Bench:

Mr. Justice Bhishmadev Chakrabortty

Civil Revision No. 4513 of 2016

Razia Khatun and others

......petitioners -Versus-

Md. Khokon Kha and others

......opposite parties

Mr. Md. Shah Alam Sarker, Advocate

...... for the petitioners

Mr. Golam Ahmed Bulbul, Advocate

...... for opposite parties 1-12

Judgment on 14.07.2024

At the instance of defendants 4(Ka)-4(Jha) this Rule was issued calling upon the plaintiff-opposite parties 1-12 to show cause as to why the judgment and order of the District Judge, Chandpur passed on 03.11.2016 in Title Appeal No.74 of 2016 dismissing the appeal summarily affirming the final decree drawn up on 19.01.2012 by the Senior Assistant Judge, Sadar, Chandpur in Title Suit No.75 of 1965 decreeing the suit on compromise should not be set aside and and/or such other or further order or orders passed to this court may seem fit and proper.

Facts relevant for disposal of the Rule, in brief, are that opposite parties 1-4 herein as plaintiffs instituted the aforesaid suit against the petitioners and others praying for partition of the suit land as described in the schedule to the plaint claiming saham to the extent of 2.32 acres. The predecessor of the present petitioners appeared in the suit as defendant 4 and claimed saham. But

subsequently he and the plaintiffs filed a solenama in the suit. The application was allowed and the suit was decreed on compromise in preliminary form on 20.06.1966 according to the terms of the solenama. The plaintiffs got 2.05 acres of land while petitioners got .705 acres. The plaintiffs then filed an application in the trial Court for getting saham as per the terms of the preliminary decree. The said application was allowed and an Advocate Commissioner was appointed for allocating the land as per the preliminary decree. The Advocate Commissioner submitted a report on 09.06.2010 with sketch map, chitta, field book and etc. The Court accepted the report on 29.09.2011 without any objection. In the said report it is found that the Advocate Commissioner also allocated saham to the above petitioners, i.e., heirs of defendant 4.

Against the aforesaid order of acceptance of the Commissioner’s report these petitioners filed Civil Revision No.07 of 2012 before the District Judge, Chandpur. The Additional District Judge, Chandpur heard the said revision on transfer and by the judgment and order passed on 02.04.2014 rejected the same. The petitioners filed Civil Revision No.1659 of 2014 against it before this Court. The Rule issued in the aforesaid revision was made absolute by this Division on 07.09.2014 and the report of the Commissioner was set aside. This Court further directed the trial Court to appoint a fresh Advocate Commissioner to relay the suit land as per present possession. The plaintiffs challenged the aforesaid judgment and order in the Appellate Division in Civil Petition for Leave to Appeal No.3255 of 2014. The appeal was allowed and the judgment and order passed by the High Court Division in the revision was set aside. The Appellate Division further directed the trial Court to proceed with the execution case and dispose of it expeditiously. Thereafter, the trial Court drawn up the final decree on 19.01.2012 but the petitioners challenging it preferred appeal before the District Judge. The District Judge heard the appeal and by the judgment and order dated 03.11.2016 dismissed the appeal summarily. Being aggrieved by the petitioners approached this Court challenging the appellate judgment and order as well as the final decree prepared by the trial Court and obtained this Rule.

Mr. Md. Shah Alam Sarker, learned Advocate for the petitioners taking me through the materials on record submits that the Court of appeal below did not enter into the merit of the appeal but dismissed it on the ground that against the acceptance of Commissioner’s report these petitione