Bench:

Mr. Justice Bhishmadev Chakrabortty

Civil Revision No. 3707 of 2010

Amin Ali alias Md. Amin Ali and others

..... petitioners -Versus-

Ataur Rahman and others

..... opposite parties Ms. Shamima Binte Habib with

Ms. Sabina Parvin, Advocates

..... for the petitioners

Ms. Farhana Siraj for

Mr. Surojit Bhattacharjee, Advocate

...... for the opposite parties

Judgment on 04.03.2024

At the instance of the defendants leave was granted and the rule was issued calling upon the plaintiffs to show cause as to whether in passing the judgment and order on 07.10.2009 the Additional District Judge, Court No. 5 (in charge), Sylhet in Civil Revision No. 20 of 2007 allowing the revision by setting aside the order of the Joint District Judge, Court No. 3, Sylhet passed on 10.10.2006 in Title Suit No. 26 of 1996 rejecting the Advocate Commissioner’s report under Order 26 Rule 9 the Code of Civil Procedure (the Code) has committed any error on an important question of law which has resulted in erroneous decision occasioning failure of justice and or such other or further order or orders passed to this Court may seem fit and proper.

The material facts for disposal of the rule, in brief, are that the plaintiffs instituted the aforesaid suit praying for declaration of title in respect of the suit land measuring in area of 3.18 acres as described to the schedule of the plaint. The defendants appeared in the suit and filed several sets of written statement denying the facts of the plaint. During pending of the suit the plaintiffs filed an application under Order 26 Rule 9 of the Code on 18.01.2003 for holding local investigation as to whether the land described in the registered kabuliyat dated 08.09.1941 attracts the land in the schedule to the plaint. The Joint District Judge allowed the said application and appointed Md. Abul Lais as Advocate Commissioner to investigate the claim as stated in the application for holding local investigation. The Commissioner after holding investigation submitted a report on 07.08.2004. Defendant 1 submitted objection against it stating that the Commissioner did not follow the procedure for investigation and submitted a biased report and as such it would be rejected. The Advocate Commissioner was examined as witness and his report was exhibited as ‘Ka’. He was also cross-examined by the defendants. However, the Joint District Judge by its judgment and order passed on 10.10.2006 rejected the report against which the plaintiffs filed Civil Revision No. 20 of 2007 under section 115(2) of the Code before the District Judge, Sylhet. The revision was heard on transfer by the Additional District Judge, Court No. 5 (in charge), Sylhet who by its judgment and order dated 07.10.2009 allowed the revision and set aside the judgment and order passed by the Joint District Judge, and consequently accepted the report of the Commissioner. In this juncture, the defendants approach this Court and obtained this rule with an interim order of stay of the proceeding of Title Suit No. 26 of 1996.

Ms. Shamima Binte Habib, learned Advocate for the petitioners takes us though impugned judgment and the documents appended with the rule petition and submits that the report submitted by the Advocate Commissioner is not a report in the eye of law. The Commissioner did not comply with the law and procedure required to be followed in holding local investigation. She refers to the evidence of the Advocate Commission and submits that in cross-examination he admitted that the plaintiffs did not supply the touzi, wazib ul aroz, index and thak map to him and without those relay of the suit land was not possible. The Joint District Judge although did not discuss in his order elaborately but his ultimate decision was correct. The lower revisional Court without adverting the findings of the Joint District Judge allowed the revision and set aside the judgment and order passed by him and thus committed error on an important question of law which is