Most. Mariam Begum and others Vs. Nurjahan Begum and others, 2016(1) LNJ 265

Case No: Civil Revision No. 4640 of 2008

Judge: Borhanuddin,

Court: High Court Division,,

Advocate: Mr. S.M. Rezaul Karim ,Mr. Selim Reza Chowdhury,Mr. Abdul Quaiyum,Mr. Md. Mainul Islam,,

Citation: 2016(1) LNJ 265

Case Year: 2016

Appellant: Most. Mariam Begum

Respondent: Nurjahan Begum

Subject: Civil Law,

Delivery Date: 2015-9-6


HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
 
Borhanuddin, J

Judgment on
06.09.2015
  Most. Mariam Begum and others
. . .Petitioners
-Versus-
Nurjahan Begum and others
...Opposite-parties
 
Code of Civil Procedure (V of 1908)
Order V, Rule 8
When preliminary decree passed, suit was not ready for hearing. So, I cannot disagree with finding of the appellate court below that decree was not passed in accordance with law. On perusal of the order sheet, I find that some of the orders i.e. from order No. 247-253 are missing from the record. . . . (13)
 
Code of Civil Procedure (V of 1908)
Order V, Rules 12 and 14
It appears both the courts below arrived at a concurrent finding that summon was not served upon plaintiff No.1, Kalu Khan inasmuch as Mujibul Huq who allegedly received summon on behalf of Kalu Khan was not his agent and defendants failed to prove that he had any manner of relationship with Kalu Khan.    . . .(14)
 
Code of Civil Procedure (V of 1908)
Order IX, Rules 13 and 15
Finding of facts arrived at by the appellate court below as the last court of fact that summons were suppressed and decree obtained in the original suit fraudulently and collusively are not perverse and based on evidence on record. It is settled that once fraud is established, limitation will run from the date when it was detected. . . . (15)
 
Code of Civil Procedure (V of 1908)
Order V, Rule 10
Specific Relief Act (I of 1877)
Section 42
Both the courts below found that the plaintiffs are in possession in their portion of the suit land and the predecessor of the defendants obtained the decree collusively and fraudulently. In such view of the matter, plaintiffs are not required to seek any other relief as ‘further relief’ to their main relief of declaration.      . . . (19)
 
Mr. Abdul Quaiyum, with
Mr. Selim Reza Chowdhury, Advocates
. . . For the Petitioners
Mr. Md. Mainul Islam, Advocate
…For Opposite Party Nos.1-7, 12, 14, 16-19, 23-24
Mr. A. K. M. Rezaul Karim, Advocate
...... For Opposite Party No. 22
 
Civil Revision No. 4640 of 2008
 
JUDGMENT
Borhanuddin, J
 
1. This Rule was obtained by the plaintiffs upon making a revisional application under Section 115(1) of the Code of Civil Procedure against judgment and decree dated 08.05.2008 passed by the learned Additional District Judge, 8th Court, Dhaka, in Title Appeal No. 405 of 2006 affirming those of dated 10.07.2006 passed by the learned Joint District Judge, 1st Court, Dhaka, in Title Suit No. 451 of 2005 decreeing the suit.
 
2. Facts relevant for disposal of the rule are that plaintiffs instituted Title Suit No.79 of 1990, renumbered as Title Suit No.451 of 2005, in the Court of learned Subordinate Judge, 3rd Court, Dhaka, for setting aside preliminary decree dated 05.06.1979 passed in Title Suit No.118 of 1963, renumbered as Title Suit no.20 of 1967, and final decree dated 08.12.1988 signed on 26.01.1989 pursuant to preliminary decree and also for declaration that those are not operative against and binding upon the plaintiffs contending interalia that plaintiff no.1 Kalu Khan is a non Bengali Bangladeshi who cannot sign his name in Bengali; Said Kalu Khan purchased 5(five) kathas of land from C. S. Plot No.137 under C. S. Khatian no.167 vide registered kabala dated 05.12.1956 and has been residing therein by erecting houses; Plaintiff nos. 2 and 3 purchased 10 decimals of land from Abu Sayed Farajee and Nilufar Begum on 25.02.1971 and residing therein by erecting houses; said Abu Sayed and Nilufar Begum purchased the land on 05.11.1964 from Badrunnessa Chowdhury who purchased the same vide registered kabala dated 20.12.1961 from Anwaruddin Ahmed and Khandker Kamrul Huda; Father of plaintiffs no. 4 and 5 Hafez Sarkar purchased 2 gondas of land from C.S. plot no.125 under C. S. Khatian No.167 vide registered kabala dated 19.04.1961 and residing therein by erecting houses; After his expiry, his share devolved upon his wife, three sons and four daughters; Plaintiff no.6 Abdus Sobhan purchased 2 gondas of land from Md. Abdul Hafiz vide registered kabala dated 09.03.1965 from C. S. Plot No.139 and possessing the same through tenants; Abdul Hafiz purchased 5 gondas of land from C. S. Plot No.139 vide registered kabala dated 25.01.1962; on 28.03.1990 defendant no.3 informed plaintiff no.5 that they obtained decree relating to the lands of plaintiffs; On query through their advocate plaintiffs for the first time came to know about the judgment and decree under challenge and after procuring certified copy of the same filed the suit.
 
3. Defendant Nos. 1, 3-7, 21 and 22 contested the suit by filing written statement denying material allegations made in the plaint and contending interalia that the suit is not maintainable and bad for defect of parties. Further contending that summons of Title Suit no.118 of 1963 were duly served upon all the defendants, some of them contested the suit by filing written statement and some others prayed saham; On the expiry of defendant no.93 Fazlur Rahman, suit was abated but abatement order was cancelled in Miscellaneous Case No.10 of 1974; Summons of said miscellaneous case also served upon all the opposite parties; Predecessor of defendant nos. 16-21 alongwith five other defendants filed Title Suit No.16 of 1978 against exparte decree; Father of plaintiff nos. 4 and 5 i.e Abdul Hafiz, who was impleaded as defendant no.54 in the Title Suit, alongwith other two filed Miscellaneous Case No.11 of 1978 which was allowed and the exparte decree was set aside; Thereafter, preliminary decree passed on 05.06.1979 in presence of contesting defendants and subsequently final decree drawn up in accordance with law; Plaintiffs  of the present suit and their predecessors has/had prior knowledge about preliminary decree and final decree passed in the Title Suit; Present suit filed only to harass the defendants; Suit is liable to be dismissed.
 
4. Defendant Nos. 16-21 contested the suit by filing written statement supporting case of the plaintiffs.
 
5. After hearing the parties and assessing evidence on record learned Joint District Judge, 1st Court, Dhaka, decreed the suit.
 
6. Being aggrieved, defendants as appellants filed Title Appeal No.451 of 2006 in the Court of learned District Judge, Dhaka. On transfer, said appeal was heard and disposed of by the learned Additional District Judge, 8th Court, Dhaka, who after hearing the parties and reassessing evidence on record disallowed the appeal and thus affirmed findings of the trial court.  
 
7. Having aggrieved by and dissatisfied with the judgment and decree, defendant nos.1,3-7,-appellants as petitioners preferred this revisional application under Section 115(1) of the Code of Civil Procedure and obtained the present rule with an order of status-quo.
 
8. Mr. Abdul Quiyum, learned advocate for the petitioners submits that admittedly plaintiff of original suit No. 118 of 1963 Adam Ali was owner of rd share of the suit land by inheritance and the suit was decreed allowing saham to the plaintiff accordingly as such, appellate court below committed an error of law resulting in an error in the decision occasioning failure of justice in not holding that plaintiffs are not aggrieved by the impugned judgment and decree. He also submits that appellate court below committed an illegality in not holding that if the summons were not served upon some of the defendants that was mere irregularity which cannot be ground for setting aside a decree under Section 99 of the Code of Civil Procedure. He next submits that the court below committed an error of law resulting in an error in the decision occasioning failure of justice in not considering that original suit was filed in the year 1963 before promulgation of S. A. and R. S. record as such, mentioning number of unborn S. A. and R. S. khatian relating to suit plots were not possible. He also submits that plaintiff nos. 2,3, 7-18 are not parties in the original suit and as such allegation of non service of summons against them is not tenable in the eye of law. He submits that plaintiff nos. 1,4-6 were impleaded as defendants in the original suit as such, burden of proof lies upon them to prove that summons were not served. He lastly submits that appellate court below committed an illegality in not holding that the suit is barred by limitation inasmuch as final decree was drawn up on 28.04.1980 and the present suit filed long after 10 years on 08.04.1990 which is barred under Article 91 and 120 of the Limitation Act as such, impugned judgment and decree is liable to be set aside. In support of his submissions, learned advocate referred to the case of Ratan Chandra Dey and others-Vs- Jinnator Nahar and others, reported in 13 MLR (AD)168, the case of Bhashani Mondal being dead his heirs; Nanda Rani Mondal and another-Vs- Md. Abdus Sukur and others, reported in 18 BLT(AD)497, the case of  Girish Chandra Jana-Vs- Kala Chand Maity, reported in AIR 1957 (Calcatta) 242 and the case of Government of Bangladesh, represented by the Secretary, Ministry of Forest, Secretariat Building, Dhaka and others-Vs-Md. Osimuddin, reported in 11 MLR (AD)132.
 
9. On the other hand Mr. Md. Mainul Islam, learned advocate for the opposite parties submits that it is evident from record of the Title Suit that when preliminary decree was passed then the suit was not ready for hearing inasmuch as court below fixed 16.06.1979 for submitting written statement but PW.1 Md. Habibullah examined on 01.06.1979 and preliminary decree passed on 05.06.1979 as such, there is nothing to interfere with the impugned judgment and decree. He also submits that record of the Title Suit shows that PW.1 Md. Habib Ullah did not file any document in support of his deposition. He again submits that both the courts below upon assessing and reassessing evidence on record arrived at a concurrent finding that summon of the original suit was not served upon plaintiff no.1 of the present suit Kalu Khan who was impleaded as defendant no.14 in the original suit inasmuch as Mujibul Huq who allegedly received summon on behalf of Kalu Khan had no manner of relation with said Kalu Khan and defendants of the present suit failed to prove that Mujibul Huq was an agent of Kalu Khan. He next submits that plaintiffs having impeached the decree passed in earlier suit on ground of collusion and fraud on the assertion that they are owners in possession of the suit land, they are not required to seek any further relief to their main relief of declaration. He submits that once an amendmend is allowed, said amendment relates back to the date of institution of the suit. He lastly submits that there is no question of limitation when it is proved that summons were fraudulently suppressed and limitation will run from the date when the fraud was detected. In support of his contention, learned advocate referred to the case of Abdus Sukur (Md) and others-Vs- Bhasani Mandal and another, reported in 53 DLR 452, the case of Doon Valley Rice Limited-Vs-MV Yue Yang and others, reported in 48 DLR 531 and the case of Abul Khair Mia-Vs- Abdul Latif Sarder, reported in 32 DLR(AD)167.
 
10. Mr. A. K. M. Rezaul Karim, learned advocate for the opposite party No.22 by adopting submissions of Mr. Md. Mainul Islam add that plaintiffs of Title Suit no.118 of 1963 obtained the decree by suppressing summons and this finding of fact has been arrived at both by the trial court and appellate court below which is not revisable in this jurisdiction. He again submits that the finding of fact arrived at by the appellate court below which is the last court of fact that summons were fraudulently suppressed. He also relied upon the case reported in 32 DLR(AD)167.  
 
11. Heard the learned advocates. Perused revisional application, judgment of the courts below alongwith lower courts record of the present suit and Title Suit No.118 of 1963 and decisions cited by the learned Advocates.
 
12. Main contention of the plaintiffs in the present suit are that preliminary decree and final decree obtained in Title Suit No.118 of 1963 by suppressing summons fraudulently and also that at the time of passing preliminary decree, original suit was not ready for hearing. Relevant orders from order sheet of Title Suit no.118 of 1963 are reproduced below:

Order no.289 dated 31.5.79: Pltff. and the defdt. nos. 89, 91, 24, 101, 104 and some added defdts. file hajiras. One Gaznafar Ali Chowdhury and two others and one Manjur Murshed Waliur Rahman and two others (all are minors) file two petitioners under order I rule 10 of the Code of Civil Procedure with a prayer to add them as defendants in this suit on the ground stated in the petition. Copy served upon the pltff. Put up tomorrow for orders.

Order no. 290 dated 1.6.79:  Pltff. and the defendant No.89 file hajiras. Petitions dated 31.05.1979 filed by one Goznafar Ali Chowdhury and two others and one Manjur Murshed Waliur Rahman and two others are put up for hearing and order. Today defdt. no.46 also file a petition with court fees of taka 20/- and prays for separate saham.
It appears from the certified copy of the kabalas that the petitioners purchased a portion of Dag no.151. So, prayer is allowed. Amend the plaint and register accordingly. To 16.06.1979 for w/s. Keep it with file.

Order  No. 291 dated 1.6.79:  Added    defendants    Manjur Murshed Waliur Rahman and two others defdt. no.104-106 file a joint petition with court fees of taka 20/- and prays for compact saham for their share. Keep it with file.

Order  No. 292 dated 1.6.79:  Plaintiffs  and  the  defdt. no. 46 and 111-113 file hajiras and ready. The suit is taken up for hearing. PW.1 Md. Habubullah is examined. Put up on 5.6.79 for order.

Order No. 293 dated 2.6.79:  Defendant Nos. 97 and 98-100 file two petitions with court fees of taka 20/- in each petitions and prays for separate saham for their shares. Let the petitions be kept with the record.

Order No. 294 dated 4.6.79:  Defdt. no.105 files a petition with  court fees of taka 20/- and prays for separate saham. Let this petition be kept with the record.

Order No. 295 dated  5.6.79: Case is  proved. C. F.  paid is correct.

Hence,
ordered
that the suit be decreed in preliminary form on admission with cost agaisnt defdt. nos.7, 16(Ka)-16(gha), 18, 26, 46, 95-96, 97, 98-100, 101, 104, 105, 111-113, who do get their saham as prayed for and exparte against the rest with cost. Plaintiffs do get a saham of rd share in “C” schedule land. Parties may effect partition amicably within 60 days from today, failing which plaintiffs are entitled to get their saham separated by metes and bounds through court, by appointment of commissioner, who, if appointed and commissioned, is to respect possession and convenience and transfers of by respective parties so far as practicable.”
 
13. From the above orders, it appears that vide order no.290 dated 01.06.1979 though trial court fixed 16.06.1979 for written statement but on the same date i.e. 01.06.79 examined PW.1 Habibullah vide order no.294. More interesting is that suit decreed on 05.06.1979 though 16.06.79 fixed for written statement. From the above quoted orders it is evident that when preliminary decree passed, suit was not ready for hearing. So, I cannot disagree with finding of the appellate court below that decree was not passed in accordance with law. On perusal of the order sheet, I find that some of the orders i.e. from order no.247-253 are missing from the record.
 
14. On perusal of the record, it appears both the courts below arrived at a concurrent finding that summon was not served upon plaintiff no.1 Kalu Khan inasmuch as Mujibul Huq who allegedly received summon on behalf of Kalu Khan was not his agent and defendants failed to prove that he had any manner of relationship with Kalu Khan. From the plaint of present suit it also appears that owners of lands namely Anwaruddin Ahmed and Khandker Kamrul Huda who purchased the land on 18.03.1953 and sold the same to Badrunnessa Chowdhury vide kabala dated 20.12.1961 who on her turn sold the land to vendor of plaintiffs no. 2 and 3 were not made party in the original suit. It is also stated in the plaint that predecessor of plaintiff nos. 4 and 5 Abdul Hafiz Sarker purchased the land on 19.04.1961 but he was not made party in the original suit though one Howlader Abdul Hafez Sarker without mentioning father’s name impleaded in the original suit as defendant no.54. Order V of the Code of Civil Procedure deals with the issue and service of summons.
 
15. Finding of facts arrived at by the appellate court below as the last court of fact that summons were suppressed and decree obtained in the original suit fraudulently and collusively are not perverse and based on evidence on record. It is settled that once fraud is established, limitation will run from the date when it was detected.
 
16. It is not clear from the order sheet of Title Suit no.118 of 1963 whether Md. Habibullah who deposed as PW. 1 submitted documents in support of his testimony. Learned Advocate for the petitioners submitted that the plaintiffs of the present suit are not aggrieved by the judgment and decree of the previous suit inasmuch as plaintiff of the original suit allowed saham in respect of rd share as claimed by him as C.S. recorded tenant but on perusal of the plaint of Title Suit it appears that contentions of the plaintiff in the suit could be reverted by the defendants by filing written statement and adducing evidence if summons were duly served upon them as such, submission of the learned advocate does not hold water in the present context.
 
17. Under the facts and circumstances of the case and for the reasons stated above, I am of the view that preliminary decree passed in the Title suit when suit was not ready for hearing as such, preliminary decree and subsequent final decree were not passed in accordance with law and summons of the Title Suit No. 118 of 1963 were fraudulently suppressed as such, question of limitation does not arise. Furthermore, plaintiff of the Title suit obtained preliminary and final decree without impleading the persons who owned and possessed suit land before institution of Title suit.
 
18. In the present suit, plaintiffs impeached preliminary decree and final decree passed in Title Suit No. 118 of 1963 on ground of collusion and fraud on the assertion that they are owners in possession of their portion in the suit land before institution of the Title Suit in the year 1963.
 
19. Both the courts below found that the plaintiffs are in possession in their portion of the suit land and the predecessor of the defendants obtained the decree collusively and fraudulently. In such view of the matter, plaintiffs are not required to seek any other relief as ‘further relief’ to their main relief of declaration.
 
20. Facts and circumstances of the cases cited by the learned Advocate for the petitioners are quite distinguishable from the facts and circumstances of the case in hand.
 
21. Accordingly, the rule is discharged without any order as to cost.
 
22. Impugned judgment and decree dated 08.05.2008 passed by the learned Additional District Judge, 8th Court, Dhaka, in Title Appeal No.406 of 2006 is maintained.
 
23. Order of status-quo granted at the time of issuance of the rule is hereby vacated.
 
24. Accordingly, Title Suit No.118 of 1963, renumbered as Title Suit No.69 of 1986, is restored. Court concern is directed to dispose of the suit as soon as possible preferably within 1(one) year from the date of receipt of this judgment.
 
25. It is pertinent to mention here that disposal of the Title Suit should be confined within the present parties without allowing any further application for addition of party, otherwise it will be an unending process.
 
26. Send down lower courts record alongwith a copy of this judgment to the court concern at once.
 
Ed.