Khorshed Alam (Md) Vs. Hazi Mohiuddin and others, 13 BLC (AD) (2008) 72

Case No: Civil Petition for leave to Appeal Nos. 1163 & 1164 of 2005

Judge: Syed JR Mudassir Husain ,

Court: Appellate Division ,,

Advocate: A.S.M. Khalequzzaman,Mr. Mahmudul Islam,Mr. Mahbubur Rahman,,

Citation: 13 BLC (AD) (2008) 72

Case Year: 2008

Appellant: Khorshed Alam (Md)

Respondent: Hazi Mohiuddin and others

Subject: Procedural Law,

Delivery Date: 2007-02-18

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Syed JR Mudassir Husain CJ
Md. Fazlul Karim J
Amirul Kabir Chowdhury J
 
Khorshed Alam (Md)
.....................Petitioner
Vs.
Hazi Mohiuddin and others
……..............Respondents
 
Judgment
February 18, 2007.
 
Partition Suit
The High Court Division has rightly found that it is established that the 0.65 acre of land contained in the admitted document, the partition deed is consist of 0.14 acre of land of plot No. 124 and 0.51 acre of land of plot No. 125 and said 0.65 acre of land extends upto to “Mosque gali” and also has tailed with the “kha” schedule land as per boundary. But both the Advocate Commissioners had allotted ‘saham’ to the plaintiff and his other co-sharers beyond the said land. So, it is a fit case for remand ascertaining the ‘Kha’ schedule land as per boundary and to allot ‘saham’ to the plaintiff and his other co-sharers from the said ascertained 0.65 acre land by appointing an experience and good survey knowing Advocate Commissioner. … (17 & 18)
 
Lawyers Involved:
Mahmudul Islam, Senior Advocate, (with Probir Neogi, Advocate) instructed by Syed Mahbubur Rahman, Advocate-on-Record—For the Petitioner (In both the cases).
Khalilur Rahman, Advocate, (with Sirajul Haque Miah, Advocate) instructed by ASM Khalequzzaman, Advocate-on-Record—For the Respondent No. 2 (In Civil Petition No. 1163 of 2005).
Not represented—Respondent Nos. 1 and 3-36. (In Civil Petition No. 1163 of 2005).
Khalilur Rahman, Advocate (with Sirajul Haque Miah, Advocate) instructed by Chowdhury Md Zahangir, Advocate-on-Record—For the Respondent No. 3. (In Civil Petition No. 1164 of 2005)
Md Nazrul Islam Chowdhury, Senior Advocate instructed by Nurul Islam Bhuiyan, Advocate-on-Record—For the Respondent No. 1. (In Civil Petition No. 1164 of 2005).
Not represented—Respondent Nos. 2 and 4-38. (In Civil Petition No. 1164 of 2005).
Md Nawab Ali, Advocate-on-Record—For the Respondents.
Not represented—Respondents.
 
Civil Petition for leave to Appeal Nos.1163 & 1164 of 2005.
(From the judgment and order dated 16-4-2005 passed by the High Court Division in Civil Revision No. 2825 of 2003 and Civil Revision No. 2826 of 2003).
 
JUDGMENT
 
Syed JR Mudassir Husain CJ.
 
Delay is condoned.
 
Since these two leave-petitions by the same plaintiff arise out of a common judgment and order dated 16-4-2005 passed in two Civil Revision Cases being Civil Revision No.2825 of 2003 and Civil Revision No.2826 of 2003 filed by the same plaintiff having been heard together and disposed of by a common judgment by a Single Bench of the High Court Division making both the Rules absolute upon sending back the suit on remand to the trial Court for disposal and therefore, both the leave-petitions are heard together and disposed of by this single judgment.
 
2. Shortly stated the relevant facts are that the petitioner as plaintiff instituted Title Suit No. 306 of 1989 and subsequently was renumbered as Title Suit No. 62 of 1996 in the 4th Court of Assistant Judge, Dhaka for parti­tion of 0.65 acres of land out of 1.35 acres of Plot No. 125 of CS Khatian No.53 of Mouza Gajmahal, PS Mohammadpur, District-Dhaka claiming title and interest in 0.02 acre of land, stating to the effect, that 1.35 acres of land of CS Plot No. 125 appertaining to CS Khatian No.53 of Mouza 248 Gajmahal, PS Mohammadpur (at present PS Dhanmondi) along with lands of CS Plot Nos.124, 125,130 and 133 of CS Khatian No.53 originally belonged to Sk Dilbar, who died leaving behind his two sons Alimuddin and Nizamuddin and a daughter Maleka Bibi. Alimuddin sold his entire share to his brother Nizamuddin in 1931 by a regis­tered sale deed. Thereafter, Maleka Bibi by an amicable partition with her brother Nizam­uddin got 0.72 acre of CS Plot No.133 in her exclusive 'saham' and Nizamuddin got the remaining land of that plot and suit Plot No.125 with an area of 1.35 acres in his exclusive 'saham'. On 8-6-1936 Nizamuddin sold speci­fied 0.65 acre of CS Plot No. 125 to Chuni Jamadar and remained in possession of the remaining 0.70 acre of the said plot. Chuni Jamadar sold his purchased 0.65 acre of CS Plot No. 125 to Sk Noor Miah alias Nooruddin Sk and Sk Ashrafuddin on 10-10-1941 by a registered sale deed. Nooruddin died leaving four sons namely Md Hanif, Md Kashem, Md Tota Miah and Md Tareq, three daughters Dil Banu, Bedana Khatun and Zobeda Khatun and two wives Nasera Khatun alias Nasrun Nesa and Hasen Banu (defendant Nos. 6-14) as heirs. Dil Banu and Hasen Banu sold their shares to Md Hanif, Md Kashem, Md. Tota Miah, Md Tareq, Bedana Khatun and Zobeda Khatun on 13-12-4963 by a registered sale deed. Ashrafuddin died leaving behind two sons Abdul Matin and Ainul Haque and three daughters Rokeya Khatun, Angura Khatun and Phool Banu (defendant Nos. 15-18 and 30) as heirs. The heirs of Nooruddin and Ashraf­uddin amicably partitioned their properties amongst themselves including 0.65 acre of suit Plot No.125. Pursuant to the said partition Nooruddin's heirs got 17,089 square feet from southern part and Ashrafuddin's heirs got the remaining portion from northern part of the said 0.65 acre. Nooruddin's heirs sold 0.09 acre to defendant No. 28 on 15-6-1987, 0.02 acre to the plaintiff on 12-8-1987 and 0.09 acre to the plaintiff on 15-6-1987 by registered sale deeds. Ambia Khatun, mother of Umme Salma (pre­decessor of opposite party Nos. 1-10) pur­chased 0.70 acre of Plot No.125 from the heirs of Nizamuddin on 13-5-1955 and 4-12-1955 by two registered sale deeds (although quantum of the land was wrongly written in the sale deeds). The government acquired 0.45 acre out of 0.70 acre of suit Plot No.125 in LA Case No. 18 of 1949 and 47 of 1950-51 for 'Gajmahal Slaughter House and Tannery' and took over possession of the same from Ambia Khatun, who received compensation for the said acquired land. Ambia Khatun also gifted 7 kathas 5 chhataks of land to Hazaribagh Tannery Masjid from the said plot on 15-10-1985. Defendant No. 28 gifted 0.09 acre of the suit plot to his wife, which he had purchased on 15-64987. The plaintiff thus being the right­ful owner of 0.02 acre of the suit plot has pos­sessed the same in ejmali making construc­tions thereon. The petitioner also stated that the defendant No. 3 in collusion with defen­dant No. 2 filed Title Suit No. 353 of 1986 for partition in the 2nd Court of the learned Sub­ordinate Judge, the plaintiff tried to be added as parry in the said suit but the suit was dismissed for default. Defendant No.1 in collusion with defendant No. 3 filed Title Suit No.75 of 1985 under section 9 of the Specific Relief Act with a view to evict the plaintiff from his land and obtained a decree on 17-8-1989 against defendant No. 3 although the said defendant No.3 has got no land in suit plot No.125. It has been further stated that the plaintiff has come to know that defendant No.1 is conspiring to evict the plaintiff by putting the said decree into execution. The plaintiff requested the defendants several times and finally on 1-9-1989 to effect an amicable partition but they did not turn up. Moreover, on 10-9-1989 they threatened the plaintiff. Hence/ the suit was filed.
 
3. Defendant Nos.1, 2 and 25 contested the suit by filing separate written statements. Defendant Nos. 25, 28, and 29 also filed sepa­rate applications praying for 'saham'. The com­mon contentions raised in the written statements was that the suit was not maintainable in its form and frame, bad for defect of parties and without cause of action.
 
4. The written statement filed by defend­ant No. 1, in short, is that Nizamuddin had transferred 0.14 acre of land from Plot No. 124 and another 0.51 acre of land from Plot. 125 total 0.65 acre land to Churini Jamaddar in the year 1936 by registered sale deed keeping balance 0.84 acre of land of Plot No.125 in his ownership and possession which he subse­quently sold to Nuruddin, Asafuddin in the year 1941, the predecessors of Hanif and others and Matin and others, who partitioned the same by partition deed dated 13-12-1965 construing their land as 0.14 acre land of plot No.124 and 0.51 acre of land in Plot No.125. Hanif and others sold 0.20 acre of land to the plaintiff his wife and father from the 'saham' they got by that partition deed. So, Nizam­uddin did not transfer 0.70 acre of land from Plot No. 125 rather balance 0.84 acre of land was transferred from Plot No.125 by Ali Hossain and others, by the heirs of Nizam­uddin by two registered sale deeds dated 13-5-1955 and 08-12-1955 respectively to Ambia Khatun the predecessor of defendant No. 1.
 
5. That the substantive case of the writ­ten statement of defendant No. 2, in short, is that after death of the original owner Dilbar Sk, his son Nazimuddin became sole owner of four suit plots by purchasing share of the other brother, Nazimuddin's heirs sold 1 (one) acre out of 1.35 acres of plot No. 125 to Ambia Khatun on 13-05-1955 by two registered sale deeds, Ambia Khatun transferred to her hus­band Abu Obaida by a deed of perpetual lease on 15-10-1956. Abu Obaida transferred some portion of the said land to his daughter Umme Salma, defendant No.1 and remaining portion to his wife Ambia Khatun by registered deed of gift. Thereafter, Ambia Khatun by a regis­tered deed of exchange transferred 0.22 acre to defendant No.2 whereupon she constructed a tannery. The suit is liable to be dismissed.
 
6. The Written statement of defendant No.25 was that he has purchased a total quan­tum of 7 (seven) kathas by three registered deeds of purchase on different dates from Lal Miah, Sohrab Hossain and Bashir Ullah and has been living thereon constructing residen­tial building and mutating the same in his name. Thereafter, he purchased 7 kathas, 2 chhataks from Umme Salma by six registered deeds of purchase. In this way he is the owner of 14 kathas, 2 chhataks of land. The suit is liable to be dismissed.
 
7. The trial Court by the judgment and decree dated 28-8-1991 decreed the suit in pre­liminary form against defendant Nos.1, 2, 25, 28 and 29 on contest and ex parte against others giving saham to the plaintiff to the extent of 0.02 acre from suit plot No.125 and also gave saham to the defendant Nos. 25, 28 and 29 as per their prayers. The trial Court also declared that defendant No.1 has no right to dispossess the plaintiff from the suit land on the basis of the decree in Title Suit No. 75 of 1985. Against the preliminary decree dated 25-8-1991 defend­ant No.1 preferred Title Appeal No,377 of 1991 before the learned District Judge, Dhaka and the learned Subordinate Judge, Additional Court, Dhaka as the appellate Court dismissed the appeal by judgment and decree dated 29-6-1992 affirming the judgment and decree dated 25-8-1991 of the trial Court.
 
8. Defendant-respondent No.1 filed Civil Revision No.2178 of 1992 before the High Court Division against the judgment and decree dated 29-6-1992 passed by the appellate Court in Title Appeal No.377 of 1991. A Single Bench of the High Court Division discharged the Rule with costs by the judgment and order dated 5-7-1994 and against which defendant No.1 preferred Civil Petition for Leave to Ap­peal No. 611 of 1994 before this Division and the same was dismissed on 21-3-1995. Defend­ant No.1 also filed a review petition before the Appellate Division being Civil Review Petition No. 32f of 1995 which was also dismissed on 12-12-1995.
 
9. Thereafter, the plaintiff-petitioner filed an application before the trial Court praying for appointment of Advocate Commissioner for holding local investigation for allotment of 'saham' allowed by the trial Court in the preliminary decree. The Advocate Commis­sioner appointed by the trial Court submitted his report on 18-8-1996 giving 'saham' as per preliminary decree. Against the said Commis­sioner's report, the petitioner and defendant No. 1 filed written objections. Meanwhile, on 16-9-1996 defendant No.1 filed an application under section 151 of the Code of Civil Proce­dure praying for setting aside the preliminary decree passed on 25-8-1991, stating, that since before the purchase of the plaintiff, the pre­decessors of the plaintiff Hanif and others transferred their entire shares to other parties and thereby extinguished their interest in the property, so the plaintiff is not entitled to any saham and further stating that the saham of the plaintiff should fall within the boundaries of the land as described in partition deed (Exhibit 10) and sale deed dated 10-10-1941. The plain­tiff-petitioner filed a written objection against the said application of the said defendant No.1 under section 151 of the Code of Civil Procedure. The trial Court, without hearing the written objection filed by defendant No.1 against the report of the Advocate Commis­sioner, took up the application under section 151 and by order dated 30-11-1996 dismissed Court Division against the judgment and decree dated 29-6-1992 passed by the appellate Court in Title Appeal No. 377 of 1991. A Single Bench of the High Court Division discharged the Rule with costs by the judgment and order dated 5-7-1994 and against which defendant No. 1 preferred Civil Petition for Leave to Ap­peal No. 611 of 1994 before this Division and the same was dismissed on 21-3-1995. Defend­ant No.1 also filed a review petition before the Appellate Division being Civil Review Petition No. 32f of 1995 which was also dismissed on 12-12-1995.
 
9. Thereafter, the plaintiff-petitioner filed an application before the trial Court praying for appointment of Advocate Commissioner for holding local investigation for allotment of 'saham' allowed by the trial Court in the preliminary decree. The Advocate Commis­sioner appointed by the trial Court submitted his report on 18-8-1996 giving 'saham' as per preliminary decree. Against the said Commis­sioner's report, the petitioner and defendant No. 1 filed written objections. Meanwhile, on 16-9-1996 defendant No. 1 filed an application under section 151 of the Code of Civil Proce­dure praying for setting aside the preliminary decree passed on 25-8-1991, stating, that since before the purchase of the plaintiff, the pre­decessors of the plaintiff Hanif and others transferred their entire shares to other parties and thereby extinguished their interest in the property, so the plaintiff is not entitled to any saham and further stating that the saham of the plaintiff should fall within the boundaries of the land as described in partition deed (Exhibit 10) and sale deed dated 10-104941. The plain­tiff-petitioner filed a written objection against the said application of the said defendant No.1 under section 151 of the Code of Civil Procedure. The trial Court, without hearing the written objection filed by defendant No.1 against the report of the Advocate Commis­sioner, took up the application under section 151 and by order dated 30-11-1996 dismissed the suit setting aside the preliminary decree dated 25-8-1991.
 
10. Against the said order dated 30-11-1996 passed by the trial Court dismissing the suit and setting aside the preliminary decree, the plaintiff filed Civil Revision No. 1 of 1997 before the High Court Division. The learned Single Judge of the High Court Division by the judgment dated 16-8-1998 made the Rule absolute and against which the substituted heirs of deceased defendant No.1 filed civil petition for leave to Appeal No.1196 of 1998 before the Appellate Division which was dis­missed by the judgment dated 6-5-1996.
 
11. Thereafter, the preliminary decree dated 25-8-1991 was made final by the trial Court by the judgment and decree dated 26-10-1999. Being aggrieved the defendant No.25 filed Civil Revision No.4616 of 1999 against the final decree dated 26-10-1999 and the learned Single Judge of the High Court Division dis­charged the Rule on the ground of maintain­ability. Thereafter, the defendant-respondent Nos.1 and 2 preferred Title Appeal No.619 of 2001 and respondent No. 11 preferred Title Ap­peal No.20 of 2002 before the learned District Judge, Dhaka against the aforesaid final decree dated 26-104999; that the plaintiff-petitioner also filed a cross objection praying for partial modification of the final decree on the grounds stated therein.
Both the appeals were heard together by the Additional District Judge, 7th Court, Dhaka and the appellate Court by the judg­ment and decree dated 25-3-2003 allowed both the appeals and rejected the cross-objection setting aside the judgment and decree of the trial Court.
 
12. Against the said judgment and decree dated 25-3-2003 passed by the learned Addi­tional District Judge, 7th Court, Dhaka in Title Appeal No.619 of 2001 heard analogously with Title Appeal No.20 of 2002 reversing the judgment and decree dated 26-10-1999 passed by the Assistant Judge, 4th Court, Dhaka in Title Suit No. 62 of 1996 making the preliminary decree final and being aggrieved the petitioner filed Civil Revision No.2825 of 2003 before the High Court Division and obtained Rule and stay and similarly, the petitioner also filed Civil Revision No. 2826 of 2003 against the same judgment so far as it relates to Title Appeal No.20 of 2002 and obtained Rule. Hence, these two leave petitions have been filed by the same plaintiff, Md Khorshed Alam.
 
13. Mr. Mahmudul Islam, the learned Coun­sel, appearing for the petitioner, placed before us the materials on record and the impugned judgment of the High Court Division and there­after submitted that in the preliminary decree the plaintiff-petitioner having been given 'saham' of 0.02 acres out of Plot No.125 and the said preliminary decree having been affirmed up to the Appellate Division, and neither in the preliminary decree nor in the schedule of the plaint Plot No.124 or boundary up to the mos­que goli having been mentioned, the High Court Division was wrong in making observa­tion and thereby committed error of law in sending back the suit on remand directing the trial Court for disposal of the suit on the basis of the said observation. Learned Counsel in elaborating the above submission contended that in a partition suit rights and liabilities of the parities concerned are conclusively deter­mined by preliminary decree and the final decree merely works out the details of the pre­liminary decree, and in the instant case the preliminary decree passed by the trial Court having been upheld up to the Appellate Divi­sion, the High Court Division was wrong in making observation and sending back the suit on remand accepting the same pleas of the defendants which have been rejected by the Appellate Division and, as such, the impugned judgment having the effect of setting aside the decision of the Appellate Division cannot be sustained in law and it is also contended that the land claimed by the plaintiff-petitioner having been sufficiently described and identi­fied in the schedules of the plaint, and the suit having been decreed in preliminary form which was upheld up to the Appellate Division, and there having been no mention of plot No. 124 or 'mosque goli' either in the sche­dule of the plaint or in the decree, the High Court Division was wrong in going contrary to the decision in the suit which was conclusive by the judgment of the Appellate Division and, as such, the impugned observation made by the High Court Division is without juris­diction.
 
14.  The whole argument of Mr Mahmud-ul Islam is that the High Court Division fell in the same error as the lower appellate Court in failing to take into consideration that Ambia Khatun, predecessor of Umme Salma, defend­ant No.1, purchased 1.00 acre of land out of 1.35 acres of land of Plot No. 125 from Nizam-uddin, who had title to only 0.70 acre of that plot and the dispute arose because of the excess purchase which cannot be validated by the deed of partition.
 
15.  He lastly argued that in any view of the matter, the impugned observation of the High Court Division having the effect of nulli­fying a decree conclusively decided by the judgment of the Appellate Division through a series of proceedings over the years, the same cannot be sustained in law.
 
16.The learned Advocates, appearing for the respondents, on the other hand, supported the impugned judgment of the High Court Division and it is argued that sending back the case on remand to the trial Court will not in any way prejudice the parties and, as such, no interference is called for by this Division.
 
17. We have heard the learned Counsel of both sides and considered their submissions. On perusal of the impugned judgment of the High Court Division, we are of the view that the learned Single Judge had meticulously dis­cussed the case of the parties and considered their submissions and thereafter, held as follows:

"On hearing the submissions of the learned Counsels of both parities and after perusal of the evidence and other materials on record it is found that both the Courts below have not considered mainly the evidence of the witnesses in specifying the suit land properly since it is a suit for partition.
 
In view of the above facts, circum­stances, Advocate Commissioner's report and arguments advanced by both parties, it reveals and established that the 0.65 acre land contained in the admitted document, the partition deed (Exhibit 10) consists of 0.14 acre land of Plot No.124 and 0.51 acre land of Plot No.125 and said 0.65 acre of land extends up to the 'Mosque gali' and also has tallied with the 'Kha' schedule land as per boundary. But both the Advo­cate Commissioners had allotted 'saham' to the plaintiff and his other co-sharers beyond the said land. So, it is a fit case for remand for ascertaining the 'Kha' schedule land as per boundary and to allot 'saham' to the plaintiff and his other co-sharers from the said ascertained 0.65 acre land by appointing an experienced and good sur­vey-knowing Advocate Commissioner."
 
18. Having regard to the facts, circum­stances and the materials on record, we are fully in agreement with the above findings of the learned Single Judge of the High Court Division and, as such, we find no cogent ground for interference in the impugned judg­ment.
Accordingly, both the civil petitions are dismissed.
 
Ed.