Friday, October 19, 2018 | ePaper

Establishing claim in suit for partition

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Appellate Division (Civil) :
Md Abdul Wahhab Miah J
Md Imman Ali J
Kanchan Mallik and others................Appellants
vs
Saleha Begum and others.............Respondents
Judgment
November 18, 2015
Code of Civil Procedure (V of 1908)
Order VII, Rule 4
Since the plaint does not properly identity the suit land and no boundaries are mentioned in the schedule to the plaint nor any sketch-map appended thereto which might assist in identifying the suit land, there is no alternative but for the parties to establish their respective claim in a suit for partition.     . ..... (16)
Code of Civil Procedure (V of 1908)
Section 115 (1)
It is an established principle that in reversing the findings of the final Court of facts, the revisional Court must identify the evidence which has been misread or not Considered by the appellate court…..(15)
Bivash Chandra Biswas Advocate-on-Record-For the Appellants.
Md Oziullah, Advocate, instructed by Ferozur Rahman Advocate-on-Record-For Respondent No.1.
None represented -Respondent Nos. 2-46.
Judgment
Muhammad Imman Ali J : This Civil Appeal, by leave, is directed against the judgment and order dated 13-12-2004 passed by a Single Bench of the High Court Division in Civil Revision No. 3315 of 1995 making the Rule absolute.
2.    The facts of the case, in brief, are that respondent No. 1 herein as plaintiff filed Title Suit No. 43 of 1989 in the Court of the Assistant Judge, Kathalia, Jhalakathi, praying for declaration of rayoti right and title in respect of the land described in schedule ..'Ka' to the plaint. She stated, inter alia, that the land described in the 'Ka' schedule measuring 4.62 acres belonged to Gunai Mallik, who died leaving 3 sons, Baghai Mallik, Ratan Mallik and Jiten Mallik. Jiten Mallik settled 2.25 acres of land by patta dated 28-6-1920 in favour of Mohed MalIa and Amerunnessa. Mohed MalIa settled his land by patta dated 31-5-1941 to Kalu Shikder who then transferred the said land by patta dated 2-2-1942 to Abdul Kader Mallik and Lal Mallik. Lal Mallik died leaving son, namely Forkan who transferred 90-3/4 decimals of land by the kabala dated 10-10-1988 to the plaintiff; that Pakkhi Bibi, sister of Hatem son of Ratan, transferred 0.74 acres of land by patta dated 28-5-1943 to Noar Mohammad Mridha and Abdul Kader Mallik; and that Pakkhi Bibi on that date also transferred 0.49 acres of land to Abdul Kader Mallik and Ful Baru Bibi, i.e. father and mother respectively of the plaintiff. Abdul Kader Mallik died leaving son Lal Mallik and a daughter Saleha Begum, the plaintiff as heirs; that the plaintiff thus acquired title in 1.92 acres of land by inheritance and by purchase and owns .and possesses the said land upon paying rent to the Government; that at the time of recent survey the land was wrongly recorded in the name of the defendants and that wrong record having clouded the title of the plaintiff, she is constrained to file the suit.     .
3.    The suit was contested by defendant Nos. 2, 3, 13, 14, 21 and 22 as wel as by defendant Nos. 4-9 by filing two sets of written statements denying the material averments made in the plaint. The defendants stated, inter alia, that Gunai Mallik owned 4.46 acres of land and died leaving 3 sons and 3 daughters, and the sons of Gunai Mallik, namely Ratan Mallik, Jiten Mallik and Baghai Mallik transferred 2.30 acres of land by patta to Dabiruddin and he transferred 0.43 acres of land to the defendants; that land measuring 1.13 acres appertaining to Khabot No. 379 was recorded in the name of the Executor General, and land measuring 1.20 acres were recorded in the name of the predecessor of the defendant Nos. 4-9; that defendants are not claiming the share of Baghai Mallik; that land measuring 1.13 acres were recorded in the name of Mofezuddin and he transferred the said land to the defendants. The defendants are possessing 1.29-1/2 acres of land out of the land in suit; the plaintiff has no possession in the land; the defendant Nos. 4-9 are in possession of 0.63 acres of land; that plaintiff's predecessor Amirunnessa transferred 0.29 acres of land by patta dated 19th Chaitra, 1342 BS to Hukum Ali, Kasem Ali and Syed Ali and the defendants are in possession of the said 0.29 acre of land and the plaintiff has not included the said 0.29 acres of land in the suit.
4. After hearing the parties and considering the materials on record, the learned Assistant Judge, Kathalia, Jhalakathi, by his judgement and decree dated 27-7-1991 decreed the suit.
5. Against the said judgement and decree, the defendants preferred Title Appeal No. 82 of 1991 before the District Judge, Jhalakathi. On transfer, the appeal was heard and disposed of by the Subordinate Judge, First Court, Jhalakathi, who after hearing the parties, allowed the appeal reversing the judgement and decree of the trial Court.
6. Being aggrieved by and dissatisfied with the judgement and decree of the appellate Court, the plaintiff preferred Civil Revision. No.3315 of 1995 before the High Court Division and obtained Rule: which upon hearing the parties was made absolute.
7. Against the said judgement and order of the High Court Division, the defendants as petitioners filed Civil Petition for Leave to Appeal No. 205 of 2005.
8. Leave was granted on the following submissions of the learned Advocate appearing for the petitioners:
"(1) The lower appellate Court, as final Court of facts, upon assessing and reassessing the evidence, both oral and documentary, held that the plaintiff will get 0.34-1/2 acres of land but the High Court Division erred in law in 'making the Rule absolute without reversing the said findings.
(II)    The appellate Court below correctly held that the suit being for mere declaration of title, is not maintainable without seeking relief for partition because the land. in question. is unspecified, the High Court Division committed error of law in making, the Rule absolute without reversing the said finding;
and
(III) The Court of appeal below, as the last Court of facts, has pronounced its verdict upon proper assessment and reassessment of evidence, both oral and documentary, pleadings and other materials on record; the revisional Court erred in law in making the Rule absolute without reversing the findings of the last Court of facts.
9. Mr Bivash Chandra Biswas, learned Advocate-on-Record appearing on behalf of the appellant made submissions in line with the ground upon which leave was granted. The learned Advocate pointed out that neither the body of the plaint nor the schedule to the plaint specifies the suit land giving its identity marked by boundaries and hence, the appellate Court correctly dismissed the suit, but the High Court Division without adverting to this provision of law as contained in Order VII, rule 4 of the Code of Civil Procedure, made the Rule absolute thereby decreeing the suit.
10. Mr Md Oziullah, learned Advocate appearing on behalf of the respondent No.1 made submissions in support of the impugned judgement and order of the High Court Division. He aslo submitted that the appellate Court did not properly assess the oral and documentary evidence and, as such, the judgement and decree of the Appellate Court was rightly reversed by the High Court Division. He further submitted that the High Court Division upon scrutiny of the evidence of PWs and DWs as well as other materials on record found that the appellate Court did not consider the material part of the evidence of PWs and DWs, particularly with regard to the possession of the plaintiff, and thus the Impugned judgement is a proper one in exercise of its revisional jurisdiction.
11. We have considered the submissions of the learned Advocates appearing for the parties concerned and perused the impugned judgment of the High Court Division and other connected papers on record.
12. We note from the schedule to the plaint that the suit land is described at the end of the 'ka' schedl1le as follows:
Ò1-5 bs `dvq †gŠt m¤úwË 6.07 kZvsk Dnvi g‡a¨ ev`x Gi 1.92 kZvsk DnvB AÎ †gvKÏgvi we‡ivaxq|Ó
13. Although the plot numbers are given in serial Nos. 1 to 5 of schedule 'ka', the description of the suit land is finally stated as 1.92 acres (written as nal) out of 6.07 acres (written as naL) detailed in serial Nos. 1 to 5. We note that serial No.1 to 5 do not give any details of boundaries of the suit land, nor is there any detail regarding the boundary of the suit land in the body of the plaint. Clearly the description of the suit land appearing in the plaint, in particular in the schedule to the plaint, does not meet the requirements of Order VII, Rule 3 of the Code of Civil Procedure. The suit land having not been properly: identified in the decree of the trial Court, which has been upheld by the High Court Division, the said decree is not sustainable.
14. We find from the judgement of the appellate Court that there was discussion of the evidence of witnesses before arriving at the decision that the plaintiff was entitled to get 34-1/2 decimals of land but without a prayer for partition she was not entitled to get a decree for declaration of title under section 42 of the Specific Relief Act. We note from the impugned judgement that in fact the High Court Division in reversing the decision of the appellate Court, which is the final Court of facts, neither discussed the evidence of the witnesses nor reversed the findings of the appellate Court.
15. In its revisional jurisdiction the High Court Division can only interfere with the  judgement of the appellate Court in case of misreading and/ or non-consideration of evidence and materials on record, or misconception of law. In the instant case the High Court Division has not adverted to any evidence or materials which has been misread or not considered by the appellate Court and also there is no suggestion that the Appellate Court misconceived any provision of law. It is an established principle that in reversing the findings of the final Court of facts, the revisional Court must identify the evidence which has been misread or not considered by the appellate Court. This having not been done, the impugned judgement cannot be said to be in accordance with law and settled legal principles.
16. In view of the above discussion, we are of the opinion that the impugned judgement is not sustainable and is liable to be set aside. The appellate Court has pointed out that the suit, being one for declaration of title simpliciter, is not maintainable without a prayer for partition. Since the plaint does not properly identity the suit land and no boundaries are mentioned in the schedule to the plaint nor any sketch map appended thereto which might assist· in identifying the suit land, there is no alternative but for the parties to establish their respective claim in a suit for partition.
17. In the facts and circumstances discussed above, if a suit for partition is filed, the Court, before which such suit is filed, will look into the title of the parties afresh, and the finding of the appellate Court regarding title to the suit property shall not be binding upon the Court dealing with the partition suit, if any is filed.
With the above observations, the appeal is allowed without, however, any order as to costs. The impugned judgement and order of the High Court Division is set aside.

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