Decided on June 06,1989

Sukumar Sen Appellant
Gouranga Bejoy Dey Respondents


A.T.M.AFZAL J. - (1.) This is a plaintiffs' appeal by leave and directed against judgment and order dated 2 February 1988 passed by a Single Judge of the High Court Division, Chittagong Bench in revision upholding an order of remand of the First Appellate Court.
(2.) Facts of the case, briefly, are that the plaintiffs filed other Suit No. 24 of 1984 in the Court of Assistant Judge, Boalkhali Upazila, for declaration of their title to and recovery of khash possession of the suit land. The plaintiffs alleged that the disputed land originally belonged to one Jamini Kanta Sen who bequeathed the same to Sabitri Bala Dey. Upon Jamini Kanta's death Sabitri obtained a probate and entered into possession. On the death of Sabitri Bala, defendant Nos. 1-4, sons of Sabitri's brother, came to possess the suit land. Plaintiffs in good faith believing that they were the lawful heirs of Sabitri purchased from them, by two registered kabalas, the property described in the schedule to the plaint. Later on, it was found that defendant Nos. 1-4 were not the real owners of the said property but the real owners were defendant Nos. 5-9 who were the brother's sons of Sabitri Bala's husband. It is from them that the plaintiffs claim to have acquired title to the suit land initially by mortgage and then followed by purchase of the right of redemption. Plaintiffs alleged that defendant Nos. 1-4 dispossessed them from the property described in schedule 'kha' to the plaint.
(3.) The suit was contested by defendant Nos. 1 and 2. The learned Assistant Judge by judgment and decree dated 9.7.84 decreed the suit on contest against defendant Nos. 1 and 2 and ex pert against the rest. The contesting defendants filed an appeal Other Appeal No. 499/84, from the said judgment and decree. It was contended by them in the appeal that defendant Nos. 7-9 (respondents 6-8 herein) who were minors were not represented by any guardian in the trial court. On behalf of the plaintiffs it was submitted that no relief was prayed for against the said minor defendants and a Court guardian for the said minors having been appointed in the appellate court, the irregularity, if any, at the trial stage was cured. The learned Subordinate Judge, however, being of the view that non-compliance of the provision of Order 32, rule 3 C. P. C by the trial court was not curable, passed an order of remand on 8 July 1986 without entering into the merit of the case. This order of remand was challenged before the High Court Division, Chittagong Bench, in Civil Revision No. 318 of 1986. A Single Judge, by the impugned Judgment and order dated 2 February 1988, upheld the order of remand and discharged the rule in the said revision case.;

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