High Court Division
Azahar Uddin Bhuiyan (heirs) and others v Chandraban Bibi and others
First Appeal 312/2018 · Decided 25 August 2026
The plaintiffs sued in Barishal for partition of 1.31 acres, tracing title through a registered Kabuliyat of 1939, and said 0.26 acres had been wrongly recorded in the defendants' names in the S.A. Khatian. The Joint District Judge decreed partition only for 1.05 acres, holding that title to the 0.26 acres could not be decided without a prayer for declaration of title and that the land was not properly described. On the plaintiffs' first appeal, the High Court Division held that in a partition suit incidental questions of title can be decided, and a record of rights neither creates nor extinguishes title. The defendants had never challenged the Kabuliyat, which, being over 30 years old and from proper custody, was presumed genuine under section 90 of the Evidence Act and recorded 1.31 acres. The whole land was sufficiently described for Order VII rule 3, and possession of one co-sharer is possession of all. The appeal was allowed and partition decreed for the entire 1.31 acres.
- Q1
Whether a suit for partition was maintainable for 0.26 acres recorded in the defendants' names without a specific prayer for declaration of title.
- Q2
Whether Order VII rule 3 of the Code of Civil Procedure barred partition of the 0.26 acres when the whole 1.31 acres was identified by plot numbers and boundaries.
- Q3
Whether the plaintiffs proved title to and possession of the entire 1.31 acres under a registered Kabuliyat of 1939.
- In a suit for partition, all incidental questions of title can be decided, so a separate prayer for declaration of title is not a prerequisite where a party relies on a valid registered title deed.
- A record of rights is an administrative revenue record that neither creates nor extinguishes title, and an erroneous entry cannot defeat title under an unchallenged registered deed.
- A registered document over 30 years old produced from proper custody is presumed genuine under section 90 of the Evidence Act, and cannot be invalidated by mere oral denial in cross-examination.
- Order VII rule 3 of the Code of Civil Procedure is satisfied where the whole joint property is described by plot numbers and boundaries; demarcation of a share is for the final decree stage.
- Possession by one co-sharer is possession of all unless ouster is pleaded and proved.
- Defendants who filed no appeal or cross-objection are deemed to have accepted the trial court's finding on the plaintiffs' share.
A Khatian (Record of Rights) is merely an administrative record prepared for revenue purposes; it neither creates nor extinguishes title. An erroneous entry in a Khatian does not confer absolute ownership on the party recorded therein if the underlying substantive title lies elsewhere.
In the court’s own words.
First Appeal 312/2018, as published by the Supreme Court of Bangladesh. 19 pages, with paragraph numbers for citing.
1
Present:
Mr. Justice Sheikh Abdul Awal
and
Mr. Justice A. K. M. Rabiul Hassan
First Appeal No. 312 of 2018
Azahar Uddin Bhuiyan, being dead, his legal
heirs, 1(b) Md. Anowarul Salam Bhuiyan and
others
… Appellants
-Versus-
Chandraban Bibi and others
… Respondents
Mr. A. K. Rashedul Huq, with
Mr. Md. Shahidul Islam, and
Mr. Md. Tareq, Advocates
… for the appellants
Mr. Md. Selim Reza Chowdhury, Advocate
…for the respondent Nos.1, 2 and 5
Heard on 11.08.2026; 18.08.2026; 19.08.2026;
23.08.2026 and 24.08.2026.
Judgment on 25.08.2026
A. K. M. Rabiul Hassan, J:
1This first appeal at the instance of the plaintiffs is directed against the judgment and decree dated 13.10.2015 passed by the Joint District Judge, First Court, Barishal, in Title Suit No. 51 of 2007, decreeing the suit in part.
2Upon registering of the first appeal, the appellants filed an application for an injunction to restrain the respondents-defendants from evicting them. After hearing the application, this Court, by order dated 31.05.2008, directed the parties to maintain the status quo in respect of possession and the position of the suit land pending disposal of the appeal.
3The facts for disposal of the appeal are that the present appellants, as plaintiffs, instituted Title Suit No.51 of 2007 before the learned Joint District Judge, First Court, Barishal, impleading the present respondents as defendants, seeking a partition of the suit land measuring 1.31 acres, as described in the schedule to the plaint.
4Plaintiffs’ case is that the suit land described in Schedule 'Ka' to the plaint originally belonged to Arju Bibi and Ayejuddin, in whose names the C.S. Record of Rights was duly prepared. Upon Arju Bibi's death, her only son, Ramjan Hawlader, inherited her share. Following Ramjan Hawlader's death, his legal heirs transferred 1.31 acres of land from C.S. Plot Nos. 252, 253, 254, 255, 256, 266, and 267 to the plaintiffs' predecessor-in-interest. Accordingly, the plaintiffs' predecessor, Abdul Hamed Bhuiya, executed and registered Kabuliy at Deed No. 1999 dated 13.06.1939, in favour of Fazle Karim Hawlader and others. Upon the death of Abdul Hamed Bhuiya, his legal heirs were his wife, Shaburjan Bibi; two sons, Azharuddin Bhuiya (Plaintiff No. 1) and Ataheruddin Bhuiya; and two daughters, Ayesha Khatun and Rabea Khatun (Plaintiff No. 11). Subsequently, Shaburjan Bibidied, leaving the aforementioned heirs. Later, Ayesha Khatun transferred her entire share to her full brothers, Plaintiff No. 1 and Ataheruddin Bhuiya (predecessor to Plaintiff Nos. 3–10), by oral gift, and delivered possession accordingly. Rabea Khatun subsequently transferred 17.50 decimals of land to Plaintiff Nos. 1 and 4–6 by registered Heba Deed No. 8086 dated 10.10.2005. Additionally, Plaintiff No. 1 transferred 0.12 acres (12 decimals) of land to Plaintiff No. 2 by registered Heba Deed No. 6305 dated 11.12.1994.
5Plaintiffs further case i that regarding 1.05 acres of land under S.A. Khatian No. 356, Plaintiff Nos. 3–10 instituted Title Suit No. 10 of 1998 against Plaintiff Nos. 1, 11, and Ayesha Khatun, ultimately obtaining a compromise decree on 01.09.1999. Under the terms of this decree, Plaintiff No. 1 was awarded 43.75 decimals, Plaintiff Nos. 3–10 were awarded 43.75 decimals, and Plaintiff No. 11 received 17.50 decimals. However, of the 1.31 acres originally owned by Abdul Hamed Bhuiya, 0.26 acres were erroneously recorded under S.A. Khatian No. 591 in the name of the defendants. The plaintiffs have been in continuous, open, and peaceful possession and enjoyment of the suit land for over twelve years, with the defendants’ knowledge, by constructing houses, planting trees, rearing fish in the pond, and cultivating the land. Both the plaintiffs and the defendants have been enjoying joint (ejmali) possession of the land within the suit holding. As the court has never formally partitioned the suit holding, frequent disputes have arisen between the parties. Consequently, the plaintiffs requested that the defendants partition the suit land amicably, but on 20.04.2007 the defendants refused. Hence, the plaintiffs filed this suit.
6The defendant Nos. 1–7 contested the suit by filing a joint written statement denying all material allegations in the plaint and, inter alia, contending that the suit land originally belonged to Arju Bibi and Ayezuddin and that the C.S. Record of Rights was correctly prepared in their names. Upon Ayezuddin's death, his two sons, Asmat Ali and Mahabbot Ali, as legal heirs, inherited his property. The R.S. Khatian No. 475 and the S.A. Khatian No. 591 were duly prepared in their names in
equal shares. Thereafter, on 19.06.1972, Mahabbot Ali transferred 0.93 acres of land to Belayet Ali (the predecessor-in-interest of Defendant Nos. 1–7) and Chandraban Bibi via registered Kabala (sale deed) No. 6636. Mahabbot Ali further transferred 54.50 decimals of land to his daughter, Chandraban Bibi, via registered Heba Deed No. 935 dated 17.02.1975. Upon Asmat Ali's death, he left behind three sons, Shahadat Ali (alias Sadek Ali), Belayet Ali, and Amjed Ali, and one daughter, Amena Khatun, as his legal heirs. Following Belayet Ali's death, Defendant Nos. 1–7 succeeded him as his legal heirs and have since been in peaceful possession and enjoyment of the suit land. The narrative set out in the plaint is entirely false, baseless, and fabricated. Accordingly, the suit is devoid of merit and liable to be dismissed with costs.
7On the pleadings above, the trial court framed the following issues:
81. Whether the suit is maintainable in its present form and prayer.
92. Whether the suit is bad for non-joinder or mis-joinder of
10necessary and proper parties.
113. Whether the suit is bad for defect of hotchpot due to the non-
12inclusion of all joint property.
134. Whether the plaintiffs have valid title to, and are in lawful
14possession of, the suit land.
155. Whether the plaintiffs are entitled to get the decree for partition
16(and/or other reliefs) as prayed for.
17During the trial, on behalf of all plaintiffs, plaintiff No. 1, as PW.1, gave evidence and exhibited the relevant documents marked as Exhibit Nos. 1 to 5. Two other local witnesses gave evidence for the plaintiffs as PW-2 and PW-3. On the other hand, on behalf of the contesting defendants Nos. 1 to 7, defendant No. 2 deposed as D.W.1 and marked the
relevant documents as Exhibit Nos. ‘ক’ series to ‘ঘ’ series. Two other local witnesses gave evidence on behalf of the contesting defendants as DW-2 and DW-3.
18Upon conclusion of the trial, the trial court decreed the suit, in preliminary form, partially against defendant Nos. 1 to 7 and ex parte against the rest, by its judgment and decree dated 13.10.2015.
19Being aggrieved by and dissatisfied with the aforesaid judgment and decree dated 13.10.2015, the plaintiffs, herein appellants, preferred the instant First Appeal No.312 of 2018 before this Court.
20During the pendency of the instant appeal, Appellant No. 1 died, leaving Appellant No. 2 and four other legal heirs, who were duly substituted as Appellant Nos. 1(b) to 1(e) by order dated 30.07.2024. Furthermore, the instant appeal has abated as against Respondent No. 17.
21Mr. A. K. Rashedul Huq, the learned Advocate appearing for the appellants, submits that the plaintiffs-appellants sought partition of 1.31 acres out of 2.35 acres of land under registered Kabuliyat Deed No. 1999 dated 13.06.1939 [Exhibit-5]. Although 1.05 acres were correctly recorded in the plaintiffs' name in the R.S. and S.A. records, the remaining 0.26 acres were mistakenly recorded under the defendantsrespondents. The learned trial court erred in law by granting a preliminary decree for only 1.05 acres, reasoning that title over the disputed 0.26 acres could not be decided in a suit for partition simplicitor without a specific prayer for declaration of title. The Hon'ble Appellate Division has settled that a separate declaration of title is unnecessary in partition suits, as all incidental questions of title must be fully adjudicated therein.
22Accordingly, the exclusion of the 0.26 acres constitutes a material legal error. In the interests of justice, the appeal should be allowed, and the decree modified to partition the full 1.31 acres (adding the 0.26 acres to the 1.05 acres).
23Mr. Huq further submits that the learned trial court correctly found the registered Kabuliyat [Exhibit-5] to be genuine and acknowledged that it forms the foundation of the Plaintiffs' possession. However, the trial court erred in determining the quantum of land. Upon declaring Exhibit-5 genuine, the trial court should have decreed the full 1.31 acres stipulated in the deed, rather than limiting the decree to 1.05 acres. The remaining 0.26 acres present no complex title issue, rendering the judgment liable to modification.
24Mr. Huq further submits that the plaintiffs-appellants specifically pleaded in their plaint and affirmed in testimony that although the 0.26acre portion was not recorded in their names, they remain in continuous possession of the same. It is a settled principle of law that S.A. and R.S. records of rights do not create or extinguish title, and the registered Kabuliyat dated 13.06.1939 [Exhibit-5] prevails over statutory records until a competent civil court sets it aside or cancels it. The defendantsrespondents have never challenged the validity of Exhibit-5 before any court. Indeed, D.W.-1 explicitly admitted in cross-examination:"We have not sought any remedy anywhere against the Kabuliyat dated 13.06.1939 executed by Abdul Hamed Bhuiyan."Consequently, the registered Kabuliyat [Exhibit-5] remains valid and binding in law, and the plaintiffs-
appellants are fully entitled to a decree for the entire 1.31 acres under the said deed.
25In support of his submissions, the learned Advocate for the appellants referred to the case of Cinmoy Chowdhury and another vs. Mridul Chowdhury and others, reported in 55 DLR (AD) 115, Sanjib Kumar Bose and another vs. Syed Shamsuddin Ahmed and another, reported in 33 DLR (AD) 34; Abdul Mannan Bhuiyan & others vs. Md Nasir Hossain and others, reported in 18 BLD (AD) 44 and Chief Engineer, Roads and Highway Directorate, Dhaka vs. Advocate Asad-uzzaman Siddqiue and others, reported in 69 DLR (AD) 440.
26Conversely, Md. Selim Reza Chowdhury, learned advocate for respondents Nos. 1, 2 and 5, submits that the suit filed by the plaintiffsappellants is not maintainable in respect of the disputed 0.26-acre land in the absence of a specific prayer for a declaration of title. The trial court correctly held that complex questions of title cannot be adjudicated in a suit for partition simpliciter without a specific prayer for a declaration of title. Furthermore, the plaintiffs-appellants have failed to establish exclusive possession of the said 0.26-acre portion, as the suit property was not properly demarcated by schedule or boundaries in accordance with Order VII, Rule 3 of the Code of Civil Procedure.
27Mr. Chowdhury further submits that a unilateral Kabuliyat is insufficient to establish a binding tenancy or land settlement unless the landlord explicitly acknowledges it, either by issuing a rent receipt (dakhila) or by executing a patta. In the present case, the plaintiffsappellants have failed to produce any dakhila or evidence of an executed
patta corresponding to the alleged Kabuliyat dated 13.06.1939. The Kabuliyat (Exhibit-5) records a total area of 16½ gandas, equivalent to only 66 decimals. However, the plaintiffs erroneously claim 1.31 acres based on that Kabuliyat. In fact, Arju Bibi owned only 65.50 decimals of the 1.31 acres under Khatian No. 714. Consequently, the plaintiffs' claim is vague, exaggerated, and legally unsustainable.
28Mr. Chowdhury further submits that the plaintiffs-appellants have failed to displace the trial court's specific findings on title, possession, and the precise boundaries of the allegedly wrongly recorded 26 decimals of land. Furthermore, the appellants advanced no arguments or raised no grounds concerning possession or identification before this Hon'ble Court. As the plaintiffs' claim of title based on the Kabuliyat was never acted upon in accordance with law, and title remains unproven by any documentary or oral evidence, the appeal is entirely devoid of merit and should be dismissed.
29In support of his submissions, the learned Advocate for respondent Nos. 1, 2 and 5 refers to the cases of Md. Nizamuddin and others vs. People’s Republic of Bangladesh, reported in 15 BLD (AD) 232; Abdul Jalil vs. Md. A. Samad & others, reported in 7 DLR 29; Rezaul Karim and others vs. Shamsuzzoha and others, reported in 49 DLR (AD) 68; Noor Mohammad Khan & others vs. Government of the People’s Republic of Bangladesh & others, reported in 42 DLR 434 and Golzar Ali vs. Saburjan Bewa, reported in 6 BLC (AD) 41.
30We heard the learned advocates for both parties and perused the materials on the record; the following points fall to be determined in this appeal:
311. Whether the trial court erred in law in holding that the suit for
32partition in respect of 0.26 acres was not maintainable without an
33express prayer for a declaration of title.
342. Whether Order VII, Rule 3 of the Code of Civil Procedure (CPC)
35bars the decreeing of the partition of 0.26 acres when C.S. plot
36numbers and boundaries clearly identify the entire plot of 1.31
37acres.
383. Whether the plaintiffs-appellants successfully proved their title and
39entitlement to partition of the entire 1.31 acres. Findings and Deliberation:
40 Point No. 1:
The record shows that S.A. Khatian No. 356 correctly
41records an area of 1.05 acres in the plaintiffs' name. During cross-
42examination, D.W. 1 explicitly admitted the plaintiffs' physical
43possession of the said 1.05 acres of land. Under Section 58 of the
44Evidence Act, 1872, admitted facts need not be proved; hence, this
45clear judicial admission operates as conclusive proof against the
46defendants. Consequently, the plaintiffs' title to and physical
47possession of the 1.05 acres are legally established without further
48proof.
49It is undisputed that the learned trial court decreed the suit for partition in favour of the plaintiffs to the extent of 1.05 acres under S.A. Khatian No. 356.
50However, the trial court held that, because S.A. Khatian No. 591 was prepared in the defendants’ names for 0.26 acres, the plaintiffs could not seek partition without first obtaining a formal declaration of title. This Court finds this reasoning legally flawed. A Khatian (Record of Rights) is merely an administrative record prepared for revenue purposes; it neither creates nor extinguishes title. An erroneous entry in a Khatian does not confer absolute ownership on the party recorded therein if the underlying substantive title lies elsewhere.
51Upon careful consideration of the evidence on record, this Court finds that the plaintiffs have established an unbroken chain of title originating from C.S. Khatian No. 714, duly supported by the registered Kabuliyat Deed No. 1999 dated 13.06.1939 (Exhibit-5). It is a well-settled principle of law that, in a suit for partition, where a party relies on valid and subsisting registered title deeds, the Court is fully competent to adjudicate the question of title as an incidental issue to determine the respective joint shares of the cosharers. In Cinmoy Chowdhury and another vs. Mridul Chowdhury and others, reported in 55 DLR (AD) 115, it was observed that in a suit for partition, all incidental questions of title, however complicated, can be decided and finally disposed of.
52Significantly, D.W.-1 admitted during cross-examination that the defendants have never challenged, impeached, or sought any legal remedy against the plaintiffs’ registered Kabuliyat Deed of 1939 before any competent forum. As the fundamental document of title (Exhibit-5) remains unimpeached, legally intact, and unchallenged, a mere erroneous entry in S.A. Khatian No. 591
53cannot divest or defeat the plaintiffs' substantive ownership.
54Consequently, a separate and formal prayer for a declaration of title was not a mandatory prerequisite to maintaining the present suit for partition of the joint property. Point No. 2:
55The trial court further erred in applying Order VII, Rule 3 of the Code of Civil Procedure (CPC) to bar partition of the 0.26-acre fraction.
56Order VII, Rule 3 of the CPC requires that, where the subject matter of a suit is immovable property, the plaint must contain a description sufficient to identify it. The primary objective of this rule is to ensure that a court decree can be executed without ambiguity or visual confusion.
57In the instant case:
58 The entire joint property, measuring 1.31 acres, was fully
59described in Schedule 'Ka' of the plaint, including C.S. Plot
60Nos. 252, 253, 254, 255, 256, 266, and 267, together with its
61outer boundary limits.
62 In a suit for the partition of joint (ejmali) land, co-sharers
63seek to divide an undivided joint unit. Requiring separate
64metes-and-bounds boundary descriptions for an unpartitioned
650.26-acre fraction within a larger joint plot before a
66preliminary decree is passed contradicts the fundamental
67nature of a partition action.
68 Demarcation of specific physical boundaries is strictly the
69function of the Advocate Commissioner appointed during the
70final decree proceedings, who carries out the partition on the
71ground by physical measurement.
72Thus, the suit property was sufficiently identified, and Order VII, Rule 3 CPC does not bar a decree for partition of the entire area. Point No. 3:
73The record shows that the trial court accepted Exhibit 5 (the registered Kabuliyat Deed No. 1999 dated 13.06.1939) as genuine and legally valid. This deed covers the entire 1.31 acres under C.S.
74Khatian No. 714. Regarding the quantum of land covered by the Kabuliyat, the respondents’ learned advocate submitted that the deed comprises 66.50 decimals, asserting that 16.50 ganda equals 66.50 decimals. However, upon proper perusal of Exhibit 5
75(registered Kabuliyat Deed No. 1999 dated 13.06.1939), the trial court observed that the document explicitly records 1.31 acres of land. Furthermore, the defendants failed to produce any evidence to rebut the deed's recitals regarding the land area. Consequently, the
respondents' learned advocate’s submissions regarding the quantum of land under the Kabuliyat cannot be accepted.
76The 1939 Kabuliyat appears to be nearly 90 years old. D.W. 1 admitted during cross-examination that the defendants never instituted any suit to cancel or declare the 1939 Kabuliyat deed void under Section 31 or 39 of the Specific Relief Act, 1877. Under Section 31 of the Specific Relief Act, 1877, if a party claims that an instrument is void or illegal, they must seek its cancellation. By failing to challenge or seek a declaration against the 1939 registered deed, the defendants severely undermined their standing to dismiss it orally as "illegal" during cross-examination. In the case of Additional Deputy Commissioner (Revenue) vs. Md. Reazuddin Pk and others, reported in 5 BLC (AD) 76, it was held that once a document older than 30 years is produced from proper custody, Section 90 of the Evidence Act entitles the Court to presume its genuineness. As a registered document over 30 years old, produced from proper custody, the court presumes the execution and attestation of the 1939 Kabuliyat to be genuine. Accordingly, this Court finds that an unchallenged, ancient registered title deed cannot be invalidated merely by oral denial in cross-examination.
77Where a registered document is established to be genuine and nothing to the contrary is found by a court of law, there is no scope to disbelieve its contents. In the present case, the trial court categorically observed that the 1939 Kabuliyat is genuine;
78therefore, there is no scope to disbelieve the quantity of land described therein as owned by the plaintiffs' predecessor-in-interest.
79The learned advocate for the respondents contended that a unilateral Kabuliyat is insufficient to create a binding tenancy or land settlement without the landlord's explicit acknowledgement, whether by executing a corresponding patta or by issuing rent receipts (dakhilas). We find no merit in this contention. The record shows that the respondents never challenged the genuineness of the 1939 Kabuliyatin an appropriate civil court, and the learned trial court explicitly found the registered Kabuliyat to be a genuine document of title. Once a registered deed of such antiquity remains unassailed and its execution is established, it carries a presumption of correctness that cannot be brushed aside by mere oral arguments. Consequently, the learned advocate's submissions on this point are unmeritorious and are not accepted. Regarding physical possession: The trial court observed that the defendants’ witnesses, D.W.-1, D.W.-2, and D.W.-3, explicitly admitted during crossexamination that the plaintiffs are in physical possession of the suit land. In law, possession by one co-sharer of joint property is deemed possession on behalf of all co-sharers (possession of one is possession of all), unless the adverse party explicitly pleads and proves complete ouster. No such ouster was established here.
80Since the 1939 Kabuliyat deed covers the entire 1.31 acres of land, and possession by one co-sharer of joint property is deemed in law to be possession on behalf of all co-sharers, the plaintiffs have established both title to and possession of the entire 1.31 acres. Consequently, the trial court acted arbitrarily and illegally in reducing the plaintiffs' share from 1.31 acres to 1.05 acres.
81Admissions made by a witness during cross-examination or in pleadings constitute the best evidence against them. In the present case, the testimony of D.W. 1 contains fatal admissions, including an explicit concession that the plaintiffs hold physical possession of 1.05 acres, an admission that the defendants' own Plot Index links the C.S. plots of the 1939 Kabuliyat to the present S.A. plots, and an acknowledgement that a previous suit filed by their uncle concerning S.A. Khatian 591, namely Title Suit No. 43 of 1999, against the plaintiffs' predecessors-in-interest, was ultimately dismissed for default. It is a settled principle of law that when a suit challenging property rights is dismissed for default and not subsequently restored, the plaintiff in that former suit, as well as their legal heirs, is precluded under Order IX, Rule 9 of the Code of Civil Procedure from filing a fresh suit or asserting the same cause of action defensively to defeat a registered title holder.
82It is a cardinal principle of jurisprudence that a Record-of-Rights (Khatian) neither creates nor extinguishes title, but merely raises a rebuttable presumption of possession. The trial court erred in giving precedence to the survey entry in S.A. Khatian No. 591 over the unassailed, registered Kabuliyat of 1939. Once the root of title to the
entire 1.31 acres is duly established and remains unchallenged by any suit, a mere erroneous entry in the Record-of-Rights cannot divest the plaintiffs of their lawful co-ownership rights.
83It appears that the trial court erred in holding that the plaintiffs were out of possession of the 26 decimals of land, having completely ignored the oral evidence establishing joint possession (ejmali) of the garden, pond, and arable land within the disputed parcel.
84The learned advocate for the respondents submits that, under C.S. Khatian No. 714, the plaintiffs' predecessor, Arju Bibi, and another held the entire 1.31 acres of land, whereas the plaintiffs claim that their predecessor, Arju Bibi, held only the entire 1.31 acres of land. By contrast, the learned advocate for the appellants submits that, under C.S. Khatian No. 714 (Exhibit-1), Munir Uddin and Arju Bibi were recorded as owners, each holding an 8-anna share, whereas the plaintiffs claimed only a 1-anna share in the name of Arju Bibi under the said Khatian. However, the record shows that the defendants-respondents themselves admitted in their written statement that the total area of 2.62 acres was recorded in C.S. Khatian No. 714, of which 1.31 acres, representing her full 8-anna share, was correctly recorded in the name of Arju Bibi.
85We find merit in the submissions of the learned Advocate for the appellants. For clarity, paragraph 23 of the written statement is reproduced below in full in its entirety:
86“২৩. আর জর তপিছল িবেরাধীয় ভূ িম স েক কৃত বৃ া এই য, জলা বিরশাল শন
87সদর কাতয়ালী মাতালক সােবক ২০২৫নং ব রা অেলকা া মৗজার পূেব িস.এস. ২৫৬নং
88খিতয়ােনর সােবক ২৫২/ ২৫৩/ ২৫৪/ ২৫৫/ ২৬৬ ও ২৬৭নং দােগর সম ক ২.৬২ শতাংশ
ভূ িম সােবক ৭১৪নং খিতয়ােন িহস া ৮ আনা অংেশ ১.৩১ একর ভূ িম সােবক রকিডয় আরজু
89িবিব নােম এবং ব ী িহস া ৮ আনা অংেশর ১.৩১ একর ভূ িম সহ সােবক ২৫৬ দােগর িহস া
90২ আনী অংেশর ১০ একর সােবক ৫৪০ দােগর িহস া ৪ আনী অংেশর ১৬ একর ও সােবক
91৫৪২ দােগর িহস া ৪ আনী অংেশর ২০ একর ভূ িম িনয়া একুেন ১.৭৬ একর ভূ িম স েক
92সােবক ২৫৬নং কষা খিতয়ােন সােবক রকিডয় আয়জ েনর নােম মেত সােবক
93রকড ত হয়। অতঃপর সােবক রকিডয় আয়জ েনর লাকা ের ২ পু আসমত আলী
94ও মহ ত আলী ওয়ািরশ িনযু থােকন।"
95Moreover, the DW-1, in his testimony stated that“ আিম অ মাক মার ২নং িববাদী। ১নং িববাদী আমার মা, ৩-৭নং িববাদী ভাই- বান। আিম সকেলর পে জবান ব িদ । িবেরাধীয় জিম বিরশাল সদর কাতয়ালীর অ গত। সােবক ২০-২৫নং ব ড়া আেলকা া মৗজার সােবক ৭৫৬নং খিতয়ােনর ২৫২, ২৫৩, ২৫৪, ২৫৫, ২৬৬, ২৬৭ দােগর সম ক ১৬খানা অংেশর ২৬২ শতক ভূ িম সােবক ৭১৪নং খিতয়ােনর িহস া। ।. আনা অংেশর ১৩১ শতাংশ ভূ িম রকড য় আরজু িবিবর নােম এবং ব ী ।।. অংেশ ১৩১ শতাংশ ভূ িম সহ সােবক ২৫৬ দােগর িহস া ১৬ আনা অংেশর ১০ শতাংশ, সােবক ৫৪০নং দােগর িহস া ।. আনা অংেশ ১৬ শতাংশ, সােবক ৫৪২ দােগর ।. আনা িহেস ১০ শতাংশ একুেন ১.৭৬ একর ভূ িম স েক সােবক ২৫৬নং কষা খিতয়ােন সােবক রকড য় আেয়জউ ীন এর নােম মেত সােবক রকড তহয়। আেয়জউ ীন মারা গেল ২ পু আছমত এবং মাহা ত আলী ওয়ািরশ থােক।“
96Based on the above optical and documentary evidence on record, it appears that the plaintiffs trace their claim to the partible land from their predecessor-in-interest, Arju Bibi. Conversely, Defendant Nos. 1 to 7 base their chain of title on Ayejuddin, thereby demonstrating that the respective chains of title asserted by the plaintiffs and the defendants are distinct. Furthermore, Defendant Nos. 1 to 7 have not claimed any saham in the suit land.
97Moreover, it appears that the contesting defendants-respondents did not file any appeal or cross-objection against the impugned judgment and decree in Title Suit No. 51 of 2007. Consequently, they are deemed to
have accepted the finding that the plaintiffs are entitled to a saham of at least 1.05 acres under C.S. Khatian No. 714, based on the root of title derived from the 1939 Kabuliyat.
98In the case of Hachina Begum and others vs. Abdul Mannan and others, reported in 30 BLD 628, the present Hon’ble Presiding Judge, who was the author Judge of the case, observed that a registered kabala is evidence of title which will prevail over other records of rights unless and until such kabala/kabuliyat is cancelled on a specific allegation of fraud by any civil court in an appropriate civil suit.
99In the case of Abdul Mannan Bhuiyan & others vs. Md. Nasir Hossain and others, reported in 18 BLD (AD) 44, it was observed that S.A. and R.S. records were not an evidence of title and that a registered document would prevail upon the record of rights and that the registered document would remain in enforce unless the same was cancelled by an appropriate civil court.
100In Guru Charan Mondol & Others vs. Sree Bhaba Sindhu Sarkar & Others, reported in 13 MLR (AD) 6, it was observed that records of rights in S.A. and R.S. Khatian do not confer title; the kabala deed prevails over the record of rights. It was further observed that, in case of conflict between the Kabala and Khatian, the earlier registered Kabala prevails over the subsequent record of rights in R.S. Khatian and S.A. Khatian. Decision and Order:
101On consideration of the above facts, the circumstances of the case, cited decisions and the evidence on record, we hold that the learned Joint District Judge, First Court, Barishal, utterly failed to appreciate the facts,
circumstances, and evidence on record and, most illegally, decreed the above suit in part, which is not tenable in law.
102Accordingly, the instant first appeal succeeds. The findings of the trial court disallowing partition in respect of 0.26 acres are hereby set aside.
It is ordered:
103That First Appeal No. 312 of 2018 is allowed on contest against Respondent Nos. 1–7 and ex parte against the rest, without costs.
104The judgment and preliminary decree dated 13.10.2015 passed by the Joint District Judge, First Court, Barishal, in Title Suit No. 51 of 2007 are modified as follows:
1051. The suit is decreed in preliminary form in full for the entire 1.31
106acres of Schedule 'Ka' suit land as prayed for.
1072. The plaintiffs-appellants are entitled to a separate allotment
108(saham) for their full proportionate share of the entire 1.31 acres
109of suit land.
1103. The parties are directed to effect an amicable partition within 45
111(forty-five) days from today. Failing which, any party shall be at
112liberty to apply to the trial court for the appointment of an
113Advocate Commissioner to prepare a final decree demarcating
114their respective saham on the ground in accordance with law.
115Send down the Lower Court Records (LCR) along with a copy of this judgment forthwith.
116Sheikh Abdul Awal, J
I agree.
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