Present:

Mr. Justice Mohammad Ullah

Civil Revision No. 2014 of 2014

Abdul Matin and others

... Plaintiff-respondent-petitioners

-Versus-

Foyez Chowdhury and others

...Defendant-appellant-opposite parties

Mr. Muhammad Moshiul Alam, Advocate

... For the petitioners

Mr. M. Khaled Ahmed, Advocate

... For the opposite party Nos.2, 4 and 5

Heard on: 12.12.2022 and 03.01.2023

Judgment on: 05.01.2023

On an application under section 115(1) of the Code of Civil Procedure, this Court by order dated 25.05.2014, at the instance of the plaintiff-respondent-petitioners, a

Rule was issued in the following terms:

“ HC j−jÑ Aflfr−cl fË¢a L¡lZ cnÑ¡−e¡ f§hÑL l¦m S¡l£ Ll¡ qCm, ®Le ¢p−m−Vl ¢h‘ A¢a¢lš² ®Sm¡ SS, a«a£u Bc¡ma Hl ¢jp 26/2009 ew Bf£−m fËQ¡¢la 11/02/2014 a¡¢l−Ml a¢LÑa l¡u Hhw B−cn lc J l¢qa Ll¡ qC−h e¡, ®k l¡u J B−cnj§−m ¢p−m−Vl ¢h‘ k¤NÈ ®Sm¡ SS, A¢a¢lš² Bc¡ma Hl ¢jp 16/2005 ew j¡jm¡u fËQ¡¢la 30/11/2008 a¡¢l−Ml l¡u Hhw B−cn f¢lhaÑe f§hÑL Bf£m¢V j”¤l qCu¡−R Hhw clM¡ØaL¡l£NZ Aœ Bc¡ma Hl ¢h−hQe¡u Bl ®k pLm fË¢aL¡l f¡C−a f¡−le

a¡q¡l J B−cn ®Le ®cJu¡ qC−h e¡ ”z

At the time of issuance of the Rule, further proceedings of Title Suit No.11 of 2004 pending in Additional Joint District Judge Court, Sylhet, stayed initially for six months. After that, on 02.11.2015, the period of stay was extended till the disposal of the Rule.

The facts leading to disposal of the Rule, in short, are that Aftab Ali, as the plaintiff, instituted Title Suit No.71 of 1982 (partition) in the 2nd Court of Sub- ordinate judge, Sylhet impleading the predecessor of the present opposite parties as defendant No.12 and others praying for a decree for partition in respect of their inherited joint land and properties mentioned in the schedule to the plaint.

Subsequently, the suit was transferred to the Court of the then Subordinate Judge and Artha Rin Adalat, Sylhet, and renumbered as Title Suit No.13 of 1992.

On 29.09.1996, the said suit was decreed ex-parte.

Subsequently, for drawing up the final decree, the suit was transferred to the Court of Joint District Judge, Additional Court, Sylhet, and renumbered Title Suit No.11 of 2004.

A survey-knowing advocate commissioner was appointed. Who, after the survey, submitted a report. But the defendant Nos. 18(ka) – 18(ga) filed a written objection against the Advocate Commissioner's Report.

The petitioners filed Miscellaneous Case No.16 of 2005 under order 9 rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree dated 29.09.1996 passed by the Joint District Judge, Additional Court, Sylhet in Title Suit No.11 of 2004 contending inter alia that Aftab Ali, the predecessor of the petitioners as plaintiffs filed Title Suit No.71 of 1982 in the 2nd Court of Sub-ordinate judge, Sylhet impleading the predecessor of the present opposite parties as defendant No.12 and others for partition in respect of their inherited joint land and properties

mentioned in the schedule to the plaint of Title Suit No.71 of 1982. Waris Ali, the predecessor of the present opposite party, lived in Saudi Arabia from 1981 to 1988. As such, he was not notified, and he had no knowledge about Title Suit No.71 of 1982. In 1988, Waris Ali came back from Saudi Arabia and became paralyzed on 26.07.1995. Waris Ali (defendant No.12 of Title Suit No.71 of 1982) died in a paralyzed condition. After the death of Waris Ali, his legal heirs were not substituted in the suit, and they also did not know about the filing of the suit. In the first week of June 2005, an unknown person who happened to be an Advocate Commissioner came to the suit land. The present opposite parties asked one Taher Ali about such an unknown person who said there might be a suit pending in the Court regarding the land. On the advice of Taher Ali, present opposite party Nos. 1-3 inquired into the matter and learned through a Mohrar, namely Mubarok Husan, about the ex-parte decree.

The present opposite party No.1 learned that on 31.03.1982, when their predecessor Waris Ali was a