IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Moinul Islam Chowdhury

CIVIL REVISION NO. 283 OF 1989

IN THE MATTER OF:

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

-And-

IN THE MATTER OF:

Abul Kashem Mollah (died leaving behind his legal heirs:…..) and others

--- Defendant-Respondent-Petitioners. -Versus-

Moslem Ali Khan (O. P. Nos. 1 and 2. Moslem Ali Khan and Abdul Hamid Dhali both died leaving behind their legal heirs:……) and others

--- Plaintiff-Appellant-Opposite Parties. Mr. Sk. Reajul Hoque with

Mrs. Shishir Kona, Advocates

--- For the Defendant-Respondent-Petitioners. Mr. Nakib Saiful Islam with

Mr. Pannu Khan, Advocates

---For the Plaintiff-Appellant-Opposite Parties.

Heard on: 21.05.2023, 23.05.2023, 08.06.2023, 09.07.2023, 10.07.2023 and 18.07.2023.

Judgment on: 08.08.2023.

At the instance of the present defendant-respondent- petitioners, Abul Kashem (now deceased and substituted) and others, this Rule was issued upon a revisional application filed under section 115(1) of the Code of Civil Procedure calling upon

the opposite party Nos. 1 and 2 to show cause as to why the judgment and decree dated 20.10.2016 passed by the learned Joint District Judge, Court No. 1, Shariatpur in the Title Appeal No. 199 of 1987 allowing the appeal and that of the further proceedings of the Title Execution Case No. 02 of 2017 pending before the court of the learned Assistant Judge, Sadar, Shariatpur should not be set aside.

The relevant facts for disposal of this Rule, inter-alia, are that the present opposite party Nos. 1 and 2 as the plaintiffs filed the Title Suit No. 946 of 1979 in the court of the learned Munsif, Shariatpur on 21.09.1979 against the opposite party Nos. 03-10 for Specific Performance of Contract concerning a total land measuring 5.43 acres described in the schedule of the plaint. The said suit was eventually transferred to the learned court of Munsif (now Assistant Judge), Madaripur Sadar, Madaripur and renumbered as the Title Suit No. 163 of 1985. The plaint contains that Birendra Kishore, Dhirendra Kishore, Sunil Kumar, Makhan Lal, Mahendra Kumar and Sree Sree Radha Gobinda Thakur Jee represented by the said measurement of land as Shebayet Indra Bhusan and who himself entered into the above- mentioned suit property at a cost of Tk. 2,000/-. They

accordingly executed a Bainapatra on 18.04.1969 AD on receipt Tk. 1,800/- out of total Tk. 2,000/- as advanced money and delivered possession of the suit property to the plaintiffs. The said Bainapatra contains that the executents of Bainapatra would execute a registered sale deed upon collecting the income tax clearance and also permission from the Board of Revenue and the Executants who kept the remaining amount of money on the date of the registration of the deed. The plaint further contains that the plaintiffs were living in the property but allowed one of the executants, namely, Makhon Lal to live in the suit land. The executants could not have a registered sale deed and during the Liberation War, they went to India. However, the plaintiffs lastly offered the value of consideration money to them in the month of Bo¡t 1386 h¡wm¡ for registering a sale deed. After the filing of the said case Birendra, Dhirendra and Sunil Kumar died and their only heir defendant No. 1, Mohandra Lal Saha. Indra Bhushan Saha and his heirs were impleaded as the defendants. The present plaintiff-opposite party Nos. 1-6 were not served the required notices to the defendant Nos. 2-6 and did not receive the notices.

However, the defendant No. 1 and the added defendant Nos. 8-10 contested the suit by filing a written statement contending, inter alia, that the alleged Bainapatra dated 18.04.1969 AD was forged and fraudulent as none of the executants were present to execute the said Bainapa