IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION

Present:

Mr. Justice S M Kuddus Zaman CIVIL REVISION NO.4154 of 2005. In the matter of:

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

And

Sreemoti Momota Rani (Mukul) and others

...Petitioners -Versus-

Sreemati Narayani Kunda and others

...opposite parties

Mr. Md. Garib Newaj, Senior Advocate with Ms. Maksuda Akhter, Advocate

...For the petitioners No one appears

...For the opposite parties

Heard & Judgment on 29.08.2024.

This rule was issued calling upon the opposite party Nos.1-6 to show cause as to why the judgment and decree dated 11.09.2005 and 18.09.2005 respectively passed in Partition Appeal NO.06 of 2005 by the learned District Judge, Joypurhat reversing the judgment and decree dated 27.11.2000 and 29.11.2000 respectively passed by Sub-ordinate Judge, 2nd Court, Joypurhat in Suit No.18 of 1999 partition should not be set aside and/or pass such

other order or orders as to this Court may seem fit and proper.

Facts in short are that petitioner as plaintiff instituted Title Suit No.18 of 1999 for partition seeking a separate saham for 92 decimal land. Above suit was contested by defendants No.1-6 by filing a joint written statement.

On conclusion of trial the learned Sub-ordinate Judge decreed above suit in part and granted the plaintiff a separate saham for 46 decimal land.

Being aggrieved by the above judgment and decree of the trial court above plaintiffs preferred Title Appeal No.07 of 2001 to the District Judge who dismissed the appeal and affirmed the judgment and decree of the trial court.

The plaintiffs submitted a petition for appointment of an Advocate Commissioner for partition of above land and make the preliminary decree final. Accordingly Advocate Hafizur Rahman was appointed as Advocate Commissioner who on conclusion of investigation submitted a report which was accepted by the the trial court on 06.03.2005 and a final decree was passed on the basis of above report.

Being aggrieved by above judgment and final decree of the trial court the defendants as appellants preferred Partition Appeal No.06 of 2005 to the District Judge, Joypurhat who allowed the appeal, set aside the Advocate Commissioners report and the final decree and directed for further investigation of the disputed land by a newly appointed Advocate Commissioner.

Being aggrieved by above judgment and decree of the learned District Judge the respondent as petitioner moved to this court and obtained this rule.

Mr. Md. Garib Newaj learned senior Advocate for the petitioners submits that it has been admitted by both the parties in their respective pleadings and evidence that on amicable partition plaintiffs are in possession in their 46 decimal land by constructing their dwelling house from the north side of the disputed plot and the defendants are in possession in the land of their share by constructing their dwelling house on the southern part of the disputed plot. The learned Judge of the court of appeal below clearly mentioned above position of possession in the impugned judgment. The learned Judge held that the dwelling house of the plaintiffs is situated in front of the paved road but the house of the defendants is behind the above road and the defendants has a genuine

grievance against above position and they wanted to change the location of their house and bring their house in front of the paved road.

The learned District Judge misconceived the principle of partition and most illegally held that the aspiration of the defendants to get closer to the road must be fulfilled and on basis of above erroneous perception of law and facts set aside the advocate Commissioners report and the final decree which is not tenable in law.

No one appears on behalf of the opposite parties at the time of hearing of this revision.

I have consi