Present:

MR. JUSTICE S.M. EMDADUL HOQUE

CIVIL REVISION NO.1734 OF 2021. IN THE MATTER OF:

An application under Section 115 (1) of the Code of Civil Procedure.

- AND -

IN THE MATTER OF:

Humayun Kabir and another

..... Defendant-petitioners.

-Versus-

Most. Mafia Khatun and others

…… Opposite parties.

Mr. Md. Mubarak Hossain, Advocates

….. For the petitioners.

Mr. Md. Osman, Advocate

…. For the opposite parties.

Heard on: 04.02.2024, 25.02.2024 and Judgment on: 03.03.2024.

On an application of the petitioner Humayun Kabir and another under section 115 (4) of the Code of Civil Procedure the Rule was issued calling upon the opposite party No.1 to show cause as to why the judgment and order dated 18.02.2021 passed by the learned Additional District Judge, 2nd Court, Cumilla in dismissing the Civil Revision No.81 of 2019 and thereby affirming the judgment and order No.24 dated 20.08.2019 passed by the Assistant Judge, Debidwar, Cumilla in accepting the Commissioner Report in Title Suit No.23 of 2012 should not be set-aside and/or such other or further order or orders passed as to this Court may seem fit and proper.

Facts necessary for disposal of the Rule, in short, is that the opposite party No.1 as plaintiff instituted Title Suit No.23 of 2012 for partition of the schedule land against the present petitioners and the opposite party Nos.2-24 contending inter-alia, that one Chaitannaya Das Nomo and Dwaroka Nath Nomo were owners and possessors of scheduled 73 decimals land in equal share and accordingly the C.S. Khatian No.480/1 was prepared in their names and during S.A. operation, S.A. Khatian No. 608 was prepared in their names along with other co-sharers. Subsequently, Dwaroka Nath died issue less and his brother Chaitannaya Das became the owner of the entire land of C.S. Khatian No.480/1. Chaitannaya Das died leaving behind one son namely, Nidhiram Nomo and thereafter Nidhiram Nomo died leaving behind one son namely, Ashwini Kumar Nomo. Subsequently, Ashwini Kumar Sarker sold 08 decimals land out of suit plot No.1214 to the plaintiff vide saf-kabala deed No.8031 dated 12.12.73.

The B.S. Khatian in respect of the land of suit plot has been prepared in the name of the defendants and their predecessors for which they claimed title of the suit land. The suit land has not been partitioned by metes and bounds and the plaintiff requested the defendants to partition the suit land but they ignored to do so and lastly on 25.02.2012, the defendants denied to partition the suit land and as such, the plaintiff constrained to file the title suit.

The suit was contested by defendant No.1 by filing written statement denying all the material assertions made in the plaint contending inter-alia, that Chaitannaya Das Nomo and Dwaroka Nath Nomo were owners and possessors of the land of item No.2 in equal

eight annas share and accordingly the C.S. Khatian No.480/1 was prepared in their names. Dwaroka Nath being unmarried died leaving behind one brother namely Chaitannaya Das who became owner and possessor of entire 08 decimals of land of plot No.1214. During S.A. operation, S.A. Khatian No.608 was prepared in the name of said two brothers.

One Joynal Abedin Master has been owing and possessing the

land of item No.2 of the plaint by way of purchase and the plaintiff has included the said 08 decimals land of the Joynal Abedin Master without making him party. The defendants are owners of non-suited land of separate khatian and the plaintiff filed this suit only for harassing the defendants.

The contesting defendants have purchased non-suited 08 decimals land of same plot of C.S. Khatian No.480 from Rangmala Boishnabi, daughter of C.S recorded tenant Rajdhar Nomo vide saf-kabala deed No.8545 dated 20.03.1975. There exist a Mosque, graveyards, shops and different types of trees in the same plot of 1214

of non-suited 08 dec