1. T. H. KHAN, J.--This appeal at the instance of the defendant No, 1 is against the judgment and decree dated 30th September 1961, passed by the learned Subordinate Judge, 1st Court, Sylhet in Title Suit No, 21 of 1960 for partition of the properties in suit.
2. The plaintiff's case in brief was that Syed Mohd. Idris Ali the predecessor of the plaintiff and the defendants was the sole owner in possession of the homestead property described in Schedule 1 and also the 3 plots of the cultivable lands described in Schedule 2 to the plaintiff for a long time.
3. Syed Md. Idris Ali was a renowned `Peer' and towards the north of the homestead the tombs of other 'peers' are in existence and the area is enclosed on all sides by pucca walls and the place is known as `Kukarna' or holy place. Large number of people assemble to show respect to the holy place when Urus is held annually. On that occasion a big 'Mela' sits on the vacant space to the contiguous south of the graveyard i,e, the Syed Mohd. Idris All had three wives. Syed Modaris Ali the defendant No, 1, Syeda Khatemun Nessa defendant No, 2 and Syeda Rahiman Nessa the defendant No, 3 were the issues by the first wife who pre-deceased Syed Mohd. Idris Ali. Syeda Akhterun Nessa was the second wife and by her Syed Idris Ali had only one daughter named Amatun Nessa. The youngest wife was Badrun Ness a and by her Syed Mohd. Idris had two issues namely Syed Mohd.
4. Bias the plaintiff and Syeda Toherun Nessa the defendant No,
4. Thus Syed Md. Idris All died leaving behind him as his heirs, two sons, 4 daughters and 2 widows. Thereafter the widow Akhterun Nessa died leaving behind her a daughter Amatun Nessa as her sole heir. Thereafter Amatun Nessa died leaving her husband. Kazi Nazir Miah Chowdhury the defendant No, 5 and other step brothers and sisters as her heirs. The widow Syeda Badrun Nessa died leaving the plaintiff and the defendant No, 4 as her sole heirs.
5. The further case of the plaintiff was that at the time of death of Syed Mohd. Idris Ali the plaintiff was an infant and the defendant No, 1 was major and naturally he looked after and managed the properties left by Syed Mohd. Idris. The tenanted lands of Syed Mohd. Idris, however, have been acquired by the Government and accordingly those properties have been excluded in the suit. The lands mentioned in the Schedules 2 and 3 to the plaint comprise cultivable lands of Syed Idris Ali.
6. The 4th Schedule contains the list of huts standing on the homestead and 5th Schedule contains the list of furniture left by Syed Idris Ali. The but No, 2 as shown in the 4th schedule was the but occupied by the plaintiff. As the house was congested the plaintiff had purchased a plot of Chara land near the homestead with the money given by his father in law and he constructed his house thereon at his own cost but he nevertheless retained the possession of the said but No,
2. With a view to depriving the plaintiff of this hut, the defendant No, 1 began to store bricks therein over which a quarrel ensued between the parties and the defendant No, 1 attacked the plaintiff with a gun and over that there was a criminal case which was ultimately compromised. In the Solenama that was filed, the defendant No, 1 agreed to partition the properties left by Syed Mohd. Idris Ali, but he subsequently backed out and ultimately in Chaitra, 1366 B. S. the defendant No, 1 finally refused to partition the properties. Hence the plaintiff was obliged to file the present suit.
7. The suit was contested by the defendant No, 1 filing a written statement. In as many as 14 paragraphs the defeni dant No, 1 specifically denied the averments made by the plaintiff in the different paragraphs of the plaint. In para-graphs 15(ka) to 15(cha) of the written statement the case of the defendant No, 1 was set out. His case was that the homestead, chara land, tank and the Peersthan etc. mentioned in the first Schedule to the plaint originally belonged to one Dagu Miah whose grave still exists In the graveyard. Dagu Miah had 2 Ali sons Ashraf Ali and Syed Aulad Ali and a daughter Manira Banu.
8. Manira Banu was given in marriage to Syed Wahed father of Syed Idris Ali. Manira Banu pre- deceased her father Dagu'. H. Khan, Miah. Subsequently Syed Ashraf Ali died leaving 2 sons Abdus Sukur and Abdul Latif and Aulad Ali died leaving a daughter Zahuran Nessa alias Gedan Bibi. The defendant No, 1 purchased the shares of Ashraf Ali from his two sons Abdus Sukur and Abdul Latif on the basis of a registered sale deed dated 15th Kartick, 1362 B. S. corresponding to 12th February 1965, in the benaml of one of his disciples namely, Sirajul Islam Khan. The defendant No, 1 also purchased the share of Gedan Bibi on the basis of a registered deed dated 26th Bhadra, 1344 B. S. corresponding to 11th September 1937, in his own name. Thus Syed Wahed Ali did not inherit anything from Dagu Miah and, therefore, the plaintiff had absolutely no interest in the property of Schedule 1. He further alleged that Manira Banu left two sons namely Syed Idris Ali and Syed Ismail Ali but the latter had gone elsewhere and had kept no touch with Syed Idris Ali and with the property in suit. The defendant further alleged that Syed Sirajul Islam Khan who was a mere Benamdar of the defendant was a necessary party to the suit. He also alleged that since his purchase from the heirs of Syed Ashraf All and Syed Aulad Ali the defendant No, 1 has been possessing the suit land and the present partition suit could not proceed without impleading heirs of Syed Ashraf Ali and Syed Aulad Ali. The defendant No, 1 purchased the land of the first Schedule from the heirs of the original owners of 16 annas right and have been possessing the same for long over the statutory period of limitation. He also alleged that the ancestral homestead of Syed Mohd.
9. Wahed was at village Gukarna within Comilla District and he became a resident of the homestead in suit after marrying Manira Banu, daughter of Dagu Miah. But Manira Banu having died during the life-time of her father Dagu Miah, Syed Mohd. Wahed and his son Syed Idris Ali did not inherit anything.
10. The defendant further alleged that immediately after the marriage of the plaintiff his father-in-law having fully realised that the plaintiff had no title and interest in the land of Schedule 1 got a land purchased with his money for constructing a homestead for his daughter and the plaintiff who are residing there with their family. As a matter of fact the plaintiff has got no title in any land of the 1st Schedule or in any house mentioned in Schedule No, 4 of the plaint. The defendant previously started construction of a building for his residence but could not complete the same as the plaintiff being envious raised a false claim. His further case as regards Plots Nos, 4, 6 and 7 mentioned in Schedule 2 was that they were sold in auction and Syeda Badrun Nesa purchased the same from the auction-purchaser and possessed the same on her own right and the plaintiff has got no right in those plots. That Syed Badrun Nesa was a necessary party in the suit and the suit cannot proceed in her absence.
11. It appears that the defendant No, 4 Syeda Toherun Nesa Khatun (uterine sister of the plaintiff) also filed a written statement. In paragraphs 1 and 2 of the written statement the defendant No, 4 stated that the plaintiffs had no cause of action against the other defendants; that the plaintiff did not demand partition from the answering defendants and as such she could not be liable for costs.
12. In paragraph 3, however, she claimed 2 annas 8 gandas share in the properties in suit and claimed a saham to the extent of her share. Her case was that Syed Idris Ali, and his brother Syed Ismail Ali were in possession of the property from the time of their ancestors for long over 12 years. After the marriage of Syed Ismail All about 60 years back, he permanently settled down in his father-in- Jaw's house at Shurobai village and he has been permanently residing there. She further stated that at the time of Syed Idris Ali's death she and the plaintiff were minors and the defendant No, 1 managed all the properties left by Syed Idris Ali and that with an ulterior motive the defendant No, 1 had created some void, collusive and fraudulent documents regarding the lands of the 1st Schedule and the 3 plots of the Second Schedule. She also stated that defendant No, 1 had purchased the shares of the defendant Nos, 2 and 3 by different kabalas. She asserted that Syed Idris Ali was the 16 annas owner in possession of all the properties except the plot No, 3 of the Second Schedule and the property of Taluk No, 32, which was sold for arrear of revenue and since the defendant No, 1 had purchased the same in the benami of his wife with the income of the property left by Syed Idris Ali, she has got right, title and interest in that property also. In the last paragraph of her written statement she stated.
13. "The building on the grave of Syed Idris All and the pucca grave situated on the `Peersthan' or the graveyard within Schedule 1 and this `Peersthan' should remain joint instead of being partitioned."
14. On the pleadings of the parties the learned Subordinate Judge framed the following issues :- (1)Is the suit maintainable in its present form ?
15. (2)Is the suit bad for defect of parties and properties ?
16. (3)Is the plaintiff entitled to partition ? If so, for what share ?
17. It appears from the record that the learned Subordinate Judge by his order No, 34 dated 20th September 1961, recorded the following orders : "20-9-61. Parties are ready. The suit is taken up for hearing and opened. Heard pleaders on both sides. Parties adduce no oral evidence. Documents marked Exhs. 1, 1 (a), 2, 2(a), 3, 4, 5, 6 for the plaintiff and Exhs A, A(1), A(2), A(3), A(4), B and C for the defendants on admission, formal proof dispensed with. Defendant No, 1 files an affidavit in support of his share. Tomorrow for hearing arguments."
18. The next day i,e, on 21-9-61 the learned Subordineate Judge recorded the following order : "Parties are ready. Plaintiff by verified Petition No, 3/5 prays for amendment of the plaint by relinquishing Dag No, 4 T. H. Khan, of the 2nd Schedule of the plaint on the grounds mentioned therein. Copy served on the other side. Heard the learned Pleader. Prayer is allowed. Amend the plaint and register accordingly. Defendant No, 4 files no separate affidavits in support of her share.
19. Heard argument on both sides. To 30-')-61 for delivery of judgment. Defendant No, 1 admits that Monira Banu did not pre-decease her father. Further admits that as the whereabouts of Ismail All are not known he can equitably be kept out. His 3rd admission is that the Plots 4, 6 and 7 of 2nd Schedule comprise one Taluk in 8 annas share and the Taluk has been sold in auction for arrears of Revenue but 8 annas interest of Plots 6 and 7 appertaining to Taluk No, 56509/3 to the extent of 8 annas interest are available for partition."
20. The learned Subordinate Judge repeated the above facts In his judgment in a paragraph just above the issues. He further stated : "At the time of trial, however, it was admitted that Manira Banu did not pre-decease her father and consequently inherited to the extent of 1/5th share."
21. The learned Subordinate Judge further observed: "In respect of properties of Schedules II and III there is no other contest; in respect of the properties of Schedules IV and V the plaintiff has agreed to waive his claim provided he gets his but i,e, that but No, 2 is Schedule IV. The main contest thus centres round the property of Schedule 1."
22. Indeed the above observations of the learned Subordinate Judge have a legal presumption of correctness attached to them and unless convincing and unequivocal materials are available from the records to dislodge the presumption, it should prevail.
23. In this appeal, however, Mr. Nasiruddin Chowdhury the learned Advocate appearing on behalf of the defendant No, 1 appellants has contended before us that there is no material whatsoever to furnish any basis for the facts recorded by the learned Subordinate Judge on 20th and 21st September 1961, and that the judgment having been passed on certain supposed admissions of the parties, the same is liable to be set aside and that the case should be remanded to the trial Court for a de novo hearing of the suit after taking evidence in the case. The learned Advocate for the appellant has also drawn our attention to the grounds taken in the memorandum of appeal. He particularly laid emphasis on ground No, 2 which is to the following effect:-- "For that the trial Court erred in law in not examining any witness in spite of defendant's filing hajira of many witnesses and the finding of the trial Court is without any evidence and the same should be set aside."
24. Mr. Md. Habibur Rahman, the learned Advocate appearing on behalf of the plaintiff-respondent has also drawn our attention to the grounds taken in the memorandum of cross-objection filed by his client. Ground No, 1 thereof reads as follows :-- "For that the Court below erred in holding that plaintiff-respondent had agreed to waive his claim provided he gets his but i,e, but No, 2 without any evidence and without any basis for finding such waiver."
25. From a consideration of the order-sheet of the case and the other petitions on record it appears that on 20th September 1961 the plaintiff filed hajira for 6 witnesses and the defendant No, 1 filed Hajira for 4 witnesses. But from the mere fact of filing hajira of the witnesses it does not necessarily following that the parties were ready and willing to examine their witnesses but the learned Judge disallowed the same. It appears that although the learned Subordinate Judge recorded the order dated 20th September 1961 to the effect that the parties adduced no oral evidence neither party took exception to this, either on 21st September 1961 or any day before the 30th September 1961, when the judgment was delivered. No application was filed by either party to modify that order and to allow examination of witnesses. In this appeal also no affidavit has been filed stating that the parties took steps for modification of that order. These laches on the part of the parties, therefore, clearly disentitle them from attacking the judgment on the ground of non-examination of the witnesses, or that the parties made no admission at any stage of the trial. But it will be seen presently that notwithstanding the laches of the parties, the nature of the suit is such that it cannot properly be decided without oral evidence on the most important questions involved in the case.
26. The suit is a partition suit and there is no agreement between the patties as to the genealogy. The crux of the dispute between the parties relates to the original ownership of the properties in suit and the successive devolution of interest therein. The plaintiff and the principal defendant No, I have set up two diametrically opposite claims. These questions cannot be effectively resolved without examination of witnesses. In this view of the matter the judgment under appeal cannot be sustained and the case has got to be remanded. It is indeed true that the first appellate Court should not ordinarily remand a case but in view of the above circumstances there is no alternative but to remand the case. In fact, both the parties are pressing for a remand.
27. The judgment under appeal is also liable to be set aside for adopting a procedure unwarranted by law and both the parties, as are apparent from their grievances, were prejudiced thereby. On 20th September 1961, it appears, that the defendant No, 1 had filed an affidavit and on 21st September 1961, the plaintiff as well as the defendant No, 4 also filed two affidavits. We have checked the order-sheet but we do not find any indication therefrom about the circumstances under which those affidavits had to be filed. There is no direction by the Court upon the parties to file any such affidavit. In this connection Rule 1 of Omer XIX of the Civil Procedure Code may be referred to as the relevant provision for filing affidavits. It reads as follows :-- "Any Court may at any time for sufficient reasons order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable. Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorising the evidence of such witness to be given by affidavit."
28. The 3 affidavits which have been printed in the Paper Book do not satisfy the condition of rule 1 of Order XIX of the Civil Procedure Code. The significant fact is that there is neither any prayer made on behalf of the parties nor is there any direction for filing such affidavit. From the judgment, however, it appears that the learned Subordinate Judge placed reliance upon these affidavits. We have gone between the lines of each of these affidavits and we find therefrom that each party reiterated his main case taken in the plaint and the written statements respectively. They did not budge an inch from their original stands. From these affidavits we are unable to read that the plaintiff conceded any claim of the defendant No, 1 and conversely the defendant No, 1 conceded any claim of the plaintiff. In short, these affidavits, do not show any admission of each other, claim.
29. The learned Advocate for the appellant submits that the learned Subordinate Judge, without recording any direction in the order-sheet, verbally compelled the parties to file the affidavits which, however, they did most reluctantly, but without deviating from the original stand. The learned Subordinate Judge thus grossly violated the provision of Rule l of Order XIX of the Civil Procedure Code. In the circumstances of the case the submission appears to be quite plausible.
30. The learned Subordinate Judge, however, recorded on 21-9-61 the defendant No, 1 had admitted that Manira Banu did not pre-decease her father. It is difficult to find justification for this observation since defendant No, 1 did neither admit this in the affidavit nor did he examine himself.
31. Be that as it may, we take it that it was an admission by the learned Lawyer for the defendant No, 1 and we give it the benefit of the presumption of correctness. But it saying so we should not be understood to mean that we have finally accepted that defendant No, 1, in fact, admitted that Manira Banu did not pre decease her father.
32. Mr. Nasiruddin Chowdhury, the learned Advocate for the appellant has contended before us that the plaintiff signally failed to discharge the initial onus that lay on him to establish that the properties in suit belonged to Syed Idris Ali. In this connection he has further urged that none of the documents filed on behalf of the plaintiff shows the title of Syed Idris Ali. On the contrary, according to the learned Advocate for the appellant they show that the defendant No, 1 on different occasions starting from 1937 purchased on the basis of registered documents the properties of Schedule 1 from the different co-sharers. Mr. Habibur Rahman the learned Advocate for the respondent has tried to show with reference to Exh. 1(a), which is a certified copy of an alleged application purported to have been filed by the defendant No, 1 before some revenue authority, that there is an admission in that document by the defendant No, 1 that the property belonged to Syed Md. Idris.
33. The learned Subordinate Judge relied upon this document, without men-tioning the exhibit number. He described it was a petition for separate account. With regard to this document one point of law necessarily arises. Although this document, as it appears from order No, 34, was admitted in evidence as formal proof thereof was dispensed with, the question arises whether this document can be looked into as a piece of evidence for the purpose of contradicting the defendant No, 1 without strict compliance of the provisions of section 145 of the Evidence Act. We are of the opinion that although formal proof was dispensed with, Exh. 1(a) cannot be relied upon to contradict the defendant without strict compliance of the provisions of section 145 of the Evidence Act; that before Exh. 1(a) can be proved for the purpose of contradicting the defendant No, 1, his attention must be drawn. This necessarily involves the question of examination of the defendant No,
1. Similar is the position with respect to Exh. 5, the certified copy of the compromise petition alleged to have been filed in C. R. Case No, 138 of 1954, wherein the defendant is said to have agreed to effect partition of the properties. These two documents, according to the learned Advocate for the plaintiff-respondent are the best documentary evidence in support of the plaintiff's case. At this stage we do not like to express any opinion on these documents, the real question being the basic document of title. Mr. Habibur Rahman could not show any document which could go to support the case as made out in the plaint that the properties in suit belonged to Syed Idris Ali.
34. However, as pointed out earlier, giving the benefit of the presumption of correctness to the observations of the learned Subordinate Judge that the defendant No, 1 admitted that Manira Banu did not pre-decease her father Dagu. We feel that the plaintiff's suit should not be dismissed at this stage and that he should be given an opportunity inasmuch as if Manira Banu had inherited any share from her father Dagu, the plaintiff became a co-sharer in the properties. Whatever might be the quantum of his share, we consider it proper that the question should be properly examined. The defendant, as we have already pointed out, will be at full liberty to show whether he admitted it or not. In short, the defendant will in no way be debarred from proving his case.
35. Result, therefore, is that this appeal is allowed and the judgment and decree of the learned Subordinate Judge is set aside.
36. The case is sent back on remand to the trial Court for disposal, after affording full opportunity to the parties to examine witnesses and to prove documents if they so like, in accordance with law and in the light of the observations made in the judgment. The cost of this appeal will abide by the result. In view of the above order the cross-objection has lost its importance and is, therefore, rejected.
37. MAKSUM-UL-HAKIM, J.--I agree.