MD. ABU ZAFAR SHAHID Vs. JOINAB BEGUM

JUDGEMENT

(1.) This petition for leave to appeal at the instance of the defendants is directed against the judgment and order dated 25.11.2008 by a Single Bench of the High Court Division in Civil Revision No.2379 of 2004 discharging the rule.

(2.) The short fact is that the respondent Nos.1-12 as plaintiffs instituted Partition Suit No.4 of 1954. The suit was decreed in preliminary form by judgment and order dated 31, 3.1954 allotting two annas share to the plaintiff No.1 and two annas share to the plaintiff No.2. The plaintiffs preferred one appeal being First Appeal No. 147 of 1954. The defendant Nos.1 and 19 preferred two appeals being F.A. Nos. 170 of 1954 and 176 of 1954 respectively. The then High Court of East Pakistan by judgment and order dated 6.6.1961 dismissed all the appeals and affirmed the judgment and decree of the trial court. The plaintiffs preferred Civil Appeal No.47D of 1966 and the defendants preferred Civil Appeal No.38D of 1966 in the Supreme Court of Pakistan. The appeals were dismissed by judgment and order dated 22nd November, 1973. Thereafter the defendant Nos.8-16 prayed for allotment of saham in the trial court on 26.11.1975 and the trial court rejected their prayer on 22.4.1975. Defendant Nos.8-16 thereafter preferred Civil Revision No.680 of 1976 and the High Court Division by judgment and order dated 24.6.1986 made the rule absolute and allotted 4 annas saham to the defendant Nos.8-16. In the mean time, the plaintiff No.1 died and the plaintiff No.2 being the legal heir of plaintiff No.1 prayed for allotment of two annas saham of plaintiff No.1 in his favour. The trial court rejected the prayer by order dated 26.11.1986. Thereafter the plaintiff No.2 moved the High Court Division in Civil Revision No.933 of 1986 against the said order and the rule was made absolute by judgment and order dated 9.3.1993 allotting two annas share of plaintiff No.1 in favour of the plaintiff No.2. Thereafter on the prayer of the plaintiff No.2 an Advocate Commissioner was appointed on 24.9.1986 for allotment of saham and the Advocate Commissioner submitted a report on 5.9.1994. Subsequently the heirs of defendant No.19 filed written objection against the report of the Advocate Commissioner and the trial court by order dated 10.7.1997 rejected the Advocate Commissioner's report. Thereafter the plaintiff No.2 deposited the Advocate Commissioner's fees for appointment of another Advocate Commissioner on 13.5.1998. The trial court appointed another Advocate Commissioner on 21.10.2001 and the said Advocate Commissioner submitted a report allotting saham to the plaintiff No.2 and the defendant Nos. 8-16 on 20.5.2002.

(3.) The heirs of defendant No.1 filed a written objection against the report of the Advocate Commissioner. The trial court examined the Advocate Commissioner who proved the report stating that he allotted saham to the plaintiffs and defendant Nos.8-16 in accordance with the preliminary decree. The trial court thereupon accepted the Advocate Commissioner's report and rejected the objection filed by the heirs of the defendant No.1. The trial court thereupon by order dated 18.1.2003 drew up the final decree. The heirs of defendant No.1 preferred Other Class Suit No.92 of 2003 against the final decree. In the appellate court the heirs of defendant No.19 filed an application for allotment of saham. The learned Additional District Judge, 6th Court, Chittagong thereupon heard the said appeal and by judgment and order dated 25.5.2004 dismissed the appeal affirming those of the trial court.