Hosna Ara Begum & another Vs. Abdul Malik @ Mohiuddin, 4 LNJ AD (2015) 310

Case No: Civil Appeal Nos. 3-4 of 2006

Judge: Syed Mahmud Hossain,

Court: Appellate Division ,,

Advocate: Abdul Wadud Bhuiyan,Mr. Abdul Halim Chaklader,Mr. Syed Mahbubur Rahman,,

Citation: 4 LNJ AD (2015) 310

Case Year: 2015

Appellant: Hosna Ara Begum & another

Respondent: Abdul Malik @ Mohiuddin

Subject: Remand of a Case,

Delivery Date: 2014-09-02


APPELLATE DIVISION
(CIVIL)

 
Nazmun Ara Sultana, J
Syed Mahmud Hossain, J
Muhammad Imman Ali, J

 
Judgment on
02.09.2014
  Hosna Ara Begum and another
... Appellants
(In both the appeals)
Versus
Abdul Malik alias Mohiuddin
. . . Respondents
(In both the appeals)
 
Constitution of Bangladesh, 1972
Article 104
Code of Civil Procedure (V of 1908)
Order XLI Rule 33
The High Court Division was wrong in holding that the suit was remanded to the trial Court for doing complete justice. Only this Division can do complete justice under Article 104 of the Constitution and not the High Court Division. However, the order of remend made by the High Court Division was justified as contemplated under Order XLI Rule 33 of the Code of Civil Procedure. . . . (16)
 
For the Appellants (In both appeals) : Mr. Abdul Wadud Bhuiyan, Senior Advocate, instructed by Mr. Md. Nawab Ali, Advocate-on-Record.
For the Respondent No. 1: Mr. Abdul Halim Chaklader, Senior Advocate (Mr. Shamsul Haque, Advocate with him), instructed by Mr. Nurul Islam Bhuiyan, Advocate-on-Record.
For the Respondent Nos. 2(a-g): Mr. Syed Mahbubur Rahman, Advocate-on-Record.
For the Respondent Nos. 3-55: Not represented.

Civil Appeal Nos. 3-4 of 2006

JUDGMENT
Syed Mahmud Hossain, J:

Both the appeals by leave are directed against the common judgment and order dated 09.04.2003 passed by a learned Single Judge of the High Court Division in Civil Revision No. 4670 of 1997 and Civil Revision No. 556 of 1998 making the Rules absolute and sending the suit back to the trial court for re-hearing.
 
Both the appeals have been heard together and are being disposed of by this common judgment as they do involve common questions of laws and facts.

The facts, leading to the filing of these two appeals, in brief, are:
The appellant and 8 others as the plaintiffs instituted Title Suit No.71 of 1994 in the Court of Assistant Judge, Beani Bazar, Sylhet, seeking partition of 8.43 acres of land as described in the schedule to the plaint and claiming separate saham of 4.77 acres of land. Their case, in short, is that Sailendra Kumar Purskaystua was the owner of the suit land and by taking settlement from him Shayama Barayek became owner of the said land and while in possession, said Shayama Barayek died leaving behind two sons, namely, Ruhi Das Barayek, predecessor of the defendant Nos. 8-10 and Bad Barayek, predecessor of the defendant Nos.11. The S.A. Khatian having been prepared in the name of Ruhi Das Barayek only Bad Barayek got an order of correction of the S.A khatian in Miscellaneous Case No.96 of 1961 filed under section 19 (1) of the State Acquisition and Tenancy Act, 1950 in respect of his 8 annas share. Then Bad Barayek by a registered deed of sale dated 08.09.1998 sold 3.31½ acres of land to the plaintiff Nos.1,5-10 and also to Abdul Khaleque, the predecessor of the plaintiff Nos. 2-4. Ruhi Das Barayek left three sons, defendant Nos. 8, 9 and Chunu Barayek, father of defendant No.10. Defendant Nos.9 and 10 by registered deed of sale dated  04.07.1979 sold 1.35½ acres of land to plaintiff Nos.1 and 5-10 and defendant No.10 sold 10 decimals of land to  plaintiff Nos.1 and 3-10. Defendant Nos.8 and 9 executed registered Nadabinama dated 07.07.1978 in favour of plaintiff Nos. 1 and 5-10. Defendant No.8 in collusion with defendant Nos.1-7 created some collusive documents for which it became necessary to partition  the suit land according to share of the parties but the defendants, in spite of requests, did not pay any heed to the requests for partition. Hence the plaintiffs were constrained to file the title suit for partition of 8.43 acres of land as described in the schedule to the plaint. 

Defendant Nos.1, 5-7 and 12 contested the suit by filing written statement denying all the material statements made in the plaint. Their case, in short, is that the plaintiffs did not acquire any share in the suit land by purchase and that Sailendra, the original owner of the suit properties, settled the suit land to Ruhi Das Barayek in the years 1350 and 1360 B.S. and Bad Barayek had no share in the suit land. On 8.7.1975, Ruhi Das Barayek sold 75 decimals of land to defendant No.1 and on the death of Ruhi Das Barayek, his sons, defendant Nos. 8 and 9, sold 75 decimals of land on 06.06.1978 and also 75 decimal of land on 21.01.1979 to defendant No.1. They also sold 75 decimals of land to defendant No.2, who in his turn sold the same to defendant No.12. Defendant No.8 further sold 30 decimals of land on 27.10.79 to defendant No.5 and he also sold 2 kaders of land on 16.10.1079 to defendant Nos. 6-7.

The defendant No.31 also filed written statement and admitted settlement of the suit land in favour of Shayama Barayek as claimed by the plaintiffs but contended, inter alia, that on 01.04.1975 Ruhi Das Barayek entered into an agreement with him to sell 3.36 acres of land for Tk. 10,000/-. Later defendant No.31 executed ekarnama in favour of Ruhi Das stating that if Ruhi Das Barayek repaid the said amount within 8 years he would surrender the agreement of sale in favour of Ruhi Das Barayek, failing which, Ruhi Das Barayek would have to execute a deed of conveyance. Accordingly, on the death of Ruhi Das Barayek, his heirs and successors executed a registered deed of sale dated 22.o7.1984 in favour of defendant No.1 and he is in possession of those lands. However, ultimately the above defendant No.31 did not contest the suit. Defendant Nos.8 and 9 also filed Title Suit No. 311 of 1989, which was subsequently renumbered as Title Suit No.72 of 1994, praying for declaration that Nadabinama dated 07.07.1978 is illegal and the above suit was heard analog-ously along with Title Suit No. 71 of 1994.

The learned Assistant Judge, after hearing, by judgment and order dated 30.05.96 decreed Title Suit No.71 of 1994 in part granting the plaintiffs saham to the extent of only 1.48½ acres of land and dismissed Title Suit No. 72 of 1994.

The plaintiffs of Title Suit No.71 of 1994 then preferred Title Appeal No.110 of 1996 praying for full saham of 4.77 acres of land as claimed by them in their suit whereupon the defendants of the above suit filed cross objection. The plaintiffs of Title Suit No. 72 of 1994 also preferred Title Appeal No. 124 of 1996. Thereafter, in the above Appeal No. 110 of 1996, respondent Nos. 1 and 17 jointly submitted one compromise petition and respondent Nos. 6 and 7 submitted another compromise petition jointly with the plaintiffs and those were accepted by the order dated 08.10.1997. Respondent Nos.33 and 35 submitted separate applications to contest the above appeal but then respondent No. 35 prayed for separate saham on payment of court fee of Tk.100/-. Then after close of the argument in the above Title Appeal No. 110 of 1996, respondent No.33 on 19.10.1997 filed an application under Order XLI Rule 27 of the Code of Civil Procedure praying for allowing him to adduce additional evidence. The learned Subordinate Judge (now Joint District Judge), Third Court, Sylhet, by judgment and order dated 20.10.97 allowed Title Appeal No.110 of 1996 in terms of the compromise against respondent Nos.1,6,7 and 17 and on contest against the contesting respondents and   ex parte against the rest granting the plaintiffs full saham of 4.77 acres of land.
Thereafter, Abdul Malik alias Mohimuddin, non-contesting defendant No.29 in Title Suit No.71 of 1994 and respondent No.1 herein moved the High Court Division against the above judgment and decree dated 20.10.97 and obtained Rule in Civil Revision No. 4670 of 1997 and similarly non contesting defendant No.31 also moved the High Court Division and obtained Rule in Civil Revision No. 556 of 1998. The learned Single Judge of the High Court Division by the judgment and order dated 09.04.2003 made the Rules absolute sending the suit back to the trial court for fresh trial.

Feeling aggrieved by and dissatisfied with judgment and order passed by the High Court Division, the leave petitioners filed Civil Petitions for Leave to Appeal No.1234-1235 of 2003 before this Division and obtained leave in both the civil petitions on 22.08.2005 resulting in Civil Appeal Nos.3-4 of 2006.

Mr. Abdul Wadud Bhuiyan, learned Senior Advocate, appearing on behalf of the appellants in both the appeals, submits that the High Court Division remanded the suit to the trial Court although the order of remand does not come within the purview of Order XLI Rule 23 of the Code of Civil Procedure and as such, the impugned judgment delivered by the High Court Division should be interfered with. He further submits that remand cannot be given for filling up the lacuna of the case of defendant-respondent No.33 of Civil Revision No.4670 of 1997 and defendant Nos.35 of Civil Revision No.556 of 1988 to adduce evidence in respect of the suit property and as such, the impugned judgment should be set aside.

Mr. Abdul Halim Chalader, learned Senior Advocate, appearing on behalf of respondent No.1 in both the appeals, on the other hand, supports the impugned judgment and submits that the application for additional evidence which was filed under Order XLI Rule 27 of the Code of Civil Procedure was not disposed of by the trial Court and as such, the High Court Division rightly remanded the suit to the trial Court.

Mr. Syed Mahbubur Rahman, learned Advocate-on-Record, appearing on behalf of respondent Nos.2 (a-g) in both the appeals, on the other hand, supports the impugned judgment delivered by the High Court Division.

We have considered the submissions of the learned Advocates of both the sides, perused the impugned judgment and the materials on record.

The grounds, on which, leave was granted, are quoted below:

“The High Court Division erred in law in making the Rules absolute and sending 24 years old suits to the trial court for fresh hearing on mere asking of the respondents in the High Court Division at revisional stage without at all appreciating that a partition suit remains pending till passing of the final decree and remedy of the respondents lie in making prayer for saham in the trial court by production of documents and that provisions of Order 41 Rule 27 of the Code of Civil Procedure is not at all applicable in the facts and circumstances of the present case and that there is no finding that of the High Court Division to the effect that the judgment and decree dated 20.10.97 of the appellate Court is liable to be set aside for misreading or non reading of evidence or non consideration of materials on record or any other infirmity and that revisional applications were filed by the non contesting parties solely to delay the case and thereby to defeat justice and that the High Court Division committed error of law in failing to consider that it has no jurisdiction to do “complete justice” and it is only the Appellate Division, which has jurisdiction to do so under Article 104 of the Constitution of the People’s Republic of Bangladesh.”

The High Court Division came to a finding that defendant-respondent No.33 (the petitioner of Civil Revision No.4670 of 1997) was not aware of the suit and that at the relevant time he was abroad and after returning home he came to know of the appeal and filed an application under Order XLI Rule 27 of the of the Code of Civil Procedure and that the Court did not pass any order on that application. The High Court Division noticed that the appellate Court came to a finding that defendant-respondent No.33 could file a cross appeal/cross objection and that the appellate Court could exercise power under Order XLI Rule 33 of the Code of Civil Procedure for doing complete justice. The High Court Division further found that defendant-respondent No.35 filed written statement but did not contest the suit and also prayed for saham and that the plaintiff compromised with the vendor and had sold some portion of the suit land to the respondent No.33 and that this aspect was not taken into consideration. The High Court Division also observed that for doing complete justice, this matter be sent on remand for affording opportunity to defendant-respondent No.33 (petitioner of Civil Revision No.4670 of 1997) and respondent No.35 (petitioner of Civil Revision No.556 of 1998) to adduce evidence in respect of the suit property for their saham.

The High Court Division, was, however, wrong in holding that the suit was remanded to the trial Court for doing complete justice. Only this Division can do complete justice under Article 104 of the Constitution and not the High Court Division. Having considered all aspects of the case, we find that the order of remand made by the High Court Division was justified as contemplated under Order XLI Rule 33 of the Cod of Civil Procedure.

Accordingly, both the appeals are dismissed.  

Ed.