1. This Rule was obtained by Tepri Mai Bewa, plaintiff in, Other Suit No. 58 of 1952 of the Ist Court of the Munsif at Kurigram.
2. The Opposite-Parties, who are four in number, were the principal defendants in the said suit which was contested only by defendants I to 3. Opposite-Party No. 4 Sayendar Sheikh who is Tepri Mai's brother and was defendant No. 4, did not contest the suit.
3. The suit was described in the cause title of the plaint as one for cancellation of a kabala executed on 15-12-49 upon declaring it to have been fraudulently obtained without consideration, and for recovery of possession of lands detailed in Schedule `kha' of the plaint. It was reiterated in the first paragraph of the plaint that the suit was (1) for cancellation of the said kabala upon declaring it to have been fraudulently obtained without consideration and (2) for recovery of possession of 'kha'
4. Schedule lands. It was again stated in paragraph 7 of the plaint that the plaintiff was dispossessed of the 'kha' Schedule lands by the principal defendants and that she was entitled to be put back in possession of the said lands, the remaining suit land% being in her possession through tenants.
5. "First.-The kabala executed by the plaintiff on 15-12-49 in favour of defendants 1 to 3 being without consideration and fraudulent and having had been obtained by mis--representation be adjudged void, and a decree be passed to cancel the same; and Second.-A decree for khas possession of the lands des--cribed in the Schedule 'kha' below be passed in favour of the plaintiff."
6. The plaint case may now be briefly stated. The plaintiff was a helpless illiterate pardanashin widow.
7. She had no property other than those mentioned in the two Schedules of the plaint. They were being looked after by her brother, defendant No. 4, whose house was situated at a distance of 4 or 5 miles from her deceased husband's house where she lived. On the plea that it was difficult to manage the properties from such a distance, defendant No. 4 requested her to execute an Ammukhtarnama in his favour. She was taken to Lalmonirhat Sub-Registry Office, where she executed and registered a document which she was given to understand was an Ammukhtarnama in favour of the said defendant. That document was not read over to her, nor were its contents explained to her. In Jaishtha, 1357 B. S. The defendants asked Fazlu Sheikha, her bargadar, not to plough her lands on the plea that they had purchased those lands by a kabala.
8. This prompted her to make enquiries in the Registration Office. It then came to light that the document she executed and registered was not an Ammukhtarnama but a kabala in favour of defendants 1 to 3 for a consideration of Rs. 600. Thereupon, she prosecuted all the principal defendants under section 420, P. P. C., resulting in their conviction which was confirmed on appeal.
9. During the pendency of the criminal case, in Ashar, 1357 B. S. The principal defendants dispossessed her of the `kha' schedule lands. The remaining lands continued to be in her possession through tenants. She was never paid Rs. 600, or any part thereof. She executed the document in bona fide belief that it was an Ammukhtarnama in favour of his brother, defendant No. 4. Defendant No. 4, with a view to grabbing the suit lands himself, fraudulently obtained the said kabala in favour of defendants 1 to 3 who were subservient to him.
10. Defendants 1 to 3 contested the suit. They filed a written statement denying all material allegations appealing in the plaint. They asserted in the written statement that the plaintiff was not a pardanashin illiterate woman, that the impugned kabala was a genuine document for valuable consideration, and that the same had been duly read over and explained to the plaintiff before its execution. In paragraph 9 of their written statement, inter alia, they stated that the property in suit was not very valuable; that some portions thereof were not cultivable being covered by sand dunes, resulting from breaches in the bank of the river; and that half the property being tenanted, Rs. 600 for which these defendants obtained the kabala was its proper value. It was claimed that the suit was undervalued, and hence not maintainable. The objection as to maintainability of the suit on the score of valuation is not, however, reflected in the issues framed in the suit.
11. A total of seven issues were framed in two instalments. In the first instalment three issues were framed, being Nos. 1 to 3. Later, another four issues were framed in continuation of the first three issues. None of these seven issues relates to valuation of the suit, as will appear from the list of issues set down below:-
(1) If the suit maintainable without notice?
(2) Was the kabala in suit fraudulently obtained? Is it liable to cancellation?
(3) What relief can the plaintiff get?
(4) Did the plaintiff bring this suit? And is the suit maintainable, if it is found that she did not bring it?
(5) Is the story of execution of an Ammukhtarnama by the plaintiff in favour of defendant No. 4 true?
(6) Is the story that the plaintiff came to know the kabala in question from one Fazlu Sheikh in Jaistha of 1357 B. S. True?
(7) Whether the plaintiff lived in her husband's house at the time of kabala and whether she had any homestead either of her own or from the time of her husband in any portion of the kabala land.
12. Mr. K. U. Ahmed, Munsiff, 1st Court, Kurigram, having dismissed the suit, the plaintiff took an appeal from his decree. The learned Subordinate Judge who heard the appeal set aside the judgment and decree of Mr. K. U. Ahmed and directed a remand of the suit. On remand, the suit was dismissed by Mr. A. K. Faizuddin Ahmed, Sub-Divisional Munsiff, Kurigram. An appeal from Mr. A. K. Faizuddin Ahmed's decree having failed, the plaintiff took a second appeal to this Court. Nandi, J., directed a remand to the Court of appeal below. On this occasion also the learned Subordinate Judge did not interfere with the decree passed by Mr. A. K. Faizuddin Ahmed. The plaintiff, thereupon, came again to this Court in second appeal. Hasan, J. Again directed a remand to the lower Appellate Court. Mr. M. A. Barkat, who was then the Subordinate Judge at Rangpur, by a judgment and decree dated 7- 9-64 allowed the appeal and set aside the judgment and decree passed by Mr. A. K. Faizuddin Ahmed, Sub-Divisional Munsiff, Kurigram. He decreed the suit of the plaintiff. The recital in the decree, which is identical in terms with the operative portion of the order in the judgment runs as follows:- "That the appeal be and is hereby allowed on contest with cost against respondents 1 to 3 and ex parte without cost against respondent No. 4. The judgment and decree of the trial Court are hereby set aside. The Title Suit No. 58 of 1952 of the Court below is hereby decreed on contest with costs against defendants 1 to 3 and ex parte without cost against the rest. The kabala Exh. 1 is hereby cancelled. The Registration Office concerned be informed accordingly."
13. Two of the contesting defendants, namely, Farey Mahmud and another then took a second appeal to this Court, being S. A. No. 1063 of 1965. This appeal was summarily dismissed by A.I, J., on the 4th January 1966, after hearing the learned Advocate for the appellants.
14. It is stated in the petition before me, which has been described as one under section 115 of the Code of Civil Procedure, that when the plaintiff proceeded to execute the decree she came to know for the first time that the relief for recovery of possession of the `kha' schedule lands, as prayed for in the plaint, was not specifically mentioned in the said decree; and that thereupon she filed an application in the Court of the Subordinate Judge at Rangpur under sections 151 and 152 of the Code of Civil Procedure, praying for inclusion of the said relief in the decree, but Mr. K. F. Akbar, who, in the meanwhile, succeeded Mr. M. A. Barkat as Subordinate Judge, Rangpur, dismissed the said application upon a view that the decree had been drawn up in terms of the judgment delivered by Mr. M. A. Barkat on 7-9-64.
15. As the Rule came up for hearing Mr. Korban A.I, the learned Advocate of the Opposite-Party, raised a preliminary point that the petitioner's application under sections 151 and 152 of the Code of Civil Procedure for inclusion of the relief for recovery of possession in the decree obtained by the petitioner ought to have been filed in this Court, and not in the Court of the Subordinate Judge whose decree had merged in the decree of this Court in S. A. No. 1063 of 1965. He submitted that this Rule which was not obtained on a petition under section 151 or 152, but on one under section 115 of the Code of Civil Procedure, was liable to be discharged on that account alone, if not on merits.
16. The opposing contentions on this point will be considered hereafter. Let me at this stag, consider the contentions on merits.
17. Mr. M. H. Khandakar who appeared in support of the Rule took me through the plaint and the written statement, material portions of which have been referred to abode, The issues framed in the suit have also been cited in this judgment. Mr. Khandakar submitted that the suit being both for cancellation of the impugned kabala and for recovery of possession of the lands described in Schedule `kha' of the Plaint and Mr. M. A. Barkat, the learned Subordinate Judge, haling decreed the suit, the suit must be held to have been decreed alto in respect of the relief as to recovery of possession. Mr. Khamlakar submitted further that understandably the learned Subordinate Judge was more alert and particular as to the relief relating to cancellation not the kabala, since the registration office had to be informed of the cancellation; and that it was for this reason, that the learned Subordinate Judge did not fail to mention it in the operative portion of his order in the judgment. Mr. Khandakar con--tended that non-mention of the relief as to recovery of possession in the judgment of the learned Subordinate Judge could be of little consequence in view of the suit having been decreed without any reservation, as would be evident from the operative portion of the order in the judgment which was unfortunately transferred verbatim to the decree without reference to the plaint. In any event, he contended, the omission could at the most be ascribed to an accidental slip prising out of a failure to look into the plaint at the time the decree was drawn up. Mr. Khandakar maintained that in all fairness such an inadvertent omission in the decree ought to be supplied according to the trend of the judgment, since its continua ~e decade and a de would drive the plaintiff to another suit after more than half's litigation for no fault of her own.
18. Mr. Korban A.I, on the other hand, contented that it was not a question of supplying a mere omission in toe present case. He claimed that the plaintiff-petitioner had abandoned the prayer for recovery of possession even at the trial stage. It is incom--prehensible as to why the plaintiff would abandon that prayer, her definite case being that the principal defendants had dis--possessed her of the `kha' schedule lands. Mt, Korban A.I, 'however drew my attention to certain remarks appearing in the learned Munsiff's judgments both which were set aside, the judgment of Mr. K. U.
19. Ahmed by Mr. M, A. Barkat's predecessor and that of Mr. A. K. Faizuddin Ahmed by Mr. M. A. Barkat on remand of the case by Hassan J. In both those judgments, no doubt, it was stated that the plaintiff gave up the prayer for recovery of possession, since, it was said, the plaintiff did not pay court-fee on that relief and the market value of the suit lands was not assessed.
20. The grounds suggested by the learned Munsiffs for the alleged abandonment of the prayer for recovery of possession are not relatable to the state of the record. No issue, as already noticed, was framed on the question as to valuation. There is no petition on record indicating that the plaintiff abandoned the prayer for recovery of possession. There is also no petition on record showing that the defendants disputed the correctness of the valuation of the suit even after they filed the written statement. There is no order in the order-sheet of the suit indicating that at any stage the plaintiff, either of her own accord or on the insistence of the defence, gave up the prayer for recovery of possession. The plaint was never sought to be amended by deleting the prayer for recovery of possession. The plaint as it was presented in Court has remained unamended, except to the extent that the name of the father of defendant No. 4 which was not originally mentioned was allowed to be inserted by an amendment on 20-4-53. It was not contended: before me, nor could it be, in view of the absence of any evidence to that effect, that the plaintiff's lawyer before the learned Munsiff had any authority to abandon the prayer for recovery of possession. It has been noticed above how in paragraph 9 of their written statement the defendants stated that half the suit property was tenanted and portions of the other half were not cultivable, being covered by sand. The plaintiff's --prayer for recovery of possession did not relate to the tenanted lands. Those lands, the plaintiff claimed in the plaint, were in her possession through tenants. The prayer for recovery of possession was in respect only of the khas lands. The defendants claimed in their written statement that the suit properties ought to have been valued at Rs. 600 which was the consideration mentioned in their kabala. The kabala was, however, fraudulently obtained. It was found by the learned Subordinate Judge that the plaintiff who was a pardanashin illiterate woman had no independent advice and that the contents of the kabala were neither read over nor explained to her. Even if the value of all the lands mentioned in the two schedules of the plaint which constituted the subject-matter of the transfer by the impugned kabala were Rs. 600 the suit cannot reasonably be said to have been undervalued, since recovery of possession was asked for not of all the lands but only irr respect of some of them, namely, the khas lands described in Schedule `kha' of the plaint, portions of which again, even according to the defendants, were not cultivable. I am, there--fore, inclined to agree with Mr." Khandakar that the remarks appearing in the judgments of the learned Munsiffs reflected' some kind of a mistake, either on the part of the learned' Munsiffs or on the part of the plaintiff's lawyer. In any event the judgment of Mr. M. A. Barkat, the learned Subordinate Judge, does not indicate that the prayer for recovery of possession was given up by the plaintiff. Nor is there any indication in the judgment of the learned Subordinate Judge that he proceeded in the matter on the basis that the suit was only for cancellation of the impugned kabala. The learned Munsiff's remark that court-fee was not paid on the relief for recovery of possession is also factually incorrect. That relief was valued at Rs. 479. Court-fee of Rs.
21. 81-9 annas was paid, inclusive of the court-fee for the relief of cancellation of the kabala which was valued at Rs. 5 only. The learned Subordinate Judge, decreed Suit No. 58 of 1952, i.e. The plaintiff's suit. There is nothing in the judgment of reversal passed by the learned Subordinate Judge indicating that he refused the plaintiff's prayer for recovery of possession.
22. A suit is for what the plaintiff prays for in the plaint. In the absence of an indication that a particular relief has been refused, the suit, if decreed, cannot but be presumed to have been decreed in respect of all the reliefs asked for in the plaint. There is no indication in the judgment of the learned Subordinate Judge, as already noticed, that the relief of recovery of possession was refused by him. On a reference to his judgment it appears that the learned Subordinate Judge was aware of the finding of the learned Munsiff that the plaintiff was out of possession, and yet he decreed the suit. This is an additional indication that the learned Subordinate Judge decreed the suit also in respect of the relief as to recovery of possession of `kha' schedule lands. It is true that before A.I, J., in S. A. 1063 of 1965 which was summarily dismissed, the defendants who were the appellants therein raised an objection as to maintainability of the suit on the ground that the plaintiff was out of possession, and A.I, J., disposed of that objection observing that the suit was under section 39 of the Specific Relief Act. Evidently, the plaint was not before A.I, J. The said observation was obviously based on a misconception induced by the erroneous remarks occurring in the trial Court judgment, which had been set aside by the learned Subordinate Judge. The only effect of the order of A.I, J., was affirmance of the decree passed by the learned Subordinate Judge. Such an observation in an order summarily dismissing an appeal cannot adversely affect the respondent who is not before the Court at that stage. I have discussed in detail the circumstances of the case and the contents of the plaint which remains on record unamended, including the reliefs asked for therein, together with the manner of the disposal of the appeal by the learned Subordinate Judge and the trend of the judgment by which he decreed the suit. Regard being had to all these,) I am of the view that there has been an inadvertent omission in the decree as to the relief relating to recovery of possession, which calls for being supplied in the interests of justice.
23. The preliminary point raised by Mr. Korban A.I now remains to be considered. Mr. Korban A.I contended that the defendant's appeal, being S. A. No. 1063 of 1965, having been dismissed by this Court, the decree passed by the learned Subordinate Judge Mr. M. A. Barkat merged in the decree of this Court, so that the Court of appeal below had no jurisdiction to entertain the application presented by the plaintiff for supplying the omission in the decree. Mr. M. H. Khandakar, on the other hand, contended that that S. A. No. 1063 of 1965 having been summarily dismissed by this Court, the order of dismissal did not amount to a decree and, therefore, there could be no question of a merger of the decree passed by the learned Subordinate Judge in a decree of this Court. In this connec--petition Mr. Khandakar referred me to the Privy Council case of Chaudhry Abdul Majid v.
24. Jawahar Lal (AIR 1915 P C 66). That was a case, however, where the appeal before the Privy Council was dismissed for want of prosecution. Their Lordships pointed out that an order dismissing an appeal for want of prosecution does not deal judicially with the matter of the suit and can in no sense be regarded as an order adopting or confirming the decision appealed from, and that such an order merely recognises authoritatively that the appellant has not complied with the condition under which the appeal is open to him and, therefore, he is in the same position as if he has not appealed at all. S. A. No. 1063 of 1965 was not dismissed for non-prosecution. The case cited by Mr. Khandakar is thus out of place. It was not also that S. A. No. 1063 of 1965 was dismissed by A.I, J., just for the appellant's failure to appear when the appeal was called on for hearing, so that it cannot also be claimed that the said appeal was dismissed in terms of sub-rule (2) of rule 11 of Order XLI of the Code of Civil Procedure. As already noticed, the appeal was summarily dismissed after the Advocate for the appellants was heard, though without notice to the respondent and without sending for the records. It was there--fore, dismissed in terms of sub-rule (1) of rule 11 of the said Order, which empowers an appellate Court to dismiss an appeal after hearing the appellant without serving notice on the respondent, and without even sending for the record. An appeal is dismissed under sub-rule (1) of rule 11 after hearing the appellant when the Court is satisfied that the judgment appealed from is correct. Such a summary dismissal of an appeal involves an adjudication on merits, attracting the definition of `decree' in section 2(2) of the Code of Civil Procedure. The order of A.I, J., dismissing S. A. No. 1063 of 1965, thus resulted in a merger of the decree passed by the Court of appeal below in a decree of this Court. Mr. Khandakar, however, pointed out C that a formal decree is not drawn up when a second appeal is dismissed by this Court, under Order XLI, rule 11(1). No doubt that is the practice of this Court. But that cannot be a ground for holding that such a dismissal order is not a decree. 1t cannot be disputed, and Mr. Khandakar also did not dispute, that neither rule 31 nor rule 35 of Order XLI respectively dealing with the contents etc. Of appellate judgments and decrees is applicable to this Court. I cannot but agree therefore with Mr. Korban A.I that the petitioner chose a wrong forum in moving the Court of appeal below, instead of approaching this Court as soon as she detected the omission in the decree. But that by itself should not stand in the way of this Court in doing justice by supplying the omission, if otherwise this Court is shown to have the jurisdiction do so. The petition upon which this rule was issued is no doubt described as one under section 115 of the Code of Civil Procedure, and it contains a prayer for setting aside the order of the learned Subordinate Judge refusing to amend the decree. The petition, however, contains one more prayer, namely, for amending the decree by including the relief of recovery of possession. It cannot be said, therefore, that the petitioner has not approached this Court for supplying the omission in the decree. Mr. Khandakar has prayed for treating this petition as one under sections 151 and 152 of the Code of Civil Procedure, since no question of limitation is involved and the court-fee paid on the petition is more than double the amount of court-fee payable on a petition under sections 151 and 152 of the Code of Civil Procedure. I can see no objection to granting such a prayer. In view of the peculiar circumstances of the case, I treat this petition as one suggested by Mr. Khandakar. For reasons stated earlier, I accept this petition and make the Rule absolute. The dismissal order of this Court passed in S. A.
25. No. 1063 of 1965 is accordingly amended, so as to include in the decree the relief of recovery of possession of the `kha' schedule lands of the plaint.
26. There will be no order as to costs.