High Court Division · Civil Revisional Jurisdiction
Nasrin Begum and others v Md. Kamal Sarkar and others
Civil Revision 4125/2014 · Decided 28 June 2026
The plaintiffs sued for declaration of title, claiming the suit land as heirs of Nasiruddin, whom they said was a son of Lutfor Rahman, an heir of the C.S. recorded tenant. The tahsil office had refused rent because Nasiruddin was not recorded in the B.R.S. khatian. The contesting defendants accepted the family tree but denied that Nasiruddin was Lutfor Rahman's son. The Assistant Judge, Islampur, Jamalpur decreed the suit, relying on a legal heir certificate and death certificate proved by the union parishad chairman. The Additional District Judge, Jamalpur reversed, treating the chairman's answers in cross-examination as showing doubt about Nasiruddin's existence. The High Court Division found that the appellate court ignored the chairman's statement that he knew Lutfor was Nasiruddin's father and the principal defendant's admission that Nasiruddin was his full brother, disregarded an allowed amendment of the plaint, and gave no convincing reasons for rejecting the certificates. The appellate decree was set aside and the trial decree restored.
- Q1
Whether the appellate court, in reversing a decree for declaration of title, misread the evidence by ignoring a contesting defendant's admission and the heir and death certificates proving that the plaintiffs' predecessor was the son of the recorded owner's heir.
- An admission by the principal contesting defendant in cross-examination, neither explained nor withdrawn, is substantive evidence against the defendants.
- An appellate court reversing findings of fact must independently analyse the whole evidence and give cogent reasons for disagreeing with the trial court.
- Failure to consider material evidence or important admissions amounts to misreading and non-reading of evidence, an error of law open to interference under section 115(1) of the Code of Civil Procedure.
- Rather than disbelieving a pleaded relationship on conjecture, the appellate court could have considered directing a DNA test or another admissible scientific method of proof.
- On the evidence, Nasiruddin was the son of Lutfor Rahman, and the trial court's decree was restored.
Failure to consider material evidence or omission to deal with important admissions on record amounts to misreading and non-reading of evidence, which constitutes an error of law warranting interference under section 115(1) of the Code of Civil Procedure, 1908.
In the court’s own words.
Civil Revision 4125/2014, as published by the Supreme Court of Bangladesh. 14 pages, with paragraph numbers for citing.
IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
Present:
Mr Justice Abdur Rahman
Civil Revision No. 4125 of 2014
In the matter of:
Nasrin Begum and others
……Plaintiffs-Respondents
Petitioners
-Versus-
Md. Kamal Sarkar and others
…..Defendants Appellants
Opposite parties
Mr Md. Bodruddoza, Senior Advocate, with
Ms Laila Nasrin, Advocate
……..For the Petitioners.
No one appears
…for the opposite parties.
Date of Hearing: 22.6.2026 and 28.06.2026 A.D.
Date of Judgment: 28.06.2026 A.D.,
Sunday, 14 Ashar, 1433 B.S.
JUDGMENT:
Abdur Rahman, J:
1This 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:
2"Let a Rule be issued calling upon the opposite party
3Nos. 1-3 to show cause as to why the judgment and
4decree dated 17.06.2014 (decree signed on 26.06.2014)
5passed by the learned Additional District Judge,
6Jamalpur in Other Appeal No. 41 of 2010, allowing the
7appeal and reversing those dated 27.06.2010 passed by
8the learned Assistant Judge, Islampur, Jamalpur in Other
9Class Suit No. 160 of 2006, decreeing the suit, should not
10be set aside and/or why such other or further order or
11orders should not be passed as to this Court may seem
12fit and proper."
13Concomitantly, this Court, by way of an ad-interim order, directed both parties to maintain the status quo with respect to possession of the suit land. The said order was subsequently extended from time to time and remained in force till the disposal of the Rule.
14The material facts, shorn of unnecessary details, are that the petitioners, as plaintiffs, instituted Other Class Suit No. 160 of 2006 in the Court of the learned Assistant Judge, Islampur, Jamalpur, seeking a declaration of title in respect of
the suit land. The plaintiffs asserted, inter alia, that one Yar Hossain Sarker was the original owner and C.S. recorded tenant of the disputed land along with other properties. Upon his death, he left four sons, namely, Mufazzal Haq Sarker alias Mofizul Haq Sarker, Tofazzal Haque Sarker, Fazlul Haq Sarker and Wasuddin Sarker.
15It was further pleaded that Mofizul Haq Sarker died leaving behind three sons, namely, Motiar Rahman, Sirajul Islam and Lutfor Rahman, and two daughters, namely, Ambia and Majeda. Subsequently, the Record of Rights was prepared and finally published in the names of Lutfor Rahman and others. Lutfor Rahman died, leaving behind his wife, Golla Bewa, three sons, namely, Mukul Sarkar, Nasiruddin Sarkar and Kamal Sarkar, and one daughter, Rani Sarkar. It was further alleged that Golla Bewa was the second wife of Lutfor Rahman, and Kamal Sarkar and Rani Sarkar were born out of the second wedlock. According to the plaintiffs, Nasiruddin Sarkar remained in possession of the suit land along with other co-sharers pursuant to a family arrangement and, upon his death, the plaintiffs inherited his interest as his legal heirs.
16The plaintiffs further stated that when the widow of Nasiruddin approached the Tahsil Office on 27.02.2006 for mutation of their names and payment of rent, the concerned authority refused to accept the rent on the ground that the name of Nasiruddin had not been recorded in the B.R.S. Khatian. Consequently, according to the plaintiffs, a cloud was cast over their title, compelling them to institute the present suit.
17The opposite party 1-3, as defendant 2-4, contested the suit by filing a joint written statement denying the material allegations made in the plaint. They contended, inter alia, that although Yar Hossain Sarker was the C.S. recorded tenant, the lands had subsequently devolved upon his heirs through family arrangement. According to them, Lutfor Rahman died leaving behind only Mukul Sarkar, Kamal Sarkar, Rani Sarkar and Golla Bewa as his legal heirs and that Nasiruddin Sarkar was never the son or heir of Lutfor Rahman. They further asserted that the B.R.S. Record of Rights had rightly been prepared in the names of the lawful heirs, that they had been possessing the lands covered by different B.R.S. Khatians by
constructing dwelling houses thereon, and that the plaintiffs acquired no right, title or interest in the suit property. Accordingly, they prayed for dismissal of the suit.
18Upon framing the necessary issues and after recording oral and documentary evidence adduced by both parties, the learned Assistant Judge, by judgment and decree dated 27.06.2010, decreed the suit.
19Being aggrieved thereby, the defendants preferred Other Appeal No. 41 of 2010 before the learned District Judge, Jamalpur, which was subsequently transferred to the Court of the learned Additional District Judge, Jamalpur for disposal. Upon hearing the parties, the learned Additional District Judge, by judgment and decree dated 17.06.2014 (decree signed on 26.06.2014), allowed the appeal, reversed the judgment and decree passed by the trial Court and dismissed the suit.
20Being dissatisfied with the judgment and decree of the appellate Court, the plaintiffs have preferred the present revisional application.
21Mr. Md. Bodruddoza, learned Senior Counsel, appearing with Ms. Laila Nasrin, learned Counsel, on behalf of the petitioners, submits that the lower Appellate Court committed a serious error of law in travelling beyond the pleadings and deciding the appeal on an issue which was neither pleaded by the defendants nor framed by the trial Court. He submits that the defendants never disputed that the suit property was sufficiently identified, yet the appellate Court unnecessarily made the alleged uncertainty of the suit land on the principal basis for reversing the decree.
22Learned counsel further submits that the defendants' own witnesses, particularly D.W.1, unequivocally admitted during cross-examination that Nasiruddin was the full brother of Mukul Sarkar, thereby conclusively establishing that Nasiruddin was one of the sons of Lutfor Rahman. Such admission, according to the learned Counsel, constitutes the best evidence against the defendants and fully corroborates the plaintiffs' claim.
23He further submits that Exhibit-10, being the legal heir certificate, and Exhibit-11, being the death certificate,
unequivocally establish that Nasiruddin was the son of Lutfor Rahman. The Chairman of the concerned Union Parishad, examined as P.W.6, duly proved the issuance of those certificates, and despite lengthy cross-examination, nothing could be elicited to discredit either the documents or his testimony. The learned trial Court, therefore, rightly relied upon those exhibits in decreeing the suit.
24It is further argued that the learned lower appellate Court completely ignored the categorical admission made by D.W.1 that Nasiruddin was his brother and, instead, arrived at an entirely contrary finding that Lutfor Rahman had no son named Nasiruddin. Such a finding, according to the learned counsel, is manifestly contrary to the evidence on record and amounts to a clear misreading and non-reading of material evidence, thereby occasioning failure of justice.
25Although the opposite parties entered appearance by filing Wokalatnama, none appeared at the time of the hearing of the Rule, and no counter affidavit has been filed to controvert the statements made in the revisional application.
26I have perused the revisional application, the judgments and decrees of both the Subordinate Courts, the oral and documentary evidence available on record and have considered the submissions advanced by the learned Counsel for the petitioners.
27It appears from the written statement that the defendants themselves admitted the genealogy beginning from Yar Hossain Sarker and further admitted that Lutfor Rahman left behind Mukul Sarkar, Kamal Sarkar, Rani Sarkar and Golla Bewa. Their sole dispute was that Nasiruddin was not the son of Lutfor Rahman.
28On perusal of the judgment and decree passed by the learned trial Court, it is found, it was observed that:
29Òweev`xcÿ `vex K‡ib †h, we Avi Gm Rwi‡c bvwjkx †RvZ mn
30Ab¨vb¨ †Rv‡Zi f~wg‡Z jyrdi ingv‡bi wnm¨vi Rwg Zvi cyÎ gyKzj
31miKvi I Kvgvj miKvi Kb¨v ivbx miKvi Ges ¯¿x †Mvjv‡eIqvi
32bv‡g ï× iæ‡c †iKW© nBqv‡Q| bvwmi miKvi jyrdi ingv‡bi †Kvb
33cyÎ bq| bvwjkx †RvZ mn Ab¨ †Kvb †Rv‡Z bvwmi miKv‡ii bv‡g
34†Kvb †iKW© nq bvB| bvwmi miKvi bvwjkx †Rv‡Zi †Kvb Iqvwik
35bq| ev`xcÿ bvwjkx †RvZ Iqvwik g~‡j †Kvb m¤úwË cvq bvB| wKš‘
36`vexi mg_©‡b weev`xcÿ †Kvb mvÿ¨ cÖgvY Av`vj‡Z `vwLj Ki‡Z
cv‡ib bvB| ev`xcÿ wb‡R‡`i‡K bvwmi miKv‡ii Iqvwik wn‡m‡e
37`vex Kwiqv bvwjkx f~wg‡Z Zvnv‡`i ¯^Z¡ Av‡Q g‡g© `vex K‡ib| `vex
38mg_©‡b cÖ`k©bx 10 Ges cÖ`k©bx 11 AÎ Av`vj‡Z `vwLj K‡ib| D³
39cÖ`k©bx wPwýZ Iqvwik mb` ch©‡jvPbvq ev`xc‡ÿi `vexi mZ¨Zv
40cwijwÿZ nq|Ó
41On the other hand, learned Appellate Court in its judgment, observed that:
42“িপ ডাি উ-৬, ানীয় ইউিপ চয়ারম ান তার জরায় বেলন, "নািসর
43সরকারেক বড় হবার পর দিখিন ছাট বলায় দেখিছ। আমােক মৃত$
44র%জ&ার আনেত বলা হয়িন তাই আিনিন। নািসর সরকােরর িপতা লুৎফর এ
45মেম + কান ভাটার িল- আিনিন। আ িম নািসেরর িপতা jyrdi এটা জ ািন।
46মৃত$ ও ওয়ািরশ সনদ আমার কােছ চাইবার পর বাদীেদর িদেয়িছ। ওয়ািরশ
47সনেদ ঐ ওয়ােড+র ম1ােরর কান 2া3র নাই। নািসর উ%4ন সরকােরর দাদা
48মৃত মিফজুল হক সরকােরর ভাই বান কতজন জািননা। তােদর ওয়ািরশ
49কারা জািননা। তার কবর কাথায় জািননা। " দখা যায় য, ানীয় ইউিপ
50চয়ারম ানও নািসর সরকােরর অব ান ও অ%:ে;র িবষেয় স%=হান।“
51From the aforesaid observations of the learned Subordinate Courts, it is manifested that the learned Appellate Court did not consider the deposition of the PW6, whereas he specifically stated in his cross-examination that, "আিম নািসেরর িপতা jyrdi এটা জািন I". Moreover, the learned Appellate Court failed to appreciate the deposition of D.W.1,
Mukul Mia (Defendant No.1), who specifically admitted in cross-examination that Nasir is his germane brother.
52The learned trial Court, after a meticulous examination of the evidence on record, particularly Exhibits-10 (legal heir certificate) and 11 (death certificate), and the testimony of P.W.6, accepted the plaintiffs' case and decreed the suit. The trial Court specifically found that the defendants failed to adduce any reliable evidence to substantiate their plea that Nasiruddin was not the son of Lutfor Rahman.
53More importantly, D.W.1, namely Mukul Mia, during cross-examination, specifically admitted that Nasiruddin was his own brother ("bvwmi Avgvi Avcb fvB"). Such admission, having come from the principal contesting defendant himself, constitutes substantive evidence against the defendants and strongly supports the plaintiffs' case. The said admission has neither been explained nor withdrawn at any stage of the proceedings.
54The learned appellate Court, however, while reversing the judgment of the trial Court, primarily relied upon certain
answers elicited from P.W.6 during cross-examination and observed that the Chairman himself appeared doubtful regarding the existence of Nasiruddin. In arriving at such a conclusion, the appellate Court completely overlooked the specific admission made by D.W.1 as well as the documentary evidence proved through P.W.6. The appellate Court also failed to assign any convincing reason for discarding the findings of the trial Court regarding Exhibits 10 and 11.
55In the present context, the learned Appellate Court ought to have considered undertaking an appropriate inquiry to ascertain the biological relationship, if any, between Mukul Mia (Defendant No. 1) and the heirs of Nasir Uddin by directing a DNA test or by adopting any other legally admissible scientific method of proof. Instead, the learned Appellate Court proceeded to disbelieve the pleaded facts without insisting upon any cogent, convincing, or reliable evidence capable of rebutting the asserted biological relationship. Such an approach, founded on conjecture rather than satisfactory proof, is inconsistent with the settled principles governing the grant of equitable relief, where the
Court is expected to act upon the best available evidence before rejecting a material factual assertion. Consequently, the impugned finding cannot be regarded as a proper exercise of judicial discretion in matters invoking equitable jurisdiction.
56However, the Subordinate Courts Record revealed that the plaintiff brought an application for amendment of the plaint on 23.03.2008, and after hearing the said application, the learned trial Court allowed the same vide Order 27, dated 01.04.2008. But the learned Appellate Court, without considering said amendment, drew an adverse remark upon the chain of title and possession of the plaintiffs as to the suit property. It is also noticeable that all the PWs supported the plaintiffs' claims, and all the DWs admitted that Mukul Mia is a consanguine brother of Kamal Mia, and that Mukul Mia, the son of Lutfor Rahman's 1st wife, admitted Nasir Uddin as his germane or full brother. In this context, I am of the opinion that Nasir Uddin was the son of Lutfor Rahman.
57It is a settled principle of law that although the appellate Court is the final Court of facts, where it seeks to reverse findings of fact recorded by the trial Court, it must
independently analyze the entire evidence on record and assign cogent and convincing reasons for disagreeing with the findings of the trial Court. Failure to consider material evidence or omission to deal with important admissions on record amounts to misreading and non-reading of evidence, which constitutes an error of law warranting interference under section 115(1) of the Code of Civil Procedure, 1908.
58In the present case, I find that the learned Appellate Court failed to consider the material admission made by D.W.1, who deposed in support of solenama, ignored the evidentiary value of Exhibits-10 and 11, and reversed the wellreasoned findings of the trial Court without assigning legally sustainable explanations. The impugned judgment, therefore, suffers from misreading and non-reading of the evidence on record, resulting in an error in the decision occasioning failure of justice. Accordingly, I find substance in the Rule. In the result, the Rule is made absolute without any order as to costs.
59The judgment and decree dated 17.06.2014 (decree drawn up thereunder and signed on 26.06.2014) passed by the learned Additional District Judge, Jamalpur, in Other Appeal 41 of 2010 are hereby set aside, and the judgment and decree dated 27.06.2010 (decree drawn up thereunder and signed on 04.07.2010) passed by the learned Assistant Judge, Islampur, Jamalpur, in Other Class Suit No. 160 of 2006 are restored. The order of status quo granted earlier by this Court stands recalled and vacated. Let the Subordinate Courts Record (SCR) be transmitted forthwith along with a copy of this judgment.
( Abdur Rahman, J)
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