সতর্কীকরণ! বিডি কানুনে প্রকাশিত অধিকাংশ নজীর বিভিন্ন বই ও ওয়েবসাইট থেকে সংগ্রহ করা হয়েছে। এই সকল নজীর এর সঠিকতার বিষয়ে বিডি কানুন কোন নিশ্চয়তা প্রদান করে না। বিডি কানুনে প্রকাশিত নজীর এর উপর নির্ভর এর আগে সংশ্লিষ্ট নজীরটির রেফারেন্স মিলিয়ে নেওয়ার অনুরোধ করা হচ্ছে।
Partition Suit Submission
Ref: 73 DLR 58
On behalf of the Petitioner
That both the Courts below concurrently came to the findings that there is no common interest of the plaintiffs and defendant No. 1 in any other land except the suit plot, yet the appellate Court sent the case on remand to the trial Court which has resulted in an error in passing the impugned decision occasioning a failure of justice.
That it is the settled principle of law that where the parties to the suit have no common interest in a particular property, such property does not need to be included in the schedule of the partition suit.
That the appellate Court made out a third case of adverse possession in favour of the defendant N 1 which is beyond the pleadings as because the No defendant No. 1 did not set up a case of adverse possession and, as such, the impugned Judgment is perverse in the eye of law.
That though the appellate Court relied very much on the afore-cited decision in remanding the suit, but the case of 45 DLR has no manner of relevance in the instant case inasmuch as the facts are completely different from the facts of the present case.
That the appellate Court sent the case on to the trial Court in a whimsical manner which is not in conformity with the provision of the law remand engraved in the CPC and hence the appellate Court's Judgment is liable to be set-aside, because it is a settled principle of law that when the trial Court after framing the issues and giving parties an opportunity to adduce evidence disposes of the suit on merit, the appellate Court cannot remand the case back to trial Court for disposal on merit afresh.
That mere disagreement with the findings of the trial Court is no ground for the appellate Court to send the case back on remand when the evidence on record is sufficient to decide the matter finally.
That the impugned decision is not a proper Judgment of reversal in the light of the provision of Order XLI, rule 23 of the CPC and, therefore, the same is liable to be set-aside and, accordingly, prays for making the Rule absolute towards upholding and maintaining the trial Court's decision.
On behalf of the Opposite Party
That in view of the fact that Saifa Bibi had inherited some other lands on top of owning the suit land of 0.41 acres of land and after her death her 4 sons and 2 daughters inherited the same; that by amicable partition, while 4 sons got the suit land with a share of 0.1025 each, the daughters were given their respective sahams from the other lands of Saifa Bibi; that the defendant Nos. 2-4 purchased some land of the suit property and exchanged 0.31 acres of land with defendant No. 1 which is in north portion of the suit land and defendant No. 1 was possessing the same within the knowledge of all, including the plaintiff, therefore, the trial Court committed an error in not considering the fact of partitioning the suit land among the four sons of Saifa Bibi and subsequent sale of their respective portions among themselves and exchange of 0.31 acres of land therefrom.
That since all the successors of Saifa Bibi have every right, title and interest in her entire left-out land, therefore, one particular plot cannot be partitioned within some co-sharers without bringing every co-sharer in all the land, so that Saifa Bibi's entire properties are included in the suit.
That it is the general provision for a partition suit that the whole properties of the person from whom the contending parties are claiming their respective sahams must be brought in the hotchpotch and this general provision cannot be avoided and, which is why, the appellate Court rightly has sent the suit on remand Judgment.
That since there is a with necessary instructions to pass a fresh dispute regarding title among the parties, the plaintiffs ought to have prayed for declaration of their title in the suit land and, as a consequential relief, could have prayed for dividing the suit land by metes and bounds; but they instituted 'Partition Suit', instead of filing a 'Title Suit'.
That partition suit is filed for partitioning of a joint estate or co-ownership or tenancy-in-common among the co-sharers or co-owners who do not raise any dispute with regard to any one's title but, here in this suit, the plaintiffs and the defendants are not joint tenants or co-owners, because the four sons of Saifa Bibi are no more owning or possessing any piece or part of the suit land as co owners and, for the aforesaid reason, the plaintiffs ought to have instituted a Suit for Declaration of Title, instead of filing a Partition Suit.
Mis-joinder of Parties Submissions
[73 DLR 104]
On Behalf of the Petitioner
The learned Advocate Mr Lokman Karim appearing on behalf of the petitioner submits that the investment contracts are separate and distinct from each other and causes of action are not flown from self same contract rather arose separately from separate loan contract relating to separate individual defendants, hence the suit is bad for mis-joinder of parties and causes of action and therefore, the impugned order is liable to be struck down.
He also submits that the Artha Rin Suit is = barred by Order I, rule 3 and Order II, rules 2 & 3 of the Code of Civil Procedure, 1908, shortly referred to as "the CPC".
Relying upon the decisions of Osman Ghani vs Osman Ali Mondal, 1 BLC 202 and Jahanara Begum being dead his heirs: Sheikh Shahnaz Begum and others vs Hazera Khatun being dead her heirs: Md Aminul Haque and others, 2004 BLD (AD) 47 = 9 BLC (AD) 27, he further submits that the duty of the trial court to decide the issue of law first before entering the hearing of the issue of facts but Artha Rin Adalat without disposing the issue of law fixed the suit for peremptory hearing which was not tenable in the eye of law and therefore, this is liable to be discharged.
On Behalf of the Opposite Parties
As against this, Mr Mohammad Salim Miah, the learned Advocate for the respondent No. 2, submits that the defendant Nos. 1-7 separately availed of the loan facilities against separate sanction letter on different dates, the defendant No. I took over all liabilities of the rest of the defendant Nos. 2-7 and has defaulted in payment of the outstanding loan amount and subsequently prayed for reschedule and the defendant Nos. 2-7 including the petitioner executed personal guarantee securing the repayment of the rescheduled and amalgamated liabilities of the defendant No. 1 and therefore, there has been no mis-joinder of parties or mis joinder causes of action.
He further submits that the impugned order of the Court below is based on sound reasoning, therefore, there is no reason to interfere with the same, hence, the Rule is liable to be discharged.
Preemption Case Submission
73 DLR 408-409
Submission on behalf of the petitioner
The learned Advocate appearing on behalf of the petitioner submits that both the courts below in their observation and findings committed error in the decision occasioning failure of justice in holding the view that the transfer deed is a deed of exchange which is not pre-emptable under the law of pre-emption. The learned Advocate further submits that the learned trial court as well as the appellant court during disposal of the original pre-emption miscella-neous case and its subsequent appeal failed to assess the evidence on records in its true perspective and also failed to appreciate that the deed is a colourable transaction, which is out and out a sale deed in disguise of a deed of exchange. The learned Advocate lastly submits that the courts below on the basis of surmise and conjecture passed the judgment and order which is liable to be set aside.
Submission on behalf of the opposite parties
As against the aforesaid submission of the learned Advocate for the petitioner, the learned Advocate appearing on behalf of the apposite parties opposing the Rule controverted the argument advanced from the side of the learned counsel for the petitioner and submits that, neither the trial court nor the Appellate Court during disposal of the original pre-emption miscellaneous case and its subsequent appeal committed any illegality or irregularity. The learned Advocate further submits that the case deed being a deed of exchange, is not pre- emptable under section 96 of the State Acquisition and Tenancy Act, 1950 and the courts below rightly appraising the evidence on records in its true perspective, decided the merit of the original case and its subsequent appeal against the pre- emptor-petitioner and in favour of the pre- emptee-opposite party and there is no illegality or infirmity in the impugned judgment and order. The learned Advocate lastly submits that the case deed dated 27-6-2000 is out and out an exchange deed and it is not a colourable transaction in disguise of a deed of exchange, as alleged from the side of the pre-emptor-petitioner and thereby after proper assessment of evidence on records, the learned appellate court disallowed the appeal affirming the judgment and order passed by the trial court and there is no misreading or non- reading of evidence or non-consideration of material facts resulting in an error in the decision Occasioning failure of justice, by which the impugned judgment and order can be interfered with.
আপনার কাঙ্খিত নজীরটি খুঁজে পাননি! এ বিষয়ে আরও নজীর পেতে নিচের বাটনে ক্লিক করুন।
