Case No: Civil Revision No. 3222 of 2007
Judge: Sharif Uddin Chaklader,
Court: High Court Division,,
Advocate: Mr. A. K. M. Nazrul Islam,,
Citation: 1 LNJ (2012) 362
Case Year: 2012
Appellant: Helena Bewa and others
Respondent: Md. Mohshin Ali and others
Subject: Land Law,
Delivery Date: 2011-03-21
(Civil Revisional Jurisdiction)
|Sharif Uddin Chaklader, J.
Helena Bewa and others.
Md. Mohshin Ali and others
Order VII, rule 11
Limitation Act (IX of 1908)
The exchange deed was registered on 19.09.1976 when the cause of action was shown on 19.08.1976. It can safely be said that the cause of action as shown by the plaintiff is not correct , rather , it is false and also that S. A. khatian has been finally published in 1970 and hence the cause of action having not been proved the suit is barred by limitation.… (17)
Code of Civil Procedure (V of 1908)
Order I, rule 10
Whether the Deputy Commissioner had authority or jurisdiction to execute and register the exchange deed in between the parties , before registering the same whether he has consulted S. A. and R.S. Khatian , whether the power of attorney was genuine or not are to be resolved in the suit for which the Deputy Commissioner is a necessary party to the suit.…(16)
Transfer of property Act (IV of 1882)
As the defendant got decree against Monimohan and such decree is still in existence. Neither plaintiff nor his predecessor challenged the said decree. Plaintiff has no right, title and interest in the suit property by exchange deed even if it is found that the exchange is genuine, the plaintiffs have no ownership of the suit property because of such decree has extinguished the plaintiffs’ title....(19)
Abdul Rashid vs. State , 27 DLR(AD)1; Abdul Quddus vs. State, 43 DLR (AD) 234; State vs. Khadem Mondal, 10 BLD (AD)228; Hajee Khab-iruddin Ahmed vs. Md. Salam Kabir, 34 DLR (AD)-271; Sajeda Khatoon vs. Mostafa Khatoon and others, 28 DLR-221; Ibrahim vs. Surendra Kumar Dhar, 9 DLR-16; Atikullah and others vs. Zafala Begum and others, 54 DLR (AD)74; Md. Abdus Sattar and others vs. Lalon Mazar Sharif and Seba Sadar, 24 BLD(AD)125; Dr. Razia Khatun vs Bhanu Guha and others 1986 BLD(AD) 135; Abdus Sobhan vs. Anwar Rahim and others, 53 DLR(AD)110 ref.
Civil Revision No. 3222 of 2007
This rule by the defendants directed against judgment and decree dated 14.5.2007 passed by the learned Joint District Judge, 1st Court, Natore allowing Title Appeal No. 152 of 1996 thereby decreeing Other Class Suit No. 21 of 1994 on reversing those dated 23.10.1996 passed by the learned Senior Assistant Judge, Singra, Natore.
2. Plaintiffs instituted the aforesaid suit against the defendant-petitioners for declaration of plaintiff’s 16 annas title over the suit property.
3. It is the case of the plaintiffs that the suit land originally belonged to Hayetullah Sarker and Mojo Fakir, they sold the suit land to Md. Abdul Jabbar and Md. Abdur Rashid by deed on 19th Joishtha, 1315 B.S, who sold the suit land to Razzak Munshi, father of the defendant Nos.1 and 2. Subsequently Razzak Munshi transferred the suit land to Sree Mohini Mohan Lahiri who possessed the same but C.S. record was prepared wrongly in the name of Abdul Jabbar Munshi, Abdur Rashid Munshi, Moyen uddin Munshi, Mojibor Rahman Munshi inspite of that, Mohini Mohon possessed the suit land. Mohini Mohan died leaving 3 sons in Monomohan Lahiri, Monindra Mohan Lahiri and Upendra Mohan Lahiri and S.A. record was prepared in their names. During the continuation of their possess-ion, they proposed to the plaintiffs to make exchange the land with the land of the plaintiffs which is situated in India and they exchanged the land between them and on 11.9.1976 the Deputy Commissioner, Rajshahi gave registered title exchange kabala to the plaintiff vide kabala No. 31835 through Exchange Case No. 7 (Nato)75-76 but S.A. record was prepared in favour of the previous owner of the suit land and it was, further case of the plaintiffs that they borne in mind the mistake may be corrected during S.A. operation but S.A. record also prepared wrongly and collusively in the names of the defendants, hence the suit.
4. The petitioners, who are defendants Nos.1, 3 and 8 make out their case in written statement, that disputed holding of C.S. khatian No.30/31 was recorded in the name of Hayetullah and Mojo Fakir under the superior landlord who sold the suit land by separate kabalas to Abdul Jabbar Munshi, Abdur Rashid Munshi, Moyenuddin and Mojibur Rahman. Rojek Masud father of the aforesaid 4 brothers was the owner of 16 annas share of C.S. khatian No. 20. Rojek Mahmud with his 4 sons started permanently residing at village Kaichar, Bogra and possessed and enjoyed the suit property giving borga to the local people. Local people hatched conspiration to take the suit land as lease from the landlords, so Rojek Mahmud and his two sons, Abdul Jabbar and Abdur Rashid Munshi create benami kabala infavour of Mohini Mohan Lahiri only to protect the suit land. Mohini Mohan and his heirs as per said kabala did not claim the suit land at no point of time. C.S. record was prepared within the knowledge and co-operation of Mohini Mohan. After the death of Rojek Mahmud, total property devolved upon his 4 sons i.e. Abdul Jabbar, Abdur Rashid, Moyenuddin and Mojibor and they possessed the suit land as ejmali which caused some difficulties, so one of the son, Mojibur filed Partition Suit No.127 of 1959. The suit was finally decreed and each heirs of Rojek Mahmud took possession through Court. During possession and enjoyment of the suit, one of the son, Abdul Jabbar died leaving heirs who sold their share, 1 anna to Ashraf Ali and delivered possession. C.S. khatian No.30/31 was prepared in the name of 4 sons of Rojek Mahmud and they possessed the same by paying rent to the government and during their possession they sold their shares to others. In R.S. survey the suit property was recorded in the name of Mojibor Rahman, Dr. Moyenuddin and in the name of the heirs of Abdul Jabbar and purchaser, Haji Ashraf and Abdur Rashid in R.S. Khatian No. 68/79/70 /81/94/97. Tenant of C.S.No.30/31 khatian, Mojibor Rahman and Dr. Moyenuddin gifted 1.32 acres of land to Sukan Gari Madrasha by registered kabala dated 5.6.1958. S.A. khatian was prepared in the name of 4 sons of Rajek Masud but some portion of the suit land was incorporated in S.A. khatian No.34 in the name of sons of Mohini Mohan Lahiri which was wrong. One son Moni Mohan filed suit by using one Asmat Ali Fakir against the defendant under section 145 of the Code of Criminal Procedure but in vain. The suit property was sold by the heirs of Rojek Mahmud to several persons. The exchange deed and registered kabala created by the plaintiff is false and fabricated as such the suit is liable to be dismissed.
5. Learned Assistant Judge, Singra, Natore framed 8 issues, issue No.1, whether the plaintiff has cause of action and locus standi for filing the suit, issue No.2, whether the suit is barred by limitation, issue No.3, whether the suit is bad for defect of parties, issue No.4, whether all the properties have been brought into hotchpotch and whether the suit is in proper form, issue No.5, whether the suit is barred by estoppels, waiver and acquisition and whether the plaint is vague, issue No.6, whether the plaintiffs have title and possession over the suit land, issue No.7 whether the suit has been filed properly and court fees have been properly paid and issue No.8, whether the plaintiffs are entitled to any other relief or reliefs.
6. Learned Assistant Judge dismissed the suit and in dismissing the suit learned judge found that plaintiffs have no locus standi to file the suit and the suit is bad for defect of parties as Dr. Moyenuddin was not made a party, the suit is barred by res-judicata and the plaintiffs failed to prove his possession over the suit property.
7. Title Appeal No.152 of 1996 was taken by the plaintiffs. The appeal was heard by the learned Joint District Judge who by the impugned judgment allowed the appeal and on setting aside the decree of the trial court decreed the suit finding that exchange was made correctly, the suit is not bad for defect of parties and plaintiffs have able to prove their possession over the suit property.
8. Mr. A.K.M. Nazrul Islam, learned Advocate appearing for the defendant-petitioners, submits that, Court of appeal below was wrong in not holding the suit is bad for defect of parties as Deputy Commissioner was necessary party and in absence of whom, factum of exchange can not be correctly assessed and decide. Learned Advocate further submits that under section 115(1) of the Code of Civil Procedure High Court Division although has limited power to set aside findings of fact arrived at by the learned Judge Court of Appeal below but when it is found that learned Judge of the Court of Appeal below misread the evidence and mis apply the law and thereby arrived at a contrary finding arrived at by the learned Judge of the trial Court then this Court have jurisdiction to set aside the judgment and decree passed by the Court of Appeal below. Learned Advocate elaborate his submission as Court of Appeal below did not at all consider the exhibits filed by the parties and depositions of the witnesses and by cursory manner allowed the appeal. Learned Advocate on reference to the finding of the trial Court on exhibit 7 that unless the property vest in the government Deputy Commissioner has no authority to exchange the property to a citizen but learned Judge of the court of Appeal below without adverting the findings of the trial Court held exchange as made was made correctly which is not legal and not supported by any law. Learned Advocate further submits that trial Court on consideration of series of exhibits i.e. two registered kabalas finds that defendant has proved possession over the suit land and plaintiff did not produced any evidence to that effect as such, learned judge of appellate Court committed gross illegality in reversing the finding of the trial Court on the question of possession. Learned Advocate in support of his submission relied on the decision of Hajee Khabiruddin Ahmed vs. Md. Salam Kabir, 34 DLR(AD)-271, the case of Sajeda Khatoon vs. Mostafa Khatoon and others, 28 DLR-221, the case of Ibrahim vs. Surendra Kumar Dhar, 9 DLR-16, the case of Atikullah and others vs. Zafala Begum and others, 54 DLR (AD)74, the case of Md. Abdus Sattar and others vs. Lalon Mazar Sharif and Seba Sadar, 24 BLD(AD)125.
9. Mr. M. Yousuf, learned Advocate, appearing for the plaintiff-opposite parties, on the other hand, submits that, the decisions arrived at by the Court of Appeal below unless perverse is finding upon this Court under Section 115(1) of the Code of Civil Procedure. Learned Advocate further submits that the learned Judge of the Court of the Appeal below on consideration of the entire materials before him found that plaintiffs have able to prove the case by adducing oral and documentary evidence as such the judgment being passed on materials on record should not be disturbed by this Court. Learned Advocate on the question of defect of parties submits that when genuinity of registered deed calls in question whether Sub-Register is a necessary party to be impleaded in the suit as such Deputy Commissioner was not a necessary party in the suit as such the suit is not bad for defect of parties.
10. Let me proceed with my judgment.
11. Plaintiffs in order to prove their case filed exhibits, certified copies of the deeds No.2238 and 2237 dated 1.6.1908 as exhibit 1 and 1(ka), certified copy of deed No.2272 dated 10.3.1914 as exhibit 1(kha), 3 rent receipts as exhibits 2-2kha, certified copies of C.S. khatian Nos.20, 30, and 31 as exhibits Nos.3 – 3(B). Certified copies of S. A. khatian Nos. 56 and 34 as exhibit Nos.4 – 4(1), certified copies of R.S. khatian Nos. 14, 68, 79, 80, 81 and 97 as exhibit Nos. 5 – 5(V), certified copy of the order dated 14.3.1973 passed in Execution Case No. 2 of 1970 as exhibit No.6 and exchange deed No.31835 dated 119.1976 as exhibit No.7. Before I enter into the merit of the case I find the documents exhibited by the plaintiffs are all in certified copies.
12. Defendants exhibited certified copies of C.S. Khatian Nos.30, 31 and 20 as exhibit Nos.A to A2, original copy of S.A. khatian Nos.56, 70, 71 and 34 as exhibit Nos.B – B(3). Original copy of R.S. khatian Nos.14, 68, 79, 80, 81, 97 as exhibit Nos.C- C(5), original copy of R.S. khatian Nos.22, 24, 25, 26, 200 and 201 as exhibit Nos. D – D(5), 14 recent receipts of Government as exhibit Nos.E – E(13). The plaint, decree and commissioner report of Partition Suit No.127 of 1959 as exhibit Nos.F-F(2), the application, possession certificate and commissioner report of Execution Case No.10/61 as exhibit Nos.G-G(2), certified copies of the plaint, written statement and orders in Case No.231/Cros/59 as exhibit Nos.H-H(2), the certified copies of the application, plaint and written objection of Criminal Case No.65 as exhibit Nos. I – 1(2). The notice address to the Deputy Commissioner Case No.91/66 as exhibit Nos. J- J(1), the order sheet of the order dated 24.10.66 in Case No.91/66 as exhibit No. J(2), the certified copy of the deed No.10106 dated 5.6.68 as exhibit No. K, the original kabala No.467 dated 8.1.63 as exhibit No. L. The original kabala No.468 dated 9.1.63 as exhibit No. M, the original heba beel deed No.465 dated 8.1.63 as exhibit No.N, the original registered kabuliat in fvour of P.W.2 and others 22 in numbers as exhibit Nos. O – O21. 3 unregistered kabuliyat Nos.62, 63 and 45 as exhibit Nos. O(22)- O(24), one copy of dakhila as exhibit No. E, filed S.A. khatian No.33 and R.S. khatian No. 75 as exhibits Nos. E-E1.
13. Plaintiffs case is that they got the suit land by exchange. I have read the judgment of the Court of appeal below very minutely, I find that learned judge in deciding the appeal find that it is admitted possession that Hayatullah Sarker and Mojfakir were owners of the suit land who sold the suit land to A. Jabbar and A. Rashid and A. Jabbar Munshi, A. Rashid Munshi and Razzak Munshi sold the suit land to Mohini Mohan Lahiri, upto this, case of the parties are similar but learned judge left aside from deciding whether the plaintiffs have proved their case or not. Before discussing on the findings of the trial Court, learned judge of the appellate court was of the opinion that:
এই মোকদ্দমার তাদের উভয় পক্ষকেই তাহাদের স্ব স্ব দাবী প্রমান করিতে হইবে।
Thereafter learned judge left aside the plaintiffs case and observed that;
বিবাদীগনের দাবী যে আঃ জববার মুন্সী ও আঃ রশিদ মুন্সীর সহিত তাহাদের দুই ভাই ময়েন উদ্দিন ও মজিবর রহমান নালিশী সম্পত্তি খরিদ করিয়াছেন। এই মোকদ্দমায় বিবাদীপক্ষ উপরোক্ত দাবী কোন মৌখিক ও দালিলিক প্রমান দ্বরা প্রমান করিতে সমর্থ হন নাই।
Learned judge thereafter suddenly jumped on exhibit-7and without discussing the contends of the documents just in one line held that:
উক্ত বিনিময় দলিল হইতে ইহা সুষ্পষ্ট ভাবে প্রমানিত হয় যে, নালিশী সম্পত্তি বাদী আঃ গফুর বিনিময় সুত্রে প্রাপ্ত হইয়াছেন।
Learned Judge thereafter on the findings of the trial Court observed that trial Court believed the exchange deed but did not give any findings as to genuinity of the deed make and comment as-
বিজ্ঞ নিমণ আদালতের উপরোক্ত বক্তব্য সমুহ আদৌ সঠিক নহে বলিয়া আদারত মনে করে। কেননা বর্তমান মোকদ্দমাটি বিনিময় কেসের কার্যক্রমের বৈধতাকে চ্যালেঞ্জ করিয়া আনয়ন করা হয় নাই।
Learned Judge failed to consider that the entire case of the plaintiffs rests on exchange deed. Learned Judge considered possession of the plaintiffs and considered the depositions of P.Ws.1 to 5 and also observed P.Ws.1 to 5 and particularly that P.W.2 in his examination in chief stated that he saw plaintiffs possessed the suit land, P.w.3, in his deposition stated that he borga cultivated dag No.21 under the plaintiffs, p.w.4 in his deposition stated that he borga cultivated dag No.118 and P.W.5 in his deposition stated that he cultivated dag No.115 of the plaintiffs. Thereafter learned judge without discussing the depositions of the witnesses for the defendants held as:
পক্ষান্তরে বিবাদীগণের জবাবরে বর্ণনা হইতে দেখা যায় যে, বিবাদীগন নালিশী মৌজায় বাস করেন না কাজেই বিবাদীগনকে এই মোকদ্দমায় তাহারা নলিশী সম্পত্তি বিভাবে ফরস করেন তাহা প্রমান করিতে হইবে।
Learned Judge disbelieved 22 kabuliats, filed by defendants as:
কেননা কেহ কোন কবুলিয়ত সম্পাদন ও রেজিষ্ট্রী করিয়া দিলে তাহা কোথায় করা হইয়াছে তাহা অবশ্যই বলিতে পারিবেনা।
And learned Judge further observed as:
উক্ত কবুলিয়ত গুলি ইং ৬৬ সালের কবুলিয়ত কিন্তু উক্ত কবুলিয়াত গুলির মেয়াদ ইত্তীর্ণ হওয়ার পর বিবাদী পক্ষর উপস্থাপিত সমর্থকারী স্বাক্ষীগনকে কত তারিখ হইতে নালিশী জমি বর্গা দিয়েছেন এবং কে কোন বিবাদীর অধীনে কতটুকু জমি বর্গা দিয়াছেন এই বিষয়গুলি বিবাদীগনের স্বাক্ষীগরেন সাক্ষ্যদান হইতে সুষ্পষ্ট নহে।
On these observations learned Judge held that plaintiffs are in possession of the suit property.
14. On the question whether the suit is barred by limitation and bad for defect of parties and on waiver and acquiescence, learned Judge just in one line find that:
যাহা আদৌ আইনানুগ হয় নাই। কেননা এই মোকদ্দমার বিনিময় দলিলের দাতা ডেপুটি কমিশনার রাজশাহী আদৌ অবশ্যকীয় পক্ষ নহে এবং মালিকের কারণ উদ্ভুব হওয়ার তারিখ হইতে বাদীপক্ষ যথাযথ সময়েরে মধ্যে মোকদ্দমাটি আনায়ন করিয়াছেন। Learned Judge on these findings decreed the suit.
15. Let me find on reference to the exhibits whether findings of the learned judge of the Appellate court, master of fact and final Court are justified or not.
16. Exhibit-7 is the exchange deed dated 11.9.76. It appears that this deed was executed by the Deputy Commissioner, Rajshahi. On consi-deration of exhibit-7 it appears that in this exhibit-7 some lands of Dakshmin Sukhan gari under J.L. No.226, S.A. khatian No.33, dag Nos.1, 28, 354, 232, 228 in total 1.53 acres of land have been impleaded but these lands have not been properly mentioned or described properly. Next, I find in exhibit-7 that in total 5.61 acres of land including in the suit and some other non suited land have been included and Deputy Commissioner by his order registered the deed of exchange. In registering the exchange deed questions relating to registration envies i.e. whether Deputy Commiss-ioner has authority to register and execute the exchange deed in between the civilian, before registering exchange deed whether the Deputy Commissioner consulted S.A. and R.S. record, whether the power of attorney was genuine or not and whether Deputy Commissioner has jurisdic-tion to register exhibit-7 as such I am of the view that Deputy Commissioner is a necessary party. From exhibit Nos.4-4(1), S.A. khatian Nos.56 and 34 it appears that in the remark column it has not been recorded plaintiffs have possessed the suit property. It is the case of the plaintiffs that R.S. khatian in preliminary form recorded the name of the plaintiffs but from the aforesaid exhibits filed by the plaintiffs I do not find any such exhibits from the side of the plaintiffs. On consideration of the depositions of the plaintiff's witnesses particularly from P.W.1 it appears he stated that he did not know when and in what year R.S. khatian was prepared and also admitted that he did not file R.S. khatian. P.W.1 i.e. plaintiff further stated that he did not know anything about revenue. P.W.1 also stated that:
P.W.1 further stated that এস/এ এ্যাক্ট এর ১৯(১), ১৯(২) ধারামতে আপত্তি দিয়াছেন কিনা তার মনে নেই। During pendency of the suit and continuation of the deposition of P.W.1, P.W.1 died and P.W.6, his son, deposed that R.S. record started in 1966 and finally recorded in 1970 and at that time he was 18 years old. He further deposed that his father collected the copy of R.S. khatian and also P.W.6 admitted that his father, P.W.1 knows about the recording of S.A. khatian but after knowing the fact that khatian has not been prepared in the name of his father, why his father did not file any case under section 19(1) -19(2) of the State Acquisition and Tenancy Act for correction of the same, he could not say. Exhibit 5 series are R.S. khatian dated 20.5.70, 5.8.70, 30.5.70, 2.5.70, these are the printed form which are found in possession of the plaintiff i.e. P.W.1 and admission of P.w.6, son of P.W.1, proved that cause of action as shown on 19.8.1976 is false. On a reading of the cause of action it appears that plaintiff does not stated from when his title and possession was threatened.
17. Exhibit 7 is exchange deed, registered by the Deputy Commissioner on 19.9.76 as such cause of action shown on 19.8.76 is totally false as before registering the title deed no one can had any cause of action for title as it was not in his domine. It safely said that cause of action shows by the plaintiff was not correct one and false and also that S.A. khatian has been finally published in 1970, and since cause of action has not been proved this suit is barred by limitation.
18. On a reading of exhibit 7 it appears that by this exchange deed the land of S.A. khatian Nos.33, 56 and 34 has been exchanged but in the plaint, plaintiff filed the suit for 14 dags and 57 decimals of land of dag No.118 has not been claimed, plaintiff claimed 5.90 decimals of land from dag No.115 but in dag No.115 it is clear the quantum of land is 5.68 as such plaintiffs claim .22 decimals of land more which has not been exchanged through exchange deed. It also appears from exhibit 7 that in dag No.10/402 quantum of land was 1.26 decimals but plaintiff claimed only .53 decimals of land. It also appears from exhibit 7 that in dag No.116 there is 1.33 acres of land but plaintiffs in the plaint claimed from dag Nos.50,51,52, 180, 184, (23+10+62+63+66) in Total 2.54 acres of land but it fact plaintiffs claimed 1.33 decimals of land. There is no explanation for the remaining land. It also appears from exhibit 7 that part of some dags has been exchanged but there was no specification for the same.
19. On the question whether Deputy Custodian is a party in the suit learned judge of the trial Court consider memo No.10/73/710(19) dated 29.11.1973 wherein before 6.9.65 all exchange cases were divided in two classes i.e. exchange deed before 10.10.64 which was enemy property and exchange deed after 10.10.64 to 5.9.65 which was land under Disturbed Person Ordinance. For the first class, if the Assistant Custodian/Superintendent (land and buildings) be satisfied then he could register the exchange deed and give certificate to that effect. But for the 2nd class exchange deed, if Deputy Commissioner satisfied then on behalf of Government he promulgate a notification for 'confiscation' of the land and will settled the land to the landless people. On consideration of exhibit-7, the learned Assistant Judge found that this land belonged to the category/class of No.1 where Deputy Commissioner has no authority to register the same. Learned Judge of the trial Court found on exhibit-7 that it was registered by the Deputy Commissioner, Rajshahi in violation in the order under memo No.1108(18) E.P.236/70 dated 4.5.70 and memo No.6-10/73/710(91) dated 29.11.73. It also appears that exchange land has not been fallen either of the category of abandoned property or enemy property. Learned Judge also found from exhibit J series that in Case No.91/66 government did not issue any notice to the defendant for relinquishing the said land as no notice has been served upon the defendants and the case was dismissed. Exhibits C and D, are S.A and R.S khatian. It appears that the suit land is not included either as enemy property nor as vested property as such government does not acquire any title over the suit land. It appears from the depositions of P.W.1 that he did not know about the government land. Plaintiff in his deposition stated that he came to this land in 1961/62 and he can not say about C.S to S.A. operation and who possessed the suit land. Before C.S khatian, the suit land was homestead of the predecessor of the defendants. P.W.1 further stated that he knew Monimohan who went to India but he did not prove that fact. In cross-examination, P.W.1, admitted that in khatian No.73 he has no land. But from exhibits Nos.2, 2(ka), 2(kha) it appears that he paid rents for 7.14 decimals of land of khatian No. 73 although khatian No. 73 does not belonged to him. P.w.1 in his deposition does not state whether defendants got decree against Monimohan, what is the result of the case filed under section 144 of the Code of Criminal Procedure, whether government admitted in Case No. 91/96 that suit land belonged to the defendant. P.W.3 in his examination in chief frankly stated that on the request of plaintiff he came to depose falsely. It appears from the deposition of P.W.4 that he borga cultivated the land of dag No.118 on behalf of the plaintiff. He could not say other dag Nos. of the adjacent land. P.W. 5 does not specifically state the quantum of land of dag No. 115. P.W. 5 stated that he got kabuliyat from the plaintiffs and he delivered crops to the plaintiffs but he did not produce any paper before the Court. Considering exhibits G – G(2) it appears that through Execution Case No.18/61 defendant got decree against Monimohan and decree is still in existence, neither plaintiff nor his predecessor challenge the decree. Since the decree stand plaintiff has no right, title and interest of the suit property by exchange deed. Even if it is found to be genuine then also plaintiffs have no ownership of the suit property as by the decree of the court title of the plaintiffs have been extinguished.
20. Now the decisions filed by the learned Advocate for the petitioners. In the case of Md. Abdus Sattar and others vs. Lalon Mazar Sharif and Seba Sadan committee and others, 24 BLD (AD)-125 it has been held in paragraph 6 that the trial court after giving finding on all the 5 issues framed in the suit including the maintainability of the suit decreed the suit in favour of the plaintiffs and declared right, title, interest and possession of the plaintiffs in the suit land. The appellate court it appears without adverting to the findings given by the trial court reversed the findings of the trial court and sent back the suit on remand for trial afresh without assigning any cogent reason. It is needless to mention that remand can not be allowed as matter of course to fill in the lacuna of the case of any party. It appears that the appellate court relied upon inadmissible evidence namely report of the Advocate commissioner since the Advocate commissioner was not examined by the parties. It is to be mentioned here that the report itself of the Advocate Commissioner is not evidence, but if the Advocate Commissioner deposes on oath before the court then the same is evidence. It further appears that the appellate court mainly relied upon the evidence of P.W. 1 in coming to the conclusion that the defendants have homestead in the suit land and hence they are in possession of the same.
21. In the case of Akitullha and others vs. Zafala Begum and other 54 DLR(AD) 74 it is held that in view of the clear finding of the trial Court regarding Hiba-bil-Ewaz as aforesaid we are of the view that this open remand order for a fresh decision in the suit allowing parties to adduce fresh evidence is designed to fill in the lacuna of the pleadings of the parties, which is not the intent and object of the order of remand contemplated under Order XLI rule 23 of the Code of Civil Procedure.
22. In the case of Dr. Razia Khatun vs Bhanu Guha and others 1986 BLD(AD) 135, it is observed that “The long line of judicial decision is to the effect that the remand order should be avoided as far as possible and even the Privy Council in some cases observed that indiscriminate order of remand tantamounts to shirking the responsibility.”
23. In the case of Abdus Sobhan vs. Anwar Rahim and others, 53 DLR(AD)110, it is held that we have gone through the judgment of the trial Court as well as of the High Court Division. It appears that the trial Court decreed the suit on consideration of the evidence on record and it was found that there is no truth in the defence version of the case. The trial Court also found that there was no scope for service of summons of the earlier suit upon the predecessor of the present plaintiff and that the plaintiffs are in possession of the suit property but the appellate Court found that in collusion with the defense lawyer decree was obtained. It also found that illegality has been committed in not calling for the record of the earlier Title Suit No. 21 of 1968 over which the present suit has been filed. The appellate Court also found that defendant ought to have been given a chance to adduce evidence in support of their claim and for that matter passed the order of remand. But from the perusal of the record it appears that the present petitioner took no step for giving additional evidence before the appellate Court and also has not taken any step for calling for the record of the earlier suit. What the appellate Court did was nothing but giving an opportunity to the defence to fill up the lacuna which law has not permitted. No step was taken before the appellate court by the present petitioner to adduce additional evidence or to call for the record of the earlier disposed of suit. There is nothing on record to show that there was collusion in between the plaintiff and the defence Advocate. In such a situation the High Court Division rightly found that the suit could not be sent back on remand for filing up lacuna. We have considered the submission made by the learned Advocate for the petitioner but we find nothing to interfere with the judgment of the High Court Division. The learned Advocate failed to point out any legal infirmity in the judgment of the High Court Division which may call for our interference.
24. In the case of Ibrahim vs. Surendra Kumar Dhar, 9 DLR-16 it is held that 'on examination of the record discloses that there is hardly any substance in this contention. It appears that in 1937 the defendant Surendrakumar Dhar brought a suit being S. C.C. Suit No. 219 of 1937, against the plaintiff, Ibrahim, for recovery of his dues under a pro-note. The plaintiff was then away in Burma and summons was served by hanging at his village residence in the district of Chittagong. There was no appearance on behalf of the plaintiff on the date of the hearing of the suit, and the result was that it was decreed ex parte. Thereafter the decree was put into execution and the plaintiff’s homestead was brought to sale and purchased by the defendant himself on the 9th November, 1943. Then on the 20th March, 1947, the plaintiff brought this suit for setting aside the ex parte decree and the sale held in execution thereof alleging that the decree had been brought about by fraudulent suppression of summons, and the sale held in execution thereof had been brought about by causing suppression of all the execution processes including sale-proclamation. In a case like this, the plaintiff in order to succeed must prove how, when and under what circumstances the fraud was practiced, but he has hopelessly failed to discharge it. In the plaint we find general allegations of fraud, but it is well settled that general allegations, however strong may be the words in which they are stated, are insufficient to an averment of fraud. Mr. Hakim having failed to make any headway in this direction proceeds to challenge the legality of the decree on the ground that the mode of service as reported by the peon was not in accordance with the rule of Order 5 of the Code of Civil Procedure. The same point was broached before the Subordinate Judge and the learned Judge overruled it with the following observations.
‘But the question is whether under the circumstances of the present case it was sufficient Substituted service under Order 5, rule 20, C.P.C, might be adopted. In fact, in case of the execution proceedings one piece of processes was served under such special procedure. But it cannot be said as a matter of course that if the defendant be found absent, summons for him must be served under Order 5, rule 20, C.P.C. In the present case, the plaintiff had left his wife behind. Some arrangement for management of his affairs must have been made by him consequently the service of summons by hanging it up to his residence could not be regarded as insufficient. With his people the plaintiff was in communication then. It is only at a later stage that communication broke down due to war. Under such circumstances, the service by hanging up the summons to the residence of the plaintiff could not be regarded as insufficient and invalid. It might have been known that the plaintiff was away to Rangoon. But there is nothing to show that his address was known or could be known by the defendant. Consequently to serve the plaintiff personally with summons was hardly possible for the defendant. And to insist on personal service under such circumstances would be asking the defendant to perform impossibilities.
“Such being the position, I cannot see how the service of summons in the S.C.C. suit could be regarded as bad or insufficient. Apart from the question of irregularity or otherwise of the summons, fraud must be established before, in a suit like this, the decree in question can be set aside. For it is only in case of a decree obtained by fraud that a suit to set it aside lies; in the present case, there is nothing to show that the claim was false. Rather the half admission of the plaintiff suggests otherwise”
I do not find any lacuna anywhere in the finding Mr. Hakim contends that the service, not being in accordance with rule 17 of Order 5, Civil Procedure Code, is no service in the eye of law, and consequently the decree passed on the basis thereof cannot but be regarded as illegal and unenforceable."
25. Since I have decided on merit the judgment of the Appellate Court is not sustainable in law and dismissed the suit, the decision so referred are not required to be consider on the fact of the given case and the learned Advocate for the petitioner is advised to cite this in an appropriate case.
26. On an over all consideration of the entire materials on record I find substance in this rule.
27. In the result this rule is made absolute. No costs.
28. The judgment and decree passed by the learned Joint District Judge, 1st Court, Natore in Title Appeal No. 152 of 1996 is set aside. The Judgment and decree passed by the learned Senior Assistant Judge, Singra, Natore in Other Class Suit No. 21 of 1994 is restored.