High Court Division · Civil Revisional Jurisdiction
Shahe Alam Kazi and others v Shahe Alam and others
Civil Revision 2326/2021 · Decided 2 August 2026
The plaintiffs sued in Bhola for partition, declaration of title to 9.04 acres and a declaration that two 1948 patta deeds did not bind them, tracing title from the C.S. recorded owner of 14.33 acres. The defendants claimed through a later transferee, relying on the R.S. and S.A. records and their possession. The Joint District Judge decreed the suit in part, but the Additional District Judge, Charfassion reversed, relying mainly on a registered 1942 deed in the defendants' chain. In revision, the High Court Division held that the appellate court gave that deed decisive weight without reconciling it with an earlier 1941 conveyance of most of the land, or showing that it covered the disputed land. It also ignored the plaintiffs' unshaken and unchallenged evidence of possession. Records of rights do not create title without a lawful source, and the hotchpot rule is not absolute. The Rule was made absolute and the preliminary decree restored, subject to rights not adjudicated.
- Q1
Whether the appellate court lawfully reversed a preliminary partition decree by relying on a single registered deed without examining the full chain of title, the identity of the land and the unchallenged evidence of possession.
- Q2
Whether a partition suit fails merely because the entire joint property was not brought into the hotchpot.
- A record of rights does not by itself create title where the person recorded has no lawful source of title, and later entries cannot cure a defect in the root of title.
- A registered deed is not conclusive of title to every parcel claimed under it; the transferor's subsisting interest and the identity of the land conveyed with the land in dispute must be established, as no one can transfer a better title than he has.
- An appellate court reversing a trial court must address the material evidence and reasoning relied on by the trial court and give cogent reasons, failing which it does not properly exercise its appellate jurisdiction.
- The absence of cross-examination of a witness on a material assertion is a significant circumstance in deciding whether that assertion stands unrebutted, though it is not automatically conclusive.
- The rule that a partition suit should include all joint property is one of convenience and not absolute, and an omission defeats the suit only if it causes legal prejudice or attracts a specific legal consequence.
- An Advocate Commissioner assists in identifying land, boundaries and possession but does not adjudicate title, which remains for the court.
A reversal without addressing the material reasoning of the Trial Court may amount to failure to exercise appellate jurisdiction in accordance with law. The appellate Court is the final Court of fact.
In the court’s own words.
Civil Revision 2326/2021, as published by the Supreme Court of Bangladesh. 39 pages, with paragraph numbers for citing.
1IN THE SUPREME COURT OF BANGLADESH
2HIGH COURT DIVISION (CIVIL REVISIONAL JURISDICTION)
Single Bench:
3Mr Justice Abdur Rahman
4Civil Revision No. 2326 of 2021
5In the matter of:
6Shahe Alam Kazi and others
……Plaintiffs-Respondents
Petitioners
-Versus-
7Shahe Alam and others
…Defendants-Appellants
Opposite parties
8Mrs Zubaida Gulshan Ara, Advocate
….For the Petitioners
9Mr Md. Asadur Rahman, with
10Mr Md. Ashikur Rahman, Advocate
…For the opposite parties
11Date of Hearing: 5.7.2026, 20.7.2026 and
21.7.2026 A.D.
12Date of Judgment: 02.08.2026 A.D., Sunday;
18 kÖveY, 1433 e½vã|
JUDGMENT:
13Abdur Rahman, J:
14This revisional application, at the instance of the petitioners, has been filed under section 115(1) of the Code of Civil Procedure, 1908. At the time of issuance of the Rule, the following order was passed:
15" Let a Rule be issued calling upon the opposite party
16Nos. 1-48 to show cause as to why the judgment and
17decree dated 18.10.2021 (decree signed on 24.10.2021)
18passed by the learned Additional District Judge,
19Charfassion, Bhola in Title Appeal No. 13 of 2017
20allowing the appeal and thereby reversing the judgment
21and decree dated 30.11.2016 (decree signed on
2201.12.2016) passed by the learned Joint District Judge,
232nd Court, Charfassion, Bhola in Title Suit No. 51 of 2015
24decreeing the suit in part should not be set aside and/or
25such other or further order or orders passed as to this
26Court may seem fit and proper.”
27Concomitantly, this Court was also pleased to call for the records and stay the operation of the impugned judgment and decree for a period of 06(six) months from date.
28Subsequently, the petitioner filed an application for an injunction, and after hearing, this Court was pleased to allow the said application with a direction upon both parties to maintain status quo in respect of possession and position of the suit property till disposal of the Rule.
29The nucleus of the facts of the instant Rule is that the plaintiff instituted Title Suit No. 195 of 1998, subsequently renumbered as Title Suit No. 51 of 2015, against the defendants seeking partition of the ejmali property, declaration of title, and a declaration that the registered Deeds dated 04.03.1948, being Nos. 1291 and 1292, are not binding upon the plaintiffs. The plaintiffs' claims rested upon the fact that the suit property originally belonged to Rashik Chandra, measuring 19.69 acres, of which he sold 14.33 acres to Sreeram Chandra Talukdar, while the rest land remained with him, subject to a subsequent deduction for a Government Road. After Rashik Chandra's death, his alleged sole son, Jatindra Chandra (defendant No.14), succeeded to the remaining property. Sreeram Chandra thereafter transferred portions of the land to the plaintiffs' predecessors,
and the plaintiffs and their predecessors subsequently acquired additional portions by purchase and inheritance, thereby becoming owners of an aggregate of 9.04 acres. The plaintiffs further allege that, taking advantage of an erroneous R.S. record-of-rights, the defendants claimed title through one Dhonenjoy and attempted to dispossess them, giving rise to the suit.
30Conversely, defendant Nos. 1–13, 15 and 35–37 contested the suit by filing written statements. Their case, in substance, is that the property originally belonged to Rashik Chandra and was subsequently recorded in R.S. Khatian No. 286 in the names of Rashik Chandra, Tofazzol Hossain, Moktar Hossain, Jalal Ahmed, Samsul Haque, Motahar Hossain, Nezamul Haque and Dhonenjoy in their respective shares. According to the defendants, Dhonenjoy owned 2.56 acres, which he transferred to Nurullah, Ojiullah, and Sanaullah, and the S.A. record was accordingly prepared in their names. The defendants claim possession through successive transfers and the present record of rights, having erected homesteads and planted trees on the suit land. They further contend that
Rashik Chandra had no son named Jatindra Chandra and, therefore, the alleged transfer or claim founded upon Jatindra Chandra is fictitious and unenforceable. On these grounds, they prayed for dismissal of the suit.
31Thereafter, upon completion of all requisite legal formalities, the learned trial Court concluded the trial and, by its judgment and decree dated 30.11.2016, decreed the suit in part in respect of 8.60 acres of land. Being aggrieved and dissatisfied with the said judgment and decree, the contesting defendants preferred Title Appeal No. 13 of 2017 before the learned District Judge, Bhola, who subsequently transferred the appeal to the learned Additional District Judge, Char- Fasson, Bhola, for hearing and disposal.
32Upon hearing the parties and perusing the materials on record, the learned Additional District Judge was pleased to allow the appeal by his judgment and decree dated 18.10.2021, thereby reversing the judgment and decree of the learned trial Court. Aggrieved and dissatisfied with the said judgment and decree of the learned appellate Court, the
plaintiffs have invoked the revisional jurisdiction of this Court.
33Mrs Zubaida Gulshan Ara, learned Counsel appearing on behalf of the petitioners submitted that the learned trial Court after analyzing all the evidences on record decreeing the suit in preliminary form giving specific shaham to the plaintiffs, thus the learned appellate Court, without considering the case in its truest perspective and without controverting the reasons given by the learned trial Court allowed the appeal which cannot be sustain in law.
34Learned Counsel further submitted that the plaintiffs prayed for dispense with the liability of integration which was allowed by the trial Court and the defendant did not take any legal steps against said decisions and further question of defect of parties cannot arise at all, thus the learned appellate Court without considering the said aspect found the suit is barred defect of parties, and such kind of non-consideration of evidence and thereby committed an error of law resulting in an error in the decision occasioning failure of justice.
35Learned Counsel further submitted that in the 'Ka' schedule of the plaint the entire land of C.S. Khatian No. 706 has been mentioned as 14.33 acres and out of the aforesaid land 1.69 acres land has been acquired for public road by the government and hence the schedule 'Ka' mentioned 12.70 acres rest land out of which the plaintiffs claimed 9.04 acres of land and as such there is no question in respect of hotspots is maintained but the learned appellate Court without considering the aforesaid aspect found that the suit is bed for hotchpots and thereby committed an error of law resulting in an error in the decision occasioning failure of justice.
36Learned Counsel has further posited that the possession of the parties is immaterial of partition suit and as such only considering the possession of defendants and report of Advocate Commissioner should not be considered as basis of Saham in favour of any party and hence the finding of the appellate Court i.e., “উে িখত কিমশন িতেবদন এবং সংি কাগজপ দশন-1 এবং 11 িসিরজ পযােলাচনায় দখা যায় য, নািলশী স ি!র "# দখল মূলত িববাদী আপীলকারী পে&র অনুকূেল মেম িতেবদন আিসয়ােছ। িক+ িব, িবচািরক সই কিমশন িতেবদন িবষেয় মােটও আেলাচনা কেরন নাই।", which is absolutely based on wrong interpretation of law and hence
the judgment of the learned appellate Court cannot be sustain in law.
37Learned Counsel has further submitted that title deed of the defendants dated 18.3.1942 executed by Jitendra Lal and Shoilobala in favour of Dhonenjoy Das being deed no.244 does not include the land of C.S. khatian no.706 corresponding to R.S. khatian No.286 and hence the aforesaid transferred deed of prior owner to defendants namely Dhonenjoy should not be considered as the basis of claiming suit land and the appellate Court being misconceive about the said deed allowed the appeal which cannot be sustain in law.
38Conversely, Mr Md. Asadur Rahman, the learned Counsel appearing on behalf of the opposite parties, submitted that the learned trial Court misconceived the facts and the proposition of law in decreeing the suit, whereas the learned appellate Court, after due analysis of the evidence on record, allowed the appeal, which cannot be interfered with by this revisional jurisdiction.
39Learned Counsel further submitted that the suit is seriously barred for defects of parties as one of the main parties, that is, the District Board, was a main party to the instant suit and the total land of C.S Khatian was not brought to the suit and as such the learned appellate Court rightly found that the suit of the plaintiff was not maintainable.
40Learned Counsel further submitted that subsequently R.S record was rightly published in the name of Dhonenjoy, who transferred the 2.56 acres of land to Nurullah, Ojiullah and Sanaullah, and S.A record has been prepared in their names, and the defendants are now in possession of the suit property by record of rights and erecting homestead as well as planting trees there to.
41Learned Counsel finally referred to the decisions as contained in 15 MLR (AD) 17 in respect of the cardinal principle of law that the plaintiff has to prove his case with cogent evidence, and he cannot rely on the weakness of the defendants' case. The other decisions, as reported in 51 DLR (AD) 155, are in respect of the hotchpotch of the partition suit.
42Having heard the learned Counsels appearing for the respective parties, perused the revisional application, the impugned judgment and decree, the judgments of the Subordinate Courts, the pleadings, the oral and documentary evidence available on record and the other materials annexed to the revisional application, this Court is called upon to determine whether the learned Appellate Court, in reversing the judgment and preliminary decree passed by the learned Trial Court, correctly appreciated the evidence and applied the governing principles of law.
43At the outset, it appears from the record that the original owner, namely, Rashik Chandra, was admittedly the owner of a total area of 14.33 acres comprised in C.S. Khatian No. 706. The extent of the jote, namely, 14.33 acres, is not seriously disputed by either side. The controversy, therefore, principally relates to the derivation of title to the disputed portion, the legal effect of the subsequent transactions, the evidentiary value of the respective records-of-rights, the parties' possession, and, further, the effect of the alleged noninclusion of the entire joint property in the hotchpot.
44On careful perusal of the judgment of the learned Trial Court, it appears that the said Court did not decree the suit mechanically or merely on the basis of the documentary record. Rather, the learned Trial Court carefully considered the oral testimony adduced by both sides.
45It is evident that PW-1, Shah Alam Kazi, fully supported the material averments made in the plaint and his testimony was found by the learned Trial Court to be consistent with the plaintiff's pleaded case. PW-2, Abul Hossain Mridha, was a particularly material witness. He stated that he knew both the plaintiffs and the defendants and that the total area of the land was 14.33 acres, whereas the plaintiffs' claim related to 9.04 acres. More importantly, in cross-examination he stated that he was engaged in agricultural activities and cultivated the suit land as a bargadar. He further stated that, apart from the four plaintiffs, no other person was in possession of or cultivating the suit land.
46The significance of PW-2's testimony cannot be overlooked. He was not a stranger to the land or a witness
merely speaking from hearsay. His evidence was based upon his asserted personal knowledge of cultivation and possession. The defendants had every opportunity to test his credibility through cross-examination. Yet, nothing material was elicited from his cross-examination which substantially undermined his testimony or established the defendants' asserted possession.
47Equally significant is the fact that no suggestion was put to PW-2 that he was inimical towards the defendants, that he was interested in the plaintiffs, or that he had any other reason to falsely depose against the defendants. Although the mere absence of such a suggestion is not, by itself, conclusive proof of credibility, such omission is nevertheless a relevant circumstance when the Court is assessing whether the witness's testimony has been effectively impeached or materially shaken.
48Similarly, PW-3, Shamsul Haque Majhi, stated in his examination-in-chief that the suit land measuring 9.04 acres was in the possession and enjoyment of Shah Alam and others. His testimony is particularly significant because it
directly supports the plaintiffs' assertion of possession. More importantly, PW-3 was not cross-examined at all on behalf of the defendants. Consequently, the material assertions contained in his testimony remained wholly unchallenged.
49It is a settled principle of appreciation of evidence that where a witness makes a material assertion on a particular issue and the adverse party, having full opportunity, does not cross-examine the witness on that material aspect, the Court may legitimately take such omission into consideration in determining whether the assertion has remained unrebutted. It does not mean that an unchallenged statement automatically becomes conclusive proof; nevertheless, where such testimony is otherwise consistent with the pleadings and surrounding documentary evidence, the absence of crossexamination assumes considerable evidentiary significance.
50The learned Trial Court, therefore, cannot be said to have acted perversely in relying upon the evidence of PW-2 and PW-3, particularly when their evidence remained materially unshaken and no convincing evidence was brought on record to establish that the plaintiffs had been
dispossessed or that the defendants were in actual possession of the disputed land.
51The principal reasoning of the learned Trial Court was that the defendants claimed through Dhananjay Das on the basis of Patta Deeds Nos. 1291 and 1292 dated 04.03.1948, whereas the defendants had not adequately explained the source of Dhananjay's title to the disputed property.
52Ordinarily, a party claiming title through a predecessor must establish a legally recognizable chain of title leading from the admitted or established owner to the claimant. A person cannot ordinarily convey a better title than he himself possesses, subject to the recognized exceptions under the law. Therefore, where the title of the predecessor is specifically challenged, it becomes incumbent upon the claimant to establish the root or lawful source of that predecessor's title. In this context, it is imperative to admit that a person cannot give anything beyond his interest.
53The learned Trial Court observed that Dhananjay was not the recorded owner in the C.S. record and that the
defendants had not, according to the evidence then before that Court, satisfactorily demonstrated how Dhananjay acquired title from Rashik Chandra, the recorded C.S. owner.
54However, the learned Appellate Court brought on record and relied upon registered Deed No. 244, whereby Dhananjay Das was allegedly a purchaser from Jitendra Lal Sarkar, son of Rashik Chandra, and Shailabala Sarkar, wife of Rashik Chandra. According to the said deed, 3.79 acres of land from C.S. Khatian No. 706 were transferred in favour of Dhananjay.
55This document is of considerable legal significance. Once a registered deed tracing Dhananjay's acquisition to persons claiming through Rashik Chandra is brought into consideration, the reasoning of the learned Trial Court that there was absolutely no documentary basis for Dhananjay's subsequent claim cannot be sustained in its unqualified form without examining the legal effect, extent, identity and applicability of that deed to the suit land.
56The revisional Court must, therefore, distinguish between two propositions. First, the existence of Deed No. 244 furnishes a prima facie documentary link between Dhananjay and persons claiming through the admitted C.S. owner. Secondly, the existence of that deed does not, by itself, conclusively establish that the entire suit land claimed by the defendants falls within the land validly conveyed by that deed. The identity and correspondence of the land covered by Deed No. 244 with the land presently in dispute must still be established by the evidence on record.
57This distinction is crucial.
58A registered instrument is not a talisman which automatically establishes title to every parcel mentioned or claimed under it. At the same time, a Court cannot disregard such a registered instrument merely because the transferee was not the original C.S. recorded tenant, particularly where the deed itself purports to trace the transferee's title to persons claiming through the original recorded owner.
59However, the record further indicates that Rashik Chandra had previously transferred 9.08 acres out of the total 14.33 acres to Ram Chandra by Deed No. 2216 dated 18.04.1941. The subsequent transaction in favour of Dhananjay was for 3.79 acres vide deed 244 dated 04.03.1942.
60This chronological sequence assumes substantial importance. The earlier deed in favour of Ram Chandra necessarily requires examination before determining the extent of the property which remained available to Rashik Chandra's successors for subsequent transfer.
61Be that as it may, if Rashik Chandra had already conveyed 9.08 acres out of 14.33 acres, the remaining interest, subject to the precise identification of the land and the terms of the earlier conveyance, would require careful examination. Thereafter, the Court must determine whether the 3.79 acres covered by Deed No. 244 formed part of the remaining interest of Rashik Chandra and whether the vendors under that deed possessed the requisite transferable interest.
62The subsequent sale deeds executed by Ram Chandra, namely Deed Nos. 971, 972 and 973 dated 20.04.1942, are also relevant for determining the ultimate disposition of the property originally covered by the earlier transaction. Thus, the title dispute cannot properly be resolved by looking at Deed No. 244 in isolation. The entire chain of transactions has to be considered cumulatively.
63The fundamental principle is that title must be determined by examining the continuity, legality and extent of the chain of title, rather than by relying exclusively upon one isolated khatian or one isolated deed.
64However, the learned Trial Court attached considerable importance to C.S. Khatian No. 706, wherein Rashik Chandra was recorded as owner of 14.33 acres. As per the provisions of Section 103(5) of the Bengal Tenancy Act, 1885, such an entry, being an old record-of-rights, carries evidentiary value and gives rise to the statutory presumption attached to a properly prepared record-of-rights, subject to rebuttal in accordance with law.
65At the same time, the subsequent R.S. and S.A. records cannot simply be brushed aside. A subsequent record-ofrights may constitute relevant evidence concerning possession and the state of the record at the time of its preparation. However, it is equally well settled that a record-of-rights does not, by itself, create title where the person in whose favour the entry stands has no lawful source of title.
66Thus, neither side is entitled to rely upon a khatian as though it were, by itself, the source of title. The correct approach is to examine the record of rights together with the deeds, succession, possession, surrounding circumstances, and the chain of title. If the defendants' R.S. and S.A. entries are supported by an antecedent lawful conveyance, those entries acquire greater evidentiary significance. Conversely, if no lawful title is established in the predecessor, the subsequent entries cannot independently cure the defect in the root of title.
67In the present case, the learned Appellate Court correctly noticed the existence of Deed No. 244 but, in my considered view, did not sufficiently undertake the further
exercise of determining whether the 3.79 acres covered by that deed corresponded with the disputed land claimed by the defendants and whether the subsequent Patta Deeds Nos. 1291 and 1292 were legally traceable to that acquisition.
68The defendants relied principally upon Patta Deeds Nos. 1291 and 1292 dated 04.03.1948. The legal efficacy of those deeds necessarily depends upon the title and authority of the person who executed them.
69A transferee claiming through a deed must establish not merely the execution of the deed but also the transferor's subsisting interest in the property conveyed. The maxim nemo dat quod non habet embodies the basic principle that a person ordinarily cannot transfer a better title than he himself possesses.
70Therefore, the Patta Deeds could not be treated as conclusive proof of the defendants' title merely because they were executed in their favour. The Court was required to trace the title of Dhananjay and determine whether the land
covered by the Patta Deeds formed part of the property validly acquired by him.
71The registered Deed No. 244 assumes relevance precisely for this reason. It supplies a potential root of title which was not considered by the learned Trial Court. However, whether that root ultimately establishes the defendants' title over the entire disputed 9.04 acres is a separate question requiring evidence and identification of the land.
72However, the learned Appellate Court also relied upon the Commission Report and observed that the Commissioner did not establish title and possession in favour of the defendants.
73In this regard, it must be remembered that an Advocate Commissioner appointed for local investigation ordinarily assists the Court in elucidating physical features, identification, measurement, boundaries, location, possession or other matters falling within the scope of the commission. A Commissioner is not ordinarily the adjudicator of title. The
ultimate determination of title remains exclusively within the province of the Court.
74Therefore, the fact that the Commission Report did not itself establish title in favour of either party cannot, standing alone, be treated as a defect in the plaintiffs' case. Equally, the Report may nevertheless be highly relevant if it identifies the suit land, boundaries, road, physical features and correspondence between the land described in the deeds and the land found upon local investigation.
75The record indicates that the Commissioner identified an area of approximately 1.80 decimals relating to the road and that the road had been constructed during the relevant period of R.S. survey operation. Such factual findings may have significance in determining the identity and extent of the land, but they do not, by themselves, determine title.
76The learned Appellate Court was therefore required to examine the Commission Report in its proper evidentiary context rather than treating it as either a title deed or an adjudication of ownership.
77However, possession is undoubtedly an important evidentiary circumstance in a civil suit concerning immovable property. Where title is in dispute, evidence of long, continuous and exclusive possession may constitute a relevant circumstance in determining the probabilities arising from the competing claims.
78In the instant case, PW-2 stated that he cultivated the suit land as a bargadar and that, apart from the plaintiffs, no other persons were in possession or cultivation thereof. PW-3 also supported the plaintiffs' possession. The defendants did not materially challenge these assertions.
79The learned Appellate Court, while reversing the Trial Court, therefore ought to have dealt specifically with these uncontroverted or materially unshaken pieces of evidence and assigned cogent reasons for rejecting them.
80An appellate Court undoubtedly has jurisdiction to reappraise the evidence and reach a different conclusion. But such jurisdiction must be exercised judicially. Where the Trial Court has relied upon material oral and documentary
evidence, an appellate Court reversing such findings is ordinarily expected to demonstrate why the evidence relied upon by the Trial Court is legally or factually insufficient.
81A reversal without addressing the material reasoning of the Trial Court may amount to failure to exercise appellate jurisdiction in accordance with law.
82The appellate Court is the final Court of fact. It is therefore under a legal obligation to consider the evidence independently, address the material findings of the Trial Court, determine the issues arising from the pleadings and give reasons for accepting or rejecting the evidence.
83The appellate power to reverse a judgment is undoubtedly broad, but it is not arbitrary. The appellate Court must demonstrate a rational nexus between the evidence relied upon and the conclusion reached.
84In the present case, the learned Appellate Court placed substantial reliance upon Deed No. 244 dated 18.03.1942 [the record also refers to the date as 04.03.1942 in one place] but did not sufficiently reconcile that deed with the earlier Deed
No. 2216 dated 18.04.1941 whereby Rashik Chandra had allegedly transferred 9.08 acres out of 14.33 acres to Ram Chandra.
85The chronological relationship between these transactions was fundamental to determining title. The appellate judgment was required to address, inter alia:
86i. what exact land was transferred by Deed No. 2216;
87ii. what land remained with Rashik Chandra thereafter;
88iii. whether the 3.79 acres covered by Deed No. 244
89formed part of such remaining land;
90iv. whether Jitendra Lal Sarkar and Shailabala Sarkar had
91the requisite title and authority to execute Deed No.
92244;
93v. whether the 3.79 acres corresponded with the
94disputed property;
95vi. whether the subsequent Patta Deeds Nos. 1291 and
961292 related to the same land; and
97vii. whether the R.S. and S.A. entries were supported by
98the aforesaid chain of title.
99Without answering these questions, the mere existence of Deed No. 244 could not conclusively establish the defendants' title to the suit property.
100However, the proposition that an earlier registered deed is necessarily conclusive against a subsequent deed or record requires some qualification. Registration gives a registered instrument substantial evidentiary significance and establishes that the document was presented and registered in accordance with law. It does not, however, by itself cure want of title in the executant.
101The proper principle is that an earlier registered instrument executed by persons having transferable interest is ordinarily entitled to serious judicial consideration, and a subsequent record-of-rights or instrument cannot simply be preferred over it without examining the source, extent and continuity of title.
102Accordingly, where the vendors under an earlier registered deed derived their title from the admitted recorded owner, and the transaction is supported by the surrounding
documentary and oral evidence, the Court should not disregard that transaction without cogent reasons. Conversely, the Court must still determine whether the vendors had title to the precise land conveyed and whether the land subsequently claimed corresponds with the land covered by the earlier deed.
103Nevertheless, the learned Counsel for the opposite parties relied upon the decision reported in 51 DLR (AD) 155, contending that the suit for partition was defective because the entire joint property had not been brought into the hotchpot.
104The principle emerging from the said decision is that, as a general rule, a partition suit should embrace the entire joint property of the parties, since piecemeal partition may give rise to multiplicity of litigation. However, the rule is a matter of general procedural convenience and is not absolute. Its application is subject to recognized exceptions depending on the nature, location, character, and circumstances of the property and the rights of the parties.
105The decision referred to by the learned Counsel itself recognizes circumstances in which relaxation may be permissible, including where properties are situated in different jurisdictions, where particular property is incapable of partition, where the property is impartible, where it is held jointly with strangers who cannot conveniently be joined, or where the co-sharers have agreed to partition only a portion while retaining the remainder in common.
106The principle of hotchpot, therefore, cannot be applied mechanically. The Court must ascertain whether the omission of a property has caused actual prejudice to the parties before the Court and whether the rights of any person not before the Court would thereby be affected.
107In the instant case, the mere assertion that the entire property of the jote was not brought into the hotchpot does not, by itself, establish that the suit was incompetent. The learned Appellate Court was required to demonstrate the actual legal prejudice caused by such omission and the manner in which the decree passed in the suit adversely
affected the rights of any person who was not before the Court.
108Moreover, where the omitted property or the rights of an omitted person are not adjudicated upon, the decree in respect of the properties actually before the Court cannot ordinarily be construed as extinguishing an independent right of such omitted person.
109Thus, an otherwise maintainable partition suit cannot be defeated solely on the ground of omission unless such omission attracts a specific legal consequence under the governing law or causes prejudice of such a nature as to render the adjudication legally defective.
110The record further indicates that an area relating to a road was identified by the Commissioner and that governmental authorities, including the Assistant Commissioner (Land), Charfassion, and the Executive Engineer, Roads and Highways, Barishal Circle, were impleaded in the proceedings.
111This aspect is material. If any portion of the land has lawfully vested in or has been acquired by the Government or a public authority, such property cannot be treated as privately partitionable merely because it appears within a private schedule. At the same time, the mere existence of a road on or through the scheduled land does not automatically establish that the entire disputed property is Government property.
112The Court must therefore distinguish between the private title to the land and any public right, acquisition, vesting, dedication or lawful governmental interest affecting a particular portion thereof.
113In the present case, the Commission Report identifying the road area is relevant for determining the physical identity and extent of the land. However, the presence of a road does not, without more, defeat the plaintiffs' claim to the remaining land, nor does it establish the defendants' title to the private portion.
114It is true that the jurisdiction under section 115 of the Code of Civil Procedure, 1908, is not intended to provide a second appeal on facts. Nevertheless, where the subordinate Court has committed a material error of law, misread a material document, omitted to consider vital evidence, or arrived at a conclusion which is inconsistent with the evidence on record, interference in revision may become warranted.
115The present case is not one where this Court is merely substituting its own view for a plausible view taken by the learned Appellate Court. Rather, the question is whether the learned Appellate Court, while reversing the Trial Court, properly considered the material evidence, particularly the earlier deed in favour of Ram Chandra, Deed No. 244 in favour of Dhananjay, the Patta Deeds, the testimony of PW-2 and PW-3, the C.S. Khatian and the Commission Report.
116Upon careful examination, I find that the learned Appellate Court gave decisive importance to Deed No. 244 without sufficiently examining the complete chain of transactions and without adequately addressing the material evidence which weighed with the learned Trial Court.
117The appellate judgment, therefore, suffers from an incomplete appreciation of the evidence and a failure to reconcile material documentary evidence.
118Upon a cumulative assessment of the entire evidence, I find that the plaintiffs' case is supported by the C.S. record, the oral evidence concerning possession, and the chain of transactions, which requires consideration in light of the admitted original ownership of Rashik Chandra.
119PW-2's testimony regarding cultivation and possession remained materially unshaken. PW-3's evidence regarding possession was not challenged at all. The defendants failed to elicit any material admission from those witnesses sufficient to discredit their evidence.
120On the other hand, although the defendants produced Deed No. 244 as Exhibit-I, the legal consequence of that deed required a more comprehensive examination of the preceding and succeeding transactions. The deed may furnish a documentary foundation for Dhananjay's acquisition of 3.79 acres, but the defendants' entitlement to the entire disputed
9.04 acres could not be established merely by proving that one deed.
121The crucial question was not merely whether Dhananjay had acquired some land from persons claiming through Rashik Chandra; it was whether the land so acquired was the same land now claimed by the defendants and whether the subsequent Patta Deeds and records-of-rights could validly extend that title to the entire disputed property.
122The learned Appellate Court, in my considered view, did not adequately answer that question.
123The learned Trial Court, though its observation regarding the complete absence of any documentary basis for Dhananjay's title requires qualification in view of Exhibit-I, nevertheless correctly proceeded upon the fundamental principle that the defendants had to establish the lawful source and extent of their title. The subsequent R.S. and S.A. entries could not, standing alone, supply the missing root of title.
124Accordingly, the learned Appellate Court committed a material error in treating the subsequent records and the existence of Deed No. 244 as sufficient to displace the Trial Court's findings without undertaking a complete analysis of the entire chain of title and the identity of the land.
125Upon consideration of the pleadings, oral and documentary evidence, the judgments of the Subordinate Courts and the applicable principles of law, I am of the considered view that the learned Appellate Court failed to give due and adequate consideration to material evidence on record and, in particular, failed to reconcile the earlier transaction in favour of Ram Chandra with the subsequent transaction in favour of Dhananjay and the Patta Deeds relied upon by the defendants.
126The learned Appellate Court also failed to adequately consider the materially unshaken testimony of PW-2 and the wholly unchallenged testimony of PW-3 regarding possession. The evidentiary significance of the C.S. record and the chronological sequence of the registered transactions was likewise not properly addressed.
127The finding of the learned Appellate Court, therefore, cannot be sustained merely on the basis of Exhibit-I. The existence of that deed may demonstrate a possible source of title for Dhananjay to the extent of the land validly conveyed thereby, but it does not, without proper identification and correlation of the land, establish the defendants' title to the entire suit property.
128In the circumstances, I am constrained to hold that the learned Appellate Court, in reversing the well-reasoned judgment and preliminary decree of the learned Trial Court, misread and/or failed to properly appreciate material evidence and thereby arrived at findings which cannot be sustained in law.
129The decision reported in 51 DLR (AD) 155, relied upon by the learned Counsel for the opposite parties, does not advance the defendants' case to the extent contended. The said decision recognizes that the general rule requiring all joint properties to be brought into the hotchpot is a rule of convenience and that relaxation may be permissible in appropriate circumstances. The said principle cannot be
converted into an inflexible rule that every omission of property automatically renders a partition suit incompetent, particularly where no prejudice to the parties before the Court has been demonstrated and where the rights of an omitted person or property are expressly left unaffected.
130At the same time, the present decree must necessarily be understood as operating only upon the property and rights properly adjudicated upon in the suit. No right of any person not before the Court, nor any independent right in respect of property not effectively adjudicated upon, can be treated as extinguished merely by virtue of the decree.
131For all the reasons stated above, I find that the learned Trial Court's judgment and preliminary decree, though requiring certain observations to be read in the light of Exhibit-I, substantially represent a proper appreciation of the evidence and the governing principles of law. The learned Appellate Court, on the other hand, committed material errors in reversing the same without adequately addressing the relevant evidence and the complete chain of title.
132Accordingly, the impugned judgment and decree of the learned Appellate Court are liable to be set aside.
133The plaintiffs' entitlement to saham shall, however, remain confined to the extent lawfully established in the preliminary decree, and the defendants, if otherwise entitled in law, shall be at liberty to seek saham in accordance with the applicable law and upon establishment of their lawful title, without thereby disturbing or diminishing the plaintiffs' and Government’s land in road adjudicated share.
134Considering the facts and circumstances of the case, the pleadings, the evidence on record and the principles of law discussed above, I find merit in the Rule.
135Accordingly, the Rule is made absolute.
136There shall, however, be no order as to costs.
137However, the judgment and order dated 18.10.2021, with the decree drawn up thereunder and signed on 24.10.2021, passed by the learned Additional District Judge, Charfassion, Bhola in Title Appeal No. 13 of 2017, allowing the
appeal and thereby reversing the judgment and decree of the learned Trial Court, are hereby set aside.
138Consequently, the judgment and order dated 30.11.2016, with the decree drawn up thereunder and signed on 01.12.2016, passed by the learned Joint District Judge, 2nd Court, Charfassion, Bhola in Title Suit No. 51 of 2015, decreeing the suit in preliminary form, are hereby restored.
139The restoration of the preliminary decree shall, however, be subject to the lawful rights, if any, of any person or authority in respect of any property not effectively adjudicated upon in the suit, and shall not be construed as adjudicating upon or extinguishing any independent right of an omitted person or any Government/public interest not falling within the scope of the present adjudication.
140The order of stay and status quo granted earlier by this Court is hereby recalled and vacated.
141The Office is directed to transmit the Subordinate Courts Records (SCR) forthwith, along with a copy of this
judgment, to the concerned Subordinate Court for information and necessary action.
142Before parting with the case, this Court records its appreciation for the diligent assistance, persuasive submissions and valuable efforts rendered by the learned Counsels appearing for both sides, which have assisted the Court in reaching a just and lawful determination of the issues involved.
( Abdur Rahman, J )
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