Case No: Civil Revision No. 2869 of 2008
Judge: A. K. M. Zahirul Hoque,
Court: High Court Division,,
Advocate: Mr. Lutfor Rahman Mandal,Ms. Feodora Rahman Pretty,,
Citation: 3 LNJ (2014) 494
Case Year: 2014
Appellant: G. M. Jahirul Islam
Respondent: Mohammad Soeb and others
Subject: Land Law,
Delivery Date: 2011-12-12
HIGH COURT DIVISION
(Civil Revisional Jurisdiction)
|Sharif Uddin Chaklader, J.
A. K. M. Zahirul Hoque, J.
|G. M. Jahirul Islam
. . . Petitioner
Mohammad Soeb and others
... Opposite Parties
Code of Civil Procedure (V of 1908)
Since the title of the parties are admitted but the possession as well as the position of the land is required to be determined by the Court and that is why it requires to make an inspection of the suit land by a well survey knowing lawyer who after holding inspection will prepare the sketch map and index and then submit report in accordance with law to determine the preliminary point in question along with other evidences by the Court. . . . (14)
Mr. Lutfor Rahman Mandal, Advocate with
Ms. Feodora Rahman Pretty, Advocate
Civil Revision No. 2869 of 2008
This rule was issued calling upon the opposite parties to show cause as to why the impugned judgment and decree dated 21.05.2008 and 28.05.2008 passed in the Other Appeal No. 361 of 2006 by the Additional District Judge, Bankruptcy Court, Chittagong reversing the judgment and decree dated 21.06.2006 and 28.06.2006 respectively passed by the Joint District Judge, Environment Court, Chittagong in Other Suit No. 02 of 2006 should not be set aside and or such other or further order or orders passed as to this Court may seem fit and proper.
Facts, relevant for the purpose of disposal of the rule, in short, is that the petitioner as plaintiff instituted the Title Suit for declaration as well as recovery of khass possession.
The fact of the plaintiff in short is that one Kashim Ali was the owner of .93 decimals of land in R. S. Plot No. 64 and his name was correctly recorded in the R. S. Khatian. Said Kashim Ali being owner and possessor of the said .93 decimals of land sold the same to Mohammad Ibrahim vide registered Kabala No. 1989 on 06.06.1934 Mohammad Ibrahim while owning and possessing the said .93 decimals of land sold out .48-1/2 decimals of the same vide registered Kabala No. 3986 dated 25.10.2004 in favour of his daughter Sayada Khatun alias Khatunnessa and the remaining portion has been vested with Ali Ahmed, Kabir Ahmed and Sultan Ahmed sons of Mr. Mohammad Ibrahim and Sayada Khatun and Mofiza Khatun daughters of Mohammad Ibrahim, Kabir Ahmed sold out .10 decimals of land acquired by inheritance to her sister Mrs. Sayada Khatun. Mrs. Sayada Khatun transferred .48-1/2 decimals of land brought from her father to his brother Kabir Ahmed on 10.07.1979 vide registered Kabala No. 13341 and 13342 and sold .10 decimals land to Rabeya Khatun wife of Kabir Ahmed vide Kabala No. 13343 dated 10.07.1979 and handed over the possession. Sayada Khatun again on 15.02.1981 sold out .05 decimals of land to the previous vendor of defendants No. 1-7 namely Khurshed Alam vide Kabala No. 4263. Sultan Ahmed son of said Mohammad Ibrahim sold out .06 decimals of land vide Kabala No. 2415 dated 08.02.1981 to defendant No. 19. Sultan Ahmed and Kabir Ahmed sold out .04 decimals of land to Monir Ahmed vide Kabala No. 2446 dated 09.02.1981 and handed over the possession. After jointly selling the land with Sultan Ahmed, Kabir Ahmed sold out .08 decimals of land to husband of the defendant No. 22 Abu Reza Mahmud vide Kabala No. 3080 dated 12.02.1981, 06 decimals of land to the petitioner vide Kabala No. 19255 dated 28.11.1981, 02 decimals of land to Khurshed Alam vide Kabala No. 19214 dated 30.11.1981, .04 acres of land to Kabir Ahmed Saodagor vide Kabala No. 19962 dated 06.12.1981, 02½ acres of land to Md. Mohsin vide Kabala No. 19964 dated 07.12.1981, .03 acres of land to Morium Begum vide Kabala No. 20779 dated 07.12.1981, .06 acres of land to the defendant No. 26 Mohammad Shahjahan vide Kabala No. 19927 dated 08.12.1981, .02½ acres of land to Md. Yasin vide Kabala No. 19963 dated 11.12.1981 and .06 acres of land to defendant No. .30 Abul Kalam Azad and handed over the possession. Mafiza Khatun daughter of Mohammad Ibrahim sold out .05 acres of land to defendant No. 24 Sarwar Zamal vide Kabala No. 4264 dated 14.02.1981 and handed over the possession. Rabeya Khatun sold out .06 acres of land out of his .10 acres to Gias Uddin Mridha vide Kabala No. 20784 dated 23.12.1981 and .04 acres of land to Kabir Ahmed Saodagor vide Kabala No. 20782 dated 24.12.1981 and handed over the possession. Khurshed Alam sold out .02 acres of land to Gias Uddin Mridha vide Kabala No. 14481 dated 18.08.1983 and handed over the possession. Kabir Ahmed Saodagor sold out .08 acres of land to the plaintiff vide Kabala No. 1439 dated 24.05.1986 and handed over the possession.
The purchasers and heirs of Md. Ibrahim were in ejmali possession of land described in schedule A as aforesaid and constructed pucca structures thereupon and for development of own portions entered into an amicable partition at metes and bounds in 1986 and the co-shareres constructed boundary walls covering their portions and they also prepared a sketch map of the partition.
That as per the map of the land of the plaintiff attracted the land of the Kabala dated 28.11.1981 has been shown in Sl. No. 9 and land of Kabala dated 24.052006 has been shown in serial No. 12. Moreover the plaintiff got the land has been shown in serial No. 8 and Mr. Khurshid Alam predecessor of defendant Nos. 1-7 has got his saham in serial No. 10 of the map .08 decimals of land of purchaser Gias Uddin Mridha has been shown in serial 5 which is sold to the plaintiff and defendant Nos. 27-29 vide Kabala No. 329, 330 and 331 on 12.03.1994, .08 acres of land of purchaser Md. Mohsin, Yeashin and Morium Begum has been shown in serial No. 11 vide Kabala Nos. 1345, 1346, 1347 and 1348 on 02.12.1993 to defendant Nos. 20-23.
That the purchaser Monirul Haque Bhuiyan sold his .06 decimals of land shown in the map in serial No. 2 on 16.10.1995 vide Kabala No. 703 in favour of the defendant No. 20. The plaintiff with the permission of defendant Nos. 20-23 constructed boundary wall in the disputed Kha schedule land and also enjoying possessions of the land under serial No. 12, defendant Nos. 19, 20, 25, 8-18 plaintiff and the defendant Nos. 27-29, 26, 30, 24, 1-7, 20-23 with the prior permission of the land shown in serial No. 1 (defendant No. 19), 2 (defendant No. 20), 3 (defendant No. 25), 4 (defendant Nos. 8-18), 5 (plaintiff and defendant No. 27-29) 6 (defendant No. 26), 7 (defendant No. 30), 8 (defendant No. 24), 10 (Khurished Alam predecessor of 1-7), 11(defendant Nos. 20-23),9 (plaintiff) and 12 (plaintiff).
The defendant Nos. 1-7 got the land described in serial No. 10 of the map after the death of their predecessor Mr. Khurshed Alam. Plaintiff is an employer of Forest Department of the Government. He came to the locality time to time from his work place to personally take care of his properties including the schedule ‘Kha’ property. While serving at Kare Hat under Mirersorie being transferred there in December 1996, he went to the suit land on 14.02.1997 and found that the defendant Nos. 1-3 illegally entering into the ‘Kha’ schedule land under the title and possession of the plaintiff mobilizing construction materials and cutting earth for construction wall. Being asked by the plaintiff defendant No. 1 stated that their father purchased the ‘Kha’ schedule land and while enjoying title and possession started construction work. Plaintiff told respondent No. 1 that his father has not purchased the land under serial No. 9 instead he was purchaser of the plot under serial No. 10 and subsequently the plaintiff filed the suit for declaration as well as recovery of khass possession and own the alongwith allegation in their plaint.
That the defendant Nos. 1-7 contested the suit by filing written statement denying all the materials allegation of the plaint and stating inter-alia that the suit is not maintainable and it was further stated that which is possessing by the defendant are the purchased land and he denied the possession of the plaintiff. It was further stated that the suit was not maintainable want of partition as because the defendant are of co-sharer of the said khatian including other allegation there in their written statement. Thereafter the learned trial Court pass an order to inspect the land in question through an Advocate Commissioner who after holiding inspection submitted report which is annexed with the application as Annexure A at the time of trial the plaintiff adduced their evidence in support of their case and on the other hand, the defendant adduced evidence including the documentary evidence from both the sides and after taking evidence from the citation and perusal the record the trial Court was pleased to decree the suit and against which the defendant as appellant preferred title appeal and on hearing the learned lower appellate Court was pleased to allow the appeal on the ground that the land in question was not specific and further reason that the suit was not maintainable due to want of partition and against the said judgment and decree the petitioner preferred this present revisional application and obtained the present rule.
Mr. Md. Shamsul Haque Bhuiyan, the learned Advocate appearing on behalf of the petitioner submits that the learned lower appellant Court failed to consider the specific possession of the plaintiff petitioner and thereby it committed an error of law resulting in an error in his decision occasioning failure of justice. He further submits that the rule may be absolute.
Mr. Md. Afzal Hossain, the learned Advocate appearing on behalf of the opposite parties submits that the specification of the land neither in the plaint nor in the report which was exhibited in where the title of both the parties are admitted but land of the plaintiff was not ascertained neither by the plaint nor by the advocate commissioner therefore the sketch map prepared by the advocate commissioner was not proper not in accordance with rules and even he has no experience about the survey of the land in question therefore on the basis the said report it is not safe to pass any judgment. He lastly submits that the rule may be discharged.
Heard the learned Advocate, perused the materials on record as well as survey report itself which is annexed as Annexure A and the learned Advocate who after making inspection submitted his report categorically stated that he was not a survey knowing advocate and he did not prepared the sketch map though there is mentioning about a sketch map in the averment of the plaint practically we do not find any such sketch map along with the plaint that the advocate commissioner also did not prepared any sketch map for the land in question. The relevant portion of the advocate commissioner’s report is as under,
“পরিদর্শনের প্রস্তাবিত বিষয়াদি ও ফলাফলঃ-
বিষয়ঃ- ১) আর্জির সহিত সংযোজিত কলমি নক্সায় প্রদর্শিত মতে বিরোধীয় দাগের সম্পত্তি বিভক্ত এবং সীমানা দেওয়াল দ্বারা উহা পরিচিহ্রিত কিনা? উত্তর হ্যাঁ হইলে ১-১২ নং প্লটের আয়তন সহ সীমানা দেওয়ালের বিস্তারিত বর্ণনা প্রদান করুনঃ
ফলাফলঃ হ্যাঁ, বাদীর বিজ্ঞ কৌশুলীর সরবরাহকৃত কলমি নক্সায় প্রদর্শিত মতে বিরোধীয় দাগের সম্পত্তি বিভক্ত এবং সরেজমিনে পাকা সীমানা দেওয়াল দ্বারা পরিচিহ্রিত করা আছে।”
This material fact disclosed that there was sketch map along with the plaint but practically there is no sketch map and on the other hand the commissioner report speaks that the sketch map was supplied by the learned Advocate which is totally contrary.
It further appears that he did not prepared the sketch map by himself and the learned Advocate for the petitioner brought are notice that the writ was delivered by the learned Advocate only to make inspection without preparing any sketch map by the advocate commissioner. After considering the report of the advocate commissioner along with the evidence on record as discussed above we find that the preliminary point to determine the land in question is quite absurd and in such facts and circumstances to determine the preliminary point as to attraction of the plaintiffs land with the land in question is required to determine and for which it requires to make inspection by a survey knowing advocate commissioner and it also is required to prepare the sketch map with index.
It appears that since the title of the parties are admitted but the possession as well as the position of the land is required to be determined by the Court and that is why it requires to make an inspection of the suit land by a well survey knowing lawyer who after holding inspection prepared the sketch map and index and submitted report in accordance with law to determine the preliminary point in question along with other evidences by the Court.
In view of the above facts and circumstances, we find that the ends of justice would be met if the suit is send back on remand to determine the preliminary point after appointing a survey knowing advocate commissioner for holding inspection and report along with map and index in accordance with law.
In the result, the rule is made absolute without any order as to costs. Both the judgment and decree dated 21.05.2008 and 28.05.2008 passed in the Other Appeal No. 361 of 2006 by the Additional District Judge, Bankruptcy Court, Chittagong and the judgment and decree dated 21.06.2006 and 28.06.2006 respectively passed by the Joint District Judge, Environment Court, Chittagong in Other Suit No. 02 of 2006 are hereby set aside and the suit is send back on remand to the court of the joint District Judge, Environment Court Chittagong and the trial Court is directed to appoint a survey knowing advocate commissioner for holding inspection and report along with sketch map and index in accordance with law and the learned Judge is also directed to trial the suit thereafter in accordance with law within 04 (four) months from the date of receipt of this judgment and order of this court.
Send down the lower Court records together with a copy of the judgment and order of this court to the court below at once.