Bench:

Mr. Justice Bhishmadev Chakrabortty

[

Civil Revision No.3958 of 2018

Md. Mukhles Miah ......petitioner

-Versus-

Abdul Kadir being dead his heirs:

1(Ka) Shahat Ali others

......opposite parties

Mr. Mohammad Abul Kashem Bhuiyan,

Advocate ...... for the petitioner

Mr. Ali Ahsan Mullah, Advocate

...... for opposite parties 1(Ka),1(Kha), 1(Uma), 1(Cha), 1(Chha) and 2

Judgment on 30.05.2024

This Rule at the instance of defendant 2 was issued calling upon plaintiff-opposite parties 1(Ka) to 1(Chha) and 2 to show cause as to why the judgment and decree of the Additional District Judge (in- charge), Court No.1, Brahmanbaria passed on 28.10.2018 in Title Appeal No.44 of 2017 dismissing the appeal affirming the order and final decree of the Senior Assistant Judge, Nasirnagor, Brahmanbaria passed on 13.02.2017 and 20.02.2017 respectively in Title Suit No.55 of 2000 (partition) rejecting the petitioner’s objection against the Advocate Commissioner’s Report and drawing up final decree in the suit should not be set aside and and/or such other or further order or orders passed to this Court may seem fit and proper.

At the time of issuing the Rule all further proceedings of Execution Case No.02 of 2017 was stayed for a limited period which was subsequently extended till disposal of the Rule.

The material facts for disposal of the Rule, in brief, are that the plaintiffs instituted the suit for partition of the land as described in the schedule to the plaint claiming their saham. Defendant 2 appeared in the suit, filed written objection and claimed saham. The suit was ultimately decreed in preliminary form by the judgment and decree passed on 03.07.2002. The Assistant Judge allocated saham to plaintiff1 of ·12 1⁄6 acres, plaintiff 2 to ·12 2⁄3 acres and defendant 2 to ·121⁄6 acres. Thereafter, on appeal before the District Judge the parties became unsuccessful and the judgment and decree passed by the trial Court was upheld. After decreeing the suit in preliminary form the plaintiffs filed applications for appointment of Advocate Commissioner to allocate saham physically as per preliminary decree which were allowed in several occasions but ended fruitless due to the disagreement of the parties with Commissioners’ reports. Finally, the plaintiffs filed an application to the trial Court on 24.05.2016 for appointment of an Advocate Commissioner to allocate saham for preparing final decree. The application was allowed on that day and Mr. Md. Emdadul Haque, learned Advocate was appointed to do Commission in the suit land as per writ. The Advocate Commissioner performed his job according to the provisions of Rule 13 of Order 26

of the Code and finally submitted his report on 30.06.2008 along with field book, chitta, saham sheet and sketch map wherein he gave possession to plaintiff 1 in respect of A, B, C, D and E and plaintiff 2 land of F, G and H to the sketch map.

Against the aforesaid report defendant 2, petitioner herein filed written objection. The petitioner stated facts therein that although the trial Court allocated saham to defendant 2 for ·121⁄6 acres but the Commissioner did not distribute saham to him and kept his share out of the sketch map. However, the Assistant Judge examined the Advocate Commissioner on oath, rejected the objection on 13.02.2017 and prepared final decree on 20.02.2017.

Against the aforesaid final decree, defendant 2 filed appeal before the District Judge. The appeal was heard on transfer by the Additional District Judge, Nasirnagor, Brahmanbaria who by its judgment and decree dated 28.10.2018 dismissed the appeal and affirmed the judgment and final decree passed by the Assistant Judge which prompted the petitioner to approach this Court and this Rule was issued and an interim order of stay was passed.

Mr. Mohammad Abul Kashem Bhuiyan, learned Advocate for the petitioner takes me through the materials on record and submits that the trial Court decreed the suit in preliminary form wherein saham wa