Md. Lokman Vs. Md. Safi, 3 LNJ (2014) 259

Case No: Civil Revision No. 1447 of 2006

Judge: A. K. M. Shahidul Huq,

Court: High Court Division,,

Advocate: Abdul Wadud Bhuiyan,Mr. Md. Mobarak Hossain,Mr. Sk. Md. Jahangir Alam,,

Citation: 3 LNJ (2014) 259

Case Year: 2014

Appellant: Md. Lokman

Respondent: Md. Safi

Subject: Revisional Jurisdiction,

Delivery Date: 2013-10-10


HIGH COURT DIVISION
(Civil Revisional Jurisdiction)
 
Sharif Uddin Chaklader, J.
And
A. K. M. Shahidul Huq, J.

Judgment on
10.10.2013
}
 
}
}
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Md. Lokman
. . .Petitioner
Versus
Md. Safi and another
. . . Opposite Parties
 
 
Code of Civil Procedure (V of 1908)
Section 115(I)
Since, in a partition suit, there is no misreading, non-reading and non-consideration of documents in the impugned judgment and decree of the Courts below, the High Court Division in exercise of reivisional Jurisdiction is unable to interfere with the concurrent findings of facts arrival at by the Courts below. . . .(35)

Mr. Md. Mobarak Hossain, Advocate
... For the petitioner

Mr. Abdul Wadud Bhuiyan with
Mr. Sk. Md. Jahangir Alam, Advocates
... For the Opposite parties

Civil Revision No. 1447 of 2006
 
JUDGMENT
A. K. M. Shahidul Huq, J:
 
This Rule at the instance of the plaintiff is directed against the judgment and decree dated 26.1.2006 passed by the Additional District Judge, 2nd Court, Chittagong  in Other Appeal No. 50 of 2001 dismissing the appeal and affirming those of dated 30.10.2000 passed by the Senior Assistant Judge, Fatikchari, Chittagong in Partition Suit No. 104 of 1995  whereupon a single Judge of this Hon’ble Court on perusal of the impugned judgment and decree dated 26.1.2006 of the Additional District  Judge, 2nd Court, Chittagong in Other Appeal No. 50 of 2001, the revisional application filed under section 115(1) of the Code of Civil Procedure and on hearing the submissions of the learned Advocate appearing for the petitioner was pleased to issue a rule calling upon the opposite party nos. 1-14  to show cause as to why the impugned judgment and decree dated 26.1.2006  passed by the Additional District Judge, 2nd Court, Chittagong in Other Appeal No. 50 of 2001 dismissing the  appeal and affirming the judgment and decree dated 26.1.2006 passed by the Senior Assistant Judge, Fatikchari, Chittagong in Partition Suit No. 104 of 1995 should not be set aside and or pass such other or further order or orders as to this Court may seem fit and proper.

The short facts, for disposal of the rule, is that, in a suit for partition Niamat  Ali was owner to the extent of .53 acres of land of plot No. 4431 of R.S. khatian No. 330 and the said land was put in auction in Mortgage Execution Case No. 750 of 1937 which was purchased by one Aminur Rahman on 11.10.1937. Aminur Rahman died leaving behind his wife Jamila Khatun, one son namely Rashid Ahamed and two daughters namely, Hajera Khatun and Sabera Khatun. Jamila Khatun, Sabera Khatun and Hajera Khatun sold 0.9 acres of land to the plaintiff by kabala No. 155 dated 21.10.1956 and out of which .03 acres of land was acquired for Dighi Nala Road and the plaintiff remained in .06 acres of land.  The father of the plaintiff purchased .07 acres of land from Abdur Rashid which was acquired for Dighi Nala Road.

The father of the plaintiff purchased .09 acres of land in the name of defendant no.2 and before his death he partitioned all his land among  his heirs and the acquired .07 acres of land was not included in the partition deed.

The defendant no. 1’s case, in short, is that the defendant no.2 became owner and possessor of 04 ½ acres of land by way of inheritance and by purchase and he sold the said land to the defendant no.1 by registered kabala dated 13.2.1993. The plaintiff and his father received compensation money for other acquired land and as such the plaintiff has no existence in the suit land and the suit is liable to be dismissed.

The defendant No.2’s case is that the plaintiff and the father of defendant no.2 purchased 0.07 acres of land by registered kabala dated 10.1.1951 from one Abdur Rashid and they transferred 0.03 acres of land  by registered kabala dated 22.2.1952 from the suit plot  and other 0.07 acres of land to this defendant and this defendant no. 2 got possession  from the  southern side of the disputed plot and since then this defendant has been possessing and the plaintiffs father made a Osiatnama registered on 15.12.1985 in favour of his 3 sons namely the plaintiff and this defendant and one Md. Hossain and delivered possession and in that Osiatnama the plaintiffs father gave 0.02 acres  of land out of the suit land to this defendant has been possessing since then and the plaintiffs land has been acquired for construction of Dighi Nala Road in L.A. Case No. 13/86-87 and in this case 0.1275 acres of land,  out of the schedule land  owned and there by plaintiffs father was acquired and they took  compensation money by receipt No. 0112971 dated 28.04.1988 and as such the plaintiff has no title and possession in the suit land and the present suit instituted for harassing the defendants and due to construction the road value of the suit land has been increased and for this reason the plaintiff claimed the suit land by making a false statement. As such the suit is liable to be dismissed.
  
The defendant nos. 6(Ka) to 6(Cha) is case is that after the death of Aminur Rahman his  heirs wife Jamila and two daughters Hajera and Jabeda sold .04 decimals of land vide registered kabala dated 19.01.1956 to the predecessor of this defendant Monir Ahmed. The defendant no. 6 now dead and defendant no.7 Mir Ahmed and by that Kabala Monir Ahmed  got 1 1/3  decimals of land and  Abdur Rashid son of Aminur Rahman sold .07 decimals of land by registered kabala dated  10.10.1951 and .05 acres of land by kabala dated 22.2.1952  to one Obaidur Rahman and Obaidur Rahman sold .05 acres of land by registered kabala dated 15.3.1973 to Hajee Bajal Ahmed and the said Obaidur Rahman died leaving 4 sons including father of this defendant namely, Monir Ahmed, Md. Solaiman, Mir Ahmed and  Nurul Alam and three daughters namely, Sakina Khatun, Mahmuda Khatun and Halima Khatun and in this way  each son got 1 17/11  and each daughter got  7/11   satak  and apart from that  father  of this defendant purchased 1 17/11 satak from his brother Nurul Alam by registered kabala dated 10.6.1988 and also purchased 0 7/11 satak of land from Sakina Khatun by kabala dated 06.09.1988 and  apart from that this defendant purchased 0.05 acres from Hajee Bazal Ahmed by registered kabala dated 10.10.1977 and in this way father of these defendants acquired .10 8/33 acres of land and after death of their father these defendants  6(Ka) to 6(Cha) got  above land by way of inheritance and they prayed saham of their share.

The defendant no. 6’s case is that Jamila Khatun wife of Aminur Rahman and her two daughters Hajera Khatun and Sabeda Khatun transferred 0.04 acres of land by kabala dated 21.10.1956 to the defendant nos. 6-7 and Mir Ahmed, predecessor of defendant no. 8 and in this way defendant no. 7 by purchase got 0.01  acres of land and prayed shaham for that land.

The defendant No. 8, Abdur Rashid son of Aminur Rahman transferred his share to Obaidur Rahman grandfather of this defendant in 1951 and within the same year Abdur Rashid transferred his entire share to different persons and became title less and he had no balance transferable land and after the year 1959 transferred by Abdur Rashid became in- effective and father of this defendant and his brother purchased some land from daughter of Aminur Rahman and in this way the father of this defendant by inheritance and by purchase acquired 0.03 acres of land and after death of his father, this defendant got the said .03 decimals of land and  has been possessing the same and prayed for shaham for that land.

The Trial Court by its judgment and decree dated 30.10.2000 decreed the suit and against the judgment and decree the defendant no. 2  preferred  an appeal before the District Judge, Chittagong  being  Other Appeal No. 50 of 2001 and the same was transferred to the Court of Additional District Judge, 2nd Court, Chittagong by his judgment and decree dated 26.01.2006 dismissed the appeal and affirmed the judgment and decree of the Trial Court.
Admittedly, Aminur Rahman became owner and possessor of .53 acres of land of plot No. 4431 of R.S. Khatian No. 330 by way of auction purchase on 11.10.1937 in Mortgage Execution Case No. 750 of 1937 and being owner in possession the same he died leaving behind his wife Jamila Khatun, son Rashid Ahmed two daughters Hajera Khatun and Sabeda Khatun.

In this way, wife Jamila Khatun got .0662 acres son Rashid Ahmed got .2319 acres and two daughters Hajera Khatun and Sabeda Khatun jointly got .2319 acres.

The plaintiff claimed that he purchased .09 acres of land from Jamila, Sabeda and Hajera by Kabala no. 155 dated 21.10.1956. The defendant no’s 6(Ka) to 6(Cha) claimed that Jamila, Hazera and Sabeda sold .04 acres of land to the defendant no’s 6/7 and Meer Ahmed by registered kabala no. 153 dated 19.01.56 (Registered on 21.01.56).

By way of amendment in the appellate court the defendant no. 2 claimed that Jamila, Hazara and Sabeda sold .20 acres of land to one Sirajul Hoque by registered kabala no. 154 dated 19.01.56 (registered on 21.01.56) and also filed an application for exhibit mark the said document.

Both the courts below did not at all consider that Jamila, Hajera and Sabeda jointly got .2319+.0662= .2981 acres of land by way of inheritance out of which they sold .04 acres by registered kabala no. 153 dated 19.01.56 and .20 acres by registered kabala no. 154 dated 19.01.56 in total .24 acres of land by prior deed no. 155 of the plaintiff and as such they had salable interest in respect of .2981- .24= .0581 acres of land and the plaintiff was entitled to get only the said .0581 acres of land on the basis of his purchase deed no. 155 dated 21.01.1956.

The plaintiff claimed that .03 acres of land was acquired for Dighi Nala Road from the plaintiff. On the other hand the defendants claimed that .1275 acres of land was acquired for Dighi Nala Road in L.A. Case no. 13/86-87 and the plaintiff and his father received the award money by receipt no. 0112971 dated 28.04.1988.

Plaintiff did not file any document nor he take any step to prove such acquire. Moreover in cross examination as P.W-1 he stated that , “আমার পিতা থেকে ৭ শতক এবং আমার থেকে ৪ শতক ভূমি (বিরোধীয়) খাগড়াছড়ি রোডের জন্য একোয়ার করা হয় সে মর্মে কোন কাগজ আমি দাখিল করিনি এবং তলব দেইনি সংশ্লিষ্ট দপ্তর থেকে|”. On the other hand the defendant no. 2 as D.W. stated in his deposition that, “wদঘীনালা সড়কের জন্যে নালিশী দাগের দক্ষিন পূর্বাংশের ১২.৭৫ শতক ভূমি হুকুম দখল করা হয়। নালিশী দাগে আমার পিতা তোফাজ্জলের অংশ থেকে এবং বাদীর অংশ থেকে সম্পত্তি হুকুম দখল করা হয়। এল, এ, কেইচ নং ১৩/৭৫-৭৬ মামলার নথী সহকারী জজ আদালতের মিচ ১৫/৯৬ মামলার নথীর সাথে সন্নিবেশিত আছে। সেখানে আমি সংবাদের দরখাস্তের কপি দাখিল করেছি (প্রদ-ক)” and stated that, “একোয়ারক্রত জমির ক্ষতিপূরণের টাকা বাদী ও আমার পিতা গ্রহণ করে ” and also stated that, “নালিশী দাগের হুকুম দখল কৃত জমির ক্ষতিপূরনের টাকা পেয়ে ১টি রসিদের ফটোকপি আমি কোর্টে দাখিল করেছি।” more over the defendant no. 2 filed an application in the appellate court for call for the said L.A. Case record on 24.08.2003 which was allowed on the same date vide order no. 28 and subsequently the said record was received by the court vide order no. 31 dated 24.01.2004.

The lower appellate Court being a final court of fact did not at all consider and discuss about the said L.A. case or money receipt  No. 0112971 dated 28.04.1988 rather he disallowed the appeal with a finding that, “বাদী যে ০৬ শতক সম্পত্তির প্রাথমিক ডিক্রী পাইয়াছে তাহা বাদীর খরিদা সম্পত্তি হয়। কতটুকু সম্পত্তি একোয়ার হইয়াছে বা কতটুকু সম্পত্তির ক্ষতিপূরন পাইয়াছে তাহা অত্র বিভাগ মামলায় বিবেচ্য বিষয় নহে|” though he affirmed the claim of the plaintiff that .03 acres of land was acquired from the plaintiff and .07 acres of land was acquired from the father of the plaintiff without any basis.

Both the courts below failed to consider that the plaintiff got .0581 acres of land on the basis of his purchase deed no. 155 dated 21.01.56 and his father got .07 acres of land by purchase out of which .1275 acres of land was acquired and the plaintiff and his father jointly received the award money on 28.06.1988 through receipt no. 0112971 by which the plaintiff became title less and as such the suit is liable to be dismissed.

The defendant no. 2 claimed that he purchased .03 acres of land from the suit plot including .07 acres of land from the non suited plot from Abdur Rashid by registered kabala dated 22.02.1952 but he got possession of .10 acres of land from the suit plot according to the said deed.

The courts below calculated the share of Abdur Rashid that he got .2319 acres of land out of which he sold .07 acres of land to the plaintiff and his father by registered deed no. 64 dated 10.01.51, .07 acres of land to Obaidur Rahman by registered deed dated 10.10.51 and .05 acres of land to Obaidur Rahman by registered deed dated 22.02.52 in total .19 acres of land and he had saleable interest in respect of .0419 acres of land out of which he sold only .03 acres of land from the suit plot to the defendant no. 2 by registered deed dated 22.02.52 without considering and discussing about the schedule of the said registered deed no. 526 dated 22.02.52 where it was written that,  and without considering and discussing about the schedule of the registered deed no. 525 dated 22.02.52 by which he transferred .03 acres of plot no. 4431 and .02 acres of plot no. 4372 but it was written that, which proved that Abdur Rashid sold .10 acres of land to the defendant no. 2 earlier to Obaidur Rahman. Moreover the courts below though considered the written of plot number of the deed of the defendant no. 2 but at the same time did not consider the written of the plot number of the deed of Obaidur Rahman.

The defendant no. 2 claimed .02 acres of land on the basis of registered Osiyatnama dated 15.12.1985 which was produced in the Appellate Court as additional evidence and marked as exhibit no. ‘Ga-1’ and the Appellate Court discussed only condition no. 4 of the said Osiyatnama but did not discuss the condition no. 14 of the said Osiyatnama in which .02 acres of land of suit plot has been given to defendant no. 2 and not challenged by the plaintiff.
Both the courts below wrongly decreed the suit in misreading and non consideration of the evidence on record and thus committed error of Law occasioning failure of justice and as such the rule is liable to be made absolute with a finding that the defendant no. 2 became owner and possessor of .10 acres of land by way of purchase and .02 acres by way of Osiyatnama out of which he sold .03 acres to the defendant no. 1 (as the defendant no. 1 did not challenge the said decree) and the defendant no. 2 is entitled to get saham in respect of the rest .09 acres of land and the plaintiff has no title, possession and interest in the suit land.

The learned Advocate for the opposite party submits that the defendant no.2 claimed title in the property by way of purchase from Abdur Rashid. He transferred the land vide several deeds on 10.1.1995 to Abdur Rashid o.7 decimal of land  to the father of the plaintiff and defendant nos. 2-7 decimals  to Obaidur Rahman on 22.2.1952 to Abdur Rashid transferred .05 acres of land to Obaidur Rahman  before such transfer 19 decimals were transferred before the  transfer to the defendant no.2 and defendant no.2 transferred to the defendant no. 1 more or less  4 decimals of land so the entire share of Abdur Rashid has been  exhausted  so defendant no. 2 has no remaining land out of purchase from Abdur Rashid   since the entire  share has been exhausted whether the suit land was acquired or not acquired how much land was  acquired by road and highway is also immaterial. Osaiyatnama  coming into force after the death of the donee  without the consent of the other co-sharers so defendant no. 2 can not claim any share on the strength of osaiyatnam made by the father.

The learned Advocate also submits that   none  of the Courts below did not discuss how much quantum of land was acquired by roads and high way    was also not considered by the courts below at the time of passing impugned judgment and decree. The learned Advocate lastly submits that the concurrent findings of facts by both the courts below does not deserve any interference under the revisional jurisdiction of this Hon’ble Court and consequently the rule is liable to be discharged.

Heard the learned Advocates of both sides perused the impugned judgment and decree for the courts below considered the submissions as advanced by the learned Advocates of both sides in support of their case. On perusal of the impugned judgment and decree of the courts below we find at the trial the trial court framed as many as 5 issues for determination of the suit. The issues are:
  1. Is the suit maintainable?
  2. Is the suit bad for defect of parties?
  3. Does the suit suffer from bad for hotch potch?
  4. Has the plaintiff any right title and possession over the suit property?
  5. Is the plaintiff entitled to get the preliminary decree of partition as prayed for?
At the trial the plaintiff examined one witness, the defendant no.1 examined two witnesses. The defendant nos. 2-6, 7 and 8 examined 1 witness from each side.

It is admitted that Aminur Rahman auctioned purchased the suit land. It is also admitted that Aminur Rahman died leaving behind Abdur Rashid as the son, Jamila Khatun as the wife and Hejera Khatun and Sabeda Khatun as two daughters to inherit him.

Plaintiff Md. Safi as P.W. 1 in his evidence deposes that he has purchased .09 decimals of land out of the suit plot from the wife and two daughters of Aminur Rahman by a registered deed dated 21.1.56 and the worth of the sale deed was given to the donor by his father.   The plaintiff has filed the said original deed (exhibit -1). On going through the exhibit-1 it is seen that the plaintiff has purchased. .09 decimals of land out of the suit plot from the wife and two daughters of Aminur Rahman by the said deed and the worth of the same was paid to the donor from plaintiff’s father. It is the positive case of plaintiff that out of his .09 decimals of land .03 decimals has been acquired by the Roads and Highway authority for constructing the Dighi Nala Road and now barring such .03 cents he has of plaintiff that out of his .09 decimals of land .03 decimals has been acquired by the Roads and Highway authority for constructing the Dighi Nala Road and now barring such .03 cents he has been possessing the rest .06 decimals. In this context, the plaintiff Md. Safi as P.W.1 in his evidence deposes that his father also purchased .07 decimals of land out of the suit plot which has also been acquired by the Roads and Highway authority for Dighi Nala Road along with his .03 decimals and as such they did not inherit any property from the suit plot after the demise of their father. The said P.W. 1 in his evidence further discloses that his brother the defendant no.2 has also purchased .03 decimals of land out of the suit plots land by a registered deed which consideration was also paid by their father to the donor. It is in the evidence of P.W.1 Md. Safi that the defendant no.1 has recently disclosed that he has purchased the suit land from the defendant no.2 and that defendant nos. 1-2 have claimed their title over the suit land. The said P.W.1 in his cross-examination testifies that .07 cents of land from his father and .03 cents of land from him was acquired by the Roads and High ways department for Dighi Nala Road but he has not filed any paper with regard to such acquisition and even he has not hold any local investiga-tion to ascertain the quantum of acquired land out of the suit plots land. Moreover, on perusal of the pleadings as well as evidence of plaintiff and defendants it does not appear to us what quantum of land was acquired by the authority for Dighi Nala Road from the suit plot. This being the position, according to the title of the parties the suit property may be partitioned off among themselves. In such view of the matter, it has been adverted to earlier that the plaintiff Md. Safi has claimed that barring his acquired portion i.e. .03 decimals he has been in possession of the rest .06 decimals out of his purchased .09 decimals out of the suit plots land. Although the defendant nos. 1, 2 and 6 Ka- 6 Chha in their written statements have asserted that the plaintiffs entire share has been acquired by Roads and Highways authority for Dighi Nala Road but they have failed to produce any such documents in support of their aforesaid plea. On digging into the evidence of plaintiff (P.W.1) Md. Safi it transpires that the defence has not given any suggestion to the said PW-1 in relation to acquisition of his entire property or any quantum of land. Under the circumstances we cannot disbelieve the plaintiffs positive case that only .03 decimals of land has been acquired for Dighi Nala Road and he has been possessing the rest .06 cents of land located in the suit plot. As such, the plaintiff is entitled to get .06 decimals of land in his shaham.

On the contrary, the defendant no. 1 has been claimed his .5(1/8) decimals of land by way of purchase from the defendant no. 2 the full brother of plaintiff. In this context, the defendant no. 1 Md. Shah Alam as DW-1 in his evidence discloses that he has purchased .5 cents and 4.5 danta of land from the defendant no. 2 by a registered deed dated 18.2.93 bearing no. 492. The defendant no. 1 has filed the original copy of the said deed (exhibit “ka”). On perusal of the exhibit “ka” it appears that the defendant no. 2 has sold out .5(1/8) decimals of land located in suit plot. But it is the definite plea of the defendant no. 2 that he purchased .03 cents of land located in suit plot and .07 decimals of land from another plot but he got delivery of possession of the said .10 decimals of land located in plot in question and thus being the owner in possession of .10 decimals of land out of the suit plot he has sold out .5(1/8) decimals of land to the defendant no. 1 and inducted him into the possession of the same. The defendant no. 2 Md. Lokman in his evidence lands support his aforesaid positive case and he expresses that he has no objection to get the defendant no. 1’s share i.e. .5(1/8) cents of land in his separate shaham. The said defendant no. 2 in his cross examination admits that there are two plots in his purchased deed dated 26.2.52 and one is the suit plot and the another is 4377. Moreover the defendant no. 2 has filed the original copy of his purchased deed dated 26.2.52 (exhibit “kha 1”). On going though the exhibit Kha 1 it is seen that the donor of the same sold out .03 cents of land out of the suit plot land .07 cents from the plot 4377. The defendant no. 2 in his evidence claims that he got delivery of possession of the said .10 cents of land located in plot in question and thus being acquired title thereon he has sold out .05(1/8) cents of land to the defendant no. 1 and also inducted him into the possession of same accordingly.

It is well settled principle of law that title follows the possession. So one should have the basis of title and on the strength of such basis he may get delivery of possession. In this context admittedly the defendant no. 2 has purchased .07 decimals of land located in plot 4377 of R.S. Khatian No. 2711 but claimed he has got delivery of possession amicably located in suit plot along with its purchased .03 decimals of land. This being the position, we are of the view that without getting delivery of possession of .07 decimals of land of 4377 plots located in the said plot. The defendant no. 2 did not acquire any title over the same although he got delivery of possession of the said .07 decimals located in another plot i.e. suit plot. Because to acquire right, title and interest over a piece of land basis of title and possession are required simultaneously. In this case although the defendant no. 2 although has purchased .07 cents of land out of the plot no. 4377 but he has not got delivery of possession particularly in the said plot and as such he did not acquire any title over the said .07 decimals of land without getting its possession located in the said plot. Under the circumstances the defendant no. 2 acquired his title on .03 decimals of land out of the suit plot. Since the defendant no. 2 had no title over the .07 decimals of land of plot 4377 or in the suit plot because of non purchasing the same from the suit plot, the defendant no. 1 has also not acquired any right, title and interest over the same located in suit plot. On the contrary, as the defendant no. 2 has acquired his title on .03 decimals of land located in suit plot, the defendant no. 1 also has acquired his title over the same by way of purchase deed from the defendant no. 2. Following to such a plight the defendant no. 1 is entitled to get only .03 decimals of land out of the suit plot in his separate shaham. However, barring the said .03 decimals the defendant no. 2 had no land out of the suit plot and as such the defendant no.2 is not entitled to get any land in his shaham.

The defendant no. 6 curing contesting the suit died and that his legal heirs have been impleaded as defendant nos. 6Ka –6Chha. The defendant no. 6Ka the wife of the late defendant no. 6 named Sultana Begum in her evidence claims that her husband purchased .05 cents of land from Bazal Ahmed vide kabala dated 10.10.77 (Ext. Kha 2) and Bazal Ahmed purchased the same from ObaidurRahman vide kabala dated 15.3.76. The said Sultana Begum in her evidence further discloses that her husband late Monir Ahmed purchased the share of his brother Nurul Alam measuring 1(7/11) cents vide kabala dated 13.6.88 (ext. ga 2), .0(7/11) cent from Sakina vide kabala dated 6.9.88 (ext gha 2) 1(1/3) cent from Jamila, Hazera and Sabeda vide kabala dated 19.1.56 (ext. Uma 2) and 1(7/11) by way of inheritance from his father Obayedur Rahman’s .05 decimals and thus her husband got (.05+.0(7/11)+.0(7/11)+1(1/3)+1(7/11) = 10(8/33) cents of land out of the suit plot and after the demise of her husband they (deft. nos. 6ka -6chha) have inherited the same and have been in possession thereof. On perusal of the exhibits Ka 2, Ka 2(1), Kha 2, Ga 2, Gha 2 and Uma 2 it transpires that father of late Manir Ahmed purchased .10 decimals of land out of the suit plot from Abdur Rashid and sold out .05 decimals to Bazal Ahmed who also sold the same of Manir Ahmed and after the demise of Obaidur Rahman his rest .05 cents devolved on his 4 sons namely Monir Ahmed, Md. Solaiman, Meer Ahmed and Nurul Alam and 3 daughters namely Sakhina, Mahmuda and Halima and as such each sons of him got 1(7/11) cent and each daughters got .0(7/11) cent of land. It further appears that Nurul Alam and Sakhina sold out their 1(7/11) and .0(7/11) cents to Monir Ahmed and he also purchased 1(1/3) cent of land from the wife and two daughters of auction purchased Aminur Rahman and thus Monir Ahmed got 1(7/11)+1(7/11)+.0(7/11)+1(1/3)+.05 = 10(8/33) cents of land by way of inheritance as well as purchase. The defendant No. 2 Md. Lokman in his evidence admits that there is a ice-cream factory in  the suit property which has been possessed by Monir Ahmed. It is in the evidence of the defendant no. 6 Ka Sultana Begum that after the death of her husband Monir Ahmed they (deft. Nos. 6 Ka-6Chha) have been in possession of the said .10(8/33) cents of land out of the suit property by cross examining her or producing any evidence the plaintiff or other contesting defendants could not take out any discrepant statement in order to dissip.ate the credibility of the claim of defendant Nos. 5 Ka- 6 Chha’s  possession over the suit property. This being so, I cannot disbelieves their claim and possession over the same. As such, the defendant Nos. 6 ka-6  Chha are entitled to get .10(8/33) cents of land out of the suit property in their separate shaham.

On perusal of the exhibit Uma 2 it is seen that Md. Solaiman, Meer Ahmed and Monir Ahmed 3(three) brothers purchased .04 cents of land out the suit property from Jamila. Hazera and Sabeda by virtue of the said deed (Ext.Uma) and that the defendant No. 7 Md. Solaiman gets 1(1/3) cent of land as his 1/3rd share. The plaintiff and the contesting other defendants have not made any dispute the shares of the defendant No.7 and 8 which appearson perusal of the record and evidence in record. Thedefendant No. 8 Md. Hasem son of Meer Ahmed one of the recipients of theexhibit Uma 2 deed has prayed for .03 decimals of land by way of inheritance. Following to above discussion it has been decided that Meer Ahmed one of the sons of Obaidur Rahman got. 1(7/11) cent from his father and . 1(1/3) cent by way of purchase vide kabala dated 19.1.56 (ext.Uma) which has beendevolved on the defendant No.8.On going through the evidence on record as well as pleading it appears that there is no case or allegation that Meer Ahmed or the defendant No.8 sold out any property out of their share located in suit plot.Considering the facts and evidence on record I am of the opinion that the defendant No.8 is entitled get .03 decimals of land out of the suit property.

Following to the foregoing discussion, findings and decision it is seen that the defendant No. 1 has got only .03 decimals of land out of the suit property which cause has already been noticed earlier. It is noted here that the defendant Nos. 2 have not adduced any evidence in relation to his long possessionover the property measuring .10 decimals of land located in suit plot by which he has acquired title by way of adverse possession. Onthe other hand, assuming for the sake of argument if the defendant No. 2 got delivery of possessionof the .07 decimals of land of plot 4377 in the suit plot instead of the said 43377 plot, even then thedefendant No.2 cannot be acquired any title over the said .07 decimals of land of plot 4377 located in the suit plot. Becausethe said .07 decimals of land was not sold to him mentioning the suit plot but mentioningplot no. 4377 which possession cannot be delivered on the another plot.

In view of the foregoing discussion, findings and decision, evidence on record and in the facts and circumstances of the case we feel constrained to hold that the plaintiff has right, title and possession over.06 decimals of land out of the suit plots land.

Considering on perusal of the pleadings of the parties and on due consideration of both oral and documentary evidences the trial court decreed the suit in favour of the plaintiff in preliminary form the Additional District Judge on appeal on perusal and consideration of both oral and documentary evidences and on hearing of submissions of the parties affirmed the judgment of the trial court in dismissing the found that title and possession in favour of the plaintiff and rightly decreed the suit in preliminary form we are under the revisional jurisdiction of this Hon’ble Court did not find any misreading, non-reading, non-consideration of documents in the impugned judgment and decree of the Courts below and as such we are unable to interfere with the concurrent findings of facts as arrived at by both the Courts below we find that the impugned judgment and decree of the last Court of fact does not deserve any interference under the revisional jurisdiction of this Hon’ble Court as laid down in section 115(1) of the Code of Civil Procedure.The consideration. On the contrary, the submissions for the opposite parties, we find merits Civil Revision is devoid of any substance.

In the result, the Rule is discharged without any order as to coats. The impugned judgment and decree dated 26.01.2006 passed by the Additional District Judge, 2nd Court, Chittagong in Other Appeal No. 50 of 2001 dismissing the appeal affirming the judgment and decree dated 30.10.2000 passed by the Senior Assistant Judge, Fatikchari, Chittagong in Partition Suit No,. 104 of 1995 is hereby affirmed.

The order of stay granted at the time of issuance of the rule is hereby recalled and vacated.

Send down the lower court records with the copy of the judgment to the concern Court for information and necessary action.

         Ed.