the judgment of the trial Court, it further appears that it decided issue No.2 in favour of the plaintiff on detailed discussion of the evidence on record. However, the appellate. Court took a reverse view. Since the two Courts took two different views and the entire records were before the High Court Division, the learned Judge of the Single Bench was obliged to decide whether the appellate Court was correct in reversing the judgment and decree of the trial Court in view of the pleading of the respective party and the evidence adduced by them, Instead, he sought to find out a new point and thus raise a new issue beyond the pleading of the defendants and that suo motu too. It needs to be mentioned that in para 1 of the plaint, the plaintiff categorically stated that “b‡M›`ª Kygvi iw¶Z bvwjkx f’wg mn Acivci f~wgi ¯^Z¡ `L‡j LvKv Ae¯’vq gviv †M‡j Zvnv cyÎeZ©x Kb¨v ev`xwb Iqvwik my‡Î cÖvß nbThe defendants in para 10 of their written statement just gave a general denial of the statements made in the plaint as a whole. Then in para 11 under the head, actual facts the defendants did neither deny the assertion of the plaintiff made in para 1 of the plaint nor said that the plaintiff was not the daughter of Nagendara.

In exercising jurisdiction under section 115 (1) of the Code of Civil Procedure, the revisional Court is not at all permitted to raise a new point which fundamentally relates determination of facts. The duty of the revisional Court in case of a judgment of reversal is to see whether the appellate Court reversed the decree of the trial Court adverting its findings and decision on proper and correct appreciation of the evidence on record and the law governing the field. But the learned judge of the Single Bench miserably failed to discharge this obligation. In view of the above, we find no other alternative but to send the matter back to the High Court Division to hear the revision afresh and dispose of the same in accordance with law on the evidence on record keeping in mind the observations made above. And in no case, the High Court Division shall send back the matter to either of the Courts below.
In the result, the appeal is allowed. The impugned Judgment and order of the High Court Division in Civil Revision No.163 of 2004 is set aside and the matter is sent back to the High Court Division for hearing afresh and dispose of the same on merit in accordance with law upon the evidence on record keeping in mind the observations made hereinbefore.

Let the revision be heard and disposed of by the Bench, presided over by Mr. A.K.M. Abdul Hakim, J., within 8 (eight) weeks from the date of receipt of this judgment.

Ed.