MOBINNESSA Vs. KHALILUR RAHMAN

JUDGEMENT

(1.) In this appeal by the plaintiffs the. question is whether the decree obtained by, them in their suit for setting .aside the decree of a previous partition suit, namely, T.S. No.21 of 1965, has been reversed on correct appreciation of facts and proper application of law. The plaintiffs' suit, namely T.S.No.93 of 1966, was decided by the trial Court namely, the Second Court of Subordinate Judge, Barisal, on 8 July 1967. But on appeal the decree was reversed by the Additional District Judge on 28 April 1973 in Title Appeal No. 203 of 1967; this decision of the appellate Court has been upheld by a learned Single Judge of the High Court Division on 18 November 1982 in Second Appeal No. 213 of 1976; both these Courts took the concurrent view that plaintiffs' suit is not maintainable as five of them were not parties to the partition suit but one of them was a party.

(2.) The suit property, as the appellants' case in T.S. No. 93 of 1966 shows, belonged to proforma-defendants Nos. 4 to 55 and plaintiffs Nos.5 and 6, and this property has been described in 'ka' schedule of the plaint. Respondent, defendant No.1, Shamsuddin (died since then and has been duly substituted) had filed the previous suit T.S. No.21 of 1965, claiming partition of his 8-annas share in the suit land against defendant Nos. 2 and 4 of the present suit who were principal defendants, Nos.1 to 3, in the previous suit alleging that those three defendants had also acquired, along with him, the remaining 8 annas share. The basis of their shares was slated to be a settlement in the year 1354 B.S., corresponding to 1948 A.D., from the ex-landlords, namely proforma defendants Nos. 4 to 55 and others as stated above. In the said partition suit which was filed on 29 March 1965 defendant Nos.1 to 3 (principal defendants), and proforma-defendants Nos. 4, 10, 19, 22 and 39 filed a compromise petition within 9 days, which is on 7 April 1965, admitting the plaintiffs claim and on that compromise petition the suit was decreed that very day in terms of the compromise petition.

(3.) The appellants filed the present suit for a declaration that the compromise decree in the partition suit is void, fraudulent and collusive and not binding upon them. In support of their claim they set forth a number of grounds, such as ; they (appellants-plaintiffs 1 to 5) were not parties to the said partition suit but their lands were included in the suit property which was sought to be partitioned, that the respondent (plaintiff of that suit) got no title or possession at all but his claim as to title by settlement was totally false, that he acted in collusion with the principal defendants of that suit who also claimed 8-annas share by a similar false claim to settlement, that the said suit was filed as a partition suit to establish title by circumventing Ordinance No.1 of 1964 which put restriction on the filing of any declaratory suit in respect of landed property of a member of minority-community, that summons of that suit was fraudulently suppressed in that three of the defendants were already dead and most of the other defendants had left Pakistan for India long before the filing of the suit.