IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION) Present:

Mr. Justice Md. Moinul Islam Chowdhury

Civil Revision No. 1108 of 2018

IN THE MATTER OF:

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

And

IN THE MATTER OF:

Md. Asgar Ali

--- Plaintiff- Respondent- Petitioner. -versus-

Mst. Ohijan Khatoon and others

--- Defendant- Opposite- Parties.

Mr. Md. Sajjad Ali Chowdhury with

Mr. Md. Fazla Rabby, Advocate

--- For the Plaintiff-Petitioner. Mr. Md. Badsha Alamgir, Advocate

--- For the opposite parties.

Heard on: 03.04.2023, 04.04.2023, 30.04.2003, 09.05.2023 and 10.05.2023.

Date of Judgment: 11.05.2023 and 14.05.2023.

At the instance of the present plaintiff-appellant-petitioner, Md. Asgar Ali, this revisional application has been filed under section 115(1) of the Code of Civil Procedure and this Rule was issued calling upon the opposite party Nos. 1-5 to show cause as to why the judgment and decree dated 22.02.2018 (decree signed on 27.02.2018) passed by the learned Additional District Judge, Panchagarh in the Other Appeal No. 160 of 2011 reversing those of

the judgment and decree dated 02.11.2011 (decree signed on 13.11.2011) passed by the learned Senior Assistant Judge, Sadar, Panchagarh in the Other Suit No. 127 of 2010 should not be set aside.

The relevant facts for disposal of this Rule, inter-alia, are that the present petitioner as the plaintiff filed a partition suit being Partition Suit No. 43 of 2010 before the court of the learned Senior Assistant Judge, Sadar, Panchagarh where the present opposite party Nos. 1-5 as the plaintiffs filed the suit against the present plaintiff-respondent-petitioner, Md. Asgar Ali and another described the property for partition in the schedule of the plaint. The said suit was originally filed on 17.02.2010 but on 24.02.2010 filed a joint application for compromising among the parties as to the measurement of land, as such, the learned trial court being the Senior Assistant Judge, Sadar, Panchagarh passed the said judgment and order of the said partition suit on compromising among the parties. Subsequently, the present petitioner alone filed the instant Other Class Suit No. 127 of 2010 in the same court claiming a declaration of title as described in the schedule of the plaint and also for declaration of title and also for a declaration that the compromise decree passed in the Partition Suit No. 43 of 2010 would not be binding upon him. The present opposite parties as the defendants contested the suit by filing a written statement contending, inter alia, that the present suit is not maintainable and fraudulent. The written statement further contended that both the parties in the partition suit are sons and daughters of Abdul Gafur who became ill and after his death, the daughters filed the Partition Suit No. 43 of 10 and within a short period of time all the brothers and sisters as the parties in the suit filed a compromise deed which was decreed on compromise upon freewill and full consent which was read over to all the parties, as such, the present Rule is not tenable under the law.

Mr. Md. Sajjad Ali Chowdhury, the learned Advocate, appearing along with the learned Advocate Mr. Fazla Rabby for the petitioner submits that the learned court of appeal below being a final court of fact committed an error in law resulting in the decision occasioning failure of justice in coming to finding that no appeal and revision lies against any order or decree passed by the court in pursuance of settlement between the parties under the amended provision of the code of civil procedure, 2003, as such, arrived at a wrong decision misconceiving the provision of law.

The learned Advocate further submits that having regard to the fact that, Abdul Gafur, the father of the plaintiff-respondent- petitioner and plaintiff-respondent-opposite parties have given oral

Heba Deed in favour of the plaintiff respondent-petitioner and plaintiff-respondent-o