Partition––The Appellate Division is of the view that the High Court Division rightly found that the suit land is not an undivided dwelling house rather it is admit tedly a commercial place on which petitioners and other co-sharers have been conducting their business treating the suit land as commercial premises. Since the suit land is not a undivided dwelling house but a commercial place an application under section 4 of the Partition Act cannot be invoked to buy out the share of a stranger purchaser in the suit land. .....Hossain Shahid =VS= Abdul Wahab & others, [1 LM (AD) 394] ....View Full Judgment

Partition–– The High Court Division did not decide the issues regarding defect of party and hotchpot. But relied upon decisions of this Division to the effect that the findings of the appellate Court as the last court of fact are binding on the revisional Court. However, the High Court Division did not consider the cited decisions of this Division where it has been held that a suit for partition will not be defeated for reason of defect of party and hotchpot. On the point of the quantum of land for which saham was claimed, the High Court Division followed the appellate Court’s reasoning and held that the plaintiffs could not get saham for 44 decimals in respect of ⅓ share of the plaintiffs’ predecessor.
We find that the decisions of the appellate Court and the High Court Division are based on misreading of the schedule to the concerned deed of sale. The issues relating to defect of party and hotchpot are covered by the decisions of this Division. We need not revisit those here. We find merit in the appeal which is allowed. The impugned judgement and order is set aside. The judgement and decree of the trial Court is restored. ...Mohammad Sayed =VS= Majuma Begum, [10 LM (AD) 109] ....View Full Judgment

Partition–– Without amicable partition established amount the co-sharers the suit is not maintainable without the prayer for partition–– The story of amicable partition as claimed by the parties has not been established and that the parties claimed their shares from admitted co-sharers of plot and holding, we are of the view, that the instant suit was not maintainable without the prayer for partition. The parties may effect partition of their lands by bringing properly instituted suit. ...Ali Amzad Khan =VS= Md. Titan Khan, [10 LM (AD) 153] ....View Full Judgment

Partition Suit–– Notice–– The Court of facts, on considering the evidence on record, particularly, considering the Vokalatnama executed by the defendant No.46-respondent No.1 and her prayer for time for filing written statement, came to the conclusion that the notice of the suit was duly served upon her. Said finding of the fact has not been reversed by the High Court Division.
Without reversing the finding as to the service of notice upon the defendant No.46, is erroneous, particularly, when the defendant No.46 herself appeared in the suit filing vokalatnama. Considering the aforesaid facts and circumstances, we find substance in the appeal. The judgment and order passed by the High Court Division in Civil Revision No.4713 of 1998 is hereby set aside. ...Rowshan Akhtar Rahman(Md.) =VS= Most. Shilu Begum, [10 LM (AD) 179] ....View Full Judgment

Partition suit–– The appellate Court, being the last court of facts–– The appellate Court observed that on assessment of the evidence of the witnesses, it does not appear that the plaintiff was ill at the time of execution and registration of the disputed partition deed. It was further observed that the plaintiff admitting the deed of partition transferred land which he had acquired by dint of the deed of partition to various people and copies of those deeds were produced by the defendants.
Views of the appellate Court, being the last court of facts, were rightly upheld by the High Court Division in its revisional jurisdiction. Clearly, the petitioner having accepted the deed of partition sold off some of his land which had devolved upon him through the partition. The partition was thus acted upon as evidenced by the action of the petitioner himself. The petitioner, therefore, cannot now deny the legality of the deed of partition. We do not find any error in the impugned judgement and order of the High Court Division. ...Ali Akber(Md.) =VS= Shahanara Khatun, [10 LM (AD) 702] ....View Full Judgment

Partition Suit–– The Advocate Commissioner prepared his report after actual physical measurement of the land on the basis of possession and title. The finding of the Courts below the Advocate Commissioner rightly allocated saham to the parties. …Monowara Begum(Most.) =VS= Wahed Ali(Md.), [8 LM (AD) 320] ....View Full Judgment

Partition on determination of title and also for recovery of khas possession–– Concurrent findings of fact arrived by the Courts below interference by the High Court are set-aside–– Considered the judgments of all the Courts below, we are of the view that the High Court Division illegally interfered with the concurrent findings of fact arrived at by the Courts below although we do not find any misreading or non consideration of evidence warranting interference by the High Court Division. We find substance in this appeal. Accordingly, this appeal is allowed and the impugned judgments and decrees delivered by the trial Court and the appellate Court are hereby restored. .....Sukendra Bikas Das =VS= Anil Baran Das, [5 LM (AD) 327] ....View Full Judgment

Partition with declaration of Title Suit–– Remand the Court for trial–– The learned Senior Assistant Judge, Feni Sadar, Feni after holding trial, decreed the suit in the preliminary form in favour of the plaintiffs by his judgement and decree passed on 13.10.2002. Against the said judgement and decree of the trial Court, the defendants as appellants preferred Title Appeal No.118 of 2002 before the learned District Judge, Feni. Subsequently the said appeal was heard by the learned Joint District Judge, 2nd Court, Feni who after hearing the same by his judgement and decree dated 28.05.2007 allowed the appeal and sent the suit back to the trial Court for retrial.
Being aggrieved by and dissatisfied with the aforesaid judgement and order of remand, defendant Nos.1-3 filed Civil Revision No.3726 of 2007 before the High Court Division whereupon Rule was issued. A Single Bench, by the impugned judgement and order, made the Rule absolute, set aside the order of remand while upholding that part of the judgement and decree of the appellate Court setting aside the judgement and decree of the trial Court, thereby dismissing the suit.
In view of the above facts and circumstances of the case, the judgement and order of the High Court Division as well as the judgement and decree of the appellate Court are hereby set aside. The case is remanded to the appellate Court only for the purpose of allowing the parties to prove their respective khatians by calling the relevant record volumes as well as for the appellate Court to give its finding on the commission report which is on record. The appellate Court is directed to dispose of the appeal within 4 (four) months from the date of receipt of this judgement. ...Abdul Gofran =VS= Hafezer Rahman, [6 LM (AD) 212] ....View Full Judgment

Any question arises over possession or dispossession then the parties can file a suit for partition–– It is by now an established principle of law that in a suit for permanent injunction or where there is a prayer for recovery of possession, there has to be specificity about the land claimed by the plaintiffs. [see Moharram Ali and another Vs. Mohammad Madhu Mia and others, 41DLR(AD)92].
The instant case, the defendants appear to have purchased land from a different Khatian to that claimed by the plaintiffs. There appears to be no conflict of claim. If and when any question arises over possession or dispossession then the parties can file a suit for partition.
We find that the High Court Division erred in dismissing the suit upon reversing concurrent findings of the Courts below. Accordingly the appeal is allowed, without, any order as to costs. The impugned judgement and order is hereby set aside. …Sufala Rani =VS= Balai Mondal, [7 LM (AD) 20] ....View Full Judgment

A co-sharer in possession can maintain her possession until partition–– It is well settled that a co-sharer in possession can maintain her possession until partition. A co-sharer in exclusive possession of land, even if, in excess of his/her actual share, cannot be dispossessed otherwise than by partition and hence a co-sharer in exclusive possession can bring a suit for permanent injunction against the other co-sharers-who threaten him/her with dispossession.
The High Court Division was not justified at all to send back the suit on remand for fresh trial with the direction to convert the suit for permanent injunction into a suit for partition. In this suit the plaintiff-a co-sharer-has proved her exclusive possession in her claimed land and she is entitled to keep this possession until partition by metes and bounds. If necessary, the defendants-co-sharers can bring a suit for partition, the plaintiff cannot be compelled to file a suit for partition. The impugned judgment and order of the High Court Division is set aide and those of the trial court and the appellate court below are affirmed. ...Noor Jahan Begum(Mst.) =VS= Giasuddin, [9 LM (AD) 82] ....View Full Judgment

The High Court Division has erred in modifying the decree passed on concurrent findings of fact upon reassessing the evidence–– The Appellate Division finds on calculation of the shares of the defendant in the suit land High Court Division accordingly decreed the suit. The Appellate Division has perused the said calculation and the appellant could not show any mistake or otherwise any defect in the said allottment of shares in allowing a separate saham in respect of 2.05 acres of land in favour of the plaintiffs instead of 3.48 1/2 acres of land as decreed by the Courts below allotting 16 annas share in suit land in favour of the plaintiff to the exclusion of the shares of defendants. Accordingly, the appeal is dismissed. .....Md. Yasin Khan & others =VS= Ayub Ali Khan & others, [1 LM (AD) 441] ....View Full Judgment

Partition on determination of title and also for recovery of khas possession– Concurrent findings of fact arrived by the Courts below interference by the High Court are set-aside–
Considered the judgments of all the Courts below, we are of the view that the High Court Division illegally interfered with the concurrent findings of fact arrived at by the Courts below although we do not find any misreading or non consideration of evidence warranting interference by the High Court Division. We find substance in this appeal. Accordingly, this appeal is allowed and the impugned judgments and decrees delivered by the trial Court and the appellate Court are hereby restored. .....Sukendra Bikas Das =VS= Anil Baran Das, (Civil), 2018 (2) [5 LM (AD) 327] ....View Full Judgment

Further partition suit is possible for the rest joint property which has been left out from this case on showing of recurring cause of action– Further partition is possible for the rest joint property which has been left out from this case on showing of recurring cause of action, the appellate Court has arrived at a wrong decision of sending in the case to the lower Court on remand for holding trial afresh. Thus, the impugned judgment and decree of the appellate Court below is liable to be set aside. Appellate Division finds illegality and infirmity in the impugned judgment, which in our view calls for interference. The appeal is allowed without any order as to costs. The judgment and order of the High Court Division is set aside and thereby restored the judgment of the trial Court. .....Dr. Ehtesamul Haque Chowdhury =VS= Enamul Haque Chowdhury, (Civil), 2022(1) [12 LM (AD) 682] ....View Full Judgment

Partition with declaration of Title Suit– Remand the Court for trial–
The learned Senior Assistant Judge, Feni Sadar, Feni after holding trial, decreed the suit in the preliminary form in favour of the plaintiffs by his judgement and decree passed on 13.10.2002. Against the said judgement and decree of the trial Court, the defendants as appellants preferred Title Appeal No.118 of 2002 before the learned District Judge, Feni.
Subsequently the said appeal was heard by the learned Joint District Judge, 2nd Court, Feni who after hearing the same by his judgement and decree dated 28.05.2007 allowed the appeal and sent the suit back to the trial Court for retrial.
Being aggrieved by and dissatisfied with the aforesaid judgement and order of remand, defendant Nos.1-3 filed Civil Revision No.3726 of 2007 before the High Court Division whereupon Rule was issued. A Single Bench, by the impugned judgement and order, made the Rule absolute, set aside the order of remand while upholding that part of the judgement and decree of the appellate Court setting aside the judgement and decree of the trial Court, thereby dismissing the suit.
In view of the above facts and circumstances of the case, the judgement and order of the High Court Division as well as the judgement and decree of the appellate Court are hereby set aside. The case is remanded to the appellate Court only for the purpose of allowing the parties to prove their respective khatians by calling the relevant record volumes as well as for the appellate Court to give its finding on the commission report which is on record. The appellate Court is directed to dispose of the appeal within 4 (four) months from the date of receipt of this judgement. ...Abdul Gofran =VS= Hafezer Rahman, (Civil), 2019 (1) [6 LM (AD) 212] ....View Full Judgment