Emdadul Haque Vs. Md. Nur Box Mondal, (Md. Moinul Islam Chowdhury, J.)

Case No: Civil Revision No. 174 of 2000

Judge: Md. Moinul Islam Chowdhury, J

Court: High Court Division,

Advocate: Mr. Md. Shamsur Rahman, Advocate, Mr. Md. Mozammel Haque, Advocate,

Citation: 2019(1) LNJ

Case Year: 2018

Appellant: Emdadul Haque and another

Respondent: Md. Nur Box Mondal being dead his legal heirs 1(a) Most. Anowara Begum and others

Subject: Partition Suit

Delivery Date: 2019-11-27

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Md. Moinul Islam Chowdhury, J

 

Judgment on

10.05.2018

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Emdadul Haque and another

. . Petitioners

-Versus-

Md. Nur Box Mondal being dead his legal heirs 1(a) Most. Anowara Begum and others

. . . Plaintiff-Opposite parties

Partition Suit

Code of Civil Procedure (V of 1908)

Order 41, Rule 23

Both the courts considered a serious of fault in the partition suit because the suit was filed without making any parties to the successors of Omika, Omar, Ovinash, Onti and Ovay, therefore, there are some admitted defect of parties. The settled principle of law is that in a partition suit all the relevant and the concerned parties are required to be added or included as the parties for deciding a partition suit. The learned trial court dismissed the suit only for the said defect. However, the learned appellate court after hearing the parties allowed the appeal and rightly sent the suit on remand in order to give an appropriate saham to the present- plaintiff-opposite parties to make all the relevant parties in the said suit.   . . . (11)

Code of Civil Procedure (V of 1908)

Order 1, Rule 10

There are some admitted defect of parties, therefore, the partition suit could not be decided in the present form and manner as all the relevant and the necessary parties have not been impleaded in the suit, as such, the learned trial court rightly dismissed the suit and the learned appellate court committed no error of law under Order 41 Rule 23 of the Code of Civil Procedure. I am, therefore, inclined to dispose of the Rule in order to facilitate the parties to seek saham after rehearing of the suit. . . . (12)

Mr. Md. Shamsur Rahman, Advocate

. . . For the Petitioners

Mr. Md. Mozammel Haque, Advocate

. . . For the Opposite Party Nos. 1(a) to 1(b)

JUDGMENT

Md. Moinul Islam Chowdhury, J:  At the instance of the present-dependent-appellant-petitioners, Emdadul Haque and another, this Rule has been issued calling upon the opposite party No. 1 to show cause as to why the impugned judgment and decree dated 2.11.1999 passed by the learned Additional District Judge, Joypurhat in Other Class Appeal No. 93 of 1995 should not be set aside.

2.             The Rule is directed against the judgment and decree dated 2.11.1999 passed by the learned Additional District Judge, Joypurhat in Other Class Appeal No. 93 of 1995 allowing the said appeal and reversing the judgment and decree dated 31.08.1995 passed by the learned Subordinate Judge, 1st Court, Joypurhat in Partition Case No. 73 of 1992.

3.             The relevant facts for disposal of this Rule, inter-alia, are that the present-opposite party No. 1 as the plaintiff filed the Partition Suit No. 73 of 1992 in the court of the then learned Subordinate Judge, Ist court, Joypurhat for partition of the suit land out of the total land in the joth mentioned in the schedule of the plaint. The case in the plaint is that one Akhai Chandra Sarker was the owner who died leaving behind five sons namely, Obinash, Omar, Omika, Ovai, and Ontim Chandra Sarker and S.R.R. Khatian published in their names. The said Omika Chandra Sarker got land measuring 1.60 acres and Omar Chandra Sarker got 1.61 acres. Omar Chandra Sarker died leaving behind four sons namely, Ojoy, Okhil, Oshok, Utpul Chnadra Sarker and all of them sold .80 decimals and .78 decimals to the plaintiff by executing and registering two sale deeds dated 6.3.85 and the plaintiff-opposite parties have been in possession after paying khajna, but the defendant No.8 created a false exchange deed and the Deputy Commissioner, Bogra approval was wrong, thus, the suit was filed.

4.             The suit was contested by the defendant Nos.2 and 8 by filing a written statement denying the statements made in the plaint. The defendant further contended that Okhil Chandra Sarker died leaving behind Omar, Ometa, Ontim, Ovai Chandra Sarker and each of them got 16 decimals and they sold 32 decimals in favour of the defendant No. 2 by the registered deed dated 05.01.1985 and he has been in possession. The defendant No. 8 contended that Okhil Chandra Sarker died leaving behind five sons and a widow. The Partition Suit No. 211 of 1956 was filed among the above co-sharers but the suit was decreed through a solenama, as such, Okhil’s widow, Shaila Bala and Ontim Chandra left for India and exchanged the suit land with the defendant No.8 which was registered as the Exchange Case No.  . dated 30.06.1994. The defendant No. 8 sold 1.59 acres to the defendant No. 2 by registered sale deed dated 21.01.1995.

5.             After hearing the parties, the learned trial court dismissed the suit by his judgment and decree dated 31.08.1995. Being aggrieved the present-opposite party No. 1 preferred the Other Class Appeal No. 93 of 1995 in the court of the learned District Judge, Joypurhat which was transferred in the court of the learned Additional District Judge, Joypurhat who allowed the appeal by reversing the judgment and decree of the trial court. 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 the Rule was issued thereupon.

6.             Mr. Md. Shamsur Rahman, the learned Advocate appearing with the learned Advocate Mr. Rahima Pervin for the petitioners submits that the learned appellate court below has committed an error of law as well as in facts resulting in an error of his judgment and decision occasioning failure of justice is not considering that the learned trial court below rightly dismissed the suit by thorough examination of depositions of both P.Ws. and  D.Ws. as well as on perusal of the documentary evidences and that the learned appellate court below ought to have relied upon the same and upon non consideration of the above mentioned reasons and findings led the judge of the appellate court below to come to a wrong findings, therefore, the judgment and decree is liable to be set aside.

7.             The learned Advocate also submits that the present-petitioners could not seek saham, as such, saham was not given by either of the courts to the present-petitioners as well as the present-opposite patties, therefore, rehearing is necessary because in a partition suit all the parties are entitled to get their respective saham as per law.

8.             The Rule has been opposed by the present-opposite party Nos. 1(a) to 1(b).

9.             Mr. Md. Mozammel Haque, the learned Advocate appearing for the opposite party Nos.1(a)-1(b) submits that for a technical fault of defect of parties a suit should not fail because a suit should be decided on merit on the basis of evidence but the trial court committed an error of law by dismissing the partition suit without allocating any saham and the learned appellate court also failed to give any saham to either of the parties, as such, the learned appellate court committed no error of law by sending the matter to the trial court for rehearing by giving opportunities to the parties to seek saham after complying the requirements of law.

10.         Considering the above submissions made by the learned Advocates appearing for the respective parties and also considering the revisional application filed under Section 115(1) of the Code of Civil Procedure along with the Annexures therein, and also considering the materials of the lower courts records, it appears to this Court that the present-opposite parties filed a partition suit seeking saham of 1.59 acres out of total land measuring 3.21 acres situated in M.R.R. Khatian No. 228, C.S. Khatin No. 120, Mouja Jiakul, Police Station- Khatlal, District- Joypurhat. It further appears that by passing the judgment and decree the learned trial court failed to give any saham either to the present-petitioners or the opposite parties because the suit was dismissed, therefore, the learned appellate court also could not given any saham but remanded the suit for rehearing in order to allocate appropriate saham to the parties on the basis of the documentary evidence and possession.

11.         In view of the above given factual aspects, this Court has to take a decision whether the courts below committed an error of law in decreeing a partition suit without allocating any saham to either of the parties. I have carefully examined the relevant documents from the lower courts’ records and also perused the impugned judgment and decree passed by the courts below. I find that both the courts considered a serious of fault in the partition suit because the suit was filed without making any parties to the successors of Omika, Omar, Ovinash, Onti and Ovay, therefore, there are some admitted defect of parties. The settled principle of law is that in a partition suit all the relevant and the concerned parties are required to be added or included as the parties for deciding a partition suit. The learned trial court dismissed the suit only for the said defect. However, the learned appellate court after hearing the parties allowed the appeal and sent the suit on remand in order to give an appropriate saham to the present-plaintiff-opposite parties to make all the relevant parties in the said suit.

12.         As per the above circumstances, after considering the documents in this case, I also consider that there are some admitted defect of parties, therefore, the partition suit could not be decided in the present form and manner as all the relevant and the necessary parties have not been impleaded in the suit, as such, the learned trial court rightly dismissed the suit and the learned appellate court allowed the appeal and sent the suit on remand, thereby, the learned appellate court committed no error of law under Order 41 Rule 23 of the Code of Civil Procedure. I am, therefore, inclined to dispose of the Rule in order to facilitate the parties to seek saham after rehearing of the suit.

13.         Accordingly, the Rule is disposed of with the following direction.

14.         The learned Joint District Judge, Joypurhat is hereby directed to conclude and dispose of the Title Suit No. 73 of 1992 within 6 (six) months from the date of receipt of this judgment and order without allowing any unnecessary adjournment for the interest of expeditious disposal of the suit.

15.         As the matte is sent for rehearing by the learned trial court, therefore, the earlier judgment and decree passed by the learned appellate court become inoperative and, therefore, the suit should be heard afresh on the basis of the evidence already available in the lower courts records and any further evidence to be given by the parties. This judgment and order of this Court for sending the suit on remand after pendency for more than 22 years in the several courts, thus, this judgment is passed as an exceptional case for ends of justice to all the concerned parties.

16.         The office is directed to communicate this judgment and order to the concerned court and the Section is also directed to send down the lower courts’ records at once.

Ed.



Civil Revision No. 174 of 2000