JOBEDA KHATUN AND OTHERS VS. MD. HAMID ALI BEING DEAD HIS HEIRS TAHERUN NESSA AND OTHERS

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Case No: Civil Appeal No. 66 of 1985

Judge: ATM Afzal ,

Court: Appellate Division ,,

Advocate: Mr. T. H. Khan,Dr. Rafiqur Rahman,,

Citation: 40 DLR (AD) (1988) 101

Case Year: 1988

Appellant: Jobeda Khatun and others

Respondent: Md. Hamid Ali being dead his heirs Taherun Nessa and others

Subject: Property Law,

Delivery Date: 1987-03-31

Jobeda Khatun and others Vs. Md. Hamid Ali being dead his heirs Taherun Nessa and others
40 DLR (AD) (1988) 101

Supreme Court
Appellate Division
(Civil)

Present:
Badrul Haider Chowdhury J
Shahabuddin Ah­med J
M. H. Rah­man J
A.T.M. Afzal J

Jobeda Khatun and others
…………………..Appellants
Vs.
Md. Hamid Ali being dead his heirs Taherun Nessa and others
………………..Respondents

Judgment
March 31, 1987.

The Code of Civil Procedure, 1908 (V of 1908)
Order XLI, rule 23
The documents being lawfully admitted into evidence on behalf of the appellants but could not be considered for want of oral evidence as held by the High Court Division and on such finding the suit ought to have been sent back on remand as it is a suit for partition. Thus the suit is sent back on remand with permission to examine witnesses in support of the document already proved. However the Heba-Bil-Ewaj having been disbelieved by the courts below concurrently shall not be reopened in the fresh trial……………….(11 & 12)

Lawyers Involved:
T. H. Khan, Senior Advocate, instructed by Miah Abdul Gafur, Advocate-on-Record. – For the Appellants.
Rafiqur Rahman, Senior Advocate, instructed by Md Aftab Hossain, Advocate-on-Record. -For Re­spondents 1(a)-(chha)
Dead Substitution exempted vides order dated: 18.11.86. – For Respondents Nos. 35 (chha) 36 and 49.
Ex parte—For Respondents Nos. 2-35(ch) 35(ja) ,35(Ta), 37-48 and 50-64.

Civil Appeal No. 66 of 1985.
(From the judgment and order dated 27.3.84 passed by the High Court Division, Dhaka in Civil Revision case No. 152 of 1983.)

JUDGMENT

A. T. M. Afzal J:Defendant Nos. 2-7 in a suit for partition are appellants in this appeal by special leave. The question raised is whether the High Court Division ought to have made an order of remand in the interest of justice as prayed for by the appellants.

2. Md. Hamed Ali, predecessor-in interest of re­spondent Nos. 1(ka) to 1(chha) filed partition Suit No. 61 of 1972 in the First Court of Subordinate Judge, Mymensingh. Plaintiff is the son of one Sonaullah Sk. who, according to the plaintiff, was the owner of schedule 1 and 1(ka) lands of the plaint. Hajrat Ali, predecessor-in-interest of the appellants (defendants 2-7), is admittedly another son of afore­said Sonaulla Sk. by another wife. For the purpose of the present appeal, it is not necessary to set out the plaintiff’s case at length which appears in the impugned judgment and also in those of the courts below. Plaintiff in all claimed 11.41 decimals of land in the different schedules of the plaint. The bone of contention between the plaintiff and the present appellants mainly relates to the lands of khatian No. 128. Whereas the plaintiff’s case is that Sonaullah Sk. was the owner of the said lands and suc­cession opens from him, the appellants contended that the land of khatian 128 originally belonged to one Khoaj Sheikh who died leaving only son Kader Sk. Kader Sk. died leaving son Sonaullah and daugh­ter Kalamjan. Thus Sonaullah got 10 annas 13 gon­das 1 kara 1 kranti, and Kalamjan got 5 anna 6 gonda 2 kara 2 kranti share out of the said jote. Appellant’s further case is that Sonaullah died leaving one wife, three sons and five daughters. His wife accord­ingly got 1 anna 6 gondas 2 Kara 2 kranti and each son got 1 anna 13 gondas 3 kara 2 kranti 3/11 danti and each daughter got 16 gondas 3 Karas 2-7/11 kran­ti. Kalamjan made a Heba-bil-ewaj for 2.60 decimals of land on 27.8.37 in favour of Hajrat Ali Sk. prede­cessor of the appellants. Subsequently the heirs of Momunnessa daughter of Sonaullah sold her interest in favour of Hajrat Ali by a kabala dated 30.9.59. In this way the appellants got 6.62 acres of land by purchase and inheritance. Further case of the appel­lants is that a partition deed was executed and regis­tered between the plaintiff and Hajrat Ali in which the latter got 6.10 acres and the plaintiff got 9.59 acres of land. Appellants alleged that the suit was thus not maintainable. They, however, prayed for a saham in the event a partition is directed to the ex­tent of 6.62 acres of land.

3. Appellants filed a written statement in the suit raising the aforesaid and other contentions. Be­sides the appellants there were other defendants who filed written statement and prayed for saham.

4. Appellants, however, did not examine any witness in support of their case but they filed certain documents which were marked Exhibits, “Ka” to “Uma”, upon dispensing with their formal proof. Exhibit “Ka” is C.S. Khatian No.128. Ext. “Kha” is a registered partition deed dated 30.1.61 executed by Hamed Ali and Hajrat Ali. Ext. “Ga” is Heba-bil-Ewaj deed dated 27.8.37 by Kalamjan in favour of Hajrat Ali. Ext. “Gha” is Kabala dated 19.1.44 by Hamed Ali in favour of Hajrat Ali. Ext. “Uma” is a registered deed of lease dated 30.3.39 by A. Kader and others in favour of Hajrat Ali.

5. It appears from the judgment of the learned Subordinate Judge that he decided the case treating defendant No.1 to be the main contestant and the present appellants as not contesting the suit at all. Upon a consideration of the evidence and the respec­tive cases of the parties, the learned Subordinate Judge gave a part decree to the extent of 10.03 acres of land in favour of the plaintiff and allotted saham in favour of other saham-praying defendants includ­ing defendant No.1.

6. Defendant No.1 and the present appellants filed separate appeals against the judgment and decree of the trial court. The appellants appeal was num­bered as O.C. Appeal No. 39/77. Both the appeals were dismissed by the Additional District Judge, Third Court, Mymensingh by Judgment and decree dated 20.2.83. Appellants then filed a revision peti­tion in the High Court Division being Civil Revi­sion Case No. 152 of 1983. The learned judges of the High Court Division, by the impugned judgment and order dated 27 March 1984 March 1984, dis­charged the rule upon holding that there was no ground for directing a remand as prayed for by the appellants.

7. Leave was obtained upon submitting that on their own findings the learned judges of the High Court Division ought to have remanded the suit, in the interest of justice and further that once the docu­ments have been admitted without objection in a suit for partition where each co-sharer is a plaintiff, the appellants should have been given an opportuni­ty to lead oral evidence in support of their case and connecting the documents already on record with the said case even though the appellants failed to exam­ine any witness initially at the trial.

8. Mr. T. H. Khan, learned counsel for the appel­lants, in support of his prayer for an order of remand in the interest of justice pointed out that the appel­lants were the weaker contestants in the suit in that they included only women and minors being heirs of Hajrat Ali, brother of the plaintiff Hamed Ali. They have quite a formidable case as the documents pro­duced by them would apparently show but unfortunately of proper legal advice in not putting the box on their behalf, their case so much so that the trial court took be non-contesting and did not even allot any in their favour although they were entitled to: whatever it might have been. Mr. Khan submitted this could not and should not have been fate of co-sharers in a partition suit who claim a sham and have proved documents which were not even objected to. We think there is a good deal of persuasion in the submission of the learned counsel for the appellants.

9. It appears from the judgment of the High Court Division that the learned Judges found that the, documents produced at the trial by the defendant-appellants (Ext.”Ka” to “Uma”) were lawfully admit­ted into evidence after dispensing with their formal proof and the problem was not with regard to the ad-missibility of the documents but it raised a question as to the evidentiary value of those documents in the absence of any oral evidence supporting the defen­dants’ case in the written statement. The present de­fendants disputed the devolution of land of khatian No. 128 from Sonaullah Sk. as the original owner. According to them Khoaj Sk. was the original own­er. But unless this fact was deposed to (which was not done) the documents of the defendants would hang in the air and their substantive case would re­main unconnected with the documents in the absence of oral evidence. In this context the High Court Di­vision rightly observed that it is well-known that the statements made in the written statement are not evidence, that defendant No.2-7 having taken no step to connect their documents with the written statement case by examining any witness the courts below were not called upon to express any opinion merely upon the recitals of those documents and that in the absence of oral evidence the» prayer for saham even was not before the court.

10. Mr.T.H. Khan frankly admits that no ex­ception can be legally taken to the views expressed by the High Court Division. He, however, pointed out that there were some materials even in the evi­dence of the plaintiffs witness which support the ap­pellants’ case. For example, he pointed out that the plaintiffs son P.W.1 Abul Kashem admitted in cross-examination that there was an amicable-registered partition deed, dated 30.1.61 between his father Hamed Ali and uncle Hajrat Ali and he was an attesting witness in the said deed. This registered partition deed was Ext. ‘Kha’ but neither of the Courts below; it is argued, considered the effect of the admission of P.W. 1 as to an amicable partition between the plaintiff and the predecessor of defen­dants 2-7 which was registered. Then there was the admitted kabala Ext. ‘Gha’ in favour of Hajrat Ali executed by Hamed Ali for 40 decimals of land. Mr. Khan has submitted that there cannot be any good reason for not considering the admitted facts at least in favour of the defendants’ claim for a saham.

11. In view of all the facts noticed above and particularly the findings made by the learned Judges of the High Court Division that the documents were lawfully admitted into evidence on behalf of the ap­pellants but could not be considered for want of oral evidence, we think that the suit being a partition suit, the High Court Division ought to have granted the prayer for remand made before it. It is desirable that the dispute between the co-sharers should be re­solved in one trial in the presence of all the co-sharers and saham allotted accordingly if prayed for. For whatever reason the appellants might have failed to examine any witness, want of proper advice it is said, in support of their case, Court should have in­tervened, either in appeal or revision, having regard to the nature of the suit, to allow the appellants a turn for examining their witness for the purpose of complete adjudication between the co-sharers. Such intervention by the court will not only be a step in the interest of justice but the present trend in more progressive societies encourage more interventionist role by courts for resolution of disputes quickly and once and for all.

12. We are of the view that the suit should be decided by taking into consideration the case of the appellants as well and for the said purpose they will be permitted to examine witness in support of their case and for connecting the documents already proved by them. The trial court shall consider all aspects of the appellants’ case and decide the suit afresh keeping in view the case of the plaintiff and other saham-praying defendants. The case of defendant No.1 as far as it is based on alleged Heba-bil-ewaj deed having been concurrently disbelieved by the courts below shall not be re-opened in the fresh trial. Since the appellants are themselves to blame for their predica­ment but now they are getting a favourable order, they should bear the cost of the contesting respon­dents in this appeal.

13. In the result, therefore, the appeal is al­lowed and the suit is remanded to the trial court for fresh trial in the light of the observation made above.

The appellants will bear costs of the respon­dents in this court.

Ed.

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