Specific Relief Act, 1877 | Case Reference

The Specific Relief Act, 1877

Section 3 —

Unless the plaintiff could prove his possession in the schedule-1(ka) land he could not avail of the bene-fit of to section 3 of the Specific Relief Act.

The Appellate Division held that the plaintiff did not have any possession in schedule-1(ka) land to the plaint. Unless the plaintiff could prove his possession in the schedule-1(ka) land he could not avail of the benefit of the illustration-h to section 3 of the Specific Relief Act. The findings arrived at and the decision made by the High Court Division having been made on proper appreciation of law and fact do not call for interference. Accordingly, this civil petition for leave to appeal is dismissed.

Bibi Joynab Begum Chowdhury and others.-Vs.- Osi Mia Osi Mia Sawdagar being dead his heirs (Civil) 12 ALR (AD) 12-15

Sections 8 and 9—

Although the suit land has been specifically mentioned inserting sketch map in the schedule to the plaint, the appellate Court below stating that the suit land is vague and unspecified, and thereby committed an error of law resulting in an error in the impugned judgment and decree occasioning failure of justice.

The High Court Division held that it appears from the judgment of the appellate Court below that in its judgment, the appellate Court below found that the suit land being indefinite and unspecified, the plaintiff cannot get relief in respect of such a vague and unspecified land. On perusal of the plaint of Title Suit No. 36 of 2008, it appears that the plaintiff specified the suit land by giving boundaries with sketch map in the schedule to the plaint. The aforesaid facts shows that the appellate Court below did not go through the plaint of the suit. So, the aforesaid finding of the appellate Court below is a wrong one. In the light of discussion made here above, the High Court Division is led to find that the appellate Court below wrongly passed the impugned judgment and decree and that by passing the same, the appellate Court below appears to have committed error of law resulting in an error in the impugned judgment and decree occasioning failure of justice and as such, the impugned judgment and decree warrants interference by the High Court Division. The High Court Division finds merit in the Civil Revision Case and hence, the Rule deserves to be made absolute. In the result, the Rule is made absolute. Md. Salam -Vs- Amir Hossain @ Khoka and others (Civil) 15 ALR (HCD) 346-348

Section 8

It appears that the courts below on proper consideration of the evidence and facts and circumstances on the record rightly found that the suit prop- erty was admittedly requisitioned by by the government in the year 1948 and was allotted to different allottees and since then those allottees had been possessing the suit land and that subsequently the suit property was declared as enemy and vested property and the previous allot- tees of the suit land prayed to the enemy and vested property authority for lease of the suit property and that those allot- tees, admittedly, are still in possession of the suit property and in the circum- stances, the alleged auction purchasers' night, if any, acquired by the alleged auction purchase was extinguished by lapse of time. Alhaj Md. Shajahan Miah vs. Mosammat Noor Jahan Begum (Nazmun Ara Sultana J) (Civil) 9 ADC 949

Section 9

Against the petitioners for declaration that the ex-parte decree passed in Other Class Suit No. 199 of 1984 by the Assis- tant Judge, Kawnia Upazila is not bind- ing upon them and recovery of khas possession of the lands described in the schedule 'Ka' to the plaint. Md. Sona Ullah vs. Most. Morium Bewa (S.K. Sinha J) (Civil) 7 ADC 237

Section 9

If section 9 of the Specific Relief Act is utilised the plaintiff need not prove title and title of the defendant does not avail him. Section 9 gives a speedy remedy to a person who has without his consent been dispossessed of immovable property, otherwise, in due course of law, for recovery of possession without establishing title provided that his suit is brought within six months of the date of dispossession.

A proceeding under section 9 is intended to be a summary proceeding the object of which is to afford an immediate remedy to an aggrieved party to reclaim possession of which he may have been unjustly denied by an illegal act of dispossession.

Even a trespasser in settled possession cannot be dispossessed without recourse to law. It is required to consider as to whether defendants have dispossessed the plaintiffs from the suit land on a particular day without taking course of law.

The Appellate Division observed that the trial Court upon proper consideration of the evidence on record, held that the plaintiffs were in possession in the suit and till the date of dispossession on 30.03.2001. The trial Court, as first and last Court of facts, upon proper appreciation of materials on record arrived at the aforesaid conclusion. In such view of the matter, no interference was called for in revision, the High Court Division erred in law in setting aside the finding of fact. Considering the facts, circumstances and evidence adduced by the parties, the Appellate Division is of the view that the High Court Division erroneously set aside the judgment and decree of the trial Court. Accordingly, the Appellate Division finds substance in the instant appeal. Thus, the appeal is allowed. Ahmed Ali Noor and others -Vs.-Nigar Hossain and others (Civil) 26 ALR (AD) 55

Section 9

Title Suit No. 90 of 1986 is barred by resjudicata as the subsequent suit was filed for the self same land. It may be stated that the Title Suit No. 90 of 1986 was filed for declaration of title confirmation of possession and for permanent injunction. Moulana Serajul Haque vs Md. Saifullah (M.M. Ruhul Amin J)(Civil) 3ADC 112

Section 9

Revisional application with an applica- tion for condonation of delay and the delay in filing the revisional application was condoned, against which the plain- tiff moved Civil Petition for Leave to Appeal No. 468 of 2004 and this Court by order dated 22.05.2004 give direc- tion to the defendant petitioners to move the said revisional application before the High Court Division for dis- posal positively by 26th of May, 2004, in default, the said revisional applica tion shall stand rejected as barred by limitation. Hemayet Uddin Khan and others vs. S.A.M. Mahbub Elahi and others (Mohammad Fazlul Karim JXCivil) 4ADC 418

Section 9

Praying for restoration of the possession of the suit land on the averments that the suit land originally belonged to Abdal Molla, Sabdul Molla and Jabdul Mollat and C.S. Khatian No. 12 was prepared showing them as tenants of 1/3rd share each (2) Md. Ziarat Hossain vs. Md. Jaher Ali (Md. Tafazzul Islam J) (Civil) 5ADC 239

For declaration of title and recovery of khas possession in the suit land....(2)

Md. Delwar Hossain Akter vs. Md. Nazrul Islam Khan (M.M. Ruhul Amin J) (Civil) 5 ADC 242

Section 9

The High Court Division on consideration of materials on record held that the trial Court has on consideration of the evidence on record arrived at a finding of fact that the plaintiff was dispos sessed from the suit land as alleged and accordingly ordered for a decree for recovery of possession. (7) Md. Mahmud Ali vs. Md.Abrus Ali (Mohammad Fazlul Karim J)(Civil) 5 ADC 392

Section 9

Recovery of the khas possession of the suit land on evicting the defendant petitioners therefrom...(2) The plaintiff after taking possession of the same mutated their names and paid but the defendant Nos. 1-4, on 20.12.96, forcibly dispossessed the plaintiff's therefrom and erected huts thereon and hence the suit. Kataruddin and others Md. Nurul Huque (Md. Tafazzul Islam J) (Civil) 5 ADC 585

Section 9

But in the purchased deed the descrip- tion of the land was incorrect which belonged to other person; that the plain- tiffs was in abroad and occasionally vis- ited the mother land and purchased the land; that subsequently at the time of mutation of land in his name the wrong description was detected and he claimed correction but the defendant No. 2 refused to do so then the plaintiff obtained correct deed by a judgment and decree dated 21.08.1997 of the Senior Assistant Judge......(2) Md. Mahmud Ali JAS Md. Abrus Ali and another (Mohammad Fazlul Karim J) (Civil) 5 ADC 685

Specific Relief Act [I of 1877]

Section 9 read with

Limitation Act [IX of 1908]

Section 14

No appeal lies from the judgement and decree in a suit filed under section 9 of the Specific Relief Act.

The Appellate Division held that it is undeniable that no appeal lies from the judgement and decree in a suit filed under section 9 of the Specific Relief Act, but that obviously was not informed and known to the party/his lawyer until after the judgement by the High Court Division in Civil Revision No. 275 of 2014. That judgement was delivered on 26.5.2015 finding that the appeal was not maintainable. The instant civil revision was filed on 14.12.2015, within a few days from 9.12.2015 on which date the civil petition for leave to appeal was dismissed by this Division. Clearly, the defendant was misled into filing the appeal and the appellate Court also did not find fault with that. The Appellate Division is of the opinion that the delay is covered by the provision of section 14 of the Limitation Act. The instant petition is frivolous and has delayed the matter further by about two and half years. In the circumstances discussed above the Appellate Division finds no illegality or infirmity in the impugned judgement and order of the High Court Division thereby making absolute the Rule for condonation of delay. Accordingly, the civil petitioner for leave to appeal is dismissed with costs of Tk. 50,000/- (Fifty thousand). Amjad Ali and others -Vs.-Babu alias Md. Robiul Islam Babu and another (Civil) 22 ALR (AD) 157

Section 9—The following question must be proved by the plaintiff in a case of section 9 of the Specific Relief Act-

(i) that he was in possession.

(ii) that he has been dispossessed, i. e. deprived of actual physical possession of land.

(iii) that the dispossession took place without his consent.

(iv) that it was done otherwise than in due course of law.

(v) that the dispossession took place within six months before institution of the suit under section 9.

The High Court Division held that the trial Court on consideration of the evidence and materials on record found that in order to succeed in a case under section 9 of the Specific Relief Act, the plaintiff is to prove his possession of the suit land prior to dispossession as alleged in the plaint and also that the suit filed within 6 months from the date of dispossession. The High Court Division finds the learned court below passed the impugned judgment and decree in favour of the plaintiff rightly which calls for no interferes with by the High Court Division. Md. Sharif Uddin Mondal and others. -Vs.- Md. Hasmat Ai and others. (Civil) 15 ALR (HCD) 285-287

Code of Civil Procedure [V of 1908]

Section 115(1),Order III Rule 1 and 2 read with

Specific Relief Act [I of 1877]

Section 9—In case of recovery of possession under section 9 of the Specific Relief Act the title should not be considered but only to consider whether Plaintiff was in possession of the suit land and has been dispossessed by the defendant.

The High Court Division observed that the trial court after consideration of the evidence on record opined that the plaintiff took possession of the suit land after purchased of the same and he was dispossessed from the suit land by the defendant on 25.04.1994 and the suit has been filed within time, So, he is entitled to get recovery of possession of the suit land which is right decision of the trial court. The defendant claimed that he purchased the suit land long before of the plaintiff from another co-sharer of the case jote which may be considered if the parties claimed their title in a separate procedure of law. If the defendant wants to get his relief he can take step in another procedure of law, but since this is a case of recovery of possession under section 9 of the Specific Relief Act the title can not be considered in this procedure. So it is view of the High Court Division that the trial court rightly passed the impugned judgment which cannot be interfered with in revisional application. Md. Jalaluddin -Vs.- Md. Harun-ar Rashid (Civil) 16 ALR (HCD)345-348

The High Court Division on consideration of the evidence and the materials on record found that in order to succeed in a case under section 9 of the Specific Relief Act the plaintiff has to prove his possession of the suit land prior to dispossession as alleged in the plaint and also that the suit was filed within 6 months from the date of dispossession but in the instant case the plaintiff failed to show such proof. [Ziarat Hossain (Md) vs Md Jaher Ali (Civil) 153, 59 DLR 2007/

Suit for recovery of possession

Law is well settled that a suit for recovery of possession is maintainable when instituted within 6(six) months of dispossession. When it is proved that the plaintiff was in possession of the suit land wherefrom he has been dispossessed and the suit has been instituted within 6 (six) months of such dispossession, the court is bound to restore the possession in favour of the plaintiff. [Suruzzaman (Md.) Vs. Ahmed Ali and others 69-71, 13 MLR 2008)

Suit for recovery of possession filed within six months of dispossession is maintainable

The law is well settled that a suit for recovery of possession filed within six months of dispossession is quite maintainable. The defendants who purchased the shares of some cosharers having no possession in the suit land, cannot forcibly enter into the possession thereof by dispossessing the other cosharer in possession. His remedy lies in properly instituted suit for partition. (Maruf Hossain (Swopon) Vs. Diljan Bibi and others 196-198, 13 MLR 2008)

Suit for restoration of possession

In the instant suit the plaintiff proved that he had been in possession of the suit land before he is dispossessed therefrom by the defendants and he instituted the suit within six months of dispossession. The learned judge of the High Court Division held the suit is quite maintainable and the plaintiff is entitled to get the recovery of possession of the suit land. Moti Miah Vs. Ful Miah and others 279-283, 13 MLR 2008)

On the date of dispossession the defendant dispossessed the plaintiff "otherwise than in due course of law". The subsequent of title, if any, by way of lease from Enemy Property Authority did not validate the illegal dispossession by the defendants. /Pramatha Nath Vs. Shamsur Rahman 29 DLR 347/

The words "in due course of law” in section 9 do not mean that the party against whom a suit for recovery of possession is filed must, in due course of law, be in possession as a result of the proceedings between the same parties. S Abdur Rahman Vs. Mofizuddin Bhuiya 7 DLR 335)

The effect of this section, therefore, is that if a summary suit is brought within six months, the plaintiff therein who was dispossessed otherwise than in due course of law, will he entitled to be reinstated even if the defendant, who dispossessed him, be the true owner, or a person claiming under him. /Ganga Din Vs. Bakul AIR (1950) All 4071

In a suit for recovery of possession under section 9 of the Act, notwithstanding any other title that may be set up in such a suit, the person dispossessed without the consent or otherwise than in due course of law, can claim for recovery of the possession. Abdur Rouf (Md) Vs. Abdul Hamid and others 49 DLR (AD) 133]

Section 9 of the Specific Relief Act does not authorise the Court to order for demolishing or removing dwelling huts or other permanent structures standing in the suit land while effecting restoration of possession. [Rokeya Begum Vs. Md. Abdur Rahman alias Ganda and others 50 DLR 2711

There is no scope of deeming in respect of possession and dispossession which are very real thing in life. In view of clear cause of action as averred in the plaint to have arisen on 1-6-96, there is hardly any scope for such academic exercise. Jebun Nessa Zaman and others l's. Hosne Ara Lili 53 DLR 941

It is contended on behalf of the petitioner that it is clearly mentioned in section 9 of the Specific Relief Act that no appeal lies against any decree or order passed under this section. In spite of that an appeal has been preferred by the learned Advocates before the learned District Judge. Jhalakati against such a decree and the latter has admitted the appeal and stayed the decree when this being a primary question of law that appeal is not maintainable and it is clear that filing the appeal and admitting the same the learned Advocates and the learned District Judge as well acted against their morality when ignorance of law cannot be a defence even by the general people and both of them thus failed to discharge their moral and professional obligation. [SAM Mahbub Elahi Vs. Md Shah Alam and others 8 BLC 484.]

Section 9

The plaintiffs were dispossessed from the suit land by the defendants during pendency of the suit and no prayer for recovery of possession was made by the plaintiff–– The evidence of PWs.1 and 2 shows that the plaintiffs were dispossessed from the suit land by the defendants during pendency of the suit. Despite such a state of fact obtaining in the present case the plaintiffs did not amend the plaint incorporating prayer for recovery of khas possession deleting the original prayer for confirmation of possession. But the trial as well as the High Court Division decreed the suit although the plaintiffs were admittedly dispossessed by the defendants during the pendency of the suit and no prayer for recovery of possession was made by the plaintiffs. The impugned judgment thus suffers legal infirmity and is liable to be set aside. The appeal is therefore allowed without any order as to costs. .....Mojibar Matubbar =VS= Abdul Hamid Matubbar, (Civil), 2023(2) [15 LM (AD) 638]

Section 9 —The High Court Division observed that from the deposition of the plaintiff witness that all of them in cross-examination stated that the plaintiff is the owner of the suit land and he was in pos-session on 20.07.2004 in the suit land and dispossessed by the defendants, without any cogent reason, the trial court disbelieved the aforesaid evidence of the wit-nesses. The trial court failed to appreciate that the defendant appeared and contested the suit by filing written statements but they did not come forward to prove that they have title and possession in the suit land. Thus, non-consideration of the factual aspect of the suit, trial court has committed an error of law in the decision which occasioned a failure of justice. Thus, the judgment and decree passed by the trial court is liable to be set-aside.

হাইকোর্ট বিভাগ লক্ষ্য করেছেন যে, বাদী পক্ষীয় স্বাক্ষীদের সবাই জেরায় বলেছে যে, বাদীই নালিশী জমির মালিক এবং মামলার ২০.০৭.২০০৪ তারিখে তিনি দখলে ছিলেন এবং অতঃপর ঐ তারিখেই তিনি বেদখল হন অথচ মজবুত কোন কারণ ছাড়াই বিচারিক আদালত স্বাক্ষীদের দেয়া উপরোক্ত জবানবন্দী অবিশ্বাস করেন। বিবাদী হাজির হয়ে লিখিত জবাব দাখিল করেছির ঠিকই কিন্তু নালিশী ভূমিতে তাদের স্বত্ব ও দখল আছে সে বিষয়টি প্রমাণের জন্য তারা অগ্রসর হননি- এ বিষয়টিও বিচারিক আদালত গ্রহণ করেননি। অতএব, মোকদ্দমার তথ্যগত দিকটি একেবারেই বিবেচনায় না নেয়ায় বিজ্ঞ বিচারিক আদালত আইনগত ভুল করেছেন যার দরুণ ন্যায় বিচার ব্যর্থ হয়েছে। অতএব, বিচারিক আদালত কর্তৃক প্রদত্ত রায় ও ডিক্রী রদ রহিত যোগ্য।

Alhaj Md. Rahmat Ali -Vs.- Farjul and others. (Civil) 10 ALR (HCD) 23-25

Section 9

A suit under section 9 of the Specific Relief Act is required to prove is his possession and dispossession within 6(six) months next before the institution of the suit–– On scrutiny of the record, it transpires that the predecessor of the appellants namely Durga Mohan Roy as plaintiff instituted the suit for recovery of Khas possession of the suit land by way of eviction under Section 9 of the Specific Relief Act, 1877 impleading the respondent No.1 and three others as defendants No.1-4.

It is evident that the plaintiff has been able to prove his possession prior to his dispossession from the suit land. The trial Court on proper appreciation of the facts and law lawfully decreed the suit, but the High Court Division most illegally set aside the judgment and decree of the trial Court. ––The impugned judgment and decree of the High Court Division warrants interference by this Division. Therefore, In the prevailing circumstances, the impugned judgment and decree of the High Court Division cannot stand at all in the eye of law. The instant civil appeal is allowed. .....Durga Mohan Roy =VS= Most. Belly Khatoon, (Civil), 2023(1) [14 LM (AD) 552]

Abandoned Buildings (Supplementary) Provisions Ordinance (LIV of 1985)

Sections 4 and 5

Evidence Act (I of 1872)

Section 101

Specific performance of contract

A decree for mere specific performance of contract is not of any use for the writ petitioner. Since the writ petitioner claimed that the property is not abandoned property and did not vest in the Government it was squarely on him to prove that the building is not an abandoned property. It is immaterial whether the disputed property was listed in the "Ka' or "Kha" list, it is the abandoned character of the property which is the main criteria for determining the whole matter. Golam Rabbani -Vs- Chairman, Court of Settlement and others 1 ALR (AD)35

Under Clause (a) of section 6 of the Ordinance a suit for specific performance of a contract in respect of a property which has been officially listed as abandoned property is not maintainable in law. Government of Bangladesh -Vs.- A. T. M. Mannan 2 ALR (2013)(AD) 50

Amendment of the plaint. - Plaintiffs have sought to add some new facts which are not contradictory to the earlier foundation of the suit and addition of two more reliefs, one for specific performance of contract and the other for possession has not changed the nature and character of the suit. Mohammad G.R. Nasir -Vs.- Mrs. Halima Khatun (Civil) 5 ALR (AD)2015(1) 94

Limitation Act [IX of 1908]

Article 113

Suit for Specific Performance of Contract.

Three moths time was given to execute and register the sale deed vide agreement dated 10.12.2000 and thereafter although notice was given on 24.12.2002 but if the time limit starts from 10.12.2000, a date of execution the bainanama three years time will end in the year 2004 but the instant suit was filed within that period of limitation on 14.09.2003 that means the suit was filed well within time as per Article 113 of the Law of Limitation. Thus the suit cannot be said to be barred by limitation.

A hardship alone cannot be a ground to refuse a suit for specific performance of contract.

The High Court Division upon going through the deposition of the defendant viz D.W. 1 and 2 together with his written statements it will appear nowhere defendant has succeed to prove his hardships for which it can be said that the bainanama is not executable. Moreover a hardship alone cannot be a ground to refuse a suit for specific performance of contract. Keeping the High Court Division’s anxious, regard being had to the above law, fact and circumstances of this case, the High Court Division is constraint to hold the view that the learned Joint District Judge committed no illegality in decreeing the suit. The High Court Division thus find no merits in this appeal. In the result, the appeal is dismissed without any order as to cost and the judgment and decree passed by the trial court is hereby affirmed and the suit is decreed. Motiur Rahman Khan -Vs.- Hasan-Ul-Kamar and another (Civil) 27 ALR (HCD) 229

Code of Civil Procedure [V of 1908]

Sections 107 and 115

Sending back the suit for specific performance of contract on remand.

With regard to the specific points directing remand, the High Court Division ought to have considered whether issues of fact contained therein were specifically raised in the trial Court and in the first appellate Court and whether those were being agitated for the first time in the revisional Court. If not so raised, the revisional Court was not obliged to entertain issues of fact for the first time in revision. As for issues of law and mixed questions of fact and law the revisional Court itself was competent on the basis of the evidence on record to come to a decision of its own without sending the suit back on remand to the trial Court.

The Appellate Division observed that admittedly, the property in question is the only living house of the vendor defendant. The father who is no more in the world executed the registered ‘বায়নাপত্র’ dated 07.10.2008 to sell the property for want of money. On the other hand, the plaintiff who are bonafide proposed purchasers awaited years long to get the benefit of their agreement. On perusal of the evidences and exhibits it transpires that the claim of hardships could not be raised by both the parties and at the same time if by operation of law the judgment and decree passed by the Courts below is maintained nothing would be left for defendant vendor. It is true that the Court of law has to follow the provisions of law and interpretation but at the same time it should be responsive to the relief sought for and in the case in hand which is equitable in nature. The Appellate Division in numerous occasions exercised its jurisdiction in granting equitable relief depending on case to case basis. Although the facts and circumstances of the case reported in 39 DLR AD 242 as referred to above is not applicable in the present case in hand but the principle as laid down by their lordships can be followed in an appropriate case as and when required. Fortified with the decisions and the discussion as made above the Appellate Division holds that the relief sought for in the case in hand is equitable in nature and justice will be done if the same be granted. Therefore, the leave petition is disposed of. The Judgement and order dated 29.11.2017 passed by the High Court Division is set aside. The suit is dismissed. However, the defendant is directed to pay solatium of taka. 60,00,000/- (sixty lac) to the plaintiff including consideration money already paid by the plaintiff within 6(six) months from date, in default, the suit shall stand decreed and the judgment and decree of the trial court shall be restored. Md. Alamgir Hossain -Vs.- Md. Samsul Haque 28 ALR (AD)162

Code of Civil Procedure (V of 1908)

Order XII, rules 1 and 6read with

Specific Relief Act (I of 1877)

Sections 12 and 22

The defendant No. 1 filed written statement in the suit for specific performance of contract admitting the deed of agreement for sale in between the plaintiff and the defendant No. 1 for which it brings the suit within the purview of Order XII, rule 1 of the Code as a result of which the plaintiff was at liberty to invoke the Rule 6 of Order XII, for a decree on admission by the defendant No. 1. There was no legal impediment in obtaining a decree on admission because in July 1991 necessity for Income Tax Clearance Certificate for registration was withdrawn. Despite such a position the plaintiff impleaded defendant Nos. 3 to 7 and 8, who are in no way necessary parties when the added defendants took several adjournments contributing to the delay of disposal which appears to be hidden desire of the plaintiff because he was neither ready nor willing to perform his part of the contract. The plaintiff has not come with clean hand. The High Court Division was pleased to direct the defendant No. 1 to refund the earnest money to the plaintiff within six months from the date of drawing up of the decree together with an interest @10% per annum till filing of the written statement failing which the suit shall stand decreed. Abul Muhshin Chowdhury -Vs- Syeda Abul Kalam Azad 1 ALR (HCD) 63

Section 9

Dispossession–– The plaintiffs had been able to prove their case of possession and dispossession by giving the cogent evidence i.e. salishnama and statement of Belayet Hossain Mia, the predecessor of the defendants and by the testimonies of other P.Ws–– The defendants’ case sought to establish that they have the title over the suit land cannot be decided in a suit for recovery of khas possession under section 9 of the Specific Relief Act. Such claims of title may claim in defendants. Appellate Division does not find any reason, error of law and miscarriage of justice to interfere with the concurrent findings of fact–– This Division is, therefore, of the view that reassessment of evidences on pure question of facts is pointless. This appeal is dismissed. .....Nazma Begum(Most.) =VS= Muksed Ali, (Civil), 2022(2) [13 LM (AD) 1]

Specific Relief Act [I of 1877]

Section 9

It is settled law that in a suit for recovery of Khas possession under Section 9 of the Specific Relief Act, 1877 the moot question necessary to be decided as to whether the plaintiff had possession prior to forceful dispossession from the suit land.

The Appellate Division held that the plaintiff has been able to prove his possession prior to his dispossession from the suit land. The trial Court on proper appreciation of the facts and law lawfully decreed the suit, but the High Court Division most illegally set aside the judgment and decree of the trial Court. In view of the aforesaid reasons, the impugned judgment and decree of the High Court Division warrants interference by the Appellate Division. Therefore, the Appellate Division finds merit in the submissions of the learned Counsel for the appellants. In the prevailing circumstances, the impugned judgment and decree of the High Court Division cannot stand at all in the eye of law. Accordingly, the instant civil appeal is allowed. The judgment and decree dated 09.12.2009 passed by the High Court Division in Civil Revision No. 3819 of 2000 is hereby set aside. Durga Mohan Roy and another -Vs.- Most. Belly Khatoon and others 28 ALR (AD)86

Section 9

Dispossession of land–– The plaintiffs rather it was the defendants who did it with the aid of RAJUK. That finding is the finding of fact. The trial Court upon proper consideration of the evidence on record, held that the plaintiffs were in possession in the suit and till the date of dispossession on 30.03.2001. The trial Court, as first and last Court of facts, upon proper appreciation of materials on record arrived at the aforesaid conclusion. In such view of the matter, no interference was called for in revision, the High Court Division erred in law in setting aside the finding of fact.–– Considering the facts, circumstances and evidence adduced by the parties, Appellate Division is of the view that the High Court Division erroneously set aside the judgment and decree of the trial Court. Accordingly, this Division finds substance in the instant appeal. .....Ahmed Ali Noor =VS= Nigar Hossain, (Civil), 2022(2) [13 LM (AD) 123]]

Section 9

Seeking a decree of recovery of vacant possession of the suit land by evicting the defendants after demolition of the structures thereon–– The evidence that Abdus Sabur died in 1942 and Emdad Ali continued to live in the disputed property until his death in 1964 and no attempt was made to recover the possession of the property until that time. Infact, for the first time the defendants were given notice to vacate the property in 1980, i.e. 39 years after the property was given to defendant Nos.1 and 2 by way of oral gift. The impugned judgement Appellate Division finds that the learned Judge of the High Court Division was not correct in observing that the appellate Court did not reverse the finding of the trial Court regarding the oral gift and as such the judgement is patently erroneous.

Appellate Division finds that the impugned judgement and order of the High Court Division is not based on proper appreciation of evidence on record and accordingly the appeal is allowed, without however, any order as to costs. The impugned judgement is set aside, and the judgement of the appellate Court is upheld. ...Khukon =VS= Abdur Rakib, (Civil), 2021(2) [11 LM (AD) 124]

Specific Relief Act, 1877

Sections 9, 42 r/w

Code of Civil Procedure, 1908

Section 151

Declaration of title with recovery of khas possession– Inherent power cannot be invoked while acting under specific provisions of law– Erroneous insertion of plot number in the disputed patta as well as the plaintiffs’ kabala is a long pending dispute which could be corrected on filing a case for rectification of those deeds but the plaintiffs (respondents) sat idle for more than 50 years without taking such type of steps–– Appellate Division also holds the view that the High Court Division was wrong in making the Rule absolute and sending back the suit on remand to the trial Court directing further local investigation although the local investigation has been held as many as on three occasions and the evidence in this regard having been aptly dealt with by both the Courts below giving specific finding and assigning reasons. This Division further holds that erroneous insertion of plot number in the disputed patta as well as the plaintiffs’ kabala is a long pending dispute which could be corrected on filing a case for rectification of those deeds but the plaintiffs (respondents) sat idle for more than 50 years without taking such type of steps.

Appellate Division also finds that inherent power cannot be invoked while acting under specific provisions of law, the learned Judge of the High Court Division acted beyond the scope of the revision without averting the concurrent finding on title and possession as have been found by the Courts below. The impugned judgment and decree is hereby set aside. This Division restores the judgment passed by the trial Court as well as the Appellate Court below. ...Anwar Hossain(Md.) =VS= Kamrul Islam, (Civil), 2021(2) [11 LM (AD) 429]

Specific Relief Act, 1877

Sections 9, 42

Title suit– Non-Speaking Judgment–– The plaintiffs have proved further that since the suit land was recorded in the khas khatian of the government they filed a suit being Title suit No.1164 of 1978 against the government and got a contested decree and thereafter they got the suit land mutated in their names in Mutation Case No.7/XIII/54/5/82-83 and they have been paying rent also for the suit land and in R.S. khatian also the suit land has been recorded in the name of the plaintiffs.

The impugned judgment of the High Court Division is a most non-speaking judgment. The High Court Division committed wrong and injustice in affirming the judgment of the appellate court below without considering the evidence on record at all and without giving its decision with reasoning for doing so and for discarding the judgment of the trial court. This appeal deserves to be allowed. ...Mohabbat Ali Shah(Md.) =VS= Mohiuddin, (Civil), 2021(2) [11 LM (AD) 550]

Specific Relief Act, 1877

Sections 9, 42

For declaration of title, recovery of khas possession and permanent injunction– The revisional Court finds that there is no misreading, non-reading and misappreciation of evidence in the concurrent finding of both the Courts below. In our view, the High Court Division has rightly upheld the judgment and decree of the appellate Court by giving adequate reasons for doing so. Appellate Division does not find any illegality or infirmity in the impugned judgment. …Tayab Ali =VS= Abdul Hakim, (Civil), 2021(2) [11 LM (AD) 329]

Suit for recovery of possession

Suit for recovery of possession filed within six months of dispossession is maintainable

The law is well settled that a suit for recovery of possession filed within six months of dispossession is quite maintainable. The defendants who purchased the shares of some co sharers having no possession in the suit land, cannot forcibly enter into the possession thereof by dispossessing the other co sharer in possession. His remedy lies in properly instituted suit for partition. (Maruf Hossain (Swopon) Vs. Diljan Bibi and others 196-198, 13 MLR 2008)

Suit for restoration of possession

Section 9 of the Specific Relief Act does not authorize the Court to order for demolishing or removing dwelling huts or other permanent structures standing in the suit land while effecting restoration of possession. [Rokeya Begum Vs. Md. Abdur Rahman alias Ganda and others 50 DLR 2711

Explanation-Breach of contract-Compensation-The explanation to section 12 of the Specific Relief Act raised a presumption that the breach of a contract to transfer movable property can be adequately relived by compensation unless and until the contrary is proved. [Bazlur Rahman Bhitiyan Vs. BSC 34 DLR (AD) 42]

Presumption under the section-Presumption under the section is that breach of contract for sale of immoveable property cannot be adequately compensated by money payment. This presumption is rebuttable and onus lies on the person who seeks to avoid it. Saru Meah Sowdagar Vs. Jahanara Begum 8 DLR 616)

Onus of proof is on the transferee who purchases while there is a subsisting contract between the vendor and the plaintiff to prove bonafide purchase. Saru Meah Sowdagar Vs. Jahanara Begum 8 DLR 616

Where the suit is brought within three years of the contract, the court is competent to award a decree for specific performance of the contract directing the legal representatives of the original vendor to execute a kabala in accordance with the terms of the original kabala and have the same registered. Hafer Ahmed Vs. Obedur Rahman 7 DLR 263

Specific Relief Act, 1877

Section 12

Specific performance of contract– Balance sale price– Specific performance of contract is an equitable relief. The fraudulent action of the plaintiffs in issuing a cheque for the balance consideration, with the knowledge that the funds in the account were not sufficient to honour the cheque and with the admitted intention not to put in funds to cover the cheque amount until after execution of the sale deed, is admission of fraud since the requirement of law is that demand for the execution of the sale deed must be accompanied by payment of the balance sale price. This act of fraud disqualifies the plaintiffs from getting the relief sought. ...Ambia Khatun(Most.) =VS= Sree Shuklal Turaha, (Civil), 2021(2) [11 LM (AD) 512]

Onus of proof is on the transferee who purchases while there is a subsisting contract between the vendor and the plaintiff to prove bonafide purchase. Saru Meah Sowdagar Vs. Jahanara Begum 8 DLR 616

Specific performance of contract

In a suit for specific performance of contract where the agreement for sale is not reduced to writing, the burden is heavily upon the plaintiff to prove by oral evidence that there was such an agreement; that consideration money was paid and any unpaid portion of the consideration was offered; and that in spite of the offer of the remainder of the consideration amount and request to execute and register the deed of sale, the defendant refused. It is equally important that any evidence in respect of the above is corroborated by credible independent evidence. Akteruzzaman Zakir and others -Vs.-Md. Enamul Kabir and another (Civil) 25 ALR (AD) 54

Specific Relief Act, 1877

Sections 12, 21A and 42- By no imagination, the declaration can be treated ог construed as one for specific performance of contract and such declaration clearly attracts the provisions of section 42 of the Act. So far as the first declaration is concerned, it appears to us a bit debatable, i.e. straightway, it cannot be said either it comes within the periphery of a suit for specific performance of contract as provided in section 12 of the Act or attracts the mischief of section 42 thereof and this debate can only be resolved on a full scale hearing of the suit and on assessment of the evidence to be produced by the parties at the trial. .....Comprehensive Holdings Ltd.-VS-MH Khan Monju, [3 LM (AD) 198]

Sections 12- Specific performance of contract- An alleged unregistered deed of dissolution of partnership to dissolve their partnership deed which has not even been proved to be a genuine document- It is settled principle of law that giving a decree for specific performance is a matter of discretion of the Court. In exercising its discretionary power, the Court will act with more freedom than when exercising its ordinary powers, and will grant or withhold relief according to the case presented. In this case, there was no agreement for sale. In fact, the plaintiff came to the Court to enforce the terms and conditions of an alleged unregistered deed of dissolution of partnership to dissolve their partnership deed which has not even been proved to be a genuine document. In view of such facts and circumstances, the plaintiff is not entitled to get any relief. The appeal is dismissed. ... Kazi Fazlus Sobhan VS Government of Bangladesh. [6 LM (AD) 143]

Section 12- Specific performance of contract- The High Court Division noted that subsequent payments of the consideration money were not proved in accordance with law. However, we find that this issue was not raised by D.W.1 in his evidence and payment of further sums was endorsed on the back of the deed of agreement for sale. Also, as noted above, this point was specifically dealt with by the trial Court and the appellate Court with reference to evidence. The observation of the High Court Division in this regard is patently contrary to the evidence on record.

It clearly appears that the High Court Division erred in not properly assessing the evidence and materials on record, and has erroneously reversed the concurrent findings of the Courts of fact. The appeal is allowed, without however, any order as to costs. The judgement and order of the High Court Division is hereby set aside. Serajul Islam VS Farookh Sobhan, [10 LM (AD) 96]

Section 12- Specific performance of contract The appellate Court held that 'the Salishnama does not contain any resolution, appears to have been due to totally ignoring the second page of the Salishnama. The petitioner has not annexed the second page of the Salishnama in the paper book before us. But we are prepared to accept the contents of the second page of the salishnama, as reproduced by the High Court Division in the impugned judgement. Thus, the judgement of the appellate Court apparently suffers from misreading of evidence. The High Court Division has correctly appreciated the evidence and materials on record and rightly reversed the judgement and decree of the appellate Court. This civil petition for leave to appeal is dismissed. Abdus Salam(Md.) -VS- Lutfun Nahar, [10 LM (AD) 281]

Sections 12- Specific performance of contract and compensation- It is admitted fact that the defendant No.1 had received taka 25,00,000/- from the plaintiffs. Considering the facts of unconscionable and unreasonable bargain of the plaintiffs, nature of agreement and alternative prayer made by the plaintiffs, we are of the view that justice would be best met if it is directed to the defendant No.1 to return the earnest money, that is, a sum of tk. 25,00,000/- which was received from the plaintiff No.1 and the solatium of tk.25,00,000/- since the aforesaid amount was received by the defendant No.1 in 2009, that is, said amount is lying with him for about 9 years.

The judgment and decrees of the High Court Division as well as these of the trial Court are set aside. Defendant No.1 petitioner in C.P. No.2050 of 2017 and respondent No.1 in C.P.No.2319 of 2017 is directed to pay sum of tk.50,00,000/- (25,00,000/- consideration + 25,00,000/- as solatium) to the plaintiffs within 4(four) months from the date of communication of this judgment and order to the trial Court, in default, the judgment and order of the High Court Division shall stand. ... Kazi Rafiqul Islam VS- Anwar Hossain Advocate (Md.). [7 LM (AD) 229]

Section 12- Specific performance of contract- A suit for specific performance of contract the duty of the Court is to see whether or not there was an agreement for sale and if there was any breach of such agreement, then to order or reject specific performance of contract.... Nayeb Ali(Md.) -VS- Abdus Salam Khan(Md.). [9 LM (AD) 1]

Section 12- Specific performance of contract- Giving a decree for specific performance is a matter of discretion of the Court It is settled principle of law that giving a decree for specific performance is a matter of discretion of the Court. In exercising its discretionary power, the Court will act with more freedom than when exercising its ordinary powers, and will grant or withhold relief according to the case presented. In this case, there was no agreement for sale. In fact, the plaintiff came to the Court to enforce the terms and conditions of an alleged unregistered deed of dissolution of partnership to dissolve their partnership deed which has not even been proved to be a genuine document. In view of such facts and circumstances, the plaintiff is not entitled to get any relief. Kazi Fazlus Sobhan -VS- Government of Bangladesh, [7 LM (AD) 113]

Section 12- The plaintiff is not entitled to any decree for a specific performance on the strength of forged deeds A relief for specific performance being discretionary, the court is not bound to pass a decree even if the plaintiff proves the execution of the agreement for sale and payment of consideration unless and until the plaintiff comes in court with clean hands. Therefore, the plaintiff is not entitled to any decree for a specific performance on the strength of forged deeds....... RAJUK VS-Manzur Ahmed & Others, [1 LM (AD) 1]

Section 12- Specific performance of contract-As regards, the argument of the learned Attorney General that the plaintiff had no cause of action to file the suit, we are of the view that since the original lessee entered into an agreement with the plaintiff to sell the suit property and in part performance of the contract, he was put into the possession of the suit property and admittedly he is in possession thereof and he paid good amount of money being taka 15,90,000.00 in 1978 and after the death of Syed Salamat Ali, his heirs did not execute and register the sale deed, he had every right to file the suit to pray for specific performance of contract. ......Bangladesh =VS= Chowdhury, [3 LM (AD) 97] Hamid Ali

Section 12- Specific performance of contract The High Court a submission was raised on behalf of defendant No.6 that the land has been acquired during the pendency of Regular Second Appeal, the decree of the specific performance cannot be maintained. The High Court agreeing with the submission of defendant No.6 modified the decree by ordering respondent Nos.2 to 6 to pay a sum of Rs.90,000/to the plaintiff with interest @ 9% per annum from the date of filing of the suit. The plaintiff through legal heirs aggrieved by the said judgment has come up in this appeal. Urmila Devi =VS= The Deity, Mandir Shree Chamunda Devi, [4 LM (SC) 96]

Section 12- Specific performance for contract- Legally entitled to set back the consideration money with solatium- Both the parties came to an agreement that the defendant No.2 would pay a sum of tk.50,00,000/- (fifty lacs) to the plaintiff A.K.M. Zakir Hussain. In such circumstances, on 19.02.2018 we directed the defendant No.2 to pay the said amount. In view of the direction, the defendant No.2 paid a sum of tk.50,00,000/-(fifty lacs) through a pay order to the plaintiff petitioner. Thereafter, this Court on 04.03.2018 passed the following order. "According to our order dated 19.02.2018, the leave petitioner has furnished a pay order bearing No.0098584 dated 26.02.2018 drawn in the name of A.K.M. Zakir Hossain issued by the Al-Falah Bank Ltd. The pay order is handed over to Dr. Muna Hossain, daughter of plaintiff petitioner A.K.M. Zakir Hossain today. The leave petition is disposed of. The impugned judgment and decree of the High Court Division is modified accordingly. AKM. Zakir Hussain VS Roshanally Mohammad Hiriji, (4 LM (AD) 36]

Section 12- Specific performance of contract-Bainapatra- Appellate Court the last Court of fact The appellate Court discussed the evidence on record in detail and came to a definite finding that the plaintiff had been able to prove the bainapatra and the High Court Division did not commit any illegality in concurring with the findings and decision arrived at by the appellate Court, the last Court of fact. We do not find any substance in this appeal. Accordingly, this civil appeal is dismissed without any order as to costs. Maron Chandra Shil VS Fatema Begum, [5 LM (AD) 340]

Section 12- Specific performance of contract Giving a decree for specific performance is a matter of discretion of the Court- It is settled principle of law that giving a decree for specific performance is a matter of discretion of the Court. In exercising its discretionary power, the Court will act with more freedom than when exercising its ordinary powers, and will grant or withhold relief according to the case presented. In this case, there was no agreement for sale. In fact, the plaintiff came to the Court to enforce the terms and conditions of an alleged unregistered deed of dissolution of partnership to dissolve their partnership deed which has not even been proved to be a genuine document. In view of such facts and circumstances, the plaintiff is not entitled to get any relief. Kazi Fazlus Sobhan -VS- Government of Bangladesh, [7 LM (AD) 113]

Specific Relief Act [I of 1877]

Section 12—Whether the bainapatra dated 16.01.2003 is a valid document and whether the document can be a contract to sale and whether a suit for Specific Performance of Contract can be filed.

The High Court Division has carefully examined the document submitted by the parties in the courts below which has been exhibited and the High Court Division found that the plaintiff has proved that there was a bainapatra given by the defendant in order to sale the suit land mentioned above after receiving a certain amount of money of the total consideration money. The learned Advocate for the petitioner submits that a forceful signature is a criminal offence and such signature does not create any contractual obligation but he informed to the High Court Division that the possession of the suit land was handed over to the plaintiff after amendment of the baina on 16.01.2003. Under the provision of Section 53A of the Transfer of the Property Act the present-plaintiff-opposite party can get a right and interest upon the suit land by operation of law, as such, the present-defendant-petitioner is under an obligation to execute a sale deed in favour of the plaintiff-opposite party after receiving remaining Taka 15,000/- (fifteen thousand) only pursuant to the baina dated 16.01.2003. After considering the evidence produced by the parties, the learned trial court decreed the suit and the appellate court dismissed the appeal by the impugned judgment and decree and thereby committed no error of law by passing the concurrent judgment. The High Court Division is therefore, not inclined to interfere into the impugned judgment and decree passed by the learned appellate court. In the result, the Rule is discharged. Md. Sohrab -Vs- Dr. A.K. Azad (Civil) 15 ALR (HCD) 184-186

Sections 12, 21A and 42–– By no imagination, the declaration can be treated or construed as one for specific performance of contract and such declaration clearly attracts the provisions of section 42 of the Act. So far as the first declaration is concerned, it appears to us a bit debatable, i.e. straightway, it cannot be said either it comes within the periphery of a suit for specific performance of contract as provided in section 12 of the Act or attracts the mischief of section 42 thereof and this debate can only be resolved on a full scale hearing of the suit and on assessment of the evidence to be produced by the parties at the trial. .....Comprehensive Holdings Ltd.=VS=MH Khan Monju, [3 LM (AD) 198]

সুনির্দিষ্ট প্রতিকার আইন, ১৮৭৭

ধারা ১২, ২১ক এবং ৪২: চুক্তির সুনির্দিষ্ট কার্য সম্পাদন ঘোষণা হিসাবে কোনো অবস্থাতেই বিবৃত ঘোষণাকে গণ্য করা কিংবা ব্যাখ্যা করা যায় না, কারণ এই ঘোষণা সুস্পষ্টভাবে সুনির্দিষ্ট প্রতিকার আইনের ৪২ ধারার বিধানাবলী আকর্ষণ করে। প্রথম ঘোষণাটির ব্যাপারে কিছুটা বিতর্কের অবকাশ রয়েছে, অর্থাৎ এটি সরাসরি সুনির্দিষ্ট প্রতিকার আইনের ১২ ধারাভুক্ত চুক্তির সুনির্দিষ্ট কার্য সম্পাদনের মামলার আওতাভুক্ত কিনা, নাকি ৪২ ধারার অসুবিধা আকর্ষণ করে, তা নিরূপণ করা যায় না। এই বিতর্কের নিষ্পত্তি কেবলমাত্র মামলার পূর্ণ শুনানির মাধ্যমে এবং বিচার চলাকালে পক্ষগণ কর্তৃক উপস্থাপিত প্রমাণের যথাযথ মূল্যায়নের মাধ্যমেই সম্ভব।

... কমপ্রিহেনসিভ হোল্ডিংস লিমিটেড বনাম এম.এইচ. খান মঞ্জু, [৩ এলএম (এডি) ১৯৮]

Sections 12–– Specific performance of contract– An alleged unregistered deed of dissolution of partnership to dissolve their partnership deed which has not even been proved to be a genuine document–– It is settled principle of law that giving a decree for specific performance is a matter of discretion of the Court. In exercising its discretionary power, the Court will act with more freedom than when exercising its ordinary powers, and will grant or withhold relief according to the case presented. In this case, there was no agreement for sale. In fact, the plaintiff came to the Court to enforce the terms and conditions of an alleged unregistered deed of dissolution of partnership to dissolve their partnership deed which has not even been proved to be a genuine document. In view of such facts and circumstances, the plaintiff is not entitled to get any relief. The appeal is dismissed. ...Kazi Fazlus Sobhan =VS= Government of Bangladesh, [6 LM (AD) 143]

১২ – চুক্তির নির্দিষ্ট কার্যক্রম সম্পাদন – অভিযোগকৃত অনিবন্ধিত অংশীদারিত্ব বিলুপ্তির দলিল, যা এখনও প্রকৃত দলিল হিসেবে প্রমাণিত হয়নি, সেই দলিলের মাধ্যমে তাদের অংশীদারিত্ব বিলুপ্ত করার জন্য আদালতের রায় কামনা করা হয়েছে। আইনের সুপ্রতিষ্ঠিত নীতি হলো, চুক্তির নির্দিষ্ট কার্যক্রম সম্পাদনের আদেশ দেওয়া আদালতের বিবেচনার বিষয়। এই বিবেচনামূলক ক্ষমতা প্রয়োগের ক্ষেত্রে আদালত সাধারণ ক্ষমতা প্রয়োগের চেয়ে অধিক স্বাধীনতা অবলম্বন করবে এবং উপস্থাপিত মামলার বিবরণ অনুযায়ী প্রতিকার মঞ্জুর করবে বা অস্বীকার করবে। এই মামলায়, বিক্রয়ের কোনো চুক্তি ছিল না। প্রকৃতপক্ষে, বাদী আদালতে এসেছে একটি অভিযোগকৃত অনিবন্ধিত অংশীদারিত্ব বিলুপ্তির দলিলের শর্তাবলী জোরদার করার জন্য, যা এখনও প্রকৃত দলিল হিসেবে প্রমাণিত হয়নি। এই সকল তথ্য ও পরিস্থিতি বিবেচনা করে, বাদী কোনো প্রতিকার পাওয়ার অধিকারী নয়। আপিল খারিজ করা হল।

... কাজী ফজলুস সোবহান =বনাম= বাংলাদেশ সরকার, [৬ এলএম (এডি) ১৪৩]

Section 12–– Specific performance of contract–– The High Court Division noted that subsequent payments of the consideration money were not proved in accordance with law. However, we find that this issue was not raised by D.W.1 in his evidence and payment of further sums was endorsed on the back of the deed of agreement for sale. Also, as noted above, this point was specifically dealt with by the trial Court and the appellate Court with reference to evidence. The observation of the High Court Division in this regard is patently contrary to the evidence on record.

ধারা ১২ –– চুক্তির নির্দিষ্ট কার্যক্রম সম্পাদন –– হাইকোর্ট ডিভিশন উল্লেখ করেছেন যে পরবর্তী বিনিময় মূল্যের অর্থ প্রদান আইনসম্মতভাবে প্রমাণিত হয়নি। তবে, আমরা পর্যবেক্ষণ করছি যে এই বিষয়টি ডি.ডাব্লিউ.১ তার সাক্ষ্যে উত্থাপন করেননি এবং বিক্রয় চুক্তি দলিলের পেছনে আরও অর্থ প্রদানের অনুমোদন লিপিবদ্ধ রয়েছে। এছাড়াও, উল্লেখ্য যে, উপরে উল্লিখিত বিষয়টি বিচারিক আদালত এবং আপিল আদালত প্রমাণের সহায়তায় বিশেষভাবে বিবেচনা করেছেন। হাইকোর্ট ডিভিশনের এই বিষয়ে পর্যবেক্ষণ রেকর্ডভুক্ত প্রমাণের স্পষ্টতই বিরোধী।

উপরে উল্লিখিত কারণে, হাইকোর্ট ডিভিশন রেকর্ডভুক্ত প্রমাণ ও উপকরণ সঠিকভাবে মূল্যায়ন না করায় এবং বিচারিক ও আপীল আদালতের সহকরণী ফলাফল ভুলভাবে উল্টে দিয়েছে বলে সাব্যস্ত হয়েছে। আপিল মঞ্জুর করা হল, তবে, খরচ সম্পর্কে কোনো আদেশ দেওয়া হয়নি। হাইকোর্ট ডিভিশনের রায় ও আদেশ এতদ্বারা বাতিল করা হল। ...সেরাজুল ইসলাম =বনাম= ফারুক সোবহান, [১০ এলএম (এডি) ৯৬]

Section 12–– Specific performance of contract–– The appellate Court held that ‘the Salishnama does not contain any resolution,’ appears to have been due to totally ignoring the second page of the Salishnama. The petitioner has not annexed the second page of the Salishnama in the paper book before us. But we are prepared to accept the contents of the second page of the salishnama, as reproduced by the High Court Division in the impugned judgement. Thus, the judgement of the appellate Court apparently suffers from misreading of evidence. The High Court Division has correctly appreciated the evidence and materials on record and rightly reversed the judgement and decree of the appellate Court. This civil petition for leave to appeal is dismissed. ...Abdus Salam(Md.) =VS= Lutfun Nahar, [10 LM (AD) 281]

Sections 12–– Specific performance of contract and compensation–– It is admitted fact that the defendant No.1 had received taka 25,00,000/- from the plaintiffs. Considering the facts of unconscionable and unreasonable bargain of the plaintiffs, nature of agreement and alternative prayer made by the plaintiffs, we are of the view that justice would be best met if it is directed to the defendant No.1 to return the earnest money, that is, a sum of tk. 25,00,000/- which was received from the plaintiff No.1 and the solatium of tk.25,00,000/- since the aforesaid amount was received by the defendant No.1 in 2009, that is, said amount is lying with him for about 9 years.

The judgment and decrees of the High Court Division as well as these of the trial Court are set aside. Defendant No.1 petitioner in C.P. No.2050 of 2017 and respondent No.1 in C.P.No.2319 of 2017 is directed to pay sum of tk.50,00,000/- (25,00,000/- consideration + 25,00,000/- as solatium) to the plaintiffs within 4(four) months from the date of communication of this judgment and order to the trial Court, in default, the judgment and order of the High Court Division shall stand. …Kazi Rafiqul Islam =VS= Anwar Hossain Advocate(Md.), [7 LM (AD) 229]

Section 12–– Specific performance of contract–– A suit for specific performance of contract the duty of the Court is to see whether or not there was an agreement for sale and if there was any breach of such agreement, then to order or reject specific performance of contract. ...Nayeb Ali(Md.) =VS= Abdus Salam Khan(Md.), [9 LM (AD) 1]

Section 12–– Specific performance of contract– Giving a decree for specific performance is a matter of discretion of the Court–– It is settled principle of law that giving a decree for specific performance is a matter of discretion of the Court. In exercising its discretionary power, the Court will act with more freedom than when exercising its ordinary powers, and will grant or withhold relief according to the case presented. In this case, there was no agreement for sale. In fact, the plaintiff came to the Court to enforce the terms and conditions of an alleged unregistered deed of dissolution of partnership to dissolve their partnership deed which has not even been proved to be a genuine document. In view of such facts and circumstances, the plaintiff is not entitled to get any relief. …Kazi Fazlus Sobhan =VS= Government of Bangladesh, [7 LM (AD) 113]

Section 12–– The plaintiff is not entitled to any decree for a specific performance on the strength of forged deeds–– A relief for specific performance being discretionary, the court is not bound to pass a decree even if the plaintiff proves the execution of the agreement for sale and payment of consideration unless and until the plaintiff comes in court with clean hands. Therefore, the plaintiff is not entitled to any decree for a specific performance on the strength of forged deeds. .....RAJUK =VS=Manzur Ahmed & Others, [1 LM (AD) 1]

Section 12–– Specific performance of contract–– As regards, the argument of the learned Attorney General that the plaintiff had no cause of action to file the suit, we are of the view that since the original lessee entered into an agreement with the plaintiff to sell the suit property and in part performance of the contract, he was put into the possession of the suit property and admittedly he is in possession thereof and he paid good amount of money being taka 15,90,000.00 in 1978 and after the death of Syed Salamat Ali, his heirs did not execute and register the sale deed, he had every right to file the suit to pray for specific performance of contract. .....Bangladesh =VS= Hamid Ali Chowdhury, [3 LM (AD) 97]

Contract Act(IX of 1872)

Specific Relief Act (I of 1877)

Chapter 11

Sections 2, 10 and 12.

Contract coming under these sections are specifically enforceable. A breach of the contract cannot always be adequately compensated by money. From a combined reading of section 2 of the Contract Act read with the paragraphs of the preambles and the terms of 3(three) agreements, it is abundantly clear that defendant No.3 entered into an agreement with defendant Nos.1 and 2 to sign the tripartite agreement without any reservation whatsoever, in case the developer forward sells its share of the flats of the project 'Heritage'. It is admitted that the flat in question fell to the share of the developer. So, defendant No. 2 did not commit any of illegality in entering into a contract with the plaintiff for sale of the suit flat. Section 10 of the Contract Act also comes in aid of the plaintiff. From the facts and circumstances of the case and the materials on record, it is evident that the land owner of his own accord agreed to sign the agreement to be executed between the developer and the intending buyers of the flats which fell in the share of the developer. Therefore, the plea of defendant Nos. 4 and 5 that the predecessor of defendant No. 3 not being a signatory to the triparthe agreement, cannot be a enforced against them, is not legally sustainable.

Md. Atif Atiq -Vs- Nurun Nahar Begum 2 ALR (2013)(AD) 130

Limitation Act,1908 (IX of 1908)

Article 113 - The limitation prescribed for a suit for specific performance of contract, under Article 113 of the Limitation Act, is one year or if no such date is fixed, when the plaintiff has notice that performance is refused from where the cause of action accrues. Khan Mohammad Ameer -Vs.- AtiqurRahman 5 ALR (HCD)2015(1) 307

Limitation Act,1908 (IX of 1908)

Article 113

It is the settled principle of law that the cause of action for a suit for specific performance of a contract arises when the executant of agreement for sale refuses to act in accordance with the terms of the said agreement. The period of limitation for suit for specific performance of a contract is three years from the date of refusal. Haji Sheikh Ahmed Sowdagar -Vs.- Ahmed Nur 3 ALR(2014)(1) 453

President's Order No. 142 of 1972

Without impleading the Government no suit for specific performance of contract or declaration of title in the suit property is permissible. Jamuna Builders Limited -Vs.- The State 2 ALR (2013)(HCD) 167

The Specific Relief Act, 1963

Section 16(c) r/w

The Limitation Act, 1963

Article 54

Specific performance of agreement of sale– The High Court has wrongly observed that the plaintiff has not produced any evidence to prove that he demanded the performance of sale after the execution of the agreement of sale. The filing of a suit for specific performance of an agreement of sale is governed by Section 16(c) of the Specific Relief Act, 1963, read with Article 54 of the Schedule of the Limitation Act, 1963.

The plaintiff has specifically averred in his plaint that he was ready and willing to perform his part of the contract under the agreement of sale dated 20.04.1993. It was also specifically stated that the plaintiff had been demanding that the first defendant receive the balance consideration of Rs. 58,800/and execute a regular registered sale deed at his cost, but the first defendant had been avoiding the specific performance of the agreement of sale. In light of this, in our considered opinion, all the formalities which are to be pleaded and proved by the plaintiff for getting a decree of specific performance have been fulfilled. Moreover, there cannot be any proof of oral demand. Be that as it may, we are satisfied from the evidence that the plaintiff had sufficient money to pay the balance consideration to the first defendant and was ready and willing to perform his part of the contract. In view of reasons, the impugned judgment of the High Court is liable to be set aside. Accordingly, the judgment and decree passed by the Trial Court stands restored. The appeals are allowed accordingly. .....Chennadi Jalapathi Reddy =VS= Baddam Pratapa Reddy, (Civil), 2022(1) [12 LM (SC) 28]

Section 12

Specific performance of contract– Angikarnama (Ext.6) is the continuation of the oral agreement for sale which was executed on 31.12.1997 and execution of Angikarnama is admitted by the respondent– The Appellate Court below being the last Court of fact rightly appreciated these matters of fact in the light of true perspective of the case– That such finding of the High Court Division being based on perverse, misreading of evidence and non-consideration of materials on record– Appellate Division has found that Angikarnama (Ext.6) is the continuation of the oral agreement for sale which was executed on 31.12.1997 and execution of Angikarnama is admitted by the respondent. Thus, the aforesaid argument of the learned Advocate appearing on behalf of the respondent has no leg to stand upon. It also appears that the defendant refused to execute kabala on 12.02.1998 and the suit being instituted on 05.03.1998 is very much within the period of 3 years limitation. Thus, This Division holds the view that the suit is not at all barred by limitation. The Appellate Court below being the last Court of fact rightly appreciated these matters of fact in the light of true perspective of the case. This Division finds no misreading or non-consideration of the evidence on record which would allow the revisional Court to set aside the judgments of the Courts below and would entitle the plaintiff to get decree in the suit. This Division holds that there is infirmity and illegality in the impugned judgment. Having considered all the materials on record, This Division has no other alternative but to allow the appeal without any order as to costs. .....Abu Naser =VS= Ali Karim, (Civil), 2022(1) [12 LM (AD) 660]

Section 12

Specific performance of contract– With a view to prove a bainanama in a suit for specific performance of contract, there should be evidence as to the fact of existence of a bainanama executed by the party, passing of consideration money and delivery of possession of the suit land, if any. .....Abdul Quddus(Md.) =VS= Md. Mahbubul Haque, (Civil), 2022(1) [12 LM (AD) 690]

Section 12

The civil Court is competent to pass a decree for specific performance and to direct the vendor to execute and register the sale deed after obtaining sale permission from the authority concerned and redemption of the mortgage from the bank within a specified time failing which the plaintiff will be entitled to get the sale deed executed and registered through Court, and in that event the pro-forma defendants will be bound to accord necessary permission for sale and to redeem the mortgage property in compliance with the decree. Explanation to section 12 of the Specific Relief Act provides that the breach of contract to transfer immovable property cannot be adequately compensated by money. Bohumukhi Samabaya Samity Ltd. -Vs.- Md. Nazrul Islam 5 ALR (HCD)2015(1) 41

Specific Relief Act (I of 1877)

Section 12

Contract Act (IX of 1872)

Section 55

Although it was stipulated in the agreement that the contract for sale should be completed within a period of one year, the breach of such condition was sanctioned by the payment of liquida ted damage. Therefore, time was definitely not the essence of the contract. The vendor's acceptance of Tk. 15,00,000.00 of the consideration money on 15.02.1994 has negated the aspect of time as the essence of the contract. According to section 55 of the Contract Act, if it was the intention of the parties that the time should not be the essence then the contract does not become voidable, but the promisee becomes entitled to receive compe-nsation for the delay in performance of the agreement. The seller is entitled to receive taka two crore by way of compensation. Mahua Khair -Vs- Amena Begum Ali Ispahani 1 ALR (AD) 169

Sections 12 and 22

Section 12–– Specific performance of contract–– The High Court a submission was raised on behalf of defendant No.6 that the land has been acquired during the pendency of Regular Second Appeal, the decree of the specific performance cannot be maintained. The High Court agreeing with the submission of defendant No.6 modified the decree by ordering respondent Nos.2 to 6 to pay a sum of Rs.90,000/to the plaintiff with interest @ 9% per annum from the date of filing of the suit. The plaintiff through legal heirs aggrieved by the said judgment has come up in this appeal. .....Urmila Devi =VS= The Deity, Mandir Shree Chamunda Devi, [4 LM (SC) 96]

Section 12–– Specific performance for contract–– Legally entitled to set back the consideration money with solatium–– Both the parties came to an agreement that the defendant No.2 would pay a sum of tk.50,00,000/- (fifty lacs) to the plaintiff A.K.M. Zakir Hussain. In such circumstances, on 19.02.2018 we directed the defendant No.2 to pay the said amount. In view of the direction, the defendant No.2 paid a sum of tk.50,00,000/-(fifty lacs) through a pay order to the plaintiff petitioner. Thereafter, this Court on 04.03.2018 passed the following order. "According to our order dated 19.02.2018, the leave petitioner has furnished a pay order bearing No.0098584 dated 26.02.2018 drawn in the name of A.K.M. Zakir Hossain issued by the Al-Falah Bank Ltd. The pay order is handed over to Dr. Muna Hossain, daughter of plaintiff-petitioner A.K.M. Zakir Hossain today." The leave petition is disposed of. The impugned judgment and decree of the High Court Division is modified accordingly. .....A.K.M. Zakir Hussain =VS= Roshanally Mohammad Hiriji, [4 LM (AD) 36]

Section 12

The onus being on the respondent to show that the property in question is not an abandoned property and the Court of Settlement having come to a definite finding that the respondent failed to discharge that onus, the High Court Division erred in law in holding that the Court of Settlement did not come to any decision as to the abandoned character of the property and further erred in law. Govt. BUDPR, Dhaka vs Mst. Shiuli Begum (Mahmudul Amin Choudhury C J(Civil) 2ADC 27

Section 12

For Specific Performance of contract stating, inter alia, that the plaintiff company is a sister concern of Globe Pharmaceuticals Group of Companies. The defendant No.4 company obtained loan from the defendant No.1 Bank and the defendant No.5 as the Managing Direc- tor of the defendant No.4 company and guarantor of the loan had mortgaged his property with the defendant No.1 Bank as collateral security. Globe Druges Ltd vs. Arab Bangladesh Bank Ltd (S.K. Sinha J) (Civil) 8 ADC 483

Section 12

The plaintiff-respondent filed the above mentioned Other Suit No.136 of 2000 against this defendant-petitioner and others for specific performance of con- tract. The plaint case, in short, was that the suit land originally belonged to Umacharan who died leaving son Bijoy Sree Barua. That Bijoy Sree Barua while was in possession of the suit land along with other properties died leaving four sons in Prodip Barua @ Bappi (the defendant-petitioner), Dilip @ Badal Barua, Probal Barua @ Babul and Pro- bir Barua @ Monu Barua and wife Mukta Rani Barua @ Kishi. Mukta Rani Barua @ Kishi relinquished her share in favour of her four sons. On am- icable partition among the sons of Bijoy Sree Barua the suit land fell in the saham of Prodip Barua @ Bappi-the principal defendant. Sree Prodip Barua alias Bappi vs. Faisal Madani (Nazmun Ara Sultana J) (Civil) 9 ADC 231

Section 12

In a suit for specific performance of contract, the question to be decided whether there had been a valid contract between the parties and whether consid- eration money was paid as per terms of the contract. The contesting defendant Nos.4-9 raised many issues which were beyond the scope of a suit for specific performance of contract. There is no scope for consideration of the issue of title of contesting defendant Nos.4-9 in a suit for specific performance of con- tract and this suit should have been lim- ited between the plaintiffs and defendant Nos.1 and 2. Defendant Nos.4-9 unnecessarily got themselves added in this suit by setting up inde- pendent title which could not be adjudicated in a suit for specific performance of contract. Ibrahim Khalil vs. Mujibir Rahman (Syed Mahmud Hossain J) (Civil) 10 ADC 72

The respondent No. 1 as the plaintiff entered into an agreement on 02.05.2002 with the petitioner-defendant No.1 to purchase the property detailed in the schedule to the plaint by executing a bi- napatra, on payment of Tk. 15,00,000/- The price of the property was agreed at Tk.65,00,000/-. The sale deed was to be executed and registered within 6(six) months from the date of execution of the bainapatra. As the property was mortgaged with Bangladesh House Building Finance Corporation-defen- dant No.2, the plaintiff would redeem the mortgage before execution and registration of the sale deed. Amir Hussain Sowdager vs. Mohammad Harunur Rashid (Muhammad Imman Ali J) (Civil) 9 ADC 314

Section 12–– Specific performance of contract– Bainapatra–– Appellate Court the last Court of fact–– The appellate Court discussed the evidence on record in detail and came to a definite finding that the plaintiff had been able to prove the bainapatra and the High Court Division did not commit any illegality in concurring with the findings and decision arrived at by the appellate Court, the last Court of fact. We do not find any substance in this appeal. Accordingly, this civil appeal is dismissed without any order as to costs. .....Maron Chandra Shil =VS= Fatema Begum, [5 LM (AD) 340]

Section 12

The Vendor, being an Iranian national, obtained permission from Bangladesh Bank on 09.02.86 to sell the property. According to the Vendor, the Purchaser was in possession of the property since 1985 and the deed of agreement for sale was executed on 20.12.1986. According to the Purchaser, the possession of the property was handed over after the exe cution of the said deed of agreement. The Purchaser was unable to obtain the Income Tax Clearance Certificate within the one year stipulated in the deed of agreement for sale but did make a further payment of Tk. 15,00,000/- (Taka fifteen lacs). Since the Purchaser could not obtain the Income Tax Clear- ance Certificate and did not get the deed of sale executed and registered, the Ven- dor sent a legal notice dated 08.07.1993 acknowledging part payment of Tk.35,00,000/- towards the purchase price. Mahua Khair vs. Amena Begum Ali Ispahani (Muhammad Imman Ali J) (Civil) 9 ADC 924

Section 12

The Vendor, being an Iranian national, obtained permission from Bangladesh Bank on 09.02.86 to sell the property. According to the Vendor, the Purchaser was in possession of the property since 1985 and the deed of agreement for sale was executed on 20.12.1986. According to the Purchaser, the possession of the property was handed over after the exe- cution of the said deed of agreement. The Purchaser was unable to obtain the Income Tax Clearance Certificate within the one year stipulated in the deed of agreement for sale but did make a further payment of Tk. 15,00,000/- (Taka fifteen lacs). Since the Purchaser could not obtain the Income Tax Clear- ance Certificate and did not get the deed of sale executed and registered, the Ven- dor sent a legal notice dated 08.07.1993 acknowledging part payment of Tk.35,00,000/- towards the purchase price. Mahua Khair vs. Amena Begum Ali Ispahani (Muhammad Imman Ali J) (Civil) 10 ADC 11

Section 12

Defendant No. I being the owner of the suit land offered the plaintiffs to pur- chase the same at a consideration of TK.31,42,500.00 at the rate of TK.4,25,000.00 per bigha. Defendant No.1 on receipt of TK.2,00,000.00 as earnest money out of the total consid- eration of TK.31,42,000.00 entered into an agreement with the plaintiffs on 07.07.2000 to sell the suit property. In the agreement it was stipulated that the balance consideration of TK.29,42,500.00 would be paid to the defendant within 3(three) months and on receipt of the payment thereof, he would execute and register sale deed in favour of the plaintiffs in respect of the suit land. On the same date, that is, on 07.07.2000 the plaintiffs gave an un- dertaking on a fifty taka stamp that they would pay TK.3,00,000.00(three lakhs) out of total consideration money to the defendant within 1(one) month, otherwise, the sale agreement would be treated as cancelled. Shaki Md. Shoaib vs. Md. Kashem Ali Bhuiyan (Md. Abdul Wahhab Miah J) (Civil) 8 ADC 668

Section 12

Appellant-respondent No. 1 filed an ap- plication for readmission of the First Miscellaneous Appeal to its original file and number after recalling the order dated 12.03.2003. A Division Bench of the High Court Division restored the ap- peal to its original file and number by the impugned order dated 29.06.2003. Challenging the order dated 29.06.2003, the respondent-appellant filed Civil Miscellaneous Petition No.93 of 2003 before this Division in which leave was granted resulting in Civil Appeal No.99 of 2004. M/S. Bandar Bailing Company vs. M/s. Imam Dockyard Engineering Industries (Syed Mahmud Hossain J) (Civil) 10 ADC 218

Section 12–– Specific performance of contract–– Giving a decree for specific performance is a matter of discretion of the Court–– It is settled principle of law that giving a decree for specific performance is a matter of discretion of the Court. In exercising its discretionary power, the Court will act with more freedom than when exercising its ordinary powers, and will grant or withhold relief according to the case presented. In this case, there was no agreement for sale. In fact, the plaintiff came to the Court to enforce the terms and conditions of an alleged unregistered deed of dissolution of partnership to dissolve their partnership deed which has not even been proved to be a genuine document. In view of such facts and circumstances, the plaintiff is not entitled to get any relief. …Kazi Fazlus Sobhan =VS= Government of Bangladesh, [7 LM (AD) 113]

Abandoned Buildings (Supplimentary Provision) Ordinance

[LIV of 1985]

Section 5 —The Appellate Division ob-served that it is now settled that a decree passed in a suit for specific performance of contract does not cover under any clauses of the proviso to section 5 of Ordinance No. LIV of 1985. It is not a decree declar-ing the title of the claimant since in such a decree the Court does not declare that the building is not an abandoned property or that the property has not been vested in the government under P.O.16 of 1972. In a de-cree for specific performance of contract the main issue is whether the owner of the property entered into a contract for sale of the property. There is no scope for deciding the title of the plaintiff in such a suit.

Mrs. Amena Khatun -Vs.- The Chair-man, Court of Settlement and others. (Civil) 11 ALR (AD) 96-99

Order VI Rule 17 —Amendment in the plaint

Specific performance of contract.

The facts alleged in the plaint indicated that payment was made by cheque as well as by cash, and the amendment simply named the person, who had issued the cheque. Such an amendment in our view does not change the nature and character of the suit.

The Appellate Division has considered the submissions of the learned Advocates appearing for the parties concerned, perused the impugned judgement of the High Court Division and other connected papers on record. The High Court Division observed that the view of the trial Court was that the amendment would change the narration of the occurrence in respect of the mode of payment. The High Court Division held that such view was erroneous since the proposed amendment was in fact explanatory and elucidative of facts already asserted in the plaint. The facts of the decision referred by the learned Advocate for the appellants, though they relate to the issuance of a cheque, are quite dissimilar, inasmuch as in the decided case the signatory of the cheque was being introduced as the plaintiff’s agent, since she was continuously living in Calcutta. In that way the plaintiff was claiming that the agreement was not with herself, but with her accredited agent. Thus, in the decided case, effectively the parties to the alleged agreement of sale were being changed, which is not the same in the case before Appellate Division. In the facts and circumstances described above, we do not find that the decision referred by the learned Advocate for the appellants is applicable in the facts and circumstances of the instant case. In the instant case the facts alleged in the plaint indicated that payment was made by cheque as well as by cash, and the amendment simply named the person, who had issued the cheque. Such an amendment in Appellate Division view does not change the nature and character of the suit.

Sree Nilu Banerjee and another -Vs.- Swapan Sarker and others. (Civil) 10 ALR (AD) 310-312

Order VII, rule 11 read with section 15

Transfer of Property Act [IV of 1882]

Section 54A read with Specific Relief Act [I of 1877]

Section 21A read with

Registration Act [XVI of 1908]

Section 17A —Since the plaintiff had no registered deed of agreement in sup-port of his claim over the two apartments and two car parking spaces along with undivided and undemarcated share of the land in question, his claim was not legally maintainable.

The Appellate Division observed that it appears that the High Court Division al-lowed the appeal on the finding, inter alia, that “It has been decided by all the Court of this subcontinent that the plaint was to be rejected within the four corners of the plaint. On a reading of the plaint it appears that plaintiff nowhere stated that there was an agreement or the agreement was registered or not. It is a plain case that plaintiff was given assurance for two apartments but later on, dispute arose. Defendant cancelled it. The Plaintiff, through this suit, questioned the action of developer to the effect that allotment of two apartments in the name of plaintiff being cancelled by the impugned letter with the signature of principal-defendant after taking booking money. The booking money is wit the defendants and suit instituted for not per-forming of contract. Appellate Division finds that the plaint cannot be rejected un-der any of the provision of Order VI sub-rule (a) and (b) of the said order. Law, as has been applied, was applied wrongly without applying judicial mind. Comprehensive Holdings Limited and another -Vs.- MH Khan Monju and others. (Civil) 11 ALR (AD) 136-144

Sections 12, 21A and 42 —The Appellate Division held that by no imagination, the declaration can be treated or construed as one for specific performance of contract and such declaration clearly at-tracts the provisions of section 42 of the Act. So far as the first declaration is concerned, it appears to us a bit debatable, i.e. straightway, it cannot be said either it comes within the periphery of a suit for specific performance of contract as pro-vided in section 12 of the Act or attracts the mischief of section 42 thereof and this debate can only be resolved on a full scale hearing of the suit and on assessment of the evidence to be produced by the parties at the trial.

Comprehensive Holdings Limited and another -Vs.- MH Khan Monju and others. (Civil) 11 ALR (AD) 136-144

Suit for specific performance of contract

Code of Civil Procedure [V of 1908]

Order XLI Rule 31

The appellate Court below without adverting to the points upon which the trial court dismissed the suit reversed the same which is certainly not a proper reversal of judgment and decree on the part of the appellate Court.

The Appellate Division held that the object of Rule is to ensure that the appellate Court does not act mechanically and that it comes to the decision upon independent consideration of the materials on record of course in keeping with the Rule. The cases of Rustam Ali vs. Abdur Rahman 1994 BLD (AD) 229, Azizul Huq vs. Purna Chandra Das 9 BLC (AD) 218, Nazir Ahmed vs. Abdul Kader 1995 BLD 463 and Kalyan Krishna Goswami vs. Madhyapara High School 1995 BLD 509 are some authorities on the point. Therefore, the impugned judgment and Order of the High Court Division as well as the judgment and decree of the lower appellate court passed by the Additional District Judge, Kushtia in Title Appeal No. 171 of 1989 are set aside and the case is sent back on remand to the lower appellate court to pass a proper judgment in consonance with the provisions of Order XLI Rule 31 as expeditiously as possible preferably within 6 (six) months on receipt of this judgment in accordance with Law. With the above observations and directions this civil petition for leave to appeal is disposed of. The parties are directed to maintain status-quo in respect of possession and position of the suit land till disposal of the appeal. Most. Shahera Khatoon -Vs.- Hoshne-ara Banu and others (Civil) 27 ALR (AD) 282

Code of Civil Procedure [V of 1908]

Section 115(1) read with

Specific Relief Act [I of 1877]

Section 22

Specific performance of contract

Subsequent payments of the consideration money were not proved in accordance with law. However, the Appellate Division finds that this issue was not raised by D.W.1 in his evidence and payment of further sums was endorsed on the back of the deed of agreement for sale. Also, as noted above, this point was specifically dealt with by the trial Court and the appellate Court with reference to evidence. The observation of the High Court Division in this regard is patently contrary to the evidence on record.

The Appellate Division opined that the High Court Division in exercising its revisional jurisdiction reversed the concurrent finding of the trial Court and the appellate Court. The High Court Division put the blame on the plaintiff for not obtaining stamp paper for the purpose of executing deed of sale nor paying gain tax. However, the Appellate Division note that the trial Court found that there is nothing in the agreement for sale to show that the plaintiff agreed to procure income tax and gain tax clearance certificate. The High Court Division observed that defendant No. 1 sold out the property to 3rd parties after the compromise decree with the plaintiff. This clearly is not supported by the evidence on record, from which the Appellate Division finds that the earlier compromise decree was set aside by the Appellate Division in the year 1999, and defendant No. 1 sold the properties to 3rd parties in the year 2002 and 2003, which is supported by the evidence of D.W.1. Hence, the basis for reversing the concurrent findings of the Courts below was palpably erroneous. The High Court Division also noted that subsequent payments of the consideration money were not proved in accordance with law. However, the Appellate Division finds that this issue was not raised by D.W.1 in his evidence and payment of further sums was endorsed on the back of the deed of agreement for sale. Also, as noted above, this point was specifically dealt with by the trial Court and the appellate Courtwith reference to evidence. The observation of the High Court Division in this regard is patently contrary to the evidence on record. In view of the above discussion, it clearly appears that the High Court Division erred in not properly assessing the evidence and materials on record, and has erroneously reversed the concurrent findings of the Courts of fact. Accordingly, the Appellate Division finds merit in the appeal, which is allowed. Mosammat Rokeya Begum -Vs.- Farookh Sobhan and another (Civil) 27 ALR (AD) 62

Section 12 —A suit for specific performance of contract relating to immovable property, time is not the essence of the contract, nor hardship of the defendant is a ground to refuse relief.

The High Court Division held that when a vendor executes a deed of sale but it re-mains unregistered and the vendee sues for specific performance of the original con-tract, the question is to be considered whether there is a subsisting contract for sale or not and if the contract be subsisting, the vendee has a statutory right to have the contract performed.

Md. Abul Kalam Azad -Vs- Md. Majibur Rahman and others (Civil) 12 ALR (HCD) 375-383

Section 18 - Lease property

It recognizes as enforceable at law the right of a person contracting to purchase or to take in lease property from a person who at the time of the contract does not own it but subsequently acquired it. Abdul Motaleb -Vs.- Md. Waziuddin 3 ALR(2014)(1) 289

Section 21A(b) —

No contract for sale of any immovable property can be specifically enforced unless the balance amount of consideration of the contract is deposited in the Court at the time of filing the suit.

The High Court Division held that at the time of filing of the suit for Specific Performance of Contract, the balance consideration money, if any, must be deposited in the Court. In the instant case the suit was filed without depositing the balance consideration of money taking a plea or ground that in the meantime the defendant No. 1 i.e. the seller of the land had taken the rest amount of taka 9,00,000/- (nine lacs). The contract for sale was registered on 29.12.2011 and Taka 1,00,000/- (one lac) was handed over in favour of the vendor in black and white at that time. Had there been any transaction for the rest amount of the said contract that also should have been taken place in black and white. However, from the impugned order of the trial Court it appears to the High Court Division that he without applying his judicial mind passed an order which has no any legal basis at all. Since the law is very much clear that the depositing of the balance consideration is must at the time of filing of a suit for Specific Performance of Contract there was no scope for the trial Court to avoid it. The trial Court ignoring the codified law cannot render justice or adjudicate any matter like the trial by ordeal. Thus, the High Court Division finds that the impugned order has been suffering from gross illegality.

Md. Habiz Uddin Habiz -Vs.- Musam-mat Kayrun Nahar Talukder. (Civil) 14 ALR (HCD) 87-89

Section 21 A(b):

Provides for mandatory deposit of balance consideration money at the time of filing the suit for specific performance of contract

Deposit of balance consideration money at the time of filing the suit is mandatory requirement of law notwithstanding the contract made prior to the amendment came into effect and in the event of failure to make such deposit the plaint of the suit shall be liable to be rejected as provided under Order 7 rule 11 (d) of the Code of Civil Procedure. [Alimuddin Bepari (Md.) Vs. Somola Khatoon and others 251-256, 14 MLR 2009]

Specific performance was refused on the ground of hardship of the respondent, a widow of the late defendant, and if solatium or compensation is paid only in consideration of the present market value of the land, then the purpose of refusing specific performance on the ground of hardship will be defeated. [Abdus Sobhan vs Md Altsanullah (Civil) 801, 14 BLC 2009]

Suit for specific performance of contract

An agreement for loan cannot be any away termed as agreement to sell since the defendant No. 1 had no intention to sell his property. It further appears that there is no statement in the said agreement regarding the fixation of consideration of the scheduled property and payment of the earnest money. It cannot be taken to be an agreement to sell within the meaning of section 53-A spelling out the terms of an agreement for sale.

The Appellate Division held that in order to pass a decree in a suit for specific performance of contract following matters should be looked into: (i) the express terms of the agreement; (ii) nature of the property; (iii) surrounding circumstances; (iv) intention of the parties and (v) reciprocal promise of executing sale deed. There is no averment in the pleading as to the offer and acceptance or refusal to accept the consideration which are the criteria to get a decree for specific performance of contract, the High Court Division most illegally treated the alleged agreement as an agreement for sale and, thereby, erroneously set aside the judgment and decree of the courts of facts below. This was not a fit case in which specific performance of contract should be enforced by the Court. Considering the aforesaid facts and circumstances, the Appellate Division finds substance in the appeal. Accordingly, the appeal is allowed. Md. Ali Akram Hossain (Bachchu) -Vs.-Md. Mostafizur Rahman and others 28 ALR (AD) 98

Suit for specific performance of contract

About 14 years elapsed from the date of execution of the contract and in the meantime, the price of the land has gone up many a times and this might be a reason on the part of the petitioner to avoid the execution of the sale deed in respect of the agreed portion of the suit land for which he has received a substantial amount against the consideration money. The High Court Division, in the premises, is perfectly justified in decreeing the suit in part.

The Appellate Division opined that the learned counsel appearing for the petitioner frankly concedes that the petitioner has admitted the execution of the contract for sale and received the advance money of Tk. 2,00,000/- for sale of .33 acre of land and that he was willing to execute the sale deed in respect of the said area of land. The contract in question was executed as back as on 7th July, 2000, and on the date of execution of the contract, the petitioner had received a such of Tk. 2,00,000/- as advance. Therefore, the Appellate Division finds no cogent ground on the part of the defendant-petitioner not to execute and register the sale deed in respect of the admitted area of land. About 14 years elapsed from the date of execution of the contract and in the meantime, the price of the land has gone up many a times and this might be a reason on the part of the petitioner to avoid the execution of the sale deed in respect of the agreed portion of the suit land for which he has received a substantial amount against the consideration money. The High Court Division, in the premises, is perfectly justified in decreeing the suit in part. The Appellate Division finds no infirmity the judgment which calls for our interference. This petition is accordingly dismissed. Md. Kashem Ali Bhuiyan -Vs.- Md. Nazrul Islam and others 28 ALR (AD)205

Section 21 A(b):

Provides for mandatory deposit of balance consideration money at the time of filing the suit for specific performance of contract

Suit for specific performance of contract

The appellate court below found that the plaintiffs were able to prove the execution of the bainapatra, passing of the consideration and delivery of possession of the suit land and decreed the suit. The subsequent purchasers who with prior knowledge of the contract purchased the suit land are directed to join the execution of the sale deed in favour of the plaintiffs. [Shahjahan Ali Fakir (Md.) and others Vs. Md. Bappi Gazi and others 497, 14 MLR 2009]

Contract of sale cannot be enforced in favour of a vendor when he knew that he had no title to the land to be sold-A third party can in such a case be added as a party when he claims the land to be in his possession. [Bajrang Lal Vs. Akshed Ali 35 DLR 110]

Dispute of title in a suit for specific performance-there is no scope for deciding the question of title of the defendant No. 1 in this suit for specific performance of contract by the buyer or to declare that defendant Nos. 2 and 3 have no title in the suit-property. Specific performance being an equitable relief Court is not bound to grant the same merely because the contract between the plaintiff and defendant No. 1 has been proved. (Silver Estate Ltd Vs. Abdul Hakim Mia 43 DLR 360)

Since title of the suit property is under dispute and the defendants have proved that the disputed property was under possession of Taher Ali and then the defendants 14 and 15 have been owning and possessing the suit land by mutating their names in the SA and RS Khatians, discretional power cannot be exercised to give equitable relief in a suit for specific performance of contract. (Shamsul Haque (Md) Vs. Munsur Ali and others 5 BLC 519)

Dispute of title in a suit for specific performance, there is no scope for deciding the question of title of the defendant No. 1 in this suit for specific performance of contract by the buyer or to declare that defendant Nos. 2 and 3 have no title in the suit-property. Specific performance being an equitable relief Court is not bound to grant the same merely because the contract between the plaintiff and defendant No. 1 has been proved. (Silver Estate Ltd Vs. Abdul Hakim Mia 43 DLR 360)

Since title of the suit property is under dispute and the defendants have proved that the disputed property was under possession of Taher Ali and then the defendants 14 and 15 have been owning and possessing the suit land by mutating their names in the SA and RS Khatians, discretional power cannot be exercised to give equitable relief in a suit for specific performance of contract. [Shamsul Haque (Md) Vs. Mansur Ali and others 5 BLC 519)

The plaintiff brought the said suit against the defendant Nos. 1-3 for specific performance of contract evidenced by the bainanama Ext 1 dated 15-11-1956. The title acquired by the defendant Nos. 2 and 3 by virtue of Exts C&D having arisen subsequent to the aforesaid bainnnama, the plaintiff could have enforced the agreement for sale against defendant Nos. 2 and 3 were not transferees for value or did not pay their money in good faith or that they had notice of the prior contract for sale.

At the moment when the said suit OS No. 9 of 1959 was brought i.e. on 11-2-1959, defendant No. 1 had no subsisting interest in the disputed land as he had disposed of his right and interest in the disputed land in favour of defendants 2 and 3 and any enforcement of the contract dated 15-11-1956 against him alone and execution and registration of kabala through Court on his behalf would not create any title in favour of the plaintiff, and therefore, the plaintiff rightly impleaded the said defendant Nos. 2 and 3 along with defendant No. I for specific performance of contract as is contemplated in section 27 of the Specific Relief Act. [Abdul Khaleque Sowdagar Vs. Mohammad Fazlul Huq, 26 DLR 247]

Onus of proof-Quantum of onus-Where in a suit for specific performance against a person who claims title from the vendor under a registered deed, executed after the contract sued upon, the said person claims to be a bonafide purchaser for value without notice of the pervious contract, the onus lies upon him to prove that he had no notice of the earlier contract so as to bring himself within the exception provided by clause (b) of section 27 of the Act. With regard to the question as to what should be the quantum of proof that the person claiming to have purchased the property in good faith without notice would offer, it seems that since the onus is to disprove notice, the burden is a light one and may even be shifted by a mere denial of the factum of the notice on oath. [Dula Mia Vs. Haji Md Ibrahim 8 DLR 616]

Doctrine of lispendens-In a case of specific performance of contract conveyance in favour of the subsequent transferee, executed before but registered after the institution of the suit-Not hit by the doctrine of lispendens.

In a case of specific performance of contract, conveyance in favour of the subsequent transferee is not affected for want of its registration provided the transferee has paid the purchase money in good faith without notice of the original contract. In such case the conveyance is not hit by the doctrine of lis pendens though it is registered after the institution of the suit. Transfer in such case is protected by the exception of section 27(b) of the Act. [Mamtazul Karim Vs. Abul Hossain 22 DLR 146.]

In a suit for specific performance of contract where the courts below directed the subsequent purchasers to execute kabala in favour of the plaintiff although they were not parties to contract but the proper form of decree would be to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff and this view is being followed in our Courts for a long time which is strengthened by the judgments of the Supreme Court of India. [Ezaher Meah and others Vs. Shaher Banu and others 2 BLC (AD) 301]

Although the conduct of the defendants appears to be shady in spite of that the defendant Nos. 2 and 3 cannot be hauled up in the absence of a specific case made out by the plaintiff within the ambit of section 27 of the Specific Relief Act, so as to make the subsequent transferees, the defendant Nos. 2 and 3 bound by the subsisting contract. [Naru Gopal Roy Vs. Parimal Rani Roy and others 6 BLC 323]

Amendment of plaint and addition of parties-addition of subsequent transferees in a suit for Specific Performance of Contract for sale of property-Nature and character of the suit is not changed-amendment and addition of party necessary for passing an effective decree.

On perusal of the plaint, written statement and the petitions for amendment of the plaint we do not find that the amendment will convert the suit into a suit for declaration of title and the entire nature and character of the suit would be changed. The learned judges, it appears, did not at all considered whether in the absence of subsequent transferees any effective decree could be made in the suits. Addition of subsequent transferees is necessary for proper adjudication of the question whether the plaintiff's case of alleged contract was genuine. If the contract is found genuine then the subsequent transfer will be subject to the decision in the suits. [City Ice and Cold Storage Limited Vs. Nitai Chandra Shaha and others, 4 BSCD 195]

Enemy Property-A contract for sale of property whether can be enforced against the Custodian of Enemy Property-The Custodian of Enemy Property stepped into the shows of the owner with the power of transfer can execute the kabala in favour of the plaintiff who got decree for specific performance of contract for sale. [Rahima Aktar and others Vs. Asim Kumar Bose and others, 5 BSCD 263]

Whether in a suit for specific performance of contract for sale of property, prayer for amendment of plaint by inclusion of a proper prayer for execution and registration of the sale deed also by the purchaser subsequent to the contract with the plaintiff should be allowed-Contract was executed on 22-1-1981 on which date the purchaser defendant was not in the scene and he had no interest in the disputed properties, the contract related to properties which then solely belonged to defendant No. 1-The defendant No. 2 came into the picture nearly 8 months after Unless he can claim ownership of the properties on and beginning from this date how can he be compelled to execute the sale deed on the basis of such contract-Since defendant No. 2 has already been impleaded in the suit he being subsequently transferee will be bound by the decree in the suit-The prayer for declaration that subsequent deed was void and fraudulent if allowed the plaintiff will have no ground for more grievance-Rejection of prayer for amendment of plaint by the Court's below approved. [Nurul Amin and others Vs. Md Fazlul Huq and others, 6 BSCD 2731]

Non-substitution of heirs of a deceased defendant Abatement of suit Whether the suit abated as a whole-Plaintiff may obtain a decree for specific performance of contract without the deceased defendant and it will not be inconsistent with the interest of the deceased defendant or his heirs-For non-substitution of the heirs of the deceased defendant the suit abated as against the heirs only. [Ibne Jafar Shafi Ahmed Chowdhury and another Vs. Shafiul Alam Nizame and others, 8 BSCD 210]

Doctrine of Part Performance-Under this section. a party may sue for specific performance of contract in writing to sell or lease out immoveable property even though it is unregistered, if he has acted in part performance of the contract. The section incorporates active equity as in England, sufficient to support independent action brought as a plaintiff-The transferee's remedy is by filing a suit for specific performance of contract for sale-The law does not give him any right to have a decree against the transferor in any other manner. [Asstt. Custodian, Enemy Property (L&B), Dacca & another Vs. Abdul Karim & ors, 2 BSCD 161]

Scope of these sections of the two statutes compared and contrasted with reference to the Doctrine of Part Performance-scope of section 27A of Transfer of Property Act is much wider than section 53A of the Transfer of Property Act. Section 27A is sufficient to support independent act for specific performance and gives a right to both transferor and transferee to enforce specifically the contract by compelling registration where there is a part performance. Section 53A of the Transfer of Property Act by itself does not provide any right to ask for a decree against the owner or his successor-in-interest but gives a statutory right to retain possession. Section 27A was enacted to prevent fraud on the part of either party where there has been a part performance on the unregistered agreement for sale. [Asstt. Custodian Enenty Property (L& B) Dacca & another Vs. Abdul Karim and others, 2 BSCD 161.]

Inadequacy of price-Mere inadequacy of price will not bring a case within the ambit of this sub-section. To attract this sub-section, an inadequate' price must be an evidence of fraud or of undue advantage taken by the plaintiff. [Quazi Din Mohammad Vs. Al-haj Arzan Ali and another 47 DLR (AD) 48]

In such matters circumstantial evidence as to subsequent dealing will be relevant. [Shahabuddin Vs. Saijuddin, 36 DLR 3371]

Specific Relief Act [I of 1877]

Section 21A

No contract for sale of any immovable property can be specifically enforced unless the balance amount of consideration of the contract is deposited in the Court at the time of filing the suit for specific performance of the contract.

The Appellate Division has considered the provision of section 21A(b) of the Act. The language of the section is so unambiguous that it does not require any interpretation to come to a conclusion that in case of failure of depositing the balance amount at the time of filing the suit for specific performance of the contract, the suit cannot be maintained. Even then, from the impugned judgment and order, it appears that the High Court Division considered various decisions of the Appellate Division and of the Indian jurisdiction and came to the finding that the deposit of the balance consideration of the contract before filing a suit for specific performance of the contract is a condition precedent and that having not been done in the instant case, the suit was barred under the provision of section 21A(b) of the Act. Therefore, the plaint was liable to be rejected under Order VII, rule 11 of the Code of Civil Procedure. The Appellate Division finds no error with the view taken by the High Court Division in view of the language used in section 21A(b) of the Act. However, it appears that with the permission of the Court, the plaintiff deposited the balance consideration of taka 2,00,000˙00 of the contract. Therefore, the Appellate Division directs the trial Court to return the said amount to the plaintiff without any delay. With the above direction, the petition is dismissed. Md. Abul Kalam -Vs.- Md. Mohiuddin and others (Civil) 26 ALR (AD) 101

Registration Act,1908 (XIV of 1908)

Section 21A -Specific Performance of Contract.

The suit is filed without depositing the balance amount of consideration of the contract in the Court. Provision of section 21A is merely directory and not mandatory since there is no legal mandate to stop or dismiss the suit if balance amount of consideration of the contract is not deposited in the Court at the time of filing of the suit for Specific Performance of Contract. So, no difficulty in holding that, if a litigant for any reason after taking permission from the Court filed the suit and later on he made the deposit of the balance amount of consideration of the contract in the Court as per order of the Court, in such case it cannot be said that the suit is barred by section 21A of the Specific Performance of Contract. Md. Darul Islam -Vs.- Md. Tamijul Islam 5 ALR (HCD)2015(1) 346

Specific Relief Act (I of 1877)

Addition of a party

In a suit for specific performance of contract for sale of an immovable property the real question for determination is whether there was a genuine agreement between the contending parties and if the plaintiff is entitled to get a decree in the suit. When a third party applicant setup an independent claim of title to the suit property, he cannot be added as a party for the determination of his claim will turn the suit for specific performance of a contract into a title suit. The determination of title in the suit property is beyond the scope of a suit for specific performance of a contract. Ibrahim Khalil -Vs.- Mujibir Rahman 2 ALR (2013)(AD) 28

A relief for specific performance being discretionary, the court is not bound to pass a decree even if the plaintiff proves the execution of the agreement for sale and payment of consideration unless and until the plaintiff comes in court with clean hands. The plaintiff is not entitled to any decree for a specific performance on the strength of forged deeds— The Appellate Division observed that a relief for specific performance being discretio-nary, the court is not bound to pass a decree even if the plaintiff proves the execu-tion of the agreement for sale and payment of consideration unless and until the plain-tiff comes in court with clean hands. Since from the very execution of the power of attorney is doubtful, and from the admis-sion of the plaintiff that the defendant died at least at the initial stage of the suit, and if this admission is taken into consideration with the documents filed by the govern-ment, there is no doubt that Mrs. Inge Flatz died long before the execution of the agreement for sale. Therefore, the plaintiff is not entitled to any decree for a specific performance on the strength of forged deeds. The High Court Division erred, therefore, in decreeing the suit for specific performance.

Chairman, Rajdhani Unnayan Karti-pakkha (RAJUK), Dhaka -Vs.- Manzur Ahmed @ Manzoor Ahmed and others (Civil) 8 ALR (AD) 1-21

If a specific remedy is provided in the Constitution for remedy then that specific remedy shall be availed of by the aggrieved person—The Appellate Division observed that since the service Rules do not provide any provision of promotion as Assistant Foreman from the driver who has been working as work charged employee, rather the Rules provides that the post of Assistant Foreman should be filled up by way of promotion from Mechanics/ Electrician having 5 years service experience in the feeder post, the High Court Division has committed error of law in making the Rule absolute.

The Secretary, Ministry of Communication and others. -Vs.- Md. Iqbal Hossain (Civil) 8 ALR (AD) 186-191

Without rebutting trial Court’s those findings and decision; adverting evidence reversed the judgment and decree of the trial court by appellate court as a whole; which is an apparent illegality on the face of the records—The High Court Division held that the order-sheets as cited by the learned courts below is very much material and important in a suit for specific performance of contract and it has also been properly addressed and apprised by the learned trial court, but the learned appellate court has totally failed to appreciate that, rather; without rebutting those findings and decision; adverting evidence reversed the judgment and decree of the trial court as a whole; which is an apparent illegality on the face of the records.

Md. Abul Kalam Azad -Vs- Md. Majibur Rahman and others (Civil) 12 ALR (HCD) 375-383

Abandoned Buildings (Supplementary Provisions) Ordinance [LIV of 1985]

Section 5—In a suit for specific performance of contract the only issue to be decided whether the contract was genuine or not and as such, though the Government is made a party to a suit for specific performance of contract as a requirement of law it is not bound by the decree.

The Appellate Division held that not only the suit for specific performance of contract was decreed but also the disputed property was declared to be not an abandoned property. Such a declaration in a suit for specific performance of contract is beyond the scope of the suit and such declaration has no legal value at all. For argument sake even if the decree was obtained legally the Government is not bound by the decree passed in a suit for specific performance of contract. Government of Ban¬gladesh, represented by the Secretary, Ministry of Works. -Vs.- Abdul Man¬nan and oth¬ers. (Civil) 16 ALR (AD) 98-103

Section 12 - The basic ingredient of the deed of agreement.

The High Court Division helds that in a suit for Specific Performance of Contract the onus of proof is on the transferee who purchase, and where there is a subsisting contract between the vendor and vendee, the plaintiff is to prove his bonafide purchase and after proof the land is vested in the purchaser; who is entitled to obtain a decree for Specific Performance of Contract and thereby the vendee become the owner of the land. The pertinent question is as to whether the contract was eventually made between the parties and there was any part payment of consideration and thirdly, whether possession was delivered in favour of the purchaser of the land. The basic ingredients of the deed of agreement which are on the genuinity of the deed, payment of consideration money between the parties and delivery of possession are required to be judged before arrival at a decision and it is the incumbent duty upon the court to assess and address the ingredients as mentioned.[চুক্তির মৌলিক উপাদানগুলোর কারণে আসল দলিল হিসেবে বিবেচিত হয়। ]Halima Khatun -Vs.- Md. Arshad Ali (Soumendra Sarker J) 6 ALR - 2015(2)162

Suit for specific performance of contract

Since title of the suit property is under dispute and the defendants have proved that the disputed property was under possession of Taher Ali and then the defendants 14 and 15 have been owning and possessing the suit land by mutating their names in the SA and RS Khatians, discretional power cannot be exercised to give equitable relief in a suit for specific performance of contract. [Shamsul Haque (Md) Vs. Mansur Ali and others 5 BLC 519)

Inadequacy of price-Mere inadequacy of price will not bring a case within the ambit of this sub-section. To attract this sub-section, an *inadequate' price must be an evidence of fraud or of undue advantage taken by the plaintiff. [Quazi Din Mohammad Vs. Al-haj Arzan Ali and another 47 DLR (AD) 48]

In such matters circumstantial evidence as to subsequent dealing will be relevant. [Shahabuddin Vs. Saijuddin, 36 DLR 3371]

Section 21

Provision for arbitration could not be invoked by the respondent inasmuch as the appellant having not accepted the experimental bills submitted by the respondent, which was a condition precedent for the agreement (dated 16.2.88) to take effect, the agreement never became effective and remained in a stupor. Bangladesh VS Lithi Enterprises Ltd. (A.T. M. Afzal C J)(Civil) 2ADC 691

The Specific Relief Act, 1877 (Act No I of 1877)

has been amended by Act ( XXVII of 2004)

incorporating a new section

Section 21A.

Under section 21A of the Specific Relief Act, the registration of an agreement for sale of any immovable property has been made compulsory. It has also been incorporated in section 21A of the Act that the plaintiff shall have to deposit in the Court the balance of the consideration on the date of filing of the suit for specific performance of the contract. Faquir Ashraf -Vs- Mrs. Bilkis Banu 2 ALR (2013)(HCD) 21

State Acquisition and Tenancy Act, 1950

Section 95A—Redemption of the mortgage.

Tenure of reconveyance expired long before the promulgation of the Presidential Orders and thus the transactions became past and closed and as such, the Presidential Orders were not applicable in the present case. The defendants as the heirs of Moniruddin have been possessing the suit land by exercising their absolute right and title therein. The plaintiffs were not entitled to get redemption of the suit land as it was not a mortgage and that it was not redeemed in time as per the agreement and as such, the suit was dismissed.

The Appellate Division observed that the plaintiffs failed to prove their case factually. In the plaint, it was asserted that their predecessor-in-interest, Momtaz Miah, paid back the kabala money to the defendants’ predecessor-in-interest, Moniruddin as per terms of the agreement and then he got back possession of the suit land and thereafter, he was dispossessed. The trial Court gave clear finding that the plaintiffs failed to prove that their predecessor-in-interest paid back the kabala money to Moniruddin and that he got back possession of the suit land. The trial Court also held that as per the own case of the plaintiffs, the mortgage was redeemed with the return of the kabala money followed by delivery of possession of the suit land, but subsequently, Moniruddin did not execute and register the deed of reconveyance, if that be so, the plaintiffs could not have any cause of action to main the suit for redemption of the suit land and that they ought to have filed a suit for specific performance of contract. The Appellate Division has considered the evidence. The trial Court was perfectly correct in taking the said factual and legal view. But neither the Appellate Court nor the High Court Division adverted the above findings of the trial Court in decreeing the suit. Belayeth Hossain and others -Vs.- Nasrin Akhter and others (Civil) 15 ALR (AD)59-62

State Acquisition and Tenancy Act [XXVII of 1951]

Section 96—The pre-emptee got the case land through Court pursuant to a decree for specific performance of contract, and since he had been in possession of the case land through tenants for about nine years, the claim of the pre-emptor that he did not have knowledge of the sale earlier is not believable.

The Appellate Division opined that the High Court Division noted that the transaction was made on 01.01.1990 and the impugned sale deed was executed on 26.09.1994. It was observed that the pre-emptee after getting land filled it with earth and constructed shops thereon, which were let out. The tenancy agreements between the tenants and the pre-emptee show that the pre-emptee was in possession of the case land from 1990. Hence, the High Court Division did not believe the claim of the pre-emptor that he did not have knowledge earlier. The High Court Division also referred to the finding of the trial Court to the effect that “it is the case of the pre-emptor he could not get earlier knowledge as Mominullah mortgaged the suit land, but Mominullah has not been examined goes to show that the pre-emp-tor’s case is false one”. In view of the fact that the pre-emptee got the case land through Court pursuant to a decree for specific performance of contract, and since he had been in possession of the case land through tenants for about nine years, the claim of the pre-emptor that he did not have knowledge of the sale earlier is not believable. In view of the above discussion the Appellate Division does not find any irregularity or infirmity in the impugned judgement, and accordingly, the civil petition for leave to appeal is dismissed. Md. Shariat Ullah -Vs.-Md. Abul Ka¬lam Azad and others (Civil) 19 ALR (AD) 68-70

Transfer of Property Act, 1882

Section 108—In a suit for specific performance of contract the essential legal requirements are to prove whether the contract was genuine, consideration money was passed from the purchaser to vendor and transfer of possession was given in pursuance thereof.

Section 108 of the Transfer of Property Act, 1882 does not allow a leasee to transfer his interest unless he is authorised to do so by the lessor.

The High Court Division observed that in the present case no sale permission was given by the government, and the transfer without written permission was also restricted expressly by the lease deed. The sale permission was a condition preceded to transfer the land, but actually no permission has been taken. The plaintiff in his examination-in-chief stated that she lastly talked to Azgor Ali in December 1993. But, it appears from the death certificate and the burial certificate of Azgor Ali, exhibit Nos. ‘Da’ and ‘Dha’ respectively that Azgor Ali died at P.G. hospital on 20.09.1983. So, the contention of the plaintiff is very difficult to believe. The alleged agreement was executed on 13.07.1982 and the executor of the agreement died on 20.09.1983 but after long 10 years the suit was filed on 09.01.1993, and the explanations for delay filing the suit given in the plaint have not been proved. Mrs. Cyma Salam. -Vs.- Amina Begum and others (Civil) 18 ALR (HCD) 214-220

Specific Relief Act [I of 1877]

Section 21 (g)—A contract the performance of which involves the performance of a continuous duty extending over a longer period than three years from its date.

The High Court Division held that any baina can¬not be a valid baina after the stipulated period men¬tioned in this statute there¬fore eventhough there was a baina it lost its legal characters after 3(three) years as such no specific performance of contract is enter¬tainable by any trial court. Md. Tapsiruddin being dead his heirs Md. Golam Mostafa and others -Vs.- Abdul Khaleque being dead his heirs Noor Islam and others (Civil) 18 ALR (HCD) 87-90

Specific Relief Act [I of 1877]

Section 21A (b)—The money receipt or receipt showing payment or acknowledgment of further payment towards the full payment of the total consideration pursuant to a deed of agreement for sale is not compulsorily registrable.

The Appellate Division observed that a reading of section 17 (1) (c) does not show that receipt showing or acknowledging the payment(s) made pursuant to a registered agreement for sale has to be registered, because such a receipt by itself does not create declare, assign, limit or extinct of any such right, title or interest. Money receipt showing payment of the balance amount of the consideration of the contract is simply the follow up of the agreement for sale. If the proposition of law as the High Court Division propounded is accepted then we shall be importing something that the legislature did not intend and such an interpretation shall make a transaction through a deed of agreement for sale practically hazardous. Admittedly the deed of agreement was registered one and the subsequent payments were made in pursuance of the terms of the agreement and those were not a separate and new transaction. And the Appellate Division conclude that the money receipt or receipt showing payment or acknowledgment of further payment towards the full payment of the total consideration pursuant to a deed of agreement for sale is not compulsorily registrable. On perusal of the plaint as referred to by Mr. Abdul Haque the Appellate Division finds that in paragraph 7 thereof, it has been categorically stated that the plaintiff made the balance amount of consideration of the contract pursuant to the deed of agreement. Whether the plaintiff made the payment(s) or not as asserted in the plaint is a question of fact which can only be decided or thrashed out at the trial of the suit considering the evidence. Therefore, when the plaintiff asserted that he paid the balance amount of the consideration of the contract and that there was no outstanding on the date when the suit was filed, there was no requirement of depositing the balance amount of consideration of the contract to file a suit for specific performance of con-tract. In view of the above, the Appellate Division hold that the High Court Division committed apparent error in rejecting the plaint on misconception of the provision of section 17(1)(c) of the Registration Act and section 21A (b) of the Specific Relief Act and non consideration of the averment made in the plaint and as such, the impugned judgment and decree calls for interference by the Appellate Division. Panasonic Power Divi¬sion -Vs.- Chemico Bangladesh Limited and others (Civil) 15 ALR (AD)108-111

Adverse possession.

Mere possession, however long or continued may be, does not necessarily mean that it is adverse to the true owner. Adverse possession means a hostile possession which expressly or impliedly in denial to the title of the true owner.

In the instant case, the Appellate Division finds that defendant Nos. 1-5 have got no claim of valid title and their possession is not notorious and hostile to the true owner. Thus, the Appellate Division is not in a position to hold that defendant Nos. 1-5 acquired statutory title by way of adverse possession. Over and above, a monthly tenant cannot claim adverse possession for his rented premises for completing twelve years continuous possession and his possession cannot be treated as hostile and notorious. The Appellate Court being the last Court of fact arrived at a decision that defendant Nos. 1-5 were the monthly tenants under defendant Nos. 6-8. The learned Advocate appearing on behalf of the plaintiff-respondents argued that the last Court of fact has seen defendant Nos. 1-5 as tenants under defendant Nos. 6-8 and these findings of the Appellate Court had not been shaken in any way as it appears from the facts, the circumstances and the evidence on record and as such, there is no scope to interfere with such finding. The Appellate Division also hold the view that possession of a monthly Varatia (tenant) cannot be constituted as acquisition of adverse possession. Defendant Nos. 1-5 have neither filed any suit in respect of acquisition of adverse possession nor any suit for specific performance. It is settled proposition that time is the essence of contract. But after expiry of long time, defendant Nos. 1-5 made no attempt to obtain a decree for specific performance. Thus, defendant Nos. 1-5 are being in possession of the suit premises without having any title. The Appellate Court termed it as a monthly tenant as has been alleged by the appellant and the Appellate Division also hold the view that on the basis of such type of possession, there is no scope to acquire the statutory title like adverse possession. Having considered all those facts, the circumstances and the evidence on record, the Appellate Division finds that there is no substance in the argument ad¬vanced by the learned Advocate appearing on behalf of the defendant-appellants. In the light of the facts and circumstances discussed above, the Appellate Division does not find any illegality or infirmity in the impugned judgment, which in the Appellate Division view does not call for any interference. Accordingly, the appeal is dismissed. Mohammad Ab¬dul Ha¬que Chowdhury and others -Vs.-Mohammad Abed Ali Khan and others (Civil) 18 ALR (AD) 173-180

Discretionary power and ordinary powers.

It is settled principle of law that giving a decree for specific performance is a matter of discretion of the Court. In exercising its discretionary power, the Court will act with more freedom than when exercising its ordinary powers, and will grant or withhold relief according to the case presented.

The Appellate Division observed that in this case, there was no agreement for sale. In fact, the plaintiff came to the Court to enforce the terms and condi¬tions of an alleged unregistered deed of dissolution of partnership to dissolve their partnership deed which has not even been proved to be a genuine document. In view of such facts and circumstances, the plaintiff is not entitled to get any relief. Accor¬dingly, the Appellate Division does not find any substance in the appeal. Thus, the appeal is dis¬missed. Kazi Fazlus Sobhan being dead his heirs: Kazi Fazle Rabbi and others -Vs.- Government of Bangladesh and others (Civil) 16 ALR (AD) 46-48

In a suit for specific performance of contract the duty of the Court is to see whether or not there was an agreement for sale and if there was any breach of such agreement, then to order or reject specific performance of contract.

The Appellate Division observed that there is no allegation that the bainanama has been interpolated. There is no evidence in the deposition of defendant No. 1 that the quantum of land mentioned in the bainanama has been changed either by interpolation or insertion. There is also no denial that defendant No. 1 executed that the bainanama on 16.09.1999. On perusal of exhibit-1 the Appellate Division does not find any sign of interpolation or insertion with regard to the quantum of land. Defendant No. 1 did not deny execution of the bainanama dated 16.09.1999 or his signature therein. He, therefore, cannot now challenge the contents of the bainanama, which clearly does not bear any sign of interpolation or subsequent insertion. Moreover, defendant No. 1 did not take any steps to prove that the transfer of land to his wife by way of heba-bil-ewaz was effective and not a mere paper transaction. In the light of the above discussion the Appellate Division is of the view that the judgement of the trial Court was correct and that the impugned judgement and order of the High Court Division does not suffer from any illegality or impropriety. However, the order of cancellation of the registered heba-bil-ewaz deed No. 18423 dated 19.10.1998 as void, inoperative and not acted upon is beyond the pleadings. There was no prayer in the plaint for cancellation of the registered deed of heba-bil-ewaz. Accordingly the sentence “the registered Heba-bil-awaz deed being No. 18423, dated 19.10.98 is hereby cancelled, void and inoperative and not acted upon.” is expunged. Suffice it to say that in a suit for specific performance of contract the duty of the Court is to see whether or not there was an agreement for sale and if there was any breach of such agreement, then to order or reject specific performance of contract. In view of the above discus¬sion, the Appellate Division finds that the High Court Division was correct in upholding the judge¬ment and decree of the trial Court. Accordingly, the appeal is dismissed. Md. Nayeb Ali -Vs.- Md. Mahafu¬jur Rahman and others (Civil) 21 ALR (AD) 7-9

Specific Performance of contract

The plaintiff failed to pay the balance consideration within the stipulated time despite service of notice in that regard and that finding no other alternative, the defendant No. 5 sold the property with a view to repay the loan.

The parties intended the time mentioned in the agreement to be the essence of the contract.

The Appellate Division observed that the High Court Division on consideration of the materials on record held that the plaintiff did not perform his part of obligation and make payment of Tk. 25,00,000/- only, that the defendant No. 4 entered into the agreement to sell the property in order to repay the debt of Tk. 9,14,00,000/- and knowing full well about the debt, the plaintiff failed to pay the balance consideration within the stipulated time despite service of notice in that regard and that finding no other alternative, the defendant No. 5 sold the property with a view to repay the loan. On consideration of the materials on record The Appellate Division is satisfied that in this case the parties intended the time mentioned in the agreement to be the essence of the contract. Accordingly, the Appellate Division finds no substance in the contention of Mr. M. Amirul Islam. The High Court Division upon correct assessment of the materials on record arrived at a correct decision and dismissed the appeal on assigning proper reasons. The Appellate Division, therefore, finds no reason to interfere with the same. The petition is accordingly dismissed. Globe Druges Ltd. -Vs.- Arab Bangladesh Bank Ltd. and others (Civil) 22 ALR (AD) 193

Specific Performance of Contract.

In the suit for Specific Performance of Contract the plaintiff is to require to prove the existence of lawful contract and due execution of agreement and payment of consideration.

The High Court Division held that the plaintiff has also proved the contract and execution of agreement and payment of consideration by examining the independent and neutral witnesses. On perusal of the judgment of the courts below it appears to the High Court Division that the learned Judge of the courts below considered the evidence and other materials on record concurrently found that the plaintiff has been proved the genuineness of Bainapatra, consideration and due execution of agreement and therefore the High Court Division cannot interfere with the concurrent finding of facts in revisional jurisdiction. Abdul Aziz -Vs.- Md. Jalal Uddin. (Civil) 18 ALR (HCD) 197-199

The suit for specific performance of contract

Since the requirement of law is that demand for the execution of the sale deed must be accompanied by payment of the balance sale price. This act of fraud disqualifies the plaintiffs from getting the relief sought.

The Appellate Division held that specific performance of contract is an equitable relief. The fraudu¬lent action of the plaintiffs in issuing a cheque for the balance consideration, with the knowledge that the funds in the account were not sufficient to honour the cheque and with the admitted intention not to put in funds to cover the cheque amount until after execution of the sale deed, is admission of fraud since the requirement of law is that demand for the execution of the sale deed must be accompanied by payment of the balance sale price. This act of fraud disqualifies the plaintiffs from getting the relief sought. Most. Ambia Khatun and others -Vs.- Sree Shuklal Turaha and others (Civil) 20 ALR (AD) 5-10

Specific performance of contract

When the plaintiff asserted that he paid the balance amount of the consideration of the contract and that there was no outstanding on the date when the suit was filed, there was no requirement of depositing the balance amount of consideration of the contract to file a suit for specific performance of contract. Panasonic Power Division -Vs.- Chemico Bangladesh Limited and others (Civil) 15 ALR (AD)108-111

The Appellate Division observed that record reveals that the TCB opened L/C in favour of the respondent for importation of Masur Dal as specified in the contract entered between the parties on 19.09.2010. The duration of L/C was to expire on 05.12.2010 and sub¬sequently, at the request of the respondent, the duration was extended up to 13.12.2010 and lastly time was extended up to 20.01.2011. Admittedly, the respondent imported Masur Dal from Nepal under L/C and sup-plied 1000/- Metric Tons Red Lentils to the TCB in its first shipment. However, the respondent supplied Masur Dal which was not in accordance with the specification of the contract and could not supply half of the total quantity of the contracted goods within specified period. In the case in hand, the leave-petitioner did not terminate the contract. The leave-petitioner was adequately compensated for loses it had suffered by paying Tk. 78/- per K.G. Since the leave-petitioner has been compensated by paying a lesser price for 10% of Masur Dal, it is not entitled to forfeit the performance guarantee. Trading Corporation of Bangladesh -Vs-M/S Trio Hologram Industries Ltd. (Civil) 15 ALR (AD)111-114

Code of Civil Procedure [V of 1908]

Order VII, Rule 11 read with

Registration (Amendment) Act, 2004

Section 17A read with

Specific Relief Act [ I of 1877]

Section 21A

The suit was filed with two prayers. Firstly, for a direction upon defendant No. 1 to execute a deed in respect of the land described in the schedule, failing which a direction that the property is liable to be registered; and secondly, seeking a direction that the registered heba-bil-awaz No. 5168 dated 10.07.2006 is inoperative. The trial Court observed that the two claims of the plaintiff cannot be decided without taking evidence.

The Appellate Division finds that the trial Court has identified two claims made by the plaintiff in the plaint of the suit. Having gone through the order of the trial Court, the Appellate Division is of the view that the application under Order VII, Rule 11 of the Code was rightly rejected and no illegality has been committed by the High Court Division in upholding the order of the trial Court. In view of the above, the Appellate Division does not find any merit in the civil petition for leave to appeal, which is accordingly dismissed. Saifuddin Ahmed -Vs.- Dr. Hosne Ara Begum alias Golap and others (Civil) 23 ALR (AD) 24

Section 22 (I) —Specific Performance of Contract.

Party seeking the relief of specific performance must come with clean hands.

The High Court Division held that it is clearly evident that the courts below considered the evidence of d.w-1, but inadvertently it was not marked as exhibit, the appellate court discussed about legal notice and consider the same, which clearly proved that the plaintiffs are not ready and willing to pay the balance consideration money. In stating the facts that the plaintiff are ready and willing to perform their part of contract, it must be taken that they are ready and willing to pay Taka 26,000/- (Twenty six thousand) only on 20.06.1982 which was balance amount payable ac-cording to them under exhibit-2 and not that they are ready and willing to pay Taka 46,000/- (Forty six thousand) which are due and payable by the plaintiffs as per findings of the courts below. Unless the readiness and willingness of the plaintiffs was to pay the entire balance consideration money Taka 46,000/- (Forty six thousand) they are not entitled to get a decree for Specific Performance. Thus irrespective of any other facts, the averments in the plaint and tender of balance consideration money on 20.06.1982, it is sufficient to hold that they are not ready and willing to perform their part of the obligation under exhibit-1. That apart, the plaintiffs who seeks equita-ble remedy of specific performance must come with clean hands. Pulin Gain and others. -Vs.- Moham-mad Hanif Howlader and others. (Civil) 10 ALR (HCD) 118-122

Section 22(11), 23(b), 28(b)

Enforcement of a contract or refusal to enforce it lies in the Court's discretion. and how this discretion will be exercised has been specifically indicated in section 22(11) itself. It provides that the discretion of the Court is not arbitrary, but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal. Quazi Din Mohammad vs Al-haj Arzan Ali (Shahabuddin Ahmed C J(Civil) 2ADC 313

Section 22

The pleas of hardship- taken in time and well proved- refused enforcement of the contracts and allowed instead compensation to the Plaintiffs–– It is true that the Court of law has to follow the provisions of law and interpretation but at the same time it should be responsive to the relief sought for and in the case in hand which is equitable in nature. This Court in numerous occasions exercised its jurisdiction in granting equitable relief depending on case to case basis. Although the facts and circumstances of the case reported in 39 DLR AD 242 as referred to above is not applicable in the present case in hand but the principle as laid down by their lordships can be followed in an appropriate case as and when required. ––The leave petition is disposed of. The Judgement and order dated 29.11.2017 passed by the High Court Division is set aside. The suit is dismissed. However, the defendant is directed to pay solatium of taka 60,00,000/- (sixty lac) to the plaintiff including consideration money already paid by the plaintiff within 6(six) months from date, in default, the suit shall stand decreed and the judgment and decree of the trial court shall be restored. .....Md. Alamgir Hossain =VS= Md. Samsul Haque, (Civil), 2023(2) [15 LM (AD) 241]

Section 22 (II)

Specific performance of contract–– Court allowed the defendant's appeal, refused specific performance of the contract and allowed compensation–– Admittedly, the property in question is the only property of the vendor defendant. The father who is no more in the world entered into an agreement to sell the property to the plaintiffs for want of money. The deed of agreement for sale clearly shows that the sale was caused to settle the loan and to use the remaining money for well being of the children and some other issues but the same was not materialized. On the other hand, the plaintiffs who are bonafide proposed purchasers awaited years long to get the benefit of their agreement.

The Judgment and decrees passed by the Courts below are hereby set-aside. The suit is dismissed. The defendant-petitioners are directed to pay solatium of Taka 50,00,000 (fifty lac) to the plaintiff-respondent along with the amount treated by him of a sum of Taka 4,52,849.54 (four lac fifty two thousand eight hundred forty nine and fifty four paisa) within 6(six) months from date in default both these petitions shall be treated as dismissed. After payment being made in the manner as stated through a pay order to the respondent No. 1, the possession of the flat which was earlier handed over to the plaintiff-respondent should be returned to the defendants. .....Jahangir Ahmed (Md) =VS= Sayyid Obaidullah, (Civil), 2023(2) [15 LM (AD) 402]

Specific Relief Act, 1877

Section 22 r/w 53-A

Specific performance of contract–– An agreement for loan can not be any away termed as agreement to sell–– It appears that the plaintiff has admitted that the defendant appellant had taken loan of a sum of tk. 1,00,000/-from his brother, the plaintiff. It has been stated that the defendant No. 1 mortgaged the scheduled property against that loan amount. It was further stated that in case of failure of payment of loan, the defendant No. 1 would execute sale deed in favour of the plaintiff An agreement for loan can not be any away termed as agreement to sell since the defendant No. I had no intention to sell his property. It further appears that there is no statement in the said agreement regarding the fixation of consideration of the scheduled property and payment of the earnest money. It cannot be taken to be an agreement to sell within the meaning of section 53-A spelling out the terms of an agreement for sale. In order to pass a decree in a suit for specific performance of contract following matters should be looked into: (i) the express terms of the agreement; (ii) nature of the property; (iii) surrounding circumstances; (iv) intention of the parties and (v) reciprocal promise of executing sale deed. There is no averment in the pleading as to the offer and acceptance or refusal to accept the consideration which are the criteria to get a decree for specific performance of contract, the High Court Division most illegally treated the alleged agreement as an agreement for sale and, thereby, erroneously set aside the judgment and decree of the courts of facts below. This was not a fit case in which specific performance of contract should be enforced by the Court. .....Md. Ali Akram Hossain (Bachchu) =VS= Md. Mostafizur Rahman, (Civil), 2023(2) [15 LM (AD) 461]

Section 22

Specific performance of contract–– A contract cannot be enforced against a bonafide transferee for value who has paid his money in good faith and without notice of the original contract–– In the case of Jagan Nath Vs. Jagdish Rai and others [AIR 1998 SC 2028] it was held that plaintiff would not be entitled to relief of specific performance against subsequent purchaser when there was evidence on record establishing that the subsequent purchaser was bonafide purchaser for value without notice of earlier agreement with plaintiff. It is also well settled proposition of law that a person cannot transfer more than he has.

It appears from the judgment and decree of the last Court of facts that it upon appreciation of the evidence on record, came to the conclusion that the contesting defendants had no knowledge about the alleged agreement for sale of the plaintiff. In Second Appeal, the High Court Division disbelieved the ‘bainanama’ and held that the contesting defendants are the bonafide purchaser without knowledge of alleged ‘bainanama’. Since the last Court of facts and the High Court Division upon proper appreciation of the evidence on record held that the contesting defendants are bonafide purchasers without notice of alleged agreement for sale, Appellate Division is of the view that the suit has been dismissed rightly. .....Habiba Banu =VS= Aftabullah, (Civil), 2023(2) [15 LM (AD) 478]

Section 22

Specific performance of contract–– The genuineness of the “bainanama” is highly doubtful–– It is the duty of the plaintiff to prove that he has been and is still ready and willing to specifically perform his part of the agreement–– The plaintiffs also failed to prove their readiness and willingness of payment of rest consideration which are essential requirements to get the decree for specific performance of contract. In a suit for specific performance it is incumbent on the plaintiff not only to set out the agreement on the basis of which he sues in all its details, he must go further and plead that he asked the defendant No.1 specifically to perform the agreement pleaded by him but the defendant did not do so. It is the duty of the plaintiff to prove that he has been and is still ready and willing to specifically perform his part of the agreement. It was the legal obligation to the plaintiff that he was, since the date of the agreement for sale, continuously ready and willing to perform his part of the agreement. If he fails to do so, his claim for specific performance must fail (Ardeshir Mama V. Flora Sassoon, 1928 SCC online PC 43). P.W.1 (plaintiff) in his evidence did not say that he offered at any time to the defendant No.1 the alleged rest amount of consideration. ––Accordingly, the appeal is allowed. The judgment and decree dated 02-11-2010 passed by the High Court Division in First Appeal No.519 of 1999 is hereby set aside. .....Laxmi Narayan Chowdhury =VS= Md. Harun Fakir, (Civil), 2023(2) [15 LM (AD) 604]

Section 22

Specific performance of contract– A decree for specific performance of contract is discretionary. Even if the plaintiff is able to prove the execution of the agreement and payment of advance money towards the consideration, the court is not bound to pass a decree. Court is required to look into other factors, such as, the bonafide of the plaintiff and his eagerness in performing his part of obligation; the hardship of the defendants, if a third party purchases the property in the mean time without notice to the previous contract. If any of the said conditions is found against the plaintiff, he will not get any decree for specific performance. .....Rajdhani Unnayan Katripakka (RAJUK) =VS= Khan Mohammad Ameer, (Civil), 2022(2) [13 LM (AD) 233]

Section 22

In the absence of corroboration by independent witnesses, the assertion is not proved and hence the suit is barred by limitation– Specific performance of contract– With regard to the claim of PW 1 that defendant No.1 last refused to accept the balance of the consideration money on 14-9-1998. several independent witnesses including SM Nazrul, Manik Mia, Advocate Motiur Rahman, Yousuf Mia, Harunur Rashid. Shahjahan Mia-Chairman were present. Of these named persons Shahjahan Mia deposed as PW 3 and Yousuf Mia deposed as PW 5, but neither of them supported the claim of PW 1 that on 14-9-1998 defendant No.1 refused to execute the deed. This date was merely stated by the plaintiffs to avoid the bar of limitation. In the absence of corroboration by independent witnesses, the assertion is not proved and hence the suit is barred by limitation.

The High Court Division also elaborately discussed the circumstances surrounding Title Suit No.84 of 1992 and came to the conclusion that the deed of gift in favour of defendant No.l. being a registered document established the title of the defendant, particularly, since the plaintiffs of the present suit were the successors of the plaintiff of Title Suit No.84 of 1992 but did not take any further step in that suit and allowed it to be dismissed for default. Appellate Division does not find any illegality or impropriety in the impugned judgment of the High Court Division, which in their opinion does not call for any interference. .....Akteruzzaman Zakir =VS= Md Enamul Kabir Khokan @Bazlur Rahman, (Civil), 2022(1) [12 LM (AD) 253]

Section 22 - Specific performance of contract, the plaintiff did not approach the court with clean hand and tried to delay in disposal of the suit designed to frustrate the very purpose of the contract for sale.

Though the contract was found lawful yet the plaintiff was not at all ready and willing to pay the balance amount of Taka 44 (forty four) lacs within a reasonable time rather he adopted various techniques to delay the payment of the balance consideration. Therefore, he did not approach the court with clean hand rather attempted to cause unnecessary harassment to the defendant No.1 particularly in view of the delay in disposal of the suit designed to frustrate the very purpose of the contract for sale. In other words the purpose for which the sale was entered into was negatived by such intentional delay in payment of the balance amount of consideration by the plaintiff and a contract which was entered into on 01.03.1989 and its performance in the year 2007 ( when the balance was paid by the plaintiff before the court on 12.03.07) is no doubt highly unjustified. Abul Mohsin Chowdhury -Vs.- Syed Abul Kalam Azad 3 ALR(2014)(1) 272

Code of Civil Procedure [V of 1908]

Order 7 rule 11 read with

Registration Act [XVI of 1908]

Section 17(A)

Section 17(A) and 17(B) of the Registration Act only apply to the registration of the Bainapatra deed, the plaintiffs have not claimed to have registered deed of sale on the basis of said Bainanama and therefore it does not apply to the instant suit and there is no ground to reject the plaint of the plaintiffs.

The High Court Division held that the provisions of Order 7 rule 11 of the Code of Civil Procedure and section 17(A) and 17(B) do not apply to the suit of the plaintiffs as the plaintiffs did not file the instant suit for specific performance of contract, the plaintiffs contention was that they had been in possession of the suit land since 27.10.2002 and they have mentioned the matter of Bainanama in the plaint to establish their date of getting possession of the suit land. Section 17(A) and 17(B) of the Registration Act shall only apply to the registration of the Bainapatra deed, the plaintiffs have not claimed to have registered deed of sale on the basis of said Bainanama and therefore it does not apply to the instant suit and there is no ground to reject the plaint of the plaintiffs. Considering the facts and circumstances of the case the High Court Division finds no substance in the Rule. In the result, the Rule is dis¬charged. Kari Moulavi Ab¬dul Gafur and another -Vs.- Mohammad Nurullah alias Badsha (Civil) 17 ALR (HCD) 4-07

Code of Civil Procedure[V of 1908]

Order VII, Rule 11

Registration Act [XVI of 1908]

Section 17A and 17B

The provisions of Order VII, rule 11 of the Code of Civil Procedure read with section 151 and sections 17A and 17B do not apply to the suit for the permanent injunction of the plaintiffs. The plaintiffs did not file the suit for specific performance of contract on the basis of the Bainanama. Section 17A and 17B of the Registration Act shall apply only to the registration of the Bainanama deed, but the plaintiffs have not claimed to have registered deed of sale on the basis of said Bainanama. Therefore, it does not apply to the instant suit; there is no ground to reject the plaint of the plaintiffs.

The Appellate Division is of the view that the High Court Divisions observation that the plaint of the suit for permanent injunction could not be rejected under Order VII, Rule 11 of the Code is a correct proposition of law in the facts of the case, but the ordering part of the judgement is somewhat incongruous. In such view of the matter, the Appellate Division is inclined to set aside the judgement and order of the High Court Division as well as the judgement and decree passed in Civil Revision. The order of the trial Court in restored. Kari Moulavi Abdul Gafur and another. -Vs.- Mohammad Nurullah @ Badsha. (Civil) 17 ALR (AD) 90-92

Code of Civil Procedure [V of 1908]

Order XLI, rule 31

Any case of specific performance of contract is that the plaintiff must show that he offered the balance of the consideration money and that in spite of such offer, the defendant refused to execute and register the sale deed. The cause of action is founded on the refusal of the vendor to execute and register the sale deed upon accepting the balance consideration money.

The Appellate Divisionfinds for the evidence and materials that, even assuming that Tk. 5,000/- was paid to the defendant, though it was not proved, ad¬mittedly the plaintiffs did not offer cash payment of the remaining Tk. 15,000/-. In fact plaintiff No. 1 issued a cheque and did not put sufficient money into his account for the defendant to get the sum of money mentioned on the cheque. There was a patent intention to defraud the defendant. The plaintiffs were, therefore, not with clean hands. Moreover, the plaintiffs did not state in his evidence that even after the cheque was dishonoured he outwardly or posi¬tively and openly offered the balance amount in cash. Saying, “give the cheque back and I shall pay the money in cash” is not the same as saying, “here is the money, now execute the sale deed”. In The Appellate Division’sview, the plaintiffs did not offer the balance consideration money to the defendant. The Appellate Division’s view is further supported by the statement of plaintiff No. 1 in his revisional application that the cheque was issued by him in connection with payment of rent. This statement alone belies the story of the agreement for sale and offer of balance money. Most. Ambia Khatun and others -Vs.- Sree Shuklal Turaha and others (Civil) 20 ALR (AD) 5-10

Court Fees Act[VII of 1870]

Evidence Act [I of 1872]

Sections 65 and 66—In a suit for specific performance of contract the only issue to be resolved is whether the defendant No. 1 executed the alleged bainapatra-the exhibit-1 or in other words whether the signature appearing in the bainapatra-the exhibit-1 is of the defendant No. 1. For proving execution of any document the vital witnesses are the attesting witnesses-who witnessed the execution of the document by the executant and the scribe of the document.

The Appellate Division held that in this suit the plaintiff could not examine the scribe of the disputed bainapatra the exhibit-1. The plaintiff could examine only one of the attesting witnesses of this disputed bainapatra. The plaintiff though examined another witness also-the P.W.3 who also deposed to the effect that the defendant No. 1 executed this bainapatra in his presence, but there is no satisfactory explanation from the side of the plaintiff as to why he examined this P.W.3 instead of the other attesting witnesses of this bainapatra. It appears that the trial court took recourse of section 73 of the Evidence Act to be sure as to whether this bainapatra was executed by the defendant No. 1. The trial court examined and compared the disputed signature of the defendant No. 1 appearing in the alleged bainapatra with some alleged signatures of the defendant No. 1 appearing in exhibit-5 series. These exhibit-5 series are photocopies of some applications filed to the Titas Gas Company and House Building Finance Corporation Office. These are secondary evidence which require some procedures to be admitted in evidence. It appears that without following these procedures as prescribed in sections 65 and 66 of the Evidence Act the trial court took these photocopies into evidence and marked these as exhibit inspite of the fact that the defendant No. 1 did not admit these signatures to be his own. The defendant No. 1, while deposing before court, clearly stated that the signatures appearing in the exhibit-5 series are not his signatures. In course of cross-examination the defendant No. 1 stated thus: “Whether one tenant at that time took my signature to get gas connection-I could not remember”. It appears that the High Court Division, putting importance on this very statement of D.W.1 made observation to the effect that the defendant No. 1 ultimately found it difficult to renounce these signatures. But the Appellate Division is unable to accept these observations of the High Court Division. The above statement of the defendant No. 1 does not prove at all that he has admitted that the exhibit-5 series were submitted by him and the signatures appearing in these applications are his signatures. So, in these circumstances the Appellate Division approves the findings of the appellate court below that the learned trial judge has committed serious error in comparing the disputed signature of the defendant No. 1 in the alleged bainapatra with the signatures appearing in exhibit-5 series-which were not taken into evidence in accordance with law and which are also not at all admitted by the defendant No. 1. Md. Shawkat Hossain and another -Vs.- Golam Mohammad and another (Civil) 16 ALR (AD) 192-197

Specific Relief Act [I of 1877]

Section 27—

The plaintiff’s kabalas will get preference over the alleged prior oral contract. Thus, the Appellate Division finds that the kabalas are not at all paper transactions. Not only that the plaintiffs, in the meantime, got their suit land mutated in their names and they have been paying rents in respect of this property. The Appellate Court being the last Court of fact also holds the view that the plaintiffs have acquired valid right, title and interest in the suit property by dint of those kabalas. The Appellate Division also finds that there is no misreading and non-appreciation of evidence in arriving at such a decision and as such, those findings are liable to be maintained.

The Appellate Division opined that the learned Judge of the Appellate Court being the last Court of fact opined in the judgment that according to him, defendant Nos. 1-5 were the tenants under defendant Nos. 6-8 being lawful owner and possessor of the suit property rightly transferred the same to the plaintiffs (respondent) and by purchase deed (Ext.3Ka-3Dha)), they have acquired valid right, title and interest in the suit property. In respect of kabala, Ext:3Ka-3Dha of the plaintiffs, DW1, Abdul Haque Chowdhury in his deposition stated that those are simply paper transactions and defendant Nos. 6-8 had no saleable interest in the suit land since they have entered into an oral contract with defendant Nos. 1-5 before those kabalas. But the Appellate Division finds that defendant Nos. 1-5 miserably failed to show the existence of their oral contract and as such, defendant Nos. 6-8 had authority to transfer their property in favour of the plaintiffs who have acquired valid title through such kabala, Ext: 3Ka-3Dha. It is admitted by defendant Nos. 6-8 that at the time of sale of the suit property, they informed the plaintiffs that defendant Nos. 1-5 are their monthly tenants who were asked to attorn the plaintiffs as their landlord. Thus, defendant Nos. 6-8 denied the fact of oral contract alleged to have been entered into between defendant Nos. 6-8 and defendant Nos. 1-5. Thus, it stands that the plaintiffs are the bonafide purchaser for value without notice of the previous contract for sale. So as per provision of section 27 of the Specific Relief Act, the plaintiff’s kabalas will get preference over the alleged prior oral contract. Thus, the Appellate Division finds that the kabalas (Ext:3Ka-3Dha) are not at all paper transactions. Not only that the plaintiffs, in the meantime, got their suit land mutated in their names and they have been paying rents in respect of this property. The Appellate Court being the last Court of fact also holds the view that the plaintiffs have acquired valid right, title and interest in the suit property by dint of those kabalas. The Appellate Division also finds that there is no misreading and non-appreciation of evidence in arriving at such a decision and as such, those findings are liable to be maintained. Mohammad Abdul Haque Chowdhury and others -Vs.-Mohammad Abed Ali Khan and others (Civil) 18 ALR (AD) 173-180

Section 27

The maxim of law has settled many more years ago holding that specific performance of the contract can be enforced against either party or against any other party who claims title under the original party– The High Court Division passed the impugned judgment and order against the settled principles of law without appreciating the case of the plaintiff that alternative prayer was withdrawn by the plaintiff amending the plaint on 19.06.1984 vide, order No.9l which was not challenged by the contesting defendants in the Higher Court and, as such, the impugned judgment and order of the High Court Division cannot be sustained in law. .....Ahsanullah @Ahlullah(Md.) =VS= Mohammad Ali @Kuti Miah, (Civil), 2022(1) [12 LM (AD) 30]

Section 27 —Discretionary power of the court cannot be exercised arbitrarily and must be exercised judiciously.

The High Court Division held that con-duct of the defendants has played a signifi-cant role to disbelieve their case and be-lieve the case of the plaintiff, which has been ignored by the court of appeal below. Apart from this, the learned Additional District Judge, Chandpur at the time of de-ciding the merit of the appeal failed to ap-preciate the actual proposition of law and being guided by surmise and conjecture without adverting and analyzing the evi-dence on records in its true perspective ar-rived at an erroneous decision as to the fate of the appeals and thereby committed an error of law. Furthermore, non-considera-tion of material facts and evidence on records by the learned appellate court has resulted an error in the decision occasion-ing failure of justice, for which the im-pugned judgment and decree is not sustain-able in law as well as in facts. Md. Abul Kalam Azad -Vs- Md. Majibur Rahman and others (Civil) 12 ALR (HCD) 375-383

Code of Civil Procedure [V of 1908]

Order IX Rule 13

A defendant against whom an ex parte decree has been passed can either file an appeal against the decree, or file an application for review or pray for restoration of the suit under Order IX Rule 13. These remedies are all concurrent and independent. An application under Order IX Rule 13 of the Code of Civil Procedure can be heard notwithstanding the pendency of the appeal arising out of the same decree. It makes no difference that the application is made by one defendant and the appeal has been filed by another defendant.

President Order No. 142 of 1972 in unequivocal terms stated in Article 6 that no person shall, without joining the Government which shall be a necessary party, file or proceed with any suit for specific performance of contract relating to transfer of immoveable property or for declaration of title to, or assertion of ownership of any such property.

The Appellate Division observed that where the ex parte decree has been confirmed or otherwise disposed of on appeal, the Court passing the decree ceases to have jurisdiction to hear the application for restoration even though the application was filed before the appeal was filed as its decree merged in the appellate decree. The same principle will hold good even if the appeal has been preferred by a party other than the defendant against whom the decree was passed ex parte.(emphasis supplied) In this connection reliance may be placed on the case of Md. Wasiq Khan Vs. Md. Sakib Khan and others (1979) 31 DLR (AD) 57, it has been held in paragraph-18 as under: 18. On a review of the decisions and the discussion on the question set out, the following propositions seem to be well settled: Where a defendant against whom an exparte decree is passed applies under Order 9, rule 13 of the Code of Civil Procedure to set it aside and at the same time prefers an appeal from it, the Calcutta High Court has held that notwithstanding the pendency of appeal the original court may proceed with the application. Da¬modar vs. Sarat Chandra 13 CWN 846 and Kumud Nath vs. Jathindra Nath, 38 Calcutta 394. The Allaha¬bad High Court has also taken the same view. Mathura vs. Ram Charan, 37 Allahabad, 208; Gaja¬raj vs. Swaminath, 39 Allahabad, 13: Humani vs. Azizuddin, 39 Allahabad, 143. The extreme position taken by Madras High Court in Sankar vs. Subdrajan, 30 Madras, 535 has not been followed by other High Courts. Where the exparte decree has been confirmed or otherwise disposed of on appeal the court which passed the exparte decree has no longer any power to entertain an application to set it aside, even though the application was made before the appeal was filed. Mathura vs. Ram Charan.37 Alla¬habad, 208. The same principle will hold good even if the appeal has been preferred by a party other than the defendant against whom the decree was passed exparte provided the decree was one and indivisible. Dhonai Sikder vs. Tarak Nath, 12 CLJ 53. But it will not affect the case of the defendant against whom exparte decree was passed and whose claim was not subject matter of appeal although he might be made party as respondent in the appeal. Abdul Jalil Bhuiyan vs. Majibar.12 DLR 581. The remedy under Order IX Rule 13 of the Code of Civil Procedure is not available if the appeal is disposed of prior thereto. But before disposal of the appeal trial Court which passed the ex-parte decree against defendant Nos. 2 to 5 is competent to hear and dispose of an application filed under Order IX Rule 13 of the Code of Civil Procedure. President Order No. 142 of 1972 in unequivocal terms stated in Article 6 that no per¬son shall, without joining the Government which shall be a necessary party, file or proceed with any suit for specific performance of contract relating to transfer of immoveable property or for declaration of title to, or assertion of ownership of any such prop¬erty. In the case in hand, defendant No. 1, Govern¬ment of Bangladesh, represented by the Deputy Commissioner, Gazipur was impleaded in the suit as proforma-defendant No. 2 in violation of President’s Order No. 142 of 1972. In the light of the findings made before, the Appellate Division does not find any substance in this appeal. Accordingly, this civil appeal is dismissed without any order as to costs. Jamuna Builders Ltd. -Vs.-Bangladesh and others. (Civil) 21 ALR (AD) 01-06

Code of Civil Procedure [V of 1908]

Order 26 Rule 9 read with

Evidence Act [I of 1872]

Section 45 and 73—The hand writing expert

In a suit for Specific Performance of Contract where the existence of the bainanama itself is under challenge therefore any finding at this stage on the veracity of the report of the hand writing expert shall have a direct bearing during the trial of the suit and which is not at all desirable for appropriate and lawful dispensation of justice.

The High Court Division is of the considered opinion that it is true that in a suit for Specific Performance of Contract where the genunity or Veracity of the bainanama is under challenge the issue obviously extends to the question of the existence of the contract itself, hence arriving upon a finding or decision as to the genunity of the signature prior to commencement of trial would tantamount to concluding the suit itself. In its order dated 25.10.2016 learned Court below correctly observed that in the event of arriving at a finding on the genunity of the report of the handwriting expert in that event there shall not remain any scope to ex¬amine witnesses and depositions made by them and shall give rise to further legal complications in con¬ducting the proceedings. The High Court Division is also of the considered view that in a suit for Specific Performance of Contract where the existence of the bainanama itself is under challenge therefore any find¬ing at this stage on the veracity of the report of the hand writing expert shall have a direct bearing during the trial of the suit and which is not at all desirable for appropriate and lawful dispensation of justice. Motaher Ali -Vs.-Yakubia Shamol Prokolpa Private Limited and others (Civil) 16 ALR (HCD)381-384

Code of Civil Procedure [V of 1908]

Section 115(1) read with

Specific Relief Act[I of 1877]

Section 31—

In the absence of any gross misreading or non-reading or non-consideration of any material piece of evidence by the last Court of facts, the impugned judgment does not call for any interference from this Revisional Court.

The High Court Division held that the scope of a Civil Revision as postulated by Section 115 of the Code of Civil Procedure is very limited. The High Court Division does not find any gross misreading or non-reading or non-consideration of any material piece of evidence affecting the merit of the case. So the concurrent findings of the trial Court as well as the Appellate Court below are binding upon the Revisional Court. In a word, there does not appear to be any perverse finding recorded by the Appellate Court below in the judgment under challenge. In this context, it has been held in the decisions in the cases of Iqbal Hossain Talukder (Md)…Vs…Md. Joinal Abedin Talukder and 76 others, 55 DLR (HCD) 604 and Mohor Ali Bhuiyan….Vs... Michir Ali Bhuiyan and others, 15 MLR (AD) 500 that as there is no perverse finding in the judgments of both the Courts below, the concurrent findings of the trial Court and the Appellate Court below are binding upon the High Court Division being the Revisional Court. Precisely speaking, in the absence of any gross misreading or non-reading or non-consideration of any material piece of evidence by the last Court of facts, the impugned judgment does not call for any interference from this Revisional Court. Accordingly, the Rule is discharged. Md. Gias Uddin and others -Vs.- Md. Azizul Haque Bhuiyan and others (Civil) 18 ALR (HCD) 137-141

In such situation a declaratory suit instead of a suit for rectification of document will be admişsible even much after a suit for rectification is barred by limitation. [Shahabuddin Vs. Saijuddin. 36 DLR 337]

দেওয়ানী কার্যবিধি, ১৯০৮

ধারা ১১৫(১)

দলিল সংশোধনের মোকদ্দমা

হাইকোর্ট বিভাগ বলেন যে, মূল মোকদ্দমাটি দলিল সংশোধনের।মূল মোকদ্দমায় মূল বিবাদীরা কোন প্রতিদ্বন্দ্বিতা করেন নি। পক্ষভুক্ত ১১ নং প্রতিপক্ষ ২১৬৫ নং দাগের ভূমিতে স্বত্ব ও দখল দাবী করলেও তার সমর্থনে কোন মৌখিক ও দালিলিখ সাক্ষ্য উপস্থাপন করতে পারেননি। বিচারিক আদালত এর রায়ে উক্ত দলিল সংশোধনের সম্পর্কে যে যুক্তি প্রদান করেছেন তাতে হস্তক্ষেপের কোন দৃশ্যমান কারণ পরিলক্ষিত হয় না। বিচারিক আদালত স্পষ্টভাবে উল্লেখ করেন যে, তাদের বাটোয়ারা দলিলের পক্ষগণের পারস্পরিক ভুল তথা mutual mistakes খতিয়ানের অন্দরে ২১৬৫ নং দাগ হওয়ার সমর্থনে বিচারিক এবং আপীল আদালতে সঠিকভাবে গ্রহণযোগ্য যুক্তি উপস্থাপন করেছেন। আপীল আদালত বিস্তারিতভাবে ব্যাখ্যাকরতঃ উল্লেখ করেন যে, বণ্টননামা দলিলে ২১৬৫ দাগের পরিবর্তে ২০৬৫ নং দাগটি ভুলে অর্ন্তভুক্ত করা হয়েছে। কিন্তু খতিয়ান এবং জমির পরিমান সঠিক আছে।প্রকৃতপক্ষে, দাগ নং ২০৬৫ স্থলে ২১৬৫ হবে। এটি একটি গাণিতিক ভুল, যা সংশোধনযোগ্য।হাইকোর্ট বিভাগ মনে করেন যে, উভয় আদালতের concurrent findings অত্যন্ত যুক্তিযুক্ত এবং আইনের কষ্টি পাথরে যাচাই করলে এতে হস্তক্ষেপের কোন কারণ পরিদৃশ্য হয় না। ফলে রুলটি ব্যর্থ। অতএব, আদেশ হয় যে, বর্ণিত রুলটি বিনা খরচায় discharge করা হলো। Md. Abdul Rakib Shikder –Vs.- Rokeya Khatun (Civil) 27 ALR (HCD) 286

Mutual mistake as to description calls for rectification by filing a suit within prescribed period of limitation. [Sahabuddin Vs. Saijuddin 36 DLR 337]

When the terms of a contract are embodied in a document no secondary evidence admissible except under special circumstances.[Shahabuddin Vs. Saijuddin 36 DLR 337]

Rectification of the deed-Precise intention of the parties-Court of equity will reform the written statement conformable to precise intention of the parties if the real intention is misrepresented by mutual mistake or fraud. [Lalbanu Bibi Vs. Nourjan Banu 41 DLR 5191]

Four conditions for the rectification of the deed to be satisfied as contemplated in section 31 of the Act. [Lal Banu Bibi Vs. Nourjan Banu 41 DLR 5191]

Wrong framing of suit is no bar to the applicability of section 31 of the Act-Aggrieved party may seek relief under the provision of relevant law because of the defeat of intention of parties caused by wrong framing of suit.

Further, framing of suit does not stand as a bar of the applicability of the provision of section 31 of the Act. Here plaintiff opposite party ignoring the provision of section 31 of the Specific Relief Act, i.e. rectification of the impugned deed, prayed for cancellation of the deed under consideration giving up earlier agreement reached with defendant petitioner No. 1. Since intention of the parties was defeated because of wrong framing of the suit, the aggrieved party is entitled to seek relief under the relevant provision of law. Therefore, the aforesaid decision is of no assistance to him. [Lal Banu Bibi Vs. Nourjan Banu 41 DLR 519]

A failure to rectify a sale deed does not extinguish the title to the property which was really sold but not properly described in the sale deed due to mistake. [Binode Bihari Ghose Vs. Assistant Custodian, Vested and Non-Resident Property and others 50 DLR 134]

As the whole document is not denied or challenged where cancellation of the document is not necessary, mere rectification is sufficient and section 42 still can come to rescue the plaintiff to get the proper relief. [Joynal Abedin Vs. Maksuda Khatun and others 3 BLC 161]

In such situation a declaratory suit instead of a suit for rectification of document will be admissible even much after a suit for rectification is barred by limitation. [Shahabuddin Vs. Saijuddin. 36 DLR 337]

Mutual mistake as to description calls for rectification by filing a suit within prescribed period of limitation. [Sahabuddin Vs. Saijuddin 36 DLR 337]

When the terms of a contract are embodied in a document no secondary evidence admissible except under special circumstances. [Shahabuddin Vs. Saijuddin 36 DLR 337]

Four conditions for the rectification of the deed to be satisfied as contemplated in section 31 of the Act. [Lal Banu Bibi Vs. Nourjan Banu 41 DLR 5191]

Section 39, 42

Lease agreement was properly drafted incorporating therein the terms of the agreement agreed upon by both the par- ties; that several officials of the Deputy Commissioner perused the lease agreement before execution and accordingly it was legally registered and that the defendant respondent committed neither any wrong nor any fraud as alleged but the Deputy Commissioner most illegally cancelled the valid lease and the suit was filed malafide and prayed for dismissal of the suit. Bangladesh vs Mega Fisheries Ltd, Dhaka (Amirul Kabir Chowdhury J)(Civil) 3ADC 300

Code of Civil Procedure [V of 1908]

Section 115(1) read with

Specific Relief Act [I of 1877]

Sections 39 and 42 read with

Mahomedan Law

Section 168—When the plaintiff himself is a party to a kabala a purely declaratory suit is not maintainable. The plaintiff must seek further consequential relief by way of cancellation of the deeds. Absence of a prayer for consequential relief of cancellation of the deed on payment of advalorem court fee the suit is not maintainable.

The High Court Division held that the instant suit is declaratory suit. The plaintiffs instituted the instant suit for a declaration that Heba-bil-Ewaz deed is illegal, unlawful, ineffective and void. The plaintiffs are the party of the aforesaid deed. This is by now an established law that when the plaintiff himself is a party to a kabala a purely declaratory suit is not maintainable. The plaintiff must seek further consequential relief by way of cancellation of the deeds. Absence of a prayer for consequential relief of cancellation of the deed on payment of advalorem court fee the instant suit is not maintainable. Moreso, the plaintiffs did not discharge the primary onus to prove that the impugned deed was not executed by them. Considering the facts and circumstances of the case the High Court Division finds substance in this Rule. In the result, the Rule is made absolute. Md. Tota Miah and others -Vs.- Md. Wali Miah and others (Civil) 16 ALR (HCD)159-161

Section 39 of the Specific Relief Act

Article 91 —Unless and until a void or voidable contract is sought to be cancelled by any relevant party within the statutory stipulated period of 3 years the contract (deed) remains to be valid.

The High Court Division held that the learned trial Court came to a lawful conclusion by finding that the suit property was transferred in favour of the present plaintiff-petitioner by a sale deed and the vendor of the said sale deed obtained their entitlement through a voidable contract and nobody challenged the said deed, as such the learned Trial Court committed no error of law by decreeing the suit. On the other hand, the learned appellate Court below came to a wrongful conclusion by misreading and non-considering the evidence adduced in the Court and also misconstruing the provisions of law regarding section 39 of the Specific Relief Act and Article 91 of the Limitation Act. Mst. Nurun Nahar -Vs.- Mst. Nasim Begum and others. (Civil) 12 ALR (HCD) 239-243

The Land Appeal Board can not deal with any land-related cases, apart from revenue matters.

The High Court Division helds that since no revenue dispute was brought before the Chairman of the Land Appeal Board as per Rule 3(1)(ka) of i¨¢j Bf£m ®h¡XÑ ¢h¢dj¡m¡, 1990, the Chairman should have dismissed the Appeal Case No. 4-78 of 2001 (Rangamati) in limine. But instead of so doing, he interfered with the case arising out of the specific performance of contract and misdi¬rected himself and committed a gross illegality in disposing of the Appeal Case No. 4-78 of 2001 (Rangamati) by the impugned judgment and order dated 16.08.2005. Precisely speaking, the impugned judgment and order dated 16.08.2005 passed by the Chairman of the Land Appeal Board in Appeal Case No. 4-78 of 2001 (Rangamati) is without jurisdiction and void abinitio. Mohammad Aminur Rasul Khan -Vs.- The Chairman, Land Appeal Board, Se-gunbagicha, Dhaka and others (Spl. Original) 7 ALR (HCD) 220-223

In order to remove the impediment in the way of the plaintiffs to get complete relief along with the declaration the plaintiffs needed to make 4 prayer for cancellation of the document on payment of ad advalurem Court fee. The High Court Division fell into an error of law in setting aside the order of remand made by the appellate Court and restoring the decree of the trial Court without giving any chance to the appellate Court to give its decision on the merit of the case. [Chitta Ranjan Chakraborty Vs. Md Abdur Rob 49 DLR 96]

The cancellation of a document is much more than a declaratory relief that it is a substantive relief and that advalorem Court fee will be necessary for such relief under section 7(IV)(C) of the Court Fees Act. [Abdul Mannan Sheikh (Md) vs Soleman Bewa (Civil) 391, 59 DLR 2007]

Suit can also be filed by a person against whom instrument is void or voidable. [Md Basir 19 DLR (WP) 63]

Plaint prayed for declaration that: (i) the documents relating to the property in suit were void 'ab initio' and that the defendant acquired no interest in them and (ii) that the documents were brought about by forgeries for which no consideration passed.

Held: Prayers are purely for declaration only for which a fixed court-fee under Article 17(iii) of the Court-Fees Act payable. [Daibakilal Basak Vs. Iqbal Ahmed Quarishi 17 DLR 119]

It is not necessary to pray for cancellation in every suit under section 39 of the Specific Relief Act. [Daibakilal Basak Vs. Iqbal Ahmed Quarishi 17 DLR 119]

Suit for declaration that the instrument is not binding on the plaintiff and a suit for cancellation of instrument"-Difference. There is a difference between a suit for declaration that the instrument is not binding on the plaintiff and a suit for cancellation of an instrument.

When the plaintiff seeks to establish a title to himself and cannot establish that title without removing an obstruction such as a decree or a deed to which he has been a party, then he must get that decree or deed cancelled or declared void and his suit is in substance a suit for cancellation of the decree or deed, as the case may be, even though it be framed as a suit for a mere declaration.

Where a document is to be set aside or declared null and void by a person who is a party to the deed, a mere declaration would not do and cancellation of the deed is a necessary relief unless the document is void ab initio. But a person who is not a party to the deed is not bound to have it set aside or cancelled and a mere declaration that it will not affect the plaintiffs right would be quite enough. If the plaintiff is bound to have the document set aside or declared null and void the plaint must be treated as including a prayer for consequential relief; if it is not incumbent upon the plaintiff to get rid of the document the plaintiff must be treated as one for a declaration, pure and simple. [Abdul Hamid Vs. Dr Sadeque Ali Ahmed 21 DLR 507]

Cancellation of document (deed of exchange here) cannot be granted where both the parties entered into the transaction embodied in the document with full knowledge. [121 DLR 6261]

Prayers for an instrument's cancellation also is consequential relief, then the plaintiff will have to pay for it-But cancellation of the instrument is not indispensably necessary in all cases-A void document need not be cancelled-Where the document is ex facie void its cancellation is not necessary even if the plaintiff is party to it-Where under section 39 cancellation is found necessary the suit should not be dismissed in the absence of such a prayer but the plaintiff should be asked to pay additional Court-free. [Sufia Khanam Vs. Faizua Nessa 39 DLR (AD) 461]

Void and Voidable Instrument-Where a written instrument is void ab initio the transaction is a nullity and in such a case a plaintiff is not required to have it cancelled or set aside.lt, on the other hand, the instrument is only voidable, then it is incumbent upon the plaintiff to have it cancelled or set aside under section 39 of the Specific Relief Act. [Chitta Ranjan Chakraborty Vs. Md Abdur Rob 1997 BLD 126]

Applicability of Article 91 as well as Article 120-Cancellation of document under section 39 and declaration as to right to property under section 42 of the Specific Relief Act.

Plaintiffs suit is for cancellation of the document on the ground that it is vitiated by fraud-Such a suit is one under section 39 of the Specific Relief Act and is governed by Article 91 of the Limitation Act which prescribes three years' limitation-Article 120 of the Limitation Act which prescribes six years' limitation has no application in such a suit. Its application to a suit under section 42 of the Specific Relief Act relates to a ground that a declaration as regards right of property has been sought. [Mono Mohini Devi Vs. Sirajuddin Ahmed Bhuiya 21 DLR 626]

Cancellation of instrument when need not be prayed-Where the plaintiff is not a party to the instrument mere declaration that the instrument is void is sufficient and the plaintiff need not pray for cancellation of the instrument whether the suit falls under section 42 or under section 39. The Court below having erred in law in dismissing the suit on ground of maintainability, the suit is sent back to the trial Court for fresh hearing in accordance with law.[Sultana Begum Vs. Abul Kalam 43 DLR 177]

In a suit for declaration that certain instrument is void where the Court finds that the instrument is void ab initio, the suit is maintainable without asking for cancellation of the instrument. The contention that the suit is hit by the provision to section 42 of the Act has no substance. [JAH Shamsuddin Ahmed vs. Begum Arafat 43 DLR 52]

The plaintiff-respondents after having obtained a declaration as to the illegal and fraudulent character of the impugned kabala deed and also a declaration of their title to the suit land do not need any cancellation of the impugned deed, they not being parties to the impugned kabala deed. [Momtaz Begum & others Vs. Md Masud Khan 52 DLR (AD) 46]

The plaintiffs having impeached the decree in the earlier suit on ground of collusion and fraud on the assertion that they are owners in possession of the suit land, they are not required to seek any further relief to their main relief of declaration. [Abdus Sukur (Md) and others Vs. Bhasani Mandal and another 53 DLR 452]

Where in a suit for declaration that the cancellation of the allotment of the suit plot in favour of the petitioner is illegal and without jurisdiction and also for permanent injunction the plaintiff was given allotment and possession and after taking the money from the plaintiff and without showing any reason whatsoever the defendants are not entitled to cancel the allotment of the suit plot which was legally given to the plaintiff has been cancelled illegally and without jurisdiction. [Amenullah (Md) Vs. Miah Baksha and others 4 BLC 280]

Section 39, 42

In the instant case the plaintiffs are executants of the kabala in question and therefore very much a party to the document. The kabala, as the facts indicate, is not certainly void but voidable. In order to remove the impediment in the way of the plaintiffs to get complete relief along with the declaration the plaintiffs needed to make a prayer for cancellation of the document on payment of advalorem court fee. Chitta Ranjan Chakraborty ors vs Abdur Rob ors. (Bimalendu Bikash Roy Choudhurty J) (Civil) 2ADC 401

Specific Relief Act [ I of 1877]

Section 39—Provides that under what circumstances a deed may be cancelled. In this respect, the relevant provisions of section 39 of Specific Relief Act, 1877 may be stated as below:

Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. To entitle a plaintiff to a decree for cancellation of an instrument, he must show:

(i) that the instrument is void or voidable;

(ii) that the plaintiff has reasonable apprehension that the instrument, if left outstanding, may cause him serious injury; and

(iii) that the court ought, under the circumstances of the case, in the exercise of its discretion, order it to be delivered up and cancelled. Md. Abdus Samad and others -Vs.- Md. Amjad Hossain and others (Civil) 19 ALR (HCD) 120-123

Specific Relief Act [I of 1877]

Section 39 read with

Evidence Act [I of 1872]

Section 101 read with

Limitation Act [IX of 1908]

Article 91—Whether a simple suit for declaration is maintainable without a prayer for consequential relief as the same is barred by the provision of section 39 of the Specific Relief Act.

The Appellate Division observed that the High Court Division correctly found that the transaction was a sale and not a gift, but then erred in not concluding that consequently the plaintiff’s claim of the deed being a deed of gift was not proved. The plaintiff had to prove that he signed the papers believing that he was signing an agreement for the cinema hall and not a deed of gift. But none of the plaintiff’s witnesses supported the plaintiff’s claim. Hence, the plaintiff’s case was not proved. Thus the impugned judgement and order cannot be sustained. The evidence on record unquestionably discloses that the transaction was one of sale. It is equally evident that the requisite stamp duties were not paid at the time of registering the deed in question. In view of the above discussion, the Appellate Division is of the opinion that the plaintiff did not prove his case in accordance with law. Accordingly, the appeal is allowed. Nazimuddin Mondal -Vs.- Abul Kalam Azad and another (Civil) 15 ALR (AD)226-230

Restoration of possession when dispossessed during pendency of the suit

Suit for declaration of title is maintainable when the plaintiff was in possession of the suit land at the time of institution of the suit. Court is bound to restore possession where the plaintiff has been dispossessed in violation of the order of status quo during pendency of the suit. [Abdul Awal and others Vs. Nayan Chandra Das 71-74, 13 MLR 2008]

Suit can also be filed by a person against whom instrument is void or voidable. [Md Basir 19 DLR (WP) 63]

Held: Prayers are purely for declaration only for which a fixed court-fee under Article 17(iii) of the Court-Fees Act payable. [Daibakilal Basak Vs. Iqbal Ahmed Quarishi 17 DLR 119]

It is not necessary to pray for cancellation in every suit under section 39 of the Specific Relief Act. [Daibakilal Basak Vs. Iqbal Ahmed Quarishi 17 DLR 119]

Suit for declaration that the instrument is not binding on the plaintiff and a suit for cancellation of instrument"-Difference.

There is a difference between a suit for declaration that the instrument is not binding on the plaintiff and a suit for cancellation of an instrument.

Cancellation of document (deed of exchange here) cannot be granted where both the parties entered into the transaction embodied in the document with full knowledge. [121 DLR 6261]

Applicability of Article 91 as well as Article 120-Cancellation of document under section 39 and declaration as to right to property under section 42 of the Specific Relief Act.

If a person in possession of a land on assertion of his right, title and interest finds a decree obtained by any other person in respect of such land affecting his interest or possession, or clouding his right or title in such land, he is always entitled to have such decree adjudged or declared void. Such suit will be governed by section 39 not by section 42 of the Specific Relief Act. When such person is not a party to such decree, he does need to get the decree set aside or cancelled. Under such law, he is also not required to seek further declaration that the decree is not binding upon him or that he has got title in the suit land.[Abul Kashem Howlader Vs. Sultan Ahmed and others 9 BLC 333]

On a perusal of the evidence on record it appears that both the petitioner and the opposite party No. 1 are the joint owners in plot No. 2084, consequently, the suit for simple declaration of title is quite maintainable without praying for consequential relief by way of partition as provided in section 42 of the Specific Relief Act, 1877. [Marjina Khatoon vs Shamsunnahar (Civil) 289, 14 BLC 2009]

The claimed land of the plaintiff has been very specifically and properly described in the schedule of the plaint inasmuch as the boundary of 18 decimals of land has also been described in the plaint. Apart from this I have gone through the schedule of the title deeds of purchase by the mother of the plaintiffs being of the year 1943 and 1950 and also in the schedule of both the deeds I find that the schedule as given in the plaint is exactly right that of the schedule given in the title deeds. Moreover, the local investigation report submitted by the learned Advocate Commissioner also speaks of truth of claim of the plaintiff and the learned Appellate Judge has very consciously taken into consideration this aspect of the case and thus arrived at his decision for decreeing the suit. Hence without filing partition suit the present suit is quite maintainable. [Bangladesh Railway Board vs Md Atar Ali (Civil) 556, 14 BLC 2009]

Civil Court under section 9 of the Code of Civil Procedure is competent to entertain a suit and can well investigate the propriety of the order or action complained of as in the present ease. Civil Courts always can assume jurisdiction to consider the malafide action of the authority even if there is ouster section or clause of any law made for special purpose. Merely because negative declaration has been sought that can be no ground to hold that the suit does not come within the ambit of section 42 of the Specific Relief Act. [Chairman, Bangladesh Water Development Board vs Md Abdur Rahman (Civil) 42, 61 DLR 2009]

In a suit for declaration of title and recovery of possession, the plaintiff must prove his cause of action, in other words, his possession in and dispossession from the suit land in order to prove that the suit is within time. [Wazuddin vs Md Serujuddin (Civil) 788, 61 DLR 2009]

Suit for declaratory decree

In a suit for declaratory decree the plaintiff must prove his title and possession in the suit land with cogent evidence in order to get decree. He can not rely on the weakness of the defendant's case. [Nurul Islam and others Vs. Lal Miah and another 17-20, 15 MLR 2010]

Presumption of jointness of Muslim family though not available when established by evidence can be valid ground

In a suit where the minors were not represented and the defendant No. 1 auction purchased the ejmali land in execution of decree by the common fund of the joint family in the name of his wife, it is held that by such auction purchase the minor's interests are not affected. Therefore the plaintiff's suit for declaration of title, confirmation of possession and partition is held maintainable. [Daliluddin Sheikh being dead his heirs. [Tarn Miah Sheikh and others Vs. Alek Sheikh @ Abdul Malek Sheikh and others I-10, 14 MLR 2009]

Section 39

The suit has been filed for declaration of title and confirmation of possession and also for khas possession if the plain- tiff is found to be out of possession of the suit land during pendency of the suit. .......(2)

The High Court noted that during the hearing of the Mutation Case, it was disclosed that defendant No.1 pur- chased the suit land in 1961 and that the plaintiff filed an application to the Bureau of Anticorruption and at its in stance, the thumb impressions of Mohammad Mia Chowdhury, the executant, appearing on the deed of sale dated 14.11.1961 and the deed of exchange date 14.02.1985 were examined by a finger print expert who opined that the thumb impressions of Mohammad Mia Chowdhury, in fact, were on the deed of sale dated 14.11.1961 and the deed of exchange. The High Court Division came to a finding that the suit land was transferred in favour of defendant No.1 on 14.11.1961 (Exhibit-Ga) which was much earlier than the deed of exchange dated 14.02.1985 (Exhibit-4). The High Court Division further came to a finding that on the date of execution of the deed of exchange dated 14.02.1985, pro- forma-defendant No.13 did not have any saleable interest in the suit land. The High Court Division also came to a finding on consideration of materials on record that the plaintiff was not in possession of the suit land. Haji Shafiqur Rahman vs. Abdul Malek Chowdhury (Syed Mahmud Hossain J) (Civil) 10 ADC 721

Code of Civil Procedure [V of 1908]

Section 115(1) read with

Specific Relief Act [I of 1877]

Section 42 -Declaratory suit

Where the plaintiff is not a party to the impugned deed, he can sue only for a declaration that the deed is not binding upon him and such a suit would be purely a declaratory one and where the plaintiff is in possession of the land covered by such deed, a suit for mere declaration that the deed is inoperative is quite maintainable without any consequential relief. [2023] 27 ALR (HCD) 32

Specific Relief Act

Section 42

Allotment of the land in undue haste cannot be considered as fraudulency. Capital Tower Limited vs Mirpur Mazar Co-Operative Market Society Limited (Md Ruhul Amin J) (Civil) IADC 282

Section 42

It is the settled principle of law that a remand order is never to be made to fill up the lacuna in the case of any party and a remand order should not be made on fanciful or unnecessary ground. The remand order of the High Court Division in the present case seems to be unnecessary because the High Court Division itself is competent to decide the dispute in revision on the basis of evidence on record which were since same before High Court Division. Most Khairunnessa VS Atar Banu (Abu Sayeed Ahammed J)(Civil) 2ADC 16

Specific Relif Act, 1877

Section 42

The plaintiff of the suit being not party to the disputed deed and no case for pre- emption having been filed by them, they had no legal character to pray for decla- ration under section 42 Specific Relief Act, 1877....(8) Sukur Ali and others Vs Rahmat Ali (M.M. Ruhul Amin J)(Civil) 2ADC 52

Section 42

The defendant though claimed title and possession partly by registered patta but did not file the kabuliyat and rent reeipt showing that the patta was acted upon, moreso, the patta do not relate to the suit land so is the case with Kabala dated 2.5.1932. On the contrary, by way of successive transfers relating back to the admitted original owner Kamini, the suit land devolved upon the plaintiff by purchase vide kabala dated 9.1.1978 (Ext. 3); the plaintiff as well proved rent receipts and led oral evidence showing their possession in the suit land. The trial Court as well found the title and possession of the suit land but the Court of appeal below without adverting to the reasoning of the trial Court set aside the judgment and decree of the trial Court even without reversing the finding therein. Sukkada Bala Gope vs Pran Hari Gope etc. (Mohammad Fazlul Karim JCivil) 2ADC 54

Section 42

The policy of the legislature has been to treat objections as to jurisdiction both territorial or pecuniary as purely technical for the reason that section 21 of the Code of Civil Procedure provides that no objection as to the place of suing shall be allowed unless such objection was taken at the earliest stage but objection not having been taken would not vitiate the trial. Md. Shamsul Haque vs Salenullah (Mohammad Fazlul Karim J) (Civil) 2ADC 233

Section 42

In the absence of seeking a declaration as against such document or decree he can not have a declaration merely in respect of his title in respect of the property in suit even if he contends that his suit is not barred as per proviso to the Section 42 of the Specific Relief Act. The plaintiff is to seek relief as against the document or decree to which he is a party. Dudu Mia ors. vs Ekram Mia Chowdhury ors. (Md. Ruhul Amin J(Civil) 2ADC 304

Specific Relief Act, 1877

Section 42

Suit for declaration of title to the suit land and for recovery of khas possession therein

Held; we find with sheer surprise that the High Court Division committed error of law in disturbing the concurrent findings of facts arrived at by both the Courts below and on misreading of the evidence on record committed an error of fact in holding that the Courts below reached in a finding that the plaintiffs did not mention the date of cause of action and the date of dispossession. The real scenario is in fact the contrary. We find that the Courts below did never mention that the plaintiffs did not describe the date of cause of action and the date of dispossession. Rather, the Courts below on proper appreciation of the materials on record rightly decided that the plaintiffs failed to prove the cause of action and the date of dispossession. Hence, we compelled to approve the submission of the learned Senior Counsel that the High Court Division gave appalling discovery upon non-consideration of the findings of facts recorded by the Courts below. [Para-25] [31BLT(AD) (2023) 38]

The Specific Relief Act

Section 42

Plaintiff constructed houses thereon though her bharatias on the basis of the right of adverse possession acquiring title and possession thereof and during the last survey, the suit land was wrongly recorded in the name of the father of defendant. Rada Rani Nath vs. Niranajan Dutta (Mohammad Fazlul Karim J) (Civil) 6 ADC 996

Section 42

A suit in which title of the plaintiff has been disputed by the defendant, a decla- ration of title and possession is necessary and in the absence of a prayer for such declaration such suit is not main- tainable in view of the proviso to sec- tion 42 of the Specific Relief Act and hence the decree as passed is illegal and not maintainable. Kadbanu Bibi vs. Wazed Ali Sikder (Shah Abu Nayeem Mominur Rahman J) (Civil) 10 ADC 913

section 42

The plaintiffs could not file a single dakhila to prove their possession over suit land; though, the plaintiffs claimed title on the strength of the deed dated 21.01.1980 exhibit-9, but no rent receipt was produced. .....(23)

It is true that the defendants failed to produce the 'Dhakhila' by which Gura Miah got settlement of the suit land from Bazlul Karim and Fazlur Karim. But it is a cardinal principle of law that plaintiff has to prove his own case and he cannot be entitled to get a decree on the weakness of the defendant(s), if any. The burden lies on the plaintiff to prove his case and he must succeed on his own strength only and not at the weakness of the adversary.......(27)

Kabir Ahmed vs. Mahohar Ali (M. Enayetur Rahim J) (Civil) 20 ADC 58

Section 42

For declaration of title, recovery of pos- session of the suit land after demolish- ing the structures thereon and for mesne profit and permanent injunction. A. Hakim Gazi vs. Gazi Safiqul Islam (Md. Joynul Abedin J) (Civil) 6 ADC 1006

Section 42

Seeking declarations that the Memo No.299 dated 11.4.1994 passed by the defendant No.1 cancelling the license of the plaintiff as a nikah registrar, the Memo No.291/1(4) of the same date directing the plaintiff to hand over the records, seals and other documents to the defendant No.3 and the Memo No.534 dated 17.4.1994 issued by de- fendant petitioner No.3 directing the plaintiff to remain present in his office on 21.4.1994 with the register, seal and other documents being illegal, beyond jurisdiction and contrary to the relevant provisions of law are not binding upon him. District Registrar vs. Md. Shariful Islam (Md. Tafazzul Islam J) (Civil) 8 ADC 26

Specific Relief Act [I of 1877]

Section 42

The High Court Division came to a definite finding that there being various co-sharers in the suit property and the plaintiffs having failed to prove their claim in .27½ acre of land in its entirety and for also that the suit property having been recorded in the names of the plaintiffs, defendants and their predecessors as admitted in the plaint the suit for declaration of title with recovery of possession was not maintainable without prayer for a further relief of partition of the suit property. As such, the suit is barred under of the Specific Relief Act.

It is well settled principle of law that the plaintiff had to prove his case in order to get the decree prayed for, in no way the burden can be shifted over the defendants to do so.

The Appellate Division opined that in respect of possession of the defendants in the suit land, the High Court Division upon going through the testimony of P.W.1 found that there was no barga kabuliyat in respect of the barga settlement to defendant No. 1. Nobody was also present at the time of talking about the said barga settlement. Hasen Ali Molla who as per his statement knew about delivery of barga crops by defendant No. 1 to the plaintiffs was not examined as witness. Accordingly, the High Court Division observed that the defendants inherited the suit land from their father Bakhar Molla who had purchased the same from Amud Molla (father of Sarabdi Molla and Dabaru Molla) vide kabala dated 21.07.1920 A.D. in which Gahar Molla son of Sarabdi Molla was an attesting witness. In respect of recording of quantum of land of .63 acre in the kabala instead of .55 acre, the High Court Division observed that the defendants could not show any document that C.S. Plot No. 237 contained an area of .63 acre of land and that at any stage of C.S. operation it was recorded in the name of Amud Molla. But, however defective the said kabala might appear, contesting defendant's possession in the suit land on the basis of the said kabala above the statutory period of limitation could not be brushed aside. Moreover, the defendants names were also admittedly recorded in the S.A. Khatian in respect of the suit property and the plaintiffs' objection under section 19A of the SAT Act, 1950 was rejected finding it to be in the possession of the defendants. Rather it is well settled principle of law that the plaintiff had to prove his case in order to get the decree prayed for, in no way the burden can be shifted over the defendants to do so. The aforesaid finding and decision arrived at by the High Court Division being based on proper appreciation of fact and law the same does not call for any interference by the Appellate Division. Accordingly, this civil appeal is dismissed. Md. Sarhab Ali Molla -Vs.- Md. Farid Master 28 ALR (AD) 21

The jurisdiction of the High Court Division while hearing a revision petition is purely discretionary and the discretion is to be exercised only when there is an error of law resulting in an error in the decision and by that error failure of justice has been occasioned and interference is called for the ends of justice and not otherwise. Error in the decision of the sub-ordinate Courts do not by itself justify interference in revision unless it is manifested that by the error substantial injustice has been rendered. The decision which is calculated to advance substantial justice though not strictly regular may not be interfered with in revision. (Para-18)

Power of revision is intended to be exercised with a view to sub-serve and not to defeat the ends of justice. The above principles of law, the High Curt Division is required to follow while adjudicating upon a matter in exercise of its revisional jurisdiction under section 115(1) of the Code of Civil Procedure. Here, it must not be overlooked that there is a lot of difference between a revision and appeal. An appeal confers a right on the aggrieved party to complain in the prescribed manner to the higher forum whereas the supervisory or revisional power has for its objects the right and responsibility of the higher forum to keep the sub-ordinate Courts within the bounds of law. (Para-19)

The plaintiffs filed the present suit for mere declaration that impugned registered kabala deed was collusively made and obtained by forgery and not binding upon them. The plaintiffs filed the suit as the disputed kabala cast cloud upon title of the plaintiffs to the suit land and on the basis of the deed in question, the defendant claimed title to the suit land. Since, before filing of the suit, a cloud has been cast upon the plaintiffs’ title to the suit land and that the defendant denied their title therein by dint of a registered kabala, the plaintiffs should have filed the suit for a decree of declaration of title to the suit land as principal relief along with other consequential relief that impugned registered kabala deed was collusively made and obtained by forgery and not binding upon them, as provided under section 42 of the Specific Relief Act. Accordingly, this suit as framed is not maintainable. (Para-28)

It appears that the whole proceeding in regards execution and registration of the deed in question and endorsement of the Sub-Registrar therein as provided under sections 31, 32, 34, 35, 52, 58, 59 and 60 of the Registration Act, as stated above, were done in accordance with those provisions of the Act and the document achieved strong presumptive evidence as to its due registration. Accordingly, burden was upon the plaintiffs to rebut such evidence by adducing strong evidence to prove that the deed in question was a product of forgery. But the plaintiffs failed to discharge the onus. (Para-40)

I have already found that Ishaque Mia was the identifier of all executants and he also took the L.T.Is of three executrix and identified their L.T.Is and he did not put any L.T.I in the deed as executant. It appears that the learned Judge of the appellate Court also misconstrued the deed in question on this point. Such misconstruction on the part of the appellate Court could not invalidate the deed and affect the merit of the case. (Para-41) The trial Court held that the defendant could not prove that Abdul Ali and Anwar Ali were the sons of Ashraf Ali and Anwar did not go to India. The appellate Court, upon evaluating the evidence, reversed the finding of the trial Court holding that it was the duty to prove such assertion by the plaintiffs by adducing relevant papers or by circumstantial evidence but the plaintiffs did not try to do so. This view of the appellate Court also based on proper appreciation of the evidence and materials on record. (Para-45)

As a whole, the judgment of the trial Court is founded on mere assumption and presumption of facts and not on proper appreciation of the evidence on record. The learned Judge of the trial Court has embarked upon the loopholes and weaknesses of the defendant’s case to establish the case of the plaintiff against the settled principle of law that the plaintiff must prove his case in order to get a decree in his favour and the weakness of the defendants case is no ground for passing a decree in favour of the plaintiff. (Para-50) [17 SCOB [2023] HCD 9]

Section 42

For declarations that the order dated 23.10.1976 of the Additional Deputy Commissioner (Rev), the defendant No.2, for forfeiture the suit land is ille- gal and has no binding force in law and their right title and interest in the suit land have not been affected thereby and that they entitled to get decree for khas possession of the suit land. Bangladesh and represented vs. Mariam Begum

(Md. Tafazzul Islam J) (Civil) 6 ADC 661

Section 42

We have heard the learned Advocate- On-Record for the petitioners, perused the impugned judgment and order of the High Court Division and other connected papers on record. It appears that the High Court Division having considered the materials on record made con- current findings of the facts with the learned Sub-Ordinate Judge to the effect that some portion of Bainama is over written and some other portion of the Bainama appears to have been erased and signature of the Munshi appears to be illegible and over written which gave rise to concoction as to its veracity. An- warullah vs. Deputy Commissioner, Lakshmipur Court Building (Md. Muza- mmel Hossain J) (Civil) 10 ADC 98

Section 42

The trial court on consideration of the evidence on record came to the finding that the plaintiffs could not prove their title and possession in the suit land. The trial court further noticed that the plain- tiffs could not prove that summons was not served upon there predecessor, who was defendant no. 18 in other suit no. 05 of 1988 nor the plaintiffs could prove that the summons was suppressed in collusion with the process server and the decree passed in suit being Other Suit No.5 of 1988 was a valid decree and the suit was hit by Section 42 of the Specific Relief Act since the plaintiff have no interest in the suit land. Anwar Munshi vs. Kulsum Begum (B.K.Das J) (Civil) 7 ADC 168

Section 42

Taking advantage of the plaintiffs minority during the last settlement opera- tion, Jabed Ali, son of Rahman Ali in collusion with the settlement staff got the suit lands recorded in his name. Md. Kabir Hossain vs. Abdur Razzak Mallik (S.K. Sinha J) (Civil) 8 ADC 486

Section 42

Was collusive, void, ineffective, illegal and violative of the Rules of Madrasha Shikkah Board Regulations and the same is not binding upon the plaintiff. Musrat Dhulia Dakhil Madrasha vs. Md. Rafiqul Islam (Shah Abu Nayeem Mominur Rahman J) (Civil) 8 ADC 488

Specific Relief Act [I of 1877]

Section 42

B.T. Act [VIII of 1885]

Section 174(3)—The plaintiffs after a long lapse of time cannot claim that the property was not sold in auction and their predecessor did not obtain settlement of the property from anybody or they did not obtain any settlement in the year 1948 or they did not purchase the property admitting Asimuddin and others owner of the property in the year 1975. Since the documents submitted by the plaintiffs and exhibited as are not at all relevant for the adjudication and determination of the dispute in question between the parties this Court finds that both the courts have not committed any error in not discussing those evidences.

The High Court Division observed that P.W. 2 Md. Nasiruddin in his cross examination clearly stated that the defendants are in possession and enjoyment of the property under S.A. khatian No. 15, and on the disputed land house of defendant Nos. 1 and 8 is existing and he could not say in which plot of land the plaintiffs are in possession. He clearly stated that he never saw the plaintiffs cultivating the land under S.A. khatian No. 15 and he also stated that in the kabuliyat dated 28.06.1946 his father was an attesting witness and he denied that the plaintiff is in possession. P. W. 3 also stated that a part of the suit property is under the possession of Bakul Nessa Mahila College and the defendants are in possession of the property and there is house of defendant Nos. 1 and 8. In view of the above, the High Court Division finds that the plaintiffs either by any documentary evidence or by oral evidence could able to prove their case beyond shadow of doubt. On the contrary, the defendants submitted a series of documents in support of their claim which establishes that the property in question once sold in auction, thereafter the same was purchased by the predecessor of the defendant admitting their title and possession. The predecessor of the plaintiffs also obtained settlement of part of the property which was also subsequently, placed on auction and thereafter heirs of Din Ali and others admitting title of the defendants predecessor again obtained the settlement and purchased some of the property in the year 1975. From those documents it is clear that the plaintiffs are only entitled in respect of 102 sataks of land in the khatian and they cannot claim more than that. From perusal of khatian it is found that the property has been separately recorded in the name of the plaintiffs. However, if there be any difficulty in getting the property, the plaintiffs have had other alternative to get the property partioned. Taking into consideration the above, the High Court Division finds no merit in this Rule as well as in the submissions of the learned advocate for the petitioners. In the result, the Rule is discharged. Musammat Rabeya Begum and others -Vs.- Shafiqur Rahman and others (Civil) 18 ALR (HCD) 359-365

Section 42

The petitioner instituted the above suit seeking two declarations, one, for decla- ration of title in respect of schedule one land, and the other, for declaration that the deed described in schedule two of the plaint is not binding upon him. Ali Amzad Khan vs. Md. Titam Khan (S.K. Sinha J) (Civil) 8 ADC 495

Section 42

Plaint has not been incorporated ated in the paper book, but from the judgment of the trial Court it appears that the suit was filed for declaration that the initia- tion of vested property Case No.9 of 1984 (KDA) and the notice issued in the said case on 27.09.1984 asking the plaintiffs to hand over possession of the suit property was illegal, without juris- diction and also for a mandatory injunc- tion to restore back possession of the suit property to the plaintiffs. Govern- ment of Bangladesh vs. Monwarul Alam (Md. Abdul Wahhab Miah J) (Civil) 8 ADC 679

Section 42

From the impugned judgment passed by the High Court Division, it appears that it did not at all consider the pertinent legal aspect involved in the case that after final publication of R.S. record a suit for declaration simpliciter that such record was wrong was not maintainable in law and further wrong recording of the suit land having created cloud over plaintiff's title he was not entitled to get saham in the suit land without establish- ing his title therein. Jiban Chandra Sarkar vs. Md. Rafizuddin Bepary (Md. Abdul Wahhab Miah J) (Civil) 8 ADC 760

Section 42

The learned Assistant Judge dismissed the suit holding that the mother of the plaintiff could not get possession of the suit land on the basis of the deed of 1928. On appeal from the said judgment by the defendants, the Court of appeal below affirmed the judgment of the trial Court observing that the defendant No.1 proved his possession in pursuance of the deed of gift dated 14th November, 1958, exhibit-Ka, that the plaintiff did not challenge the defendants deeds ex- hibits-A-Tha executed by Mohendra to Ashiaron Rahman. Sukendra Bikas Das vs. Anil Baran Das (S.K. Sinha J) (Civil) 8 ADC 764

Section 42

It further appears that the High Court Division also found that the trial Court misread the evidence and materials on record and illegally held that the plain- tiffs have not acquired title, interest and possession in the suit land. Mohadashi Sutradhar vs. Monindra Chandra San- nyashi Md. Abdul Wahhab Miah J(Civil) 8 ADC 773

Section 42

The suit land was purchased by plaintiff No.1 and one Sokiruddin by kabala dated 07.12.1955 from its owner and in the S.A.. Khatian their names were recorded to the extent of 22 decimals of land instead of 26 decimals. Sokiruddin transferred 13 decimals of land to plain- tiff Nos.2 and 3 by sale dated 05.12.1948. Plaintiff Nos.2 and 3 sold 0375 acre of land to plaintiff No.4 by a kabala dated 23.11.1996. Md. Abdul Hakim vs. Government of Bangladesh (Md. Abdul Wahhab Miah J) (Civil) 8 ADC 801

Section 42

Whether a domesticated son-in-law is entitled to the right of residence, posses- sion and maintenance from the estate of his father-in-law. Roy Mohan Dey vs. Jogesh Chandra Dey (Nazmun Ara Sul- tana J) (Civil) 8 ADC 921

Section 42 and 39

The facts, in short, are that the respon- dent No.1 filed a suit being the Other Suit NO.116 of 1997, in the Court of Assistant Judge, Shibganj, Bogra, pray- ing for a decree for a declaration that the Waqf Deed No.6152, executed and registered on 03.06.1997, is collusive, void and not binding upon the plaintiff. Satana Para Mosque vs. Amser Ali Swarnakar (A.B.M. Khairul Haque J) (Civil) 8 ADC 995

Section 42

The facts leading to the filing of this pe tition are that these petitioners filed a suit being Title Suit No.313 of 1988 in the Court of Assistant Judge, Bagerhat, praying for decrees for establishment of their title, confirmation of possession and permanent injunction with a prayer for further declaration that the decree passed in Title Suit No.267 of 1967 is illegal, collusive and not binding upon the plaintiffs. The plaintiffs claimed the suit-land by virtue of oral settlement from one Syed Tujammel Ali who got it by amicable partition with other original owners. The defendant No.34 and the defendant Nos.36-48 contested the suit by filing separate written statements, denying all material averments made in the plaint. It is contended on behalf of the defendant No.34 that the owners of the suit-land left this country before 1959 and the Government took it over as khas land and leased out to the defen- dant No.35. The defendant Nos.36 to 48 claimed title by purchase from the heirs of the C. S. recorded tenants. They also claim that they are in possession of the suit-land. Abdul Hakim Howlader vs. Narayan Chandra Paul (A.B.M. Khairul Haque J) (Civil) 8 ADC 998

Section 42

The facts leading to the filing of this pe- tition are that the respondents herein filed a suit for declaration and recovery of khas possession of the suit-land. The petitioner Nos. 1 and 2 contested the suit by filing a written statement, denying all material averments made in the plaint. Siddiqur Rahman vs. Abdul Jalil Meah (A.B.M. Khairul Haque J) (Civil) 8 ADC 1002

Section 42

The trial court, on consideration of evidence adduced by the contesting parties and other facts and circumstances, dis- missed the suit by the judgment and order dated 17.04.2004 holding mainly that the plaintiffs could not prove the case that the impugned kabala deed was forged, collusive etc. The trial court also found that the contesting defendants have been possessing the suit land by recording the same in their names and on payment of rent since their purchase Md. Amzad Hossain Parag vs. Md. Sai- ful Islam (Nazmun Ara Sultana J (Civil) 9 ADC 224

Section 42

Mr. Mohammad Ali Akanda, the learned Advocate for the petitioners in both the civil petitions has assailed the impugned judgment and order of the High Court Division by making submis- sions to the effect that the appellate court below fell in error in reversing the judgment and decree of the trial court without examining the evidence on record properly and without assigning any reason for reversing the judgment of the trial court and the learned judge of the High Court Division also af- firmed this judgment of the appellate court below mechanically without ap- plying his judicial mind. Rezia Khatun Chowdhurani vs. Sayeda Sirajunnessa Khatun (Nazmun Ara Sultana J)(Civil) 9 ADC 299

Section 42

The learned Counsel has argued that the High Court Division has committed error in not taking into consideration the sufficient materials on record which prove that Madhu Kha got back the suit land from Somir Mollah and Somir Gain as per agreement entered in be- tween them. The learned Counsel has argued also that the court of appeal below committed wrong in holding that the patta and kabuliyat executed and registered in between Madhu Kha and Somir Mollah and Somir Gain being in terms of uncertainty were not accept able in the eye of law inspite of the suf- ficient evidence to prove that Madhu Kha got back the suit land from Somir Mollah and Somir Gain and possessed the same. Md. Jashimuddin Kha vs. Md. Amir Uddin Gain (Nazmun Ara Sultana J)(Civil) 9 ADC 305

Section 42

Mr. Mohsin Rasid, learned Advocate, appearing for the petitioners submitted that a benami transaction of immovable property can not be made by way of gift and as such, the claim of the plaintiff that he transferred the suit property to his wife, the defendant No.1 by execut ing deed of Heba-bil-Ewaz dated 26.10. 1979 and she was his benamder only in respect of the suit property is not tenable in law. Most. Momtaj Begum vs. Md. Abdul Wahab Miah (Mohammad Fazlul Karim CJ) (Civil) 9 ADC 308

Section 42

The plaintiff-respondent Nos.1 to 8 filed Title Suit No.126 of 1996 in the Court of the Assistant Judge, Muksud- pur. Goplaganj for declaration of title in the suit land described in schedule to the plaint and for further declaration that the recording of the suit land in khas khatian No. 1 in the name of the Govern- ment was wrong and illegal. Govern- ment of Bangladesh vs. Saleha Begum (Nazmun Ara Sultana J) (Civil) 9 ADC 332

Section 42

The trial court, on consideration of the evidence adduced by all the contesting parties, and the facts and circumstances dismissed that Other Class Suit No.113 of 1995 by the judgment and order dated 27.01.1999. Against that judg- ment and decree of the trial court the plaintiff preferred Other Class Appeal No.55 of 1999 and the appellate court allowed the appeal on contest against the defendant Nos. 1 to 4 and defendant Nos.8 to 12 by the judgment and order dated 01.03.2007 and set aside the judg- ment and decree of the trial court and decreed the suit declaring the plaintiff's title in the suit land and also confirming the plaintiff's possession therein. Md. Hanifuddin vs. Abdul Mannan (Naz- mun Ara Sultana J) (Civil) 9 ADC 372

Section 42

The suit was contested by the defendant No.2- the principal and the Member Secretary of the Governing Body of the Institution. The suit ultimately came in the peremptory hearing list and the plaintiff examined one witness and the defendant also examined one witness. Alhaj Md. Taher Ali vs. Md. Mohiuddin Ahmed (Nazmun Ara Sultana J) (Civil) 9 ADC 421

Section 42

The present petitioner, as plaintiff, insti- tuted Title Suit No.35 of 2002 in the court of Senior Assistant Judge, Nao- gaon seeking for a declaration that the judgment and decree dated 28.06.1990 passed in Other Class Suit No.1651 of 1979. Md. Jalal Hossain Mollah vs. Md. Azizur Rahman (Nazmun Ara Sultana J) (Civil) 9 ADC 430

Section 42

Mr. A. M. Aminuddin, the learned Ad- vocate appearing on behalf of the peti- tioner submits that both the Courts below having seen of the original deed dated 24.11.1969 (Ext.'ka') which had been filed by the defendant, came to a finding that the deed had been created later on and in order to show that it was an old document some mechanism like burning and use of hot vapour was ap- plied upon the document. But such find- ing of the lower Courts that the deed was forged was not controverted by the High Court Division, which thereby er- roneously reversed the concurrent find- ings of the Courts below. Most. Anwara Khatun vs. Md. Ensab Ali Akand (Muhammad Imman Ali J) (Civil) 9 ADC 670

Section 42

A Single Bench of the High Court Division, after hearing both the parties made that rule absolute by the impugned judg- ment and order holding mainly that after the judgment and decree passed in Other Class Suit No.52 of 1990 which was affirmed by the appellate court in Other Class Appeal No.403 of 1990 there was no scope for claiming that the predecessors of the plaintiff had right to transfer the suit land to the plaintiff and in the circumstances the alleged purchase of the suit land by the plaintiff from the defendant Nos.4 to 11 was ille- gal and this purchase could not create any title in favour of the plaintiff. The Appellate Division upheld the the dece- sion of the High Court Division. Abdus Sattar vs. Md. Badrul Hoque (Nazmun Ara Sultana J) (Civil) 9 ADC 678

Section 42

The case of the plaintiffs, in short, was that Sree Sree Radha Madhab Jew Deity-the defendant No.4 was the orig- inal owner in khas possession of the suit land measuring 84 acres appertaining to plot Nos. 722,723,724,725 and 726 of khatian Nos. 143/1577 and the plaintiffs took jote settlement of the said land from the defendant No.4 in the year 1360 B.S. on payment of salami and since then they have been possessing the suit land by growing seasonal crops thereon. Abdul Gaffar vs. Sree Sree Radha Madhab Jew Deity (Nazmun Ara Sultana J) (Civil) 9 ADC 697

Section 42

The first contention of the learned Counsel for the appellant that appellate Court on consideration of the documents having had held defendant has title and possession of the land in suit, the High Court Division was in error in setting aside the judgment of the appel- late Court without setting aside the said finding of the appellate Court is not cor- rect. It is seen from the judgment of the High Court Division that the said Divi- sion did not accept the defendant's claim of acquiring title in the background of non-establishing by producing docu- mentary as well as oral evidence the case of auction sale of recorded tenant's right, title and interest for arrears of rent and of purchasing the land of C.S. Kha- tian No.599 by the landlord. The High Court Division discarded the case of the appellant since his vendor who said to have taken settlement from the auction purchaser landlord after C.S. recorded tenant's land having said to have been sold for arrears of rent, by executing a kabuliyat as because no evidence either documentary or oral was brought on record from the defendant's side as to the fact that the kabuliyat upon execut- ing of which appellant's vendor said to have taken settlement from the so called auction purchaser landlord was acted upon. Golam Mostafa vs. Moklesur Rahman (Md Ruhul Amin J) (Civil) 9 ADC 955

Section 42

The learned counsel for the respondent submits that the finding of trial court as to the title of the plaintiffs to the suit land was not correct and High Court Di- vision rightly decreed the suit which in law, constitutes a proper reversal of the trial court's finding; the questions whether the notice of Dhaka Municipal Corporation, Ext.5, related to the suit property or not and whether suit prop- erty is abandoned property or not and whether Nasima Khatun and Furhana Khatun were non-locals and left Bangladesh during liberation war are questions of fact and were decided in the first appeal upon consideration of evidences on record and no specific misreading and/or non-consideration of evidence having been raised before this Court, decision of the final court of fact calls for no interference in this appeal. Additional Deputy Commissioner vs. Mst. Farhad Begum (Md. Tafazzul Islam J) (Civil) 9 ADC 972

Section 42

There could not be any cause of action for challenging the decree passed in Title Suit No.92 of 1969 by the plaintiffs and that the defendants having no claim for any right, title and interest in respect of other three plots of Schedule- A land i.e. plot Nos. 121, 159 and 119 the plaintiffs may get a decree for permanent injunction as prayed for in Title Suit No. 166 of 1976 against the defendants in respect of the lands detailed in Schedule-A, except said plot No. 168 under Khatian No.51 admeasuring 15 decimals, which is described as a pond/ditch, which plot appears to be included in the schedules of both Title Suit No.92 of 1969 and Title Suit No.166 of 1976 and that the dispute relating to Plot No.168 under Khatian No.51 may be resolved separately, if the parties so desire, in a proper forum and in accordance with law. Faizur Rahman vs. Abdul Hoque (Shah Abu Nayeem Mominur Rahman J) (Civil) 9 ADC 1000

Section 42

Mr. Syed Humayun Kabir Khadem, the learned Advocate appearing for the pe titioner submits that the High Court Di- vision committed an error of law in not considering both documentary and oral evidence of the witnesses on record and passed the impugned judgment and de- cree which suffers from misreading and non-consideration of the evidence and materials on record. He then submits that the High Court Division failed to consider that the plaintiff-petitioner has inherited the property from his father and he has a dwelling house over the part of the same and possess the remain- ing portion of the property by cultiva- tion and that the evidence of P.Ws.3, 4 and 5 and that of P.W.l as to the posses- sion and very much corroborative of each other. Abdul Khaleque Khalasi vs. Saburun Nessa (Md. Muzammel Hos- sain J) (Civil) 10 ADC 104

The Specific Relief Act, 1877

Section 42

It being a fact that after purchase of 5(five) kathas of land by kabala dated 29.04.1977 (2 kathas from the plaintiff and 2/2 kathas from Jahanara Khatoon) the plaintiff's father made construction on the 3 kathas of land which included 22 kathas of land of the plaintiff by tak- ing loan from the House Building Fi- nance Corporation, the High Court Division rightly declared plaintiff, Nek Parvin Islam's right, title and interest in respect of 2/2 kathas of land (the suit land), but she will have no right and title on the building constructed thereon ex- cept "possessory right because of her ownership on 212 kathas of land." The High Court Division also rightly pro- tected the possession of the contesting defendants by observing that they "do have joint possession on the building constructed on the said 3 kathas of land with ownership only on the balance I kathas of land with joint possession. Sid- diqur Rahman vs. Nek Pervin Islam (Md. Abdul Wahhab Miah J) (Civil) 10 ADC 160

Section 42

The sale deed of 1974 of the plaintiff's vendor, Jute Trading Corporation, did not contain the name of the mouza of the disputed land and the area thereof and that same thing also happened with deed of the plaintiff. After losing Title Suit No.50 of 1986 finally by the Jute Trading Corporation (JTC), the Min- istry of Jute registered a rectified deed in 1990 in favour of JTC even then the original deed and the rectified deeds did not contain the boundary of the properties. Meanwhile, the property was entrusted to the Bangladesh Free- dom Fighters Welfare Trust on 1.3.1978 by the Government. Md. Nurul Hussain vs. Muktijoddhya Kallayan Trust (Syed Mahmud Hossain J) (Civil) 8 ADC 410

Section 42

For a declaration that the order dated 10.04.1986 passed by the Government purporting to shift the office of Shihara Union Parishad from it's present site under Amanta Mouza to a new site under Custobai Mouza was illegal, void and inoperative. The said suit was instituted in a representative capacity under order 1, Rule 8 of the Code of Civil Procedure on behalf of the people of Shihara Union Parishad. Md. Abdul Motaleh Sarker vs. Md. Laskar Ali (Md. Abdul Matin J) (Civil)6 ADC 361

Section 42

Mr. Mahmudul Islam has argued also that the High Court Division's observa- tion to the effect that since the judgment of the trial Court in earlier Title Suit No.177 of 1994 was affirmed by the Appellate Division it can not be now de- clared illegal by the trial Court-is erro- neous. Government of the People's vs. Md. Bazlul Karim (Nazmun Ara Sultana J) (Civil) 9 ADC 345

Section 42

In the suit the defendants filed an appli- cation under Order 7, rule 11 of the Code of Civil Procedure for rejection of the plaint on the ground that the suit was barred under the provisions of section 42 of the Specific Relief Act. The appli- cation was contested by the plaintiffs by filing written objection. The learned Joint District Judge by his order dated 19.01.2004 rejected the plaint. Shahidul Islam vs. Government of Bangladesh (Md. Abdul Wahhab Miah J) (Civil) 9 ADC 361

Code of Civil Procedure [V of 1908]

Order 6 rule 17 read with

Specific Relief Act [I of 1877]

Section 42

Suit for declaration right and title

It is a cardinal principle of law that plaintiff has to prove his own case and he cannot be entitled to get a decree on the weakness of the defendant(s), if any. The burden lies on the plaintiff to prove his case and he must succeed on his own strength only and not at the weakness of the adversary.

There may be thousands of detects in the documents of the defence as well as their case but that does not entitle, the plaintiff to get a decree. The plaintiff is to prove his case irrespective of the defence version of the case.

Having considered and discussed the Appellate Division is of the opinion that the High Court Division did not commit any error of law in making the Rule absolute setting aside the judgment and decree of the court of appeal below. Accordingly, the appeal is dismissed. Kabir Ahmed and others -Vs.-Mahohar Ali and others (Civil) 27 ALR (AD) 157

Specific Relief Act [I of 1877]

Section 42 -Declaratory suit

The High Court Division held that in the instant case it is seen that land of Golapgonj was registered by Sub-Registrar Sadar, Sylhet. With regard to the insanity of the executor Abdur Karim, plaintiff brought witnesses who have clearly supported this claims of the plaintiff though it was not considered by the trial court. However, in this case it appears that learned Joint District Judge allowed the appeal setting aside the judgment and decree of dismissal passed by the learned Assistant Judge, Golapgonj, Sylhet in Title Suit No. 92 of 2002. But inadvertently he did not take down in operative portion of his judgment as to what will be the consequential effect of the decree he passed nor did he clearly state the relief what he granted in favour of the plaintiff. In the order portion of the judgment, learned Joint District Judge ought to have decreed the original suit along with allowing the appeal and passed the order regarding the relief sought for by the plaintiff stating that the suit kabalas are illegal, frivolous, fictitious and not binding upon the plaintiff. However, considering the facts and circumstances of the case, the High Court Division finds that the impugned judgment and decree passed by the learned Joint District Judge, Sylhet is tenable in law in terms of the observation the High Court Division made herein before. After careful examination of the evidences and other materials on record the High Court Division does not find any assailable flaw in the impugned judgment and decree passed by the learned Joint District Judge, 3rd Court, Sylhet and as such it is tenable in law. In view of the discussion made above, the High Court Division does not find any merit in this Rule. Accordingly, the Rule is discharged. Abdul Kader -Vs.- Hazi Abdul Ahad and others (Civil) 27 ALR (HCD) 32

Specific Relief Act [I of 1877]

Section 42

Any transfer of property before release or return of cÖZ¨vc©Y‡hvM¨ m¤úwË (property) has been made illegal and any such transfer made in violation section 8 is void.

The High Court Division held that the vender of petitioner has executed a power of attorney in favour of her husband on 21.09.2011. Subsequently vide kabala dated 01.03.2012 the said attorney sold the property in favour of his wife (the petitioner). Both the transfers were made in violation of the provisions of section 8 of the Arpita Sampatti Prattarpon Ain, 2001. However, the tribunal as well as the appellate tribunal most arbitrarily decreed the suit without making any finding on this. Therefore the High Court Division is of the considered view that for ends of justice judgments and decrees of Arpita Sampatti Prattarpon Tribunal as well as Arpita Sampatti Prattarpon Appellate Tribunal should be set aside and Arpita Sampatti Prattarpan Case No. 1590 of 2013 should be sent back on remand to the tribunal for fresh hearing and disposal. Non joinder of Arpita Sampatti Tribunal is merely irregularity. Such non-joinder does not affect the Rule. Therefore submission of the learned Counsel for the respondent regarding maintainability can not be sustained. In the result the Rule is disposed of with direction and observation. The judgment and decree of the “Awc©Z m¤úwË cÖZ¨vc©Y U«vBey¨bvj” and “Awc©Z m¤úwË cÖZ¨vc©Y Avwcj U«vBey¨bvj” are set aside. Deputy Commissioner, Narail -Vs.-Jesmin Ara Khatun (Spl. Original) 25 ALR (HCD) 333

Section 42—

Under section 42 where consequential relief is found necessary, but has not been asked for the suit may either be dismissed or the plaintiff directed to pay additional court—fee—For relief sought by way of cancellation of a document, a kabala or a decree, section 39 is applicable—Declaration ofnullity of a document is the main and substantive relief, whereas cancellation of the instrument is a consequential relief. Sufia Khanam vs Faizunessa 39 DLR (AD) 46.

Section 42—

A written instrument when is adjudged void, need not be cancelled—Plaintiff should also seek the additional relief by way of setting aside the decree or cancelling the deedSuit for mere declaration that an instrument is void, maintainable without a prayer for its cancellation—Relief by declaration of nullity of any instrument and also relief by cancellation of the instrument provided in section 39. Section 42 does not specifically provide for declaration of nullity of any written instrument; nevertheless a decree for nullity of an instrument in view of the general provision therein comes under section 43. Sufia Khanam vs Faizunessa 39 DLR (AD) 46.

Section 42—

If a person’s right and title is clouded by an instrument he may seek a declaration under section 42 to nullify the effect of such an instrument—A suit for declaration that a deed whether a sale deed or decree is void comes under section 39 of the SR Act in terms of this section—But when further prayer is added that by the said deed plaintiffs right is not affected, this falls under section 42—If his suit includes the reliefs that the instrument in question is void and his right has not been affected thereby and, or, the defendant acquired no right thereby, then the reliefs are covered by both sections 39 and 42. Sufia Khanam vs Faizunnessa 39 DLR (AD) 46.

Section 42—

Possession has been delivered through Court to the defendant and the plaintiffs have failed to prove their possession therein and as such the present suit by the plaintiff for declaration without prayer for recovery of khas possession is not maintainable. Fazlure Rahman vs Bani Rahman 39 DLR 339.

Section 42—

The plaintiffs can file a properly constituted suit for declaration of title. Fazlur Rahman vs Bani Rahman 39 DLR 339.

Section 42—

A suit for

negative declaration under section 42 of the SR Act is maintainable. Nurul Apser vs HR Chowdhury 40 DLR 226.

Section 42

Proviso— Court’s discretion to make a declaration of any status or right upon a suit instituted under section 42 of the Act—Positive bar to make a mere declaration of title if the plaintiff being able to seek further relief omits to do so—Meaning of “being able to seek further relief.” Trading Corporation of Bangladesh vs Syed Sajeduzzaman 40 DLR 406.

Section 42

Proviso— The contention that the second declaration that ‘the plaintiff is in service of the Corporation as executive officer’ is a consequential relief, is to be rejected outright as being not acceptable. Trading Corporation of Bangladesh vs Syed Sajeduzzaman 40 DLR 406.

Section 42— Absence of consequential relief by way of mandatory direction for re-instatement in service—Declaration ineffective and infructuous. Trading Corporation of Bangladesh vs Syed Sajeduzzaman 40 DLR 406.

Section 42— A suit for declaration, even without a prayer for recovery of possession, that the Certificate proceeding is without jurisdiction, illegal and void ab initio, is maintainable. Amina Khatun vs Ansar Ali 40 DLR 419.

Section 42— The question arose whether the respondent was a worker under the relevant labour law or he is an employee of the Corporation governed by its Service Rules or whether his remedy lay in a grievance petition under section 25 of the Act. Leave was granted by us to consider the question whether the respondent is a worker under the relevant Labour Law or whether he is an employee of the Corporation, governed by its Service Rules, and whether his suit was hit by section 42 of the Specific Relief Act in the absence of any prayer for consequential relief. We have heard lengthy arguments of the learned Advocates for both the parties—Mr Asrarul Hossain for the appellants and Mr Mahmudul Islam for the respondent. Mr Asrarul Hossain has contended that the order of the respondent’s dismissal itself shows that he was treated as a worker of the Mills and was dismissed by the “Employer” under section 17 of the Act and as such his only remedy lay in a “grievance petition” before the Labour Court under section 25 of the Act. Dosta Textile Mills vs SB Nath 40 DLR (AD) 45.

Section 42— Respondent is a worker and he is not an employee of the corporation. Corporation Service Rules are not applicable to him. Dosta Textile Mills vs SB Nath 40 DLR (AD) 45.

Section 42— A suit wherein negative declaration is prayed for is not barred under section 42 of the Specific Relief Act. Abdul Gani and others vs Almas Khatun and others 42 DLR 211.

Section 42— Maintainability of suitPlaintiffs having failed to prove their possession in the suit land, a simple suit for declaration of their title is barred. Noor Mohammad Khan vs Bangladesh 42 DLR 434.

Section 42— The plaintiff being entitled to a decree that the suit property is not an abandoned property and the Government having disclaimed the same as requisitioned property, the latter is liable to restore its possession to the plaintiff and also to pay rentlcompensation under the Requisition of Property Act for its use and occupation from 14-2-72 till the possession of the property is restored to the plaintiff. Md Zaher vs Bangladesh 42 DLR 430.

Section 42— A suit wherein negative declaration is prayed for is not barred under section 42 of the Specific Relief Act (relied on 37 DLR 49, 40 DLR 226). Abdul Gani vs Almas Khatun 42 DLR 211.

Section 42— As the plaintiff—appellant does not have title to the entire suit land the greater part of which is in fact an enemy and vested property, he is not entitled to a decree for declaration as prayed for—He may seek remedy by way of partition in an appropriate forum. It is not ascertained what is the appellant’s share nor is it clear whether the Il3rd of the suit land representing original owner Jugal Chand’s share, has· been mcluoed in the Vested Property case. Determination of the appellant’s lawful share in the suit land is not an issue in this suit. It is .a suit for declaration that the Vested Property case is illegal, collusive and void.· Now that the appellant is not found to have title to the entire suit land the greater part of which is in fact an enemy and vested property the appellant—plaintiff is not entitled to a decree he prayed for. He may seek remedy by way of partition in an appropriate forum. Decision of the High Court Division affirming that of the Appellant Court is perfectly correct. Nuruzzaman Sarker vs Seraj Mia 41 DLR (AD) 107.

Section 42— When prayer for consequential relief not necessary—The plaintiffs did not file the suit for declaration of their title. They have prayed for simple declaration to the effect that the judgment of the certificate proceeding bearing No. 697 and sale held thereunder is illegal, collusive; fraudulent and is not binding upon the plaintiff. So the prayer for consequential relief is not required in the instant case. As such the suit will not be hit by section 42 of the Specific Relief Act. In a case where the defendant’s plea of his having taken symbolical possession or that there is evidence of ‘the defendant having taken symbolical possession, the plaintiff must pay for recovery· of possession in a suit for declaration of his title, otherwise the suit will be hit by section 42 of the Specific Relief Act. Mokbul Hossain vs Anil Kumar Shaha 37 DLR 131.

Section 42— While passing a declaratory decree under section 42 of the Specific Relief Act the trial Court will consider if the plaintiff can establish his locus standi to sue the · Vice Chancellor and whether the case involves any personal entitlement, any legal character or right to any property. Prof MA Raquib vs. Prof Zillur Rahman 37 DLR 83.

Section 42— What exigency of circumstances prevailed which compelled an officer of the University to institute a suit against the highest officer of the University with regard to an official act of the University has to be established before the trial Court while disposing of the suit on merits by the court concerned. Prof MA Raqub vs ProfZillur Rahman 37 DLR 83.

Section 42— Suit for injunction incidentally the question of title is gone into that will not convert the suit to one for declaration of title and injunction—Where defendant is in possession or the plaintiff has no legal possession suit for permanent injunction will not lie. Bazlur Rahman vs Jan Mohammad 37 DLR 79.

Section 42— Negative declaration sought in a suit—that creates no bar under section 42 SR Act. Merely because a negative declaration has been sought that cannot be any ground to hold that the suit does not come within the ambit of section 42 of the Specific Relief Act. The said section does not really bar a negative declaration as such if otherwise its conditions and terms are fulfilled. Bipin Chandra Ray vs Bunchuki Barmani 37 DLR 49.

Section 42— A declaration as to illegal and void character of an act would automatically mean the restoration of the position previous of the illegal act. Sarder Ahmed Ali vs GM Ali Baksh 37 DLR 7.

Section 42— Relief which cannot be called further reliefs within the meaning of the prP\ is ion to section 42. If a plaintiff would be entitled, in some remote way, to some other relief in consequence of the declaration but which .are not immediately related to the cause of action the said relief cannot be called further relief within the meaning of the Proviso to the Act and hence the plaintiff in such a case cannot be compelled by the court to ask for relief, whether he wants it or not and if the plaintiff in a given case is not in need of any other consequential relief the suit will not lie. All this would depend upon the facts and circumstances of each case and this ought to be decided at the outset and allow an amendment of the plaint if so required after an objective examination of the further relief that need be claimed. Sarder Ahmed Ali vs GM Ali Boksh 37 DLR 7.

Section 42— Under section 42, SR Act a case will lie when the plaintiff proves that he is entitled to a legal character or right and the defendant is denying such legal character or right. Hasmat Ali vs Mofizuddin Majhi 37 DLR 231.

Section 42— Suit for declaration that the order of removal of the plaintiff, a bank officer, from service was void and inoperative and that he remained in service was maintainable without any further relief. Fazlul Karim vs Agrani Bank 45 DLR 375.

Section 42— When a decree adversely affects a person not a party to the same he may file a suit for declaring the decree not binding on him and get the same set aside if found illegal. Moulvi Abdul Mannan vs Md Rajiqul Islam 46 DLR 493.

Sction 42— In a case of original coownership the plaintiff and defendant being in joint possession of the suit property, suit for declaratory relief in respect of the share of the plaintiff in a specified land without seeking partition is maintainable. Shankar Chandra Das vs Kalachand Das 46 DLR 419.

Section 42— As the plaintiffs failed to prove their possession in the suit land their simple suit for declaration of title is barred and the suit as framed is not also maintainable. Madaris Ali vs Biswamber Das 46 DLR 34.

Section 42— In a suit for declaration of title to property when it stands attached under section 145 CrPC it is unnecessary to ask for further relief of recovery of possession. It is unnecessary to ask for possession when the property is in custodia legis. The fact that the decree may not be binding on the Magistrate does not affect the competence of the suit. Jogendra Kumar Dutta vs Nur Mohammad & others 45 DLR (AD) 173.

Section 42— In the face of evidence showing that the plaintiffs have been possessing the suit land from 1351 BS and their names have been recorded in the Khatian and there being no evidence on record to prove that the Government ever took possession of the land as an enemy property, defendants’ claim of title is sustainable. Additional Deputy Commissioner (Revenue) ys Md Siddiqur Rahman 46 DLR (AD) 179.

Section 42— Maintainability of suit—The suit being one for declaration of title to an unspecified share of an undivided plot of land on the basis of gift and there being no evidence that the donor thereof was in exclusive possession at any time, is not maintainable without a prayer for partition. Tayeb Ali vs Abdul Khaleque 43 DLR (AD) 87.

Section 42— Suit for declaration simpliciter—When the suit property is in possession of the Government, no prayer for recovery of possession is required. If it is declared by the Court that the property is not an abandoned property, the Government will have no reason to possess the same and will be under an obligation to restore possession to the plaintiff and no prayer for recovery of possession as a consequential relief is necessary. The lessor under the Government has no independent right and no prayer for her eviction is necessary. Hashem vs Bangladesh and others 43 DLR I 09.

Section 42— Plaintift’s prayer for declaration that defendant Nos. 2 and 3 have no title· in the suit property in the suit for specific performance of contract by the purchaser was not maintainable since the plaintiff acquired no interest in the suit property under the contract for sale. Silver Estate Ltd vs Abdul Hakim Mia 43 DLR 360.

Section 42— A declaratory decree passed in a case without any prayer for consequential relief is an “annuity”. Such decree· is a gain and its implementation is dependent on as to whom the decree is passed against. In the instant case the defendant being a statutory corporation, there is no reason to believe that such corporation will not implement the decision of the court. Jiban Bima Corporation, Dhaka vs Mustafa Hussain & and another 50 DLR 411.

Section 42— Service matter—Suit for declaration is not maintainable in view of the fact that till now the relationship between the parties is that of master and servant—Though the corporation had taken over the jute mill no statutory rules have been framed in order to guide the service conditions of the plaintiff and employees like him. Bangladesh Jute Mills Corporation Ltd and others vs Abdul Halim Chowdhury 47 DLR 17 3.

Section 42— Plaintift’s prayer for declaration was not followed by any consequential relief and, as such, the Court committed no illegality in holding that the omission to pray for such a relief for the purpose of enforcing the declaratory decree ‘was hit by section 42 of the Act. Bangladesh Jute Mills Corporation Ltd and others vs Abdul Halim Chowdhury 47 DLR 173.

Section 42— A suit at the instance of a co-sharer against a trespasser for recovery of possession is maintainable without impleading the other co-sharers. Abdul Khaleque (Md) vs Raj Mohammad Sarker and others 47 DLR 524.

Section 42— Suit for cancellation of decree—in such a suit it is incumbent to show that the decree was obtained by practicing fraud upon the Court. Jinnatunessa vs Bangladesh, represented by the Deputy Commissioner, Mymensingh 48 DLR 208.

Section 42— Omission to pray for any consequential relief for the purpose of enforcing a declaratory decree would be hit by the provision to section 42 of the Specific Relief Act. Sonali Bank and another vs Chandon Kumar Nandi 48 DLR 330.

Section 42— The courts below having held that the plaintiffs, had failed to prove their title and possession it must be held that they were not entitled to a decree for a simple declaration that the sole decree in the entitled Suit was obtained fraudulently and not binding on them. Ishaque Mia, (Md) & another vs Abdul Mazid Mollah & others 48 DLR 465.

Section 42 (Proviso)— In service matter a suit for simple declaration without any prayer for consequential relief is not maintainable. Dhunat Degree College and others vs Md Abdus Samad and others 49 DLR 38.

Section 42— The defendants being in possession of the suitland from before the filing of the suit, the plaintiff was to pray for recovery of khas possession by way of consequential relief as a suit for mere declaration is liable to be dismissed. Abdul Hamid Mollah vs Md Abdul Hye and others 49 DLR 428.

Section 42— Although an oral agreement for sale of an immoveable property is not barred by law, it has to be looked at with some suspicion unless it is proved by reliabe evidence. Moslemuddin (Md) and others vs Md Jonah Ali and another 50 DLR (AD) 13.

Section 42— Plaintiffs could have asked for either joint possession or partition as .a .co-sharer of the defendants in the disputed land but they did not take any such stand in the lower appellate Court or even before the High Court Division, The impugned judgment calls for no interference. Enjaheruddin Mia vs Mohammad Hossain and others 50 DLR (AD) 84.

Section 42— When the plaintiffs are in possession claiming raiyati settlement they cannot set up adverse possession to be entitled to a declaration of title. Salma Khatun and others vs Zilla Parishad Chittagong, represented by its Secretary and another 51 DLR (AD) 257.

Section 42— In a suit for declaration of title mere possession of the property is not sufficient unless the plaintiff can produce a document of title showing his acquisition of right, title and interest in the suit property. Abdul Kader vs Abdullah and others 51 DLR 435.

Section 42— Mere inclusion of the name of the plaintiff in the list recommended by selection committee for appointment could not confer any right to appointment to the service of the government. Habibur Rahman (Md) vs DC, Patuakhali and others 51 DLR 70.

Section 42— Since the plaintiff has no possession in the suit land, the suit for declaration of title on the basis of adverse possession is not maintainable. Kala Miah vs Gopal Chandra Paul and others 51 DLR 77.

Section 42— “The expression “legal character” in section 42 of the Act denotes a personal and special right not arising out of contract or tort, but of legal recognition. Rejection of plaintiffs application for allotment has created a legal recognition enforceable against a person whose similar application is accepted. Mirpur Mazar Co-operative Market Society Ltd vs Ministry of Works Government of People’s Republic of Bangladesh and others 52 DLR 263.

Section 42— In a case where plaintiff is a party to a document or decree that has clouded his title to the property in suit, he is to seek declaration either way, i.e., that the document or decree is void or void ab-initio or that for declaration as well as for cancellation. Dudu Mia and others vs Ekram Miah Chowdhury 54 DLR (AD) 7.

Section 42— The High Court Division was not correct, rather was in error in observing that decrees are collusive and consequently those need not be set aside. Dudu Mia and others vs Ekram Miah Chowdhury and others 54 DLR (AD) 7.

Section 42— In a suit for permanent injunction trial Court is not required to decide the title of respective parties. Chief Engineer, C&B and another vs Shah Hingul Mazar Sharif and others 54DLR (AD) 73.

Section 42— A declaration with regard to the contractual or financial obligation involved or transacted between the parties cannot come within the ambit Of section 42 of the Specific Relief Act. Shafi A Choudhury vs Pubali Bank Ltd 54 DLR 310.

Section 42— Although section 42 of the Specific Relief Act is not exhaustive and declaration independent of that provision is even permissible but a suit for declaration, would not lie when the plaintiff is neither entitled to any legal character or status nor clothed with any right. Shafi A Choudhury vs Pubali Bank Ltd 54 DLR 310.

Section 42— Since there was a letter of allotment and Alimuddin performed his obligations under the letter of allotment, and subsequently his heirs are in possession of the suit property, it cannot be said that late Alimuddin did not acquire any right title in the suit property. Moinuddin Ahmed alias Farook vs Khursheda Begum and ors 54 DLR 354.

Section 42— The particular fact that the plaintiffs are in possession of the suit land since 1963 by virtue of the registered power of attorney the plaintiffs have acquired a right to protect their possession and maintain a suit within the meaning of section 42 of the Specific Relief Act. Shishir Kanti Pal and others vs Nur Muhammad and others 54 DLR 440.

Section 42— Suit for declaration simpliciter m service matter is maintainable without any prayer for consequential relief. Tomser Ali@ Md Tamser Ali Sarder vs Md Nazrul Islam and others 55 DLR 151.

Section 42— A legal action involves determination of rights and obligations of the parties thereto. In law only a juristic person, whether natural· or artificial, is capable of having a right and an obligation. It, therefore; follows that only a juristic person can maintain a suit in a court of law. Bangladesh is a juristic person by being a Sovereign State. Principal, Barguna Darul Ulum Nesaria Alia Madrasha vs Secretary, Ministry of Health & ors 55 DLR 542.

Section 42— Law has not conferred upon a Ministry or a Department of the Government a legal personality, independent of the .Government. In a suit where the name of a Ministry appears as a party, it does so as the representative of the Government or the. State, Principal, Barguna Darul Ulum Nesaria Alia Madrasha vs Secretary, Ministry of Health & ors 55 DLR 542.

Section 42— The Ministry of Health has no legal personality, independent of the Government. So, it cannot maintain a suit in its· name; without an authority from the Government. It may derive its authority to proceed with a legal action from the Government. So, when the Ministry has no authority of its own to proceed with a legal action, it cannot authorise others to represent it in, and proceed with, a legal action. Principal, Barguna Darul Ulum Nesaria Alia Madrasha vs Secretary. Ministry of Health & ors 55 DLR 542.

Section 42— Suspension of· an employee pending a disciplinary proceeding· is an approved measure and the Court does not generally interfere with it. But if the order of suspension is prima facie illegal and tinged with malafidie, the Court is competent to act for preventing injustice. Bijoy Kumar Shaha vs DC, Chuadanga and others 55 DLR 550.

Section 42— Although in response to the public notice the plaintiff submitted two tenders and also deposited the required 25% deposits but since those tenders were· not accepted by the Railway Department, no agreement came into existence and they had no obligation, legal or otherwise, to allot any plot of land in favour of the plaintiff. Government of the People’s Republic of Bangladesh and others vs Sheikh Jahangir Hossain 55 DLR 620.

Section 42— Respondent was appointed a temporary junior teacher and her probation was for two years and she was allowed to continue in service for two and a half years. Relying upon the decision reported in 29 DLR 104, it is ruled that her continuation in the service beyond two years would amount to her confirmation in the service. Kadamtala Purba Basaboo Uchcha Bidalaya vs Hachna Hena Sarker Hasna Heba Sarker 56 DLR (AD) 193.

Section 42— Neither the Government nor the Vested Property Authority challenged the decree of the trial Court. The defendant Nos. 6-8, being lessees of the Vested Property for one year, cannot have any locus standi to challenge the decree or prefer an appeal against such decree. Aroti Rani Paul vs Sudarshan Kumar Paul and others 56 DLR (AD) 73.

Section 42 and 39— Section 42 does not provide for declaration of nullity and cancellation of a written instrument but section 39 does so. ‘Voidable’, it will have to be avoided both by declaration and cancellation; and if the document is adjudged void or void ab initio it need not be cancelled—Sale deed void because of fraud, need not be cancelled. Sufia Khanam vs Faizunnessa 39 DLR (AD) 46.

Sections 42 and 56(7)— Courts cannot compel a. person, against his will, to employ or serve another, notwithstanding the contract of service. A mandatory injunction cannot be granted for such purposes. Padma Oil Co Ltd vs SM Nurul Islam and ors 56 DLR 505

The Specific Relief Act, 1877

Section 42

It is the settled principle of law that nothing short of a decree of a competent civil court can undo a registered document. If such type of cancellation of a registered instrument is allowed to con- tinue, there will be no sanctity of any registered instrument. Jobeda Bewa & others vs. Md. Abdur Razzaque (M.M. Ruhul Amin J(Civil) 4ADC 6

Section 42, 56F

In view of the legal position as discussed above we need not decide the issue as to whether the dismissal from service in question was illegal, but we must hold that the suit is not maintain- able on the ground that a declaratory decree will not be enough and that a decree for mandatory injunction necessary as a consequential relief is barred under the law. We, therefore, find that neither the trial Court nor the appellate Court nor the High Court Division considered this vital issue which cuts at the root resulting the suit not maintainable as framed. The suit ought to have been dismissed on the issue." Ismet Zerin Khan vs. The World Bank and others (Mohammad Fazlul Karim J) (Civil) 4ADC 202

Section 42, 39

While admittedly plaintiff was a party in the rent decrees as such in the absence of seeking avoidance either by way of a declaration that the rent suits were null and void or void abinitio the plaintiff in law cannot have the decree in the suit which is for mere declaration of title has referred to the decision in the case of Sufia Khannam Chowdhury Vs. Faizun Nesa Chowdhury reported in 39 DLR (AD) 46 and the decision in the case of Abdul Hamid Vs. Dr. Sadeque Ali Ahmed & ors repoted in 21 DLR 507.

In the case reported in 39 DLR it has been held- "Where a document has been adjudged voidable it will have to be avoided both by declaration and cancel- lation and if the document is adjudged void or void ab-initio it need not be can- celled." Dudu Mia being dead his heirs vs. Ekram Mia Chowdhury being dead his heirs (Md. Ruhul Amin J(Civil) 4ADC 299

After his death the heirs of his brother Dr. Abdul Halim in collusion with Revenue Officers got their names recorded in the finally published khatian in respect of 8 annas share of the suit land, putting up the claim that the revenue sale was benami transaction in that Dr. Abdul Halim younger brother of Joynal Abedin, had purchased 8 annas share in the land and that there was threat of dispossession of the plaintiffs from half of the land. Hence the plain- tiffs filed Title Suit No. 502 of 1975. In view of above mentioned observation we are of the view that the High Court Division did not commit any error in sending the case on remand to adjudicate the matter afresh in accordance with law giving the parties opportunity to adduce further evidence in support of their respective claims in addition to the evidence already on record. The order does not put any bar upon the plaintiffs to adduce evidence to prove their claim. We are at a loss to understand as to what prompted the plaintiffs to prefer this appeal.Feroza Khatun Chowdhurani vs. Abdur Rahim and others (Amirul Kabir Chowdhury J) (Civil) 4ADC 306

Section 42-Appellate Court being the last Court of facts The appellate Court being the last Court of facts, found that the plaintiffs were eight annas owners of the suit property including houses which may be standing thereon. We find that the evidence and materials on record fully support such finding. The view taken by the High Court Division, is in our view erroneous and, hence, the impugned judgement is not sustainable. The impugned judgement and order of the High Court Division is set aside. ..... Hena Begum (Most.) -VS- Abdul Kader, [3 LM (AD) 229]

Section 42- Plaintiff has not asked for any relief that the suit is hit by the provision of Sec. 42 of S.R. Act- It also appears that the plaintiff has mentioned in his plaint that he was served with a notice by the defendant to quit the said land and it has been admitted at the time of hearing that the said notice was served asking the plaintiff to quit the suit land. It appears from the plaint that that the plaintiff has not asked for any relief regarding the notice nor did he file the same in the Court. It has further been averred that the defendants are conspiring to oust him from the suit land and accordingly threatened him on 30.06.1989 with dispossession therefrom. Thus, it is also apparent that the plaintiff had further relief or reliefs to ask for and in that view of the matter the suit is hit by the provision of Section 42 of the Specific Relief Act. .....Hashmat Ullah Tapadar(Md.) Baset Khan(Md.). (5 LM (AD) 397] VS

Section 42- Declaration of title with khas possession We find no wrong, illegality or infirmity in the impugned judgment of the High Court Division. Rather, we find that the High Court Division was quite correct and justified in restoring the judgment and decree of the trial Court setting aside the judgment and decree of the appellate Court...... Bishow Ram Chawhan VS Rabeya Bari Chowdhury, [3 LM (AD) 181]

Section 42- The suit for declaration simpliciter was barred in view of the provision of Section 42 of the Specific Relief Act in the absence of any prayer for recovery of khas possession- The learned Judge of the High Court Division has resolved the points as regards title and possession of the suit land in favour of the plaintiff in accordance with law. In view of the conflicting evidence of the parties with regard to possession the possession should be found with the party having better title and when the possession is found in favour of the plaintiff, the suit for declaration simpliciter is maintainable. The appeal is accordingly dismissed without any order as to costs. ..... Hemayet Uddin VS Md. Rustam Ali, [4 LM (AD) 228]

Section 42- Declaration of title- The High Court Division has totally ignored that aspect and illegally interfered with the judgments keeping those finding intact. Thus it has exercised power not vested by law, inasmuch as, it cannot interfere with the findings of fact arrived at by the final court of fact in the absence of any misreading or non- consideration of the evidence on record. ADC (Rev), Rangpur VS Amir Hossain, (3 LM (AD) 3]

Section 42- It is apparent that on the date of filing the suit or on the date of cause of action for filing the suit, the plaintiffs were under the constant threat of dispossession by the defendant. Therefore, they were legally obliged either to pray for permanent injunction or to pray for confirmation of possession as consequential relief along with the prayer for declaration of title to the suit land within the meaning of the proviso to section 42 of the Specific Relief Act, but they did not make any such prayer and they only prayed for a declaration of title to the suit land. Therefore, the plaintiffs' suit was not maintainable in law within the meaning of the said proviso to section 42 of the Specific Relief Act. It is true that the trial Court dismissed the suit not on the ground of its maintainability, but on other grounds as noted down hereinbefore, but this being a point of law and maintainability of the suit goes at the very root of the matter and when this has come to the notice of this Court, this Court cannot overlook the provision of law.

The High Court Division, like the Appellate Court affirming the judgment and decree of the Appellate Court consider the factual finding arrived at by the trial Court about the amalnama, the basis of the plaintiffs title the maintainability of the suit and therefore, erred in law in discharging the Rule.

We find merit in the appeal and accordingly, the same is allowed. The impugned judgment and order affirming those of the Appellate Court is set aside and those of the trial Court are restored. ...Pear Ali Bepari -VS- Md Abdul Hai, 16 LM (AD) 119]

Section 42- Amendment of Plain- It is now settled that as to the question of limitation there are two ways in which the same may arise. "First, whether the claim to be included was barred on the date of the institution of the suit. Secondly, whether the claim is barred on the date of the prayer for amendment. On the first case, the prayer for amendment can not be allowed as it is barred on the date of institution of the suit and on the second case, the prayer can be allowed." The suit was instituted on 7th March, 1964 and though the amendment of the plaint was made on 19th April, 1977, as soon as the prayer for amendment was allowed, the said amendment related back to the date of institution of the suit, as if those statements in the amendment petition were made in the original plaint. In that view of the matter, the learned Counsel is absolutely wrong in his contention that the amendment is barred by limitation. Article 142 of the Limitation Act applies when a plaintiff set up a case of possession followed by dispossession. In such a case the onus is on the plaintiff to prove that he was in possession within 12 years from the date of the institution of the suit. ...Monowara Begum (Most.) -VS- Malanch Bibi, (8 LM (AD) 102]

Section 42- Where the plaintiffs are out of possession and the defendants are in possession, the "further relief" would be recovery of possession and the suit for declaration of title without prayer for. recovery of possession is hit by the proviso to section 42 of the Specific Relief Act. ... Delipjan VS Shahed Badsha, [8 LM (AD) 142]

Section 42- The words 'further relief are meant not any and every kind of relief but one which would complete the claim of the plaintiff and not to lead to a multiplicity of suits. That further relief must flow necessarily from the relief of declaration. What is contemplated is a relief arising from the cause of action on which the plaintiff's suit is based. The relief which is inherent in original declaration claimed relief without which declaratory decree claimed would be meaningless and infructous. Alimuzzaman (Reza) (Md.) -VS- Masudar Rahman(Md.) @ Babul. [8 LM (AD) 164]

Section 42- Declaration of Title- It is the cardinal principle of law as enunciated by this Division that revision Court cannot interfere in concurrent finding of facts, when there is no misreading and non-consideration of the material evidence on records. In the instant case the Single Judge of the High Court Division in the judgment wrongly opined that both the Courts misread and non-considered the materials evidence on record or rebutted the facts of finding of the Courts below as both the Courts below correctly found that the case of the defendant for the Specific Performance of Contract was not proved. We are of the view that the judgment of the High Court Division is not a proper judgment of reversal, hence, it is set aside. The judgment of the Court of appeal below is affirmed... Safaruddin Bhuiyan(Md.) -VS- Hazi A. Hannan Bhuiyan, [10 LM (AD) 103]

Section 42- Declaration of title and recovery of khas possession of the suit land- A suit for declaration of title and recovery of possession on the strength of title, the plaintiffs can succeed on estableshing their title to the scheduled property and they cannot succeed on the weakness of the case put forward by the defendants. Only weakness of the defendants is that they failed to mutate their names in the khatian and paid rent which did not extinguish their title.

The defendants' deed was acted upon and that since the plaintiffs hopelessly failed to prove their possession and dispossession, they are not entitled to get relief for declaration of their title as well as recovery of possession in the suit land, the learned Courts below committed an error of law in decreeing the suit.... Nadim Hossain -VS- Halima Kader, (10 LM (AD) 118]

Section 42- Title Suit It is well settled that the plaintiff must prove his case by cogent evidence and that his suit cannot be decreed based on any weakness of the defendant's case 39 DLR (AD) 237.

We are of the opinion that the High Court Division has properly assessed the evidence and materials on record and has reversed the judgement and decree of the courts below upon proper appreciation of the law. Hence, wedo not find any illegality or impropriety in the impugned judgement and order of the High Court Division. Sibpada Biswas -VS- Chitta Ranjan Biswas, [10 LM (AD) 277]

Sections 42-Declaration of the title Considering the fact that Tota Mia ultimately got a plot of 305.60 sq.yds. in place of his allotted 325.70 sq. yds., Delu Mia should get 300 sq. yds. in place of his originally allotted 325 sq. yds. Consequently, Afaz Uddin will be left with the corner plot comprising 103.20 sq.yds. Respondent Nos.2, 3 and 4 are hereby directed to measure the land within plots Nos.21/1 and 21/2 and demarcate the areas for each of the plots in the light of our decision above within two weeks of receipt of a copy of this judgement. Respondent No.1 is hereby directed to cooperate with respondent Nos.2, 3 and 4 in carrying out the measurement and demarcation of the plots in question. Observations and directions the instant appeal is disposed of. Dilu Miah(Md.) -VS- Afazuddin, [6 LM (AD) 109]

Sections 42- Declaration of Title Suit The decree-holder-respondents obtained decree in Title Suit No.241 of 1998 of the First Court of the then Subordinate Judge, Dhaka on 28.11.2000. For execution of the aforesaid decree, the decree-holder-respondents filed Title Execution Case No.01 of 2001. But in execution of the decree, the decree-holder- respondents could not obtain possession for the last 17 years because of filing of multifarious cases one after another by the plaintiff-petitioner. The plaintiff-petitioner alleged that fraud was practiced upon him in obtaining the judgment and decree dated 19.11.2000 passed in Title Suit No.241 of 1998 of the then Subordinate Judge, Dhaka.

The disposal of the aforesaid suit will take long time but in the meantime, execution of a decree obtained on 19.11.2000 could not be stayed for indefinite period. Meanwhile 17 years have elapsed but the decree- holder-respondents could not enjoy the fruit of the decree.

We are of the view that the High Court Division was perfectly justified in rejecting the revisional application summarily upholding the order dated 09.05.2016 passed by the learned Joint District Judge. First Court, Dhaka in Title Execution Case No.01 of 2001. In the light of the findings this civil petition is dismissed.....Abdul Haque Milu VS Mst. Hamida Khatun, [6 LM (AD) 175]

Sections 42- Declaration that the kabala deed as described in schedule- Kha to the plaint in respect of the land described in schedule-'Ka' to the plaint is unlawful, void, fraudulent and for cancellation of the same P.W.1 in his cross-examination stated that after execution and registration of the suit kabala, the defendants made plantation in the suit land and that he did not know whether the defendants started any shop in the suit land meaning thereby that the plaintiff did not deny that the defendants constructed shop in the suit land. The plaintiff while deposing as P.W.1 stated in his cross-examination that after reading the suit deed he put his signature on it which means that he had no complaint about recital of the suit deed. P.W.1 further stated that his father-in-law Md. Sirajul Islam was an attesting witness of the kabala but said Md. Sirajul Islam did not turn up to support the case of the plaintiff.

The High Court Division exhaustively considered the evidence on record and finally found that the plaintiff could not prove the case as made out in the plaint. In the light of the findings this civil petition is dismissed.... Mohammad Abdul Motaleb -VS-Gazi Nur Hossain, [6 LM (AD) 178]

Sections 42- Cancellation of the registered Power of Attorney with khas possession of the title suit Plaintiff, instituted Title Suit No.849 of 2010 in the Court of Joint District Judge, First Court, Dhaka for cancellation of the registered Power of Attorney No.23707 dated 23.09.2007/24.09.200 executed by the plaintiff in favour of defendant No.2 and registered Kabla No.8401 dated 27.10.2008 executed by defendant No.2 in favour of defendant No.1 and for declaring that those are inoperative and not binding upon the plaintiff. He also prayed for khas possession of the suit land. The fact that the plaintiff did not take any step for almost two years while a civilian Government was in power, we are of the opinion that the High Court Division and the trial Court rightly disbelieved the plaintiff's allegation of torture and duress in obtaining his signature and creating false documents. The civil petition for leave to appeal is dismissed. Mohammad Yahiya -VS- Mrs. Shefali Begum, [6 LM (AD) 58]

Sections 42- Declaration of title- Appellate Court being the last court of fact- The appellate Court, being the last court of fact, reversed the finding of the trial Court that Mofezuddin died after Dholu Sikder upon proper appreciation of the evidence and materials on record. The appellate Court allowed the cross objection filed by defendant Nos.1-3. The High Court Division upon considering the judgement and decree of the appellate Court upheld the same. We find that the impugned judgement and order does not suffer from any illegality or infirmity and does not call for any interference by this Division. The civil petition for leave to appeal is dismissed without, however, any order as to costs. Aysha Siddika(Most) VS Nizam Uddin Sikder. [7 LM (AD) 212]

Sections 42- Declaration Suit- The High Court Division correctly found that the transaction was a sale and not a gift, but then erred in not concluding that consequently the plaintiffs claim of the deed being a deed of gift was not proved. The plaintiff had to prove that he signed the papers believing that he was signing an agreement for the cinema hall and not a deed of gift. But none of the plaintiffs witnesses supported the plaintiffs claim. Hence, the plaintiffs case was not proved. Thus the impugned judgement and order cannot be sustained.

The evidence on record unquestionably discloses that the transaction was one of sale. It is equally evident that the requisite stamp duties were not paid at the time of registering the deed in question.

We are of the opinion that the plaintiff did not prove his case in accordance with law. Accordingly, the appeal is allowed. The impugned judgement and order of the High Court Division is set aside.... Nazimuddin Mondal -VS- Abul Kalam Azad, [7 LM (AD) 312]

Sections 42- Title suit It is a cardinal principle of law that the plaintiff must prove his case in order to get a decree in his favour. Time and again this Court has held that the weakness of the defendants case is no ground for passing a decree in favour of the plaintiff (Md Naimuddin Sarder (@) Naimuddin Sarder Vs. Md. Abdul Kalam Biswas @ Md. Abul Kalam Basiruddin @ Abul Kalam Azad & anr reported in 39 DLR(AD)237 and also Khondoker Mobarak Ali -vs- Jahanara Begum and others reported in / ADC 401.)

Facts and circumstances, it is abundantly clear that the judgement and decree of the trial Court was patently erroneous and based upon misreading of evidence. The appellate Court properly reversed the judgement of the trial Court. Evidently the claim of the plaintiff was falsified by the production of the S.A. record of rights, which falsified the claim of the plaintiff and, on the other hand, proved that the S.A. records were in the names of the defendants.

The judgement of the High Court Division is palpably erroneous, being contrary to settled principle of law and wrong interpretation of statute.

We find merit in the appeal, which is accordingly allowed. The judgement and order of the High Court Division is hereby set aside. Nazimuddin Mondal -VS- Kushal Mondal, [7 LM (AD) 25]

Section 42- Declaration of title and recovery of Khas possession- Having considered the documentary evidence on record including exhibit-1, the sale deed of the plaintiff and exhibit-Uma(1), the deed standing in the name of the plaintiff's father Jachechu Mamud, the High Court Division came to a finding that the kabala in favour of the plaintiff was registered earlier than the kabala in the name of the plaintiff's father. The High Court Division also found that from recital of the deed of sale, it appeared that the suit land was purchased by the plaintiff with his own money and that the consideration in respect of exhibit-1 having been paid by the plaintiff, it should be treated as a genuine document. We do not find any substance in this appeal. Accordingly, this appeal is dismissed without any order as to costs.... Kazi Nayebul Haque -VS= Md. Jalal Uddin, [8 LM (AD) 120]

Section 42- Title suit cancellation of the registered Hiba-bil-ewaz deed The plaintiff who is a well educated man and was the chairman of the union parishad for 2 terms, admittedly executed this hiba-bil- ewaz deed. The evidence produced by the defendant has proved sufficiently that the plaintiff executed this hiba-bil-ewaz deed being fully conversant with the contents of it and on receipt of the consideration as mentioned in the hiba-bil-ewaz deed in the year 1991. So, this suit filed in the year 1999 is hopelessly barred by limitation also. The appellate court below and the High Court Division committed wrong and illegality in holding that the hiba-bil-ewaz deed in question was obtained by practicing fraud and as such the limitation for this suit will run from the date when the defendant left the house of the plaintiff leaving him in breach of condition of this hiba-bil-ewaz deed. From the above discussions, it is evident that no fraud was practiced at all in getting this hiba-bil-ewaz deed executed and registered. The trial court rightly found that there was no fraud at all in causing execution and registration of this hiba-bil-ewaz deed and that this suit is hopelessly barred by limitation. This appeal be allowed on contest without any order as to cost. The impugned judgment and decree of the High Court Division and also those of the appellate court below are set aside. The judgment and decree of the trial court dismissing the suit be upheld.... Rani Akther(Most) VS Mobarak Ali Mridha, [8 LM (AD) 128]

Section 42- Declaration suit- The trial Court and the High Court Division overlooked the admission corroborated by documentary evidence that the deeds of transfer by the plaintiff and his others siblings show that the land which they transferred prior to 1980 had been theirs by dint of amicable partition.

It is noteworthy that having lost at the appellate stage, they did not challenge the decision of the appellate Court by filing any revision before the High Court Division. Such behaviour of respondent Nos.2, 3 and 4 further diminishes the case of respondent No.1.

We find that the decision of the High Court Division upholding that of the trial Court cannot be sustained. Accordingly, the appeal is allowed. The judgement of the High Court Division is set aside and the suit is thus dismissed.... Nurjahan Begum VS Ali Ahammad Mollah, [9 LM (AD) 28]

Section 42- Declaration suit- We are of the view that both the trial Court as well as the High Court Division properly decided that the plaintiffs are in possession of the suit property uninterruptedly for more than 30-35 years. We find no misreading or non-consideration of the evidence on record by the trial Court or the High Court Division. Therefore, the declaration of the plaintiffs' title to the suit property (C.S. Plot No. 1069, 2nd schedule property) appears to be lawful. The judgment and decree in favour of the plaintiffs relating to the suit property (2nd schedule) is hereby affirmed. ... Binode Chandra Debnath VS Harendra Debnath, [9 LM (AD) 50]

Section 42- Declaration of title and recovery of khas possession- The trial Court by its judgment and order dated 30.09.1998 dismissed the suit. Against the judgment and decree of the trial Court, the plaintiffs preferred Title Appeal No. 406 of 1998 before the learned District Judge, Dhaka. On transfer, the appeal was heard and disposed of by the learned Additional District Judge, Third Court, Dhaka, who by his judgment and order dated 08.04.2001 dismissed the appeal affirming the judgment and decree of the trial Court. Being aggrieved by and dissatisfied with the judgment and decree of the appellate Court, the plaintiffs moved the High Court Division by filing a revisional application and obtained Rule in Civil Revision No. 3839 of 2001. Upon hearing the parties by the judgment and order dated 14.05.2009 made the Rule absolute without any order as to costs.

Since the plaintiffs failed to prove their case, they are not entitled to a decree. Therefore, the High Court Division was not justified in decreeing the suit setting aside the concurrent findings of fact of the Courts below.

We find substance in this appeal and accordingly, the appeal is allowed and the impugned judgment delivered by the High Court Division is set aside and the judgments and decrees passed by the Courts below are restored. .... Arshad Hossain Haider VS Suza Uddoula, [9 LM (AD) 32]

Section 42- Title Suit- The practice of endorsing return of consideration money on the back of the deed of transfer is sufficient to indicate a mortgage. It is not a case of oral evidence contradicting the terms of a written document. Here, the term of the Patta deed is amended by written endorsement which has been signed by the maker of the endorsement. Moreover, the endorsement on the back of the Patta is supported by the witness to the endorsement, namely, Md. Abdul Aziz Mulla(P.W.3) and the fact that the original Patta with the endorsement was returned to the predecessor of the plaintiffs is evidenced by the fact that it was produced in court from the custody of the plaintiffs. We note the half-hearted attempt of the defendants while cross examining P.W.1 to prove that the Patta deed was cleverly taken by P.W.1 from D.W.1 at the settlement office. This was not supported by the sole witness of the defendants, namely D.W.1.

We find merit in the appeal, which is accordingly allowed. The judgement and order of the High Court Division is hereby set aside, and the judgement and decree of the appellate Court is restored. Abdul Hadi Gazi VS Mostafa Alamgir Siddique, [10 LM (AD) 687]

Section 42- Declaration Suit The execution of the plaintiff's deed of gift by the admitted 4 owners of the suit land is admitted by the contesting defendants. The contesting defendants case is that since the four owners of the suit land executed the transfer deeds in their favour earlier though those are subsequently registered, the plaintiff's deed executed later by the same vendors was invalid. But it appears that to substantiate this case the contesting defendants could not adduce any evidence at all to prove the genuineness of their alleged deeds. None of the scribe, attesting witnesses or identifiers of the alleged deeds of the defendants have been examined before Court by the contesting defendants. The Courts below, therefore, rightly found that the contesting defendants could not prove the genuineness of their alleged deeds at all. The High Court Division rightly made observation to the effect also that since the defendants failed to prove the genuineness of their deeds the plaintiff did not require to make a prayer for declaration of these deeds as false, forged and invalid etc...... Sreenath Sen VS Laxmi Rani Boiragi. [5 LM (AD) 159]

Section 42-Declaration of title to the suit land and for recovery of its possession- The trial Court did not at all discuss the evidence of the PWs in deciding the question of possession of the suit land. The Appellate Court being the last Court of fact did not at all apply its mind and it simply dittoed the findings of the trial Court. The High Court Division also relied upon the judgment of the Appellate Court saying that it was the last Court of fact without looking in to the fact whether the Courts below considered the evidence on record in dismissing the suit. We find it proper to send the revision back to the High Court Division for hearing afresh and dispose of the same in accordance with law on the evidence on record.....Md. Chan Miah & others -VS- Md. Afazuddin Bhuiyan & another. [1 LM (AD) 143]

Section 42-Declaration of her title in 39 acre of land stating for declaration of title without prayer for partition is not maintainable- We find from the plaint that the description of the suit land as given in the schedule to the plaint is discrepant vis-à-vis the deposition of the plaintiff in cross-examination. Also in his deposition P.W. I admitted that in 29 decimals of land in the Southern part, both he and the defendant are in possession. In such circumstances, the parties, if so advised, may take recourse to a proper suit. In view of such facts and circumstances the proper course would have been for the parties to file a partition suit.......Arabind Mallik & others =VS= Joydeb & others, [1 LM (AD) 282]

Section 42- Declaration of title- Appellate Court misread the evidence in finding that the suit land is cultivable land- Part of the suit plot was halot. In this regard we find from the khatian that plot No. 51 is recorded as halot whereas plot No. 102 is recorded as beel. The appellate Court has therefore misread the evidence in finding that the suit land is cultivable land. A proper scrutiny of Ext.1 would show that in C.S. Khatian No.3 plot No.51 is a "halot" and plot No.102 is a "beel". Thus, clearly the suit land is a waterbody and not cultivable land. Hence, the claim of the plaintiffs of possession in land of plot No.102 was rightly rejected by the trial Court. Hajee Abdul Majid -VS- Jahir Uddin, [4 LM (AD) 217]

Section 42- Declaration of title and confirmation of possession- The High Court Division elaborately discussed the evidence and materials afresh and noted that DWI in his evidence admitted that during pendency of the suit, the plaintiffs side entered into possession in the disputed plot and erected a pucca dwelling house. Erecting a pucca dwelling house on 1 decimal land was found to be improbable by the trial Court and the High Court Division. In view of the partial admission of possession and also the voter list of 1976, the High Court Division held that the Courts below were justified in holding that the plaintiffs were in possession of the disputed plot. The High Court Division also observed that one bigha land normally comprises 33 decimals. The onus lay upon the defendants to show that three bighas land equal to 178 decimals, which they did not prove. There is a road separating plot Nos.1135 and 1137 from the suit plot No.1136. In our view it has been rightly held that the compact 3 bighas plot does not extend to the other side of the road onto the suit plot. We do not find any illegality or impropriety in the impugned judgement and order of the High Court Division. Mohammad Rois Uddin -VS- Sree Anil Kumar Mondol, [5 LM (AD) 145]

Section 42- Declaration that Kabala No. 908 dated 04.03.2001 executed by defendant No. 3 in favour of defendant No. 1 and Kabala No. 7442 dated 26.07.2001 that the learned Judge of the Single Bench considered the evidence on record, both oral and documentary, the findings of the Appellate Court on the question of plaintiffs title and possession in the suit land and the genuineness of the kabalas challenged in the suit and found those based on proper appreciation of the evidence on record......Abdul Malek =VS= Abdul Jalil & others, [1 LM (AD) 275]

Section 42-

Possession-For declaration of title in the suit land- The claim by the plaintiffs is that they took pattan from the C.S. tenant Brojo Hori, but they could not produce any document to substantiate their claim. In the absence of any evidence as to how the plaintiffs got title to the suit land and considering the fact that the S.A. and R.S. records are in the name of the Government, the admission by D.W. 2 regarding possession by the plain-tiffs is of no help to the plaintiffs... Md. Soleman Ali Akan & others VS Mst. Taramon Bewa & others, [1 LM (AD) 235]

Section 42- Title Suit No. 27 of 1983 decreeing the suit for a decree of permanent injunction restraining the defendants form disturbing their peaceful possession in the suit land.

Leave is granted on the ground which is quoted below:-

"I. Because the High Court Division overlooked the very important aspect of the case that out of 8 defendants only one defendant- the defendant No. 6 has denied the compromise petition which is a weighty piece of evidence in favour of plaintiffs' title and possession in the suit land; that the records of right along with rent receipts showing payment of rent for a long period also gave a presumption of possession in favour of the plaintiffs, but the High Court Division did not consider these valuable evidence also and consequently came to the wrong findings and decision and as such the impugned judgment and order passed by the High Court Division is liable to be set aside."

The parties are directed to maintain status quo in respect of the suit land till disposal of the appeal...... Upendra Lal Saha &others VS Sheikh Sujai & others, [1 LM (AD) 323]

Section 42- Title Suit

We are of the opinion that the trial court rightly dismissed the suit of the plaintiff, but the appellate court below most erroneously and illegally set aside the judgment and decree of the trial court and decreed the suit of the plaintiff and the High Court Division also most erroneously affirmed this judgment and decree of the appellate court below. Appeal be allowed without any order as to cost. The impugned judgment and order of the High Court Division and also the judgment and decree of the appellate court below are set aside and the judgment and decree of the trail court be restored. ..... Younus Mia (Md.) VS Mosharaf Hossain, [4 LM (AD) 342]

Section 42- The rent receipts as proof of title Both the trial Court and the High Court Division appear to have accepted the rent receipts as proof of title of the plaintiffs. We also note that the rent receipts were not legally proved and no attempt was made to call for the counterfoils of the rent receipts, which, according to P.W.2, would be kept at the office of the Zaminder. Also, we note that the High Court Division mentioned a deed of 1310 in support of the plaintiffs' title. However, we do not find any reference to this deed in the judgement of the trial Court or how it helps the plaintiffs to prove their title. The High Court Division has not based its decision on any cogent reason in reversing the decision of the appellate Court. On the contrary, there is evident misreading of the materials on record. The impugned judgement and order of the High Court Division is hereby set aside. ....Executive Engineer, Roads & Highways -VS- Abirun Begum, [3 LM (AD) 223]

Section 42- Assessment of the evidence and materials Title Suit No. 1 of 1998 for declaration of title in the suit land with further- view of the discussion of the High Court Division upon assessment of the evidence and materials on record, we do not find that the impugned judgment calls for any interference by this Division. ......Abu Zaher & another -VS- Abu Taher Mijhi & others, [1 LM (AD) 320]

Section 42

Genuineness whereof seriously chal- enged by the defendant No. 1. took the view that signatures in the said documents were different and thereupon held that Ext.c was not genuine..........(9) This being the undisputed position the suit filed much later in 1992 seeking declaration in respect of the decree. passed in the suit for specific perform- ance of contract without consequential relief in respect of the kabala that was obtained on execution of the decree passed in the suit for specific perform- ance of contract in our view the said suit was not maintainable. K.M. Zahirul Haque vs. Mst. Shahida Khanam and oth- ers (Md. Ruhul Amin J(Civil) 4ADC 421

Section 42

Appellants that the first two courts below concurrently found that the plaintiff had no possession in the suit lands and that without a prayer for recovery of khas possession the suit as framed was not maintainable. Rupe Jahan Begum and ors. vs. Lutfe Ali Chowdhury & ors (Bimalendu Bikash Roy Choudhury J) (Civil) 4ADC 432

Whether a Single Judge of the High Court Division sitting as a Vacation Judge of the Court and taking up only urgent matters during the vacation can interfere with an order passed by regular Division Bench purporting to keep it in abeyance or vary- ing the same during the period of vacation. Azizur Rahman alias Md. Azizur Rahman vs. The Government of Bangladesh (Mustafa KamalJ) (Civil)4ADC 438

Section 42

Some of the Monthly tenants of the Waqf properties defaulted in payment of rent. So suit was filed for eviction against those tenants from the Waqf property.

The High Court Division considering a number of decisions, held that a Mutwalli of a Waqf Estate is mere manager and not ostensible Mosammat Parveen Sultana owner. VS. Mosammat Sahera Khatun & another (M.M. Ruhul Amin J)(Civil) 4ADC 889

Section 42

The question that falls for consideration is whether the learned Single Judge was correct in law in dismissing the present suit for the reason that there was no prayer in the plaint for declaration of title and recovery of khas possession in the suit land and' also for defect of party in that the Deputy Commissioner, Gazipur representing the Government was required to be implead as the plain- tiff in place of the Divisional Forest Officer, Dhaka Division. Divisional Forest Officer, Dhaka vs. Md. Shahabuddin and others (Md. Joynul Abedin J) (Civil) 5 ADC 91

Allegations of negligence of duties, breach of instructions, misuse of power Regulation 28(b) (c) (d) and (h) of Sonali Bank Employees Services Regulation 1981. Sonali Bank vs. Md. Zalaluddin (Md. Tafazzul Islam J) (Civil) 5 ADC 96

Writ Petitioner, moved the High Court Division under Article 102 of the Constitution of the People's Republic of Bangladesh challenging the aforesaid order dated 5.11.2006 passed by the Review Panel mainly on the contentions that (1) the petition of complaint was not maintainable inasmuch as the peti- tioner, writ respondent No.4, failed to exhaust all the administrative forums for remedies available to it as contemplated under regulations 51, 52 and 53 of the PPR. (2) the impugned order dated 5.11.2006 was violative of the principle of natural justice as the same was passed against the respondent No.1, writ-peti- tioner, without giving any opportunity to it of being... (8) St. Electronics (Infro Soft. Ware System) Pvt. Ltd vs. Patimas International Sdn Berhad (Md. Joynul Abedin J) (Civil) 5 ADC 100

The only question that falls considera- tion is whether the forfeiture of the earnest money by the defendant, in the facts and circumstances of the present case is sustainable in law. Mesbahuddin Ahmed vs. M/s. James Finlay (Md. Joynul Abedin J) (Civil) 5 ADC 104

For declaration and partition......(2) Discharge the rule with a direction on the executing court to dispose of the said Execution Case within 1 (one)month from the date of receipt of the order mainly on the ground that the petitioners were third party to the said Execution Case and as such they had no right in law to stay the execution case. Md.Abdur Rahman vs. Md. Nazrul Islam (Md, Joynal Abedin j) (Civil) 5 ADC 395

Section 42

For declaration of his title to the suit land claiming the same by way of inher- itance from his father and by amicable arrangement with other heirs of his father. Md. Hashmat Ullah Tapadar vs Md. Baset Khan (Mohammad Fazlul Karim J) (Civil) 5ADC 565

Section 42

The suit was filed seeking declaration of lease hold right in the land in suit and for cancellation of the lease deed made in favour of the defendant No. I by the defendant No. 2. (2) Rajdhani Unnayan Kartripakkha (RAJUK) vs. Iqbal Ahmed (Md. Ruhul Amin J) (Civil) 5 ADC 631

Section 42

Partition suit on the averments that the suit land originally belonged to Fosi Gazi and after his death his two sons Hamid Ali and Tukku Mia became own- ers of the same each getting 8 annas share. Sayed Ahmed Majumder vs.. Samsul Hoque (Md. Taffazul Islam J) (Civil) 5 ADC 673

The suit was filed seeking a decree for permanent injunction. Hazi Abdul Mannan vs.Amena Begum and others (Md. Ruhul Amin J) (Civil) 5 ADC 676

Suit seeking for declaration that sale deed No. 3277 executed on 5.7.1962 and registered on 5.11.1962 in respect of the Kha schedule land is null and void and not binding upon the plaintiff on the averments that he, as the only son of Lehajuddin became owner of the land described in Ka schedule of the plaint. Fazlur Rahman Sikder vs. Abdul Hashem Howlader (Md. Tafazzul Islam J) (Civil) 5 ADC 687

Specific Relief Act [I of 1877]

Section 42

The Appellate Court came to the clear finding that “¢h‘ HXi¡LV L¢jne¡l a¡q¡l jÉ¡f qm¤c L¡¢ml hXÑ¡là¡l¡ e¡¢mn£ i¨¢j Bm¡c¡i¡h ¢Q¢q²a L¢lu¡ ®cM¡Cu¡Rez a¡q¡l ¢lf¡VÑ jÉ¡f cªÖV BlJ ®cM¡ k¡u ®k, 3 ew ¢hh¡c£l M¢lc¡ i¨¢j HLC c¡N, ¢L¿º e¡¢mn£ i¨¢jl h¡¢ql Ah¢Øqaz” Therefore, the plaintiffs were not required to make any prayer for consequential relief for recovery of khas possession within the meaning of the proviso to section 42 of the Specific Relief Act.

The Appellate Division held that the submission of Mr. A. J. Mohammad Ali that the suit land is vague and do not attract the land described in the schedule to the kabala of the plaintiffs has also got no substance, as to meet the said objection of the defendants, local investigation to relay the suit land along with the land described in the schedule of the plaintiffs’ kabala was held by an Advocate Commissioner at the instance of the plaintiffs and the Commissioner gave clear report that the suit land tallied with the schedule of the plaintiffs’ kabala. The report was accepted and the Courts below relied upon the same and found concurrently that the suit land tallied with the kabala of the plaintiffs. It further appears from the schedule to the plaint that the suit land has been described by giving chauhadis. Therefore, the suit land cannot be said to be vague. In view of the above, the Appellate Division does not find any legal infirmity in the impugned judgment and order in affirming the judgment and decree of the Appellate Court. Accordingly, this petition is dismissed. Nasima Begum and others -Vs.- Enamul Islam and others (Civil) 26 ALR (AD) 95

Code of Civil Procedure [V of 1908]

Section 115(1)

The lower appellate Court being the highest Court of fact and law came to the conclusion on proper reasoning and findings as much as adverted the finding of the trial Court vides own and independent reasonings. The High Court Division finds no reason to interfere.

The High Court Division held that the lower appellate Court came to a conclusion that the trial Court travels beyond the scope of the plaintiffs while allowing the case in hand. On perusal of the judgment passed by the trial Court it also transpires that the trial Court declared the mutation proceeding illegal which certain directions which is not all the case of the plaintiffs. It also appears that the lower appellate Court held as follows; “Plaintiff did not make a prayer seeking enforcement of contract in respect of land alleged to have been pledged by the defendant No. 1 to sell if occasion arises. This is not an agreement in the eye of law and therefore it is not enforceable. On top of that no such relief was sought for. It is funny enough that there is no mention about the value of the land but the learned court below assessed valuation of the land on the basis of inquiry report submitted by the kanungo. It is not understandable as to how on such calculation of price of the land the relief for specific performance of contract for sale was granted. The granting of such relief was absolutely illegal. Finally I can conclude by saying that the plaintiff has no locus standi to file the suit for declaration. Consequently plaintiff fails to prove his case.” On perusal of the same it appears that the lower appellate Court being the highest Court of fact and law came to the conclusion on proper reasoning and findings as much as adverted the finding of the trial Court vides own and independent reasonings. Considering the facts and circumstances, the High Court Division finds no reason to interfere. Accordingly, the Rule is discharged. Jishu Chakraborty -Vs.- Madhjuri Tripura and another (Civil) 26 ALR (HCD) 32

Specific Relief Act [I of 1877]

Section 42

No Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

The Appellate Division opined that the High Court Division has, however, found that there are sufficient material evidence on record but erroneously held that proper judgment has not been written upon scrutinized evidence on record while came to finding that the suit is not maintainable and illegally remanded the suit to the trial Court for writing fresh judgment on the basis of materials on record illegally holding that the suit is maintainable. It appears from the impugned judgment that the High Court Division has also directed the trial Court to dispose of the suit allowing the parties to produce any document or witness to be examined to enable to pronounce judgment or for any other substantial causes. It is curious to quote that though the suit sent back to the trial Court on remand setting aside the judgment and decree of the Courts below for writing fresh judgment on the basis of the materials on record but curiously on the same breath allowing the parties to produce any document or witness to be examined to enable to pronounce or any substantial causes is in our view a contradictory and the statement which is not substantial in law. Remand could be made setting aside the impugned before the Courts below either for allowing consideration of document or witness to be examined to pronounce a proper judgment or certain causes but it is not desirable that when the materials on record are sufficient for pronouncing a judgment. It is accepted or desirable to remand the suit for writing a fresh judgment instead of writing a proper judgment in accordance with law on the basis of the materials on record if the Court so deem fit and proper. From the discussion as above, the Appellate Division is of the view that in the light of the suit of case and the evidence led by the parties are sufficient materials for the Court to arrive at any decision and that the Courts below on consideration of the materials on record have concurrently found that the suit is not maintainable for the reason stated above and accordingly dismissed the suit. The Appellate Division does not find any cogent reason which has prompted the High Court Division to remand back the suit to the trial Court setting aside the impugned judgment and decree of the Courts below on the basis available matter on record which are sufficient to arrive at the decision. Accordingly, the appeal is allowed and the impugned judgment of remand for setting aside and the impugned judgment and decree of the Courts below are restored. Accordingly, the appeal is allowed without any order as to costs. Dhirendra Nath Mondal and others.-Vs- Narayan Chandra Mondal and others.(Civil) 17 ALR (AD) 61-65

Specific Relief Act [I of 1877]

Section 42—Without invoking the provisions of Section 37 of the Waqfs Ordinance, can the plaintiff file a suit in the Civil Court under Section 42 of the Specific Relief Act?

The High Court Division held that the plaintiff is a beneficiary of the Waqf Estate. In other words, he is a person interested in the waqf. So as a beneficiary of the Waqf Estate and as one of the successive heirs of the waqif, he is entitled to hold and enjoy the waqf property in terms of the deed of waqf. Precisely speaking, the plaintiff is not a busybody. He is not Tom, Dick and Harry. As a beneficiary of the Waqf Estate, he has the right to institute any suit in the competent Civil Court under Section 42 of the Specific Relief Act, despite the non-invocation of Sub-Section (3) of Section 56 of the Waqfs Ordinance by the Administrator of Waqfs. Again, the non-invocation of Section 37 of the Waqfs Ordinance by the plaintiff does not, as the High Court Division see it, disentitle him to institute any suit for declaration under Section 42 of the Specific Relief Act, there is no provision whatsoever within the four corners of the Waqfs Ordinance that debars a beneficiary of the Waqf Estate from instituting any suit in the competent Civil Court under Section 42 of the Specific Relief Act. On this point, Mr. Md. Abdul Kuddus Miah has rightly drawn my attention to the fact that a decla¬ratory suit was filed in the case of Hafizuddin Ahmed…Vs…M Aslam Miah and others reported in 55 DLR (HCD) 95 and the decision rendered in that case was eventually affirmed by the Appellate Division by its judgment reported in 12 BLT (AD) 85 and neither the High Court Division nor the Appellate Division raised any question as to the competency of the suit filed under Section 42 of the Specific Relief Act. So by necessary implication, it is palpably clear that the filing of the present suit under Section 42 of the Specific Relief Act in the Civil Court by the beneficiary Sultan Ahmed was not barred at all. Hossain Shahid Sharawardy -Vs.- Jahiruddin and others (Civil) 16 ALR (HCD)164-170

Specific Relief Act [I of 1877]

Section 42

Appellate Court made a third case arrived into its decision that the suit is not maintainable the High Court Division held that which is apparently nothing but occasioning failure of justice.

The High Court Division held that when the Trial Court found that the auction sale had not been acted upon meaning that no possession was delivered by any Court and such finding of the Trial Court was not at all touched by the Appellate court rather the Appellate court agree with that finding and in case of such agreement there is no scope to say that the defendants have been possessing the suit land and in such circumstances, it is apparent that the Appellate Court by finding a third case arrived into its decision that the suit is not maintainable and with that decision he dismissed the suit and such dismissal is apparently nothing but occasioning failure of justice. With such finding as discussed above the judgment of the Appellate Court is not at all maintainable rather it is liable to be set aside. Kazi Joynal Abedin and others -Vs.- Montazuddin and others (Civil) 23 ALR (HCD) 95

Specific Relief Act [I of 1877]

Section 42 read with

Bengal Tenancy Act [VIII of 1885]

Section 156(B)

Since the defendant claimed that they are in possession of the suit land in such circumstances of the case the simple suit for declaration without any consequential relief is not maintainable.

The High Court Division held that this is a simple suit for declaration, the defendants claimed that they are in possession of the suit land and on perusal of the evidence on record it is admitted that to some extend of the suit land the defendants are in possession. The main question is whether the suit is maintainable or not. On perusal of the records it is found that no consequential relief has been sought for by the plaintiffs and admittedly the defendants are in possession so far some extend of the suit land. The defendants also claimed that which was ejmali property. In such circumstances of the case the finding of the appellate court that the sim¬ple suit for declara¬tion is not maintainable is a proper finding which cannot be interfered with. Khodeja Be¬gum, wife of Late Abdul Haque and others. -Vs. – Sona Ullah Sheikh and others(Civil) 16 ALR (HCD)205-208

State Acquisition and Tenancy Act [XXVIII of 1951]

Section 17(3), 31(11) and 17(Ka) read with

Specific Relief Act [I of 1877]

Section 42

Notification No. 18636 any Pattan after 13.12.1955 did not accrued any right , title in the land.

The High Court Division held that the opposite parties as plaintiffs instituted the instant suit for declaration of title in the suit land and also for declaration that exparte decree passed in Other Suit No. 198 of 1975 is not binding upon the plaintiffs. It appears that in the disputed khatian there are 31 decimals of land out of which 13 decimals are being claimed by the plaintiffs-opposite parties. Babar Ali and Rahmat Ali are owners of the rest 18 decimals of land but they were not made parties and the plaintiffs claimed that by amicable partition Basotullah Sheikh got the suit land and gave Pattan vide registered deed dated 5.3.1956 and delivered posses¬sion in favour of the plaintiffs’ predecessor and accordingly the plaintiffs are claiming the title in the suit land but according to the provision of section 17 (3), 31 (11) and 17 (ka) of the State Acquisition and Tenancy Act and Notification No. 18636 any Pattan after 13.12.1955 did not accrued any right, title in the land. Moreso from the record it appears, in the 2nd page of Pattan deed year of registration has been mentioned 1956 and in the 1st page of the Pat¬tan deed year of registration has been mentioned 1955 which makes doubt about the Pattan deed. Over and above, the plaintiffs have failed to prove their possession in the suit land. So, the High Court Division finds merit in this Rule. In the result, the Rule is made absolute. Md. Yeasin Ali and another -Vs.- Md. Ali Sarker and others (Civil) 20 ALR (HCD) 115-117

Section 42 —Suit for recovery of khas possession without the prayer for declaration of title was not maintainable.

The Appellate Division observed that from the judgment of the trial Court, it ap-pears that it considered the case of the de-fendant first and then cancelled the deed in question as forged. Such a procedure was totally wrong. When the plaintiff wanted to declare that the kabala in question was il¬legal, without consideration, fraudulent, void and not binding; onus was upon him to prove the deed to be so, and the trial Court was to consider the evidence of the plaintiff first in that respect, but it did not, and thus made a fundamental mistake in taking decision about the kabala in ques-tion. The Appellate Court simply endorsed the said finding of the trial Court without discussing the evidence on record. So, the theory of concurrent findings of fact cannot be applied in the case. Accordingly, the petition is dismissed.

Md. Zahirul Islam -Vs.- Md. Mosharaf Hossain and others. (Civil) 11 ALR (AD) 58-60

Section 42 —The appellate Court as the last Court of facts has meticulously discussed the evidence on record and rightly reversed the findings of the trial Court. The observation of the High Court Division that the appellate Court did not reverse the findings of the trial Court is not correct. The appellate Court has elaborately dealt with the points raised by the trial Court. The conclusion of the trial Court is not con¬sistent with the findings and observa¬tions made by it.

The Appellate Division held that the ap-pellate Court observed that during the pen-dency of the appeal, the plaintiffs produced certified copy of C.S. khatian No. 21 and the original porcha of the khatian Nos. 22-29 and 31 as well as the certified copy of khatian No. 30, which were marked as ex¬hibit-4 series and admitted into evidence without objection. In this regard the appel¬late Court noted as follows: “অর্থাৎ বিজ্ঞ নিম্ন আদালত যে সকল সি. এস. খতিয়ানের অভাবে বাদীপক্ষের দাখিলকৃত দলিলগুলিকে বিবেচেনায় গ্রহণ করেন নাই সেই সকল সি.এস. খতিয়ান দাখিল করিয়া প্রদর্শনী চিহ্নিত হওয়ার জন্য বাদী পক্ষের অভ্যন্তরীন দলিল সমূহ প্রদর্শনী-১ সিরিজ, ২ সিরিজ এবং ৩ সিরিজ আইনত বিবেচনার যোগ্য।” The appellate Court further noted that the trial Court found possession of the suit land in favour of the plaintiffs and also noted that the defendants’ claimed that defendant No. 1 took pattan of the suit land, but were unable to produce the original amalnama/pattannama/dakhila and were unable to give any satisfactory explanation. The appellate Court as the last court of fact found that the claim of pattan as made by defendant Nos. 5/6 was not believable. The appellate Court concluded that since there was nothing to suggest that the korfa title of the plaintiffs’ predecessor had been lost, it is reasonable to conclude that the tenancy in the land has devolved upon the plaintiffs. Appellate Division also note that sub-kha¬tian Nos. 22 to 31 of khatian No. 21 record the name of the plaintiffs’ predeces¬sor Adam Pramanik as korfa tenant since 1922. In view of the above discussion, Ap¬pellate Division finds that the appellate Court as the last court of facts has meticu¬lously dis¬cussed the evidence on record and rightly reversed the findings of the trial Court. The observation of the High Court Division that the appellate Court did not reverse the findings of the trial Court is not correct. The appellate Court has elaborately dealt with the points raised by the trial Court. Moreover, Appellate Division finds that the conclusion of the trial Court is not consis¬tent with the findings and observa-tions made by it. Accordingly, the im-pugned judgement and order of the High Court Di¬vision is not sustainable. Hence, the appeal is allowed.

Mosammat Fatema Khatun and others -Vs.- Mosammat Towhida Begum and others. (Civil) 11 ALR (AD) 114-117

When relief has been provided for is particular statute in the present case under Succession Act, discretionary power granted under section 42 of the Specific Relief Act cannot be invoked. [73 DLR (AD) (2021) 143

Suit for declaration of title

An unregistered amalnama without any legal proof ipso facto does not create any right, title, and interest on the suit property in favour of the plaintiff. Further, burden lies heavily upon the plaintiff to prove the unregistered Amalnama when she claims title on the basis of the same, against a registered instrument.

The Appellate Division held that there is no scope to challenge the order of nationalization, notified in the gazette by the Government and thus, suit is not maintainable. Having considered and discussed as above, the Appellate Division finds merit in the leave petition; however the Appellate Division is not inclined to grant leave, since the Appellate Division has heard the parties at length. Accordingly, the leave petition is disposed of. Judgment and order dated 22.01.2012 passed by the High Court Division in Civil Revision No. 4687 of 2000 affirming the judgment and decree dated 02.05.2000 passed by the Additional District Judge, 5th Court, Dhaka in Title Appeal No. 351 of 1998 is hereby set aside. Judgment and decree passed by the Trial Court in Title Suit No. 101 of 1997 passed by the Artha Rin Adalat, 3rd Court and Sub-ordinate Judge, Dhaka is restored. Bangladesh Textile Mills Corporation (BTMC) -Vs.-Mst. Delwary Begum and others 28 ALR (AD)111

Suit for declaration of title

The High Court Division though made the Rule absolute and set aside the judgments and decrees of the Courts below, it did not say anything about the fate of the suit. Be that as it may, considering the nature of the exparte decree and the other facts and circumstances of the case. The Appellate Division is of the view that justice would be best served if the impugned judgment of the High Court Division is maintained restoring the suit to its original file and number with direction upon the trial Court to proceed with the suit in accordance with law and dispose the same within certain time.

Accordingly, the Appellate Division held that this appeal is disposed of in the following terms;

The judgment and order of the High Court Division is maintained. Title Suit No. 320 of 2000 of the Court of Senior Assistant Judge, Sadar, Noakhali is restored to its original file and number and the trial Court is directed to proceed with the same and disposed of within 6 (six) months from the date of receipt of this judgment. The defendants shall have every right to file written statement to contest the suit. Mohiuddin -Vs.- Bangladesh and others. 28 ALR (AD)207

‘Zamindari’ or ‘Maliki’

In its decision the High Court Division raised the question of ‘Maliki Right’ of the School and observed that the school authority cannot have that right as such. The decision of the High Court Division was based on the points that the claim of the defendants that they were settled as rayats under the school is implausible for the reason that donations do not mean transfer of ‘Zamindari’ or ‘Maliki’ right to any educational institute. It was also observed that the school may have leased out the establishment to monthly evictable tenant, but it cannot settle any ‘rayat’ any property belonged to the school because the school is not a juristic person and School or any other educational institute has got no authority to do business as like the former Zaminders. Mohammad Zamal Uddin and others -Vs.-Abdur Rahim Chowdhury 28 ALR (AD)79

Specific Relief Act [I of 1877]

Sections 42, 55 and 56

Suit for a Mandatory injunction for service benefits etc.

The plaintiff respondents was an employee of the trust and was not an employee of any statutory corporation and his service was not under the control of the Government or statutory corporation and his office had no public character and the power of dismissal was not exercised on behalf of public corporation and his terms of services are not regulated by statutory provisions and he has no legal character and hence, the order passed by the trial court, affirmed by the appellate Court and maintained by the High Court Division that the defendant will not create any hindrance to the plaintiff from performing his responsibilities in his post with his pay are not sustainable in law.

While Disciplinary proceedings were going on against the plaintiff he voluntarily tendered his resignation on 29.06.2009 which he did not withdraw and hence, he is bound by his letter of resignation and cannot claim any service benefit from the date of his resignation but the trial court, appellate court and the High Court Division did not consider the same. In the trial court the plaintiff alleged that his resignation was not voluntary and it was obtained from him forcibly, but this allegation has not been supported by any corroborative evidence. In the circumstances, the plaintiff is not entitled to claim any service benefit form the date of his resignation.

The Appellate Division held that the instant case is a suit for declaration and for a permanent injunction as a consequential relief to the effect that the defendant be restrained from disturbing the plaintiff in his service. It is the admitted position that the plaintiff is out of his office consequent to the order of his dismissal from service and, therefore, the decree for permanent injunction cannot be an effective relief if the plaintiff gets the declaratory decree to the effect that his dismissal is illegal. Under such circumstances the plaintiff ought to have prayed for a decree for a mandatory injunction under section 55 of the Specific Relief Act but clause (e) of section 56 of the Specific Relief Act is a bar to get the decree for mandatory injunction in the case of the plaintiff and hence the suit as framed is not maintainable on the ground that a declaratory decree will not be enough and that even a decree for mandatory injunction as consequential relief is barred under the law. Further, applying the principles of the decisions as referred to above in the instant case, it is clear that the High Court Division had fallen into an error in giving the declaration because that would amount to forcing an employee upon an unwilling master. Such declaration cannot be given in law and only relief, if at all could be a claim for damages but in this case the plaintiff did not frame his suit for damages therefore, under the Law, he could not claim any relief.” It would be worthwhile if the plaintiff respondent could ventilate his grievances in a properly instituted money suit or so to say for damages. In view of the above, the Appellate Division finds merit in the appeal. Accordingly, the appeal is allowed. Akhil Chandra Tarafder, -Vs.-Md. Abul Hossain, and another (Civil) 29 ALR (AD) 17

Specific Relief Act [I of 1877]

Section 21A read with

Transfer of the Property Act [IV of 1882]

Section 53A read with

Limitation Act [IX of 1908]

Article 113

Suit for specific performance of contract.

The trial Court after considering the provision of article 113 of revisional Act 1908 held that a suit was to file within 3 years before amendment of the said provision in 2005.

There is no reason to hold the view that the plaintiff obtained possession at the time of execution of the bainapatra and execution of money receipt. Consequently, the contention of the plaintiff is that he will get the protection of the section 53A of the Transfer of the Property Act is not tenable in the eyes of law.

The High Court Division held that in a suit for specific performance of contract, the plaintiff has to prove that a registered agreement for sale has duly been executed.

ii. The plaintiff has to prove that he has come within the statutory period of limitation as embodied under article 113 of the Limitation Act.

iii. The plaintiff has to deposit the consideration money at the time of filing the suit in view of section 21A of the Specific Relief Act.

iv. In a suit for specific performance of contract, the Court shall examine prima facie title of the executant of registered bainapatra to diminish the rampant forgery committed by the parties in connivance with each other. Experience shows that by creating bainapatra in respect of the land of others, the parties to the suit create fraudulent and collusive bainapatra to get the decree of specific performance of contract and which creates multiplicity of suits and proceedings.

v. The land as mentioned in the alleged bainapatra must be specified. In a vague and unspecified land, the plaintiff cannot obtain any decree of specific performance of contract. Moreover, the decree obtained in a suit for specific performance of contract in respect of vague and indefinite schedule of land cannot be executed. The Court always remembers that the decree of suit for specific performance of contract is an equitable relief. Bainapatra does not ipso facto entitle the plaintiff to get a decree. The Court shall consider the hardship of the defendant. In this case in hand, there is no apparent reason to interfere with the concurrent decisions of the Courts below as mentioned above. Moreover, the decision of the Appellate Court that bainapatra had not duly been executed does not suffer from any illegality. As a result, there is no reason to send the case on remand. For the sake of argument, if it is sent on remand and it is proved that the disputed signature and admitted signature of the defendant has got similarity and unison; nevertheless, the suit shall dismiss for the reasons stated above; therefore, the contention of the learned Advocate for petitioner to send the case on remand is absolutely unfounded and rather it will entail unnecessary time, money and energy without yielding any positive result as contemplating by the petitioner. Having regarded to the facts and circumstances of the case, the High Court Division does not find any merit in the Rule. Therefore, the Rule shall fall flat. In the result, the Rule is discharged without passing any order as to costs. Haradhon Chandra Dhupi -Vs.- Porimol Chandra Dhupi and another (Civil) 29 ALR (HCD) 52

In a suit for permanent injunction simpliciter an issue whether the registered deed is forged or not cannot be decided. /Sushil Kumar Paik and another Vs. Harendra Nath Samadder and another 55 DLR (AD) 9.

Section 42

Plaintiff in order to succeed must establish his own case to obtain a decree and weakness of defendant’s case is no ground for passing a decree in favour of the plaintiff–– It is long line of catena that in a suit for recovery of khas possession, the plaintiffs must prove at first their possession with specific date with supporting evidences. In that case, he can later claim that they were dispossessed on specific date and time from the suit property. But on the four corners of the evidences, adduced by the plaintiffs, Appellate Division does not find any such facts possession or depositions in the present case.

Rather, Appellate Division finds with sheer surprise that the High Court Division committed error of law in disturbing the concurrent findings of facts arrived at by both the Courts below and on misreading of the evidence on record committed an error of fact in holding that the Courts below reached in a finding that the plaintiffs did not mention the date of cause of action and the date of dispossession. The real scenario is in fact the contrary. This Division finds that the Courts below did never mention that the plaintiffs did not describe the date of cause of action and the date of dispossession. Rather, the Courts below on proper appreciation of the materials on record rightly decided that the plaintiffs failed to prove the cause of action and the date of dispossession. .....Shahin Mia =VS= Parul Begum, (Civil), 2022(2) [13 LM (AD) 92]

Restoration of possession when dispossessed during pendency of the suit

Suit for declaratory decree

Presumption of jointness of Muslim family though not available when established by evidence can be valid ground

Code of Civil Procedure [V of 1908]

Section 115(1) read with

Specific Relief Act [I of 1877]

Section 42 —From the evidences on record the High Court Division finds that the decree passed in Partition Suit No. 03 of 2003 was put in execution and the plaintiff in suit and other defendants got possession of their respective saham property through court. Where the defendants in the present suit got possession through court and the plaintiffs are out of possession, further relief in the form of recovery of possession required to be prayed for and without consequential relief present suit for simple declaration is barred under the proviso to section 42 of the Specific Relief Act.

The High Court Division observed that it is fact that earlier, the opposite party No. 1 instituted Partition Suit No. 03 of 2003 for partition of the property against other opposite parties, as defendant, in suit. The suit was decreed in preliminary form and thereafter, final decree was drawn. The plaintiff and other saham prayer defendants got delivery of possession through court in the execution case. Thereafter, the present plaintiffs filed the instant suit challenging the decree passed in earlier Partition Suit No. 03 of 2003 wherein they were not party. It is true that the plaintiffs being not party to the said earlier partition suit, the decree passed in that suit is not at all binding upon the present plaintiffs. From the judgment of the trial court as well as from appellate court, it appears that both the courts below concurrently found that the plaintiffs have title in the property, but in their absence, the opposite party No. 1 successfully obtained a decree in her favour including the property of the present plaintiffs without making them defendants in that suit. From the evidences on record the High Court Division finds that the decree passed in Partition Suit No. 03 of 2003 was put in execution and the plaintiff in suit and other defendants got possession of their respective saham property through court. Where the defendants in the present suit got possession through court and the plaintiffs are out of possession, further relief in the form of recovery of possession required to be prayed for and without consequential relief present suit for simple declaration is barred under the proviso to section 42 of the Specific Relief Act. In view of the above, the High Court Division finds that though the plaintiffs have title in the suit property but for want of consequential relief in the form of recovery of possession the suit was failed. From the judgment of both the courts below, the High Court Division finds no illegality calling for interference. However, there is no obstruction and or bar for the plaintiffs to file independent suit for partition of their property incorporating proper reliefs and seeking recovery of possession and they may do so if so advised. Taking into consideration the above, the Rule is discharged. Shamsuddin Ahmed and others -Vs- Most. Sufia Begum and others (Civil) 24 ALR (HCD) 362

Specific Relief Act[I of 1877]

Section 42

The Appellate Division held that defendant No. 1 last refused to accept the balance of the consideration money on 14.09.1998, several independent witnesses including S.M. Nazrul, Manik Mia, Advocate Motiur Rahman, Yousuf Mia, Harunur Rashid, Shahjahan Mia-Chairman were present. Of these named persons Shahjahan Mia deposed as P.W.3 and Yousuf Mia deposed as P.W.5, but neither of them supported the claim of P.W.1 that on 14.09.1998 defendant No. 1 refused to execute the deed. This date was merely stated by the plaintiffs to avoid the bar of limitation. In the absence of corroboration by independent witnesses, the assertion is not proved and hence the suit is barred by limitation.The High Court Division also elaborately discussed the circumstances surrounding Title Suit No. 84 of 1992 and came to the conclusion that the deed of gift in favour of defendant No. 1, being a registered document established the title of the defendant, particularly, since the plaintiffs of the present suit were the successors of the plaintiff of Title Suit No. 84 of 1992 but did not take any further step in that suit and allowed it to be dismissed for default. In view of the above discussion, the Appellate Division that does not find any illegality or impropriety in the impugned judgement of the High Court Division, which in our opinion does not call for any interference. Accordingly, the civil petitioner for leave to appeal is dismissed. Akteruzzaman Zakir and others -Vs.-Md. Enamul Kabir and another (Civil) 25 ALR (AD) 54

Code of Civil Procedure [V of 1908]

Section 115(1) read with

Specific Relief Act [I of 1877]

Section 42 -Declaratory suit

Suit for declaration of title and recovery of possession alleging that the defendant to be in possession on permission from the owner since 1336 B.S. and no paper. no rent receipt or any other tangible paper/document could be showing in support of their possession in the suit land on the count.

The defendant though claimed that they were on permissive possession in the suit land from Seroogi, the original owner of the suit land since 1936 but could not produce any material docu- ment or rent receipt to substantiate their claim of permissive possession of original owner Seroogi. The plaintiff filed the suit for declaration of title and recovery of possession and under the circumstances they could get a declara- tion of title against the defendant on the basis of their documents. The plaintiff having filed all the material documents showing the title to the suit land includ- ing the Khatian being an evidence of possession as well as collateral evidence of title, was entitled to recovery of pos- session from the defendant, who under the circumstances, go to show that was in permissive possession in the suit land as asserted by the plaintiff. Kazi Muhammad Khokon vs. Deputy Secretary (Registration) Ministry of Law (Md. Ruhul Amin J) (Civil) 4ADC 228

Specific Relief Act, 18770

Section 42

Suit for declaration of title to the suit land and for recovery of khas possession therein

Section 42

If any one claims title to or ownership of the same or part of it, they shall have to file a suit for declaration of title, partition and possession– In fact the Rup Lal Government Acquired Estate was the owner of 7 annas share of the Tauzi and out of it .568 ajutangsha of land was sold in auction. Moreover, the plaintiffs were admittedly in possession of the suit property. Therefore, if any one claims title to or ownership of the same or part of it, they shall have to file a suit for declaration of title, partition and possession. The defendants, under no circumstance were entitled to evict the plaintiffs from the suit property. (Per Zinat Ara, J, majority) .....Zakir Hossain =VS= Yousuf Kabir(Md.), (Civil), 2022(2) [13 LM (AD) 97]

Section 42

The ROR is not a document of title– Appellate Division also finds that Jogandra Mohan Chowdhury was not CS record tenant. The appellant (defendant) thus acquired no right and title in respect of such portion of land. Excepting such portion of land which defendant No.1 claimed to have been acquired from Jogendra Mohan, the appellant acquired other portion of the suit land as has been discussed by us earlier. In that case, this Division is of the view that the present appellant and respondent appears to be co-sharers in the suit jama and in that case, the respondent may be allowed to remain in joint possession with defendant no.1. The judgment and decree passed by the learned Judge of the High Court Division as well as the Joint District Judge in Other Class Appeal No.53 of 2006 is hereby partly set aside and thereby the judgment and decree passed by the learned Senior Assistant Judge in Title Suit No.71 of 2005 is hereby partly upheld in light of the observation made by this Court. .....Shahidul Haque =VS= Md. Fazal Miah, (Civil), 2022(2) [13 LM (AD) 151]

Section 42

Declaration of title to the suit land contending– The plaintiff having not prayed for the relief of recovery of khas possession on the suit property, the suit is not maintainable as being hit by the proviso to section 42 of the Specific Relief Act– Appellate Division is inclined to hold that the defendant in possession over the suit land. The learned Judge of the Single Bench of the High Court Division has correctly found that the plaintiff has failed to prove his title on the suit land and also failed to prove possession and the plaintiff having not prayed for the relief of recovery of khas possession on the suit property, the suit is not maintainable as being hit by the proviso to section 42 of the Specific Relief Act. Under such facts, circumstances as well as other materials on record, This Division finds no scope to interfere with the impugned judgment and as such, the claim of the plaintiff-appellant thus merits no consideration. This appeal is thus dismissed. .....Abdul Majid Miah =VS= Md. Ekabbar Miah, (Civil), 2022(2) [13 LM (AD) 161]

Section 42

Declaration of title and recovery of khas possession– High Court Division was justified in reversing the concurrent finding of the Courts below– The learned Judge of the Single Bench of the High Court Division after proper appreciation of facts and circumstances arrived at a decision that the plaintiffs failed to prove the facts of getting delivery of possession through Court as well as the date of dispossession by the defendants. It has been further held that since the defendants found to have obtained title of the suit land by way of registered sale deed dated 17.12.1974 from the original owner, Abdur Rahman and remained in possession thereof, unless and until the said deed is cancelled in a proper suit, the title and possession of the defendants cannot be said to be illegal and unauthorized and as such, the suit must fail.

Having considered those facts, circumstances and evidence on record, Appellate Division finds that the learned Judge of the trial Court as well as the appellate Court below failed to assess and appreciate the evidence on record which is full of misreading and non-consideration of the evidence on record. This Division holds that the learned Judge of the Single Bench of the High Court Division was justified in reversing the concurrent finding of the Courts below. This Division also holds the view that there is no illegality and infirmity in the impugned judgment which calls for no interference. The appeal is dismissed. .....Abul Khayer(Md.) =VS= Abul Hashem(Md.) , (Civil), 2022(2) [13 LM (AD) 178]

Section 42

Declaration of title– The suit lands were recorded in the khas khatian of the Government– The Courts below in the premises have committed fundamental error in dismissing the suit in part upon misconstruction and misreading of the lease deeds. The learned Attorney General submits that clauses 7 and 10 should be read conjointly and these two clauses clearly suggest that the lessees have no right to transfer the lands before expiry of 15 years from the date of execution of the deeds. We find no substance in the contention of the learned Attorney General as these clauses have been incorporated in the deeds for different purposes. One clause has no nexus with the other and a clear meaning can be discerned on a plain reading of the same. The learned Judge of the Single Bench of the High Court Division rightly held that the judgment of the appellate court below is full of misreading and non-confederation on material particulars and there is mis-appreciation of fact who rightly and legally reversed those judgment. Appellate Division does not find any illegality in the impugned judgment of the High Court Division and accordingly, this Division finds no merit in the petition and the same is dismissed without any order as to costs. .....Deputy Commissioner, Khulna =VS= Altaf Hossain Howlader, (Civil), 2022(2) [13 LM (AD) 190]

Section 55

Mandatory injunction–– Granting an order of mandatory injunction is rarest of the rare case and the plaintiff is to come with clear breast with a view to seek such equitable and specific relief. This type of injunction cannot be granted specially where there is apprehension to suffer internal and external management and smooth function of an educational institution.–– Appellate Division observes that this is not a fit case for granting an order of mandatory injunction; rather, if mandatory injunction is granted there is apprehension to suffer internal and external management and smooth function of an educational institution.–– As such, this Division find no non-consideration or misreading of the material evidence on record or an error in the decision occasioning failure of justice or such finding is found to have resulted from glaring misconception of law or misconception, misapplication or misapprehension of law in the judgment and order of the High Court Division. .....Gulshanara Khatun =VS= Md. Abul Hossain, (Civil), 2022(2) [13 LM (AD) 134]

Declaration of title

The uniform view of the superior Courts is that an order of remand is not legally sustainable while the same tantamount to fresh trial of the subject matter of the suit upon allowing a party in the suit, who was negligent in bringing on record the materials which were relevant for adjudication of the subject matter of the suit or in other words to allow a party to fill up the lacuna. The order of remand is also not sustainable in law while same gives and opportunity to a party in the suit to make fresh attempt on the basis of the order of remand to establish his claim in respect of the subject matter of the suit which he earlier failed. Jagabandhu Sarker vs Jotish Chandra Sikder (Md. Ruhul Amin J)(Civil) 3ADC 332

The Deputy Commissioner during the subsistence of lease cancelled the lease.

It appears that the plaintiff cancelled the lease and did not deliver the possession of the land in favour of the defendant. In such view of the matter we are unable to understand what prompted the palintiff to file the suit for cancellation of the deed of lease on the face of "ঘোষনাপত্র দলিল" between the parties. Bangladesh vs Mega Fisheries Limited (Amirul Kabir Chowdhury J(Civil) 3 ADC 194

Section 42

Declaration of title and khas possession–– In the case of Moksed Ali Mondal being dead his heirs Md. Abdul Mannan and Others vs. Abdus Samad Mondal and Others reported in 9 BLC(AD)(2004) 220 this Division reiterated the long standing pivotal view regarding civil matters set out by the highest courts of our legal system by viewing that- "It is cardinal principle of law that the plaintiff is to prove his case and he must not rely on the weakness or defects of defendant's case." In the case of Naimuddin Sarder vs. Abul Kalam reported in 39 DLR (AD) 237 that the plaintiff cannot get the decree on the weakness or failure of the defendants to prove his defence. .....Syed Akhlekh Hossain =VS= Nabil Ali, (Civil), 2023(1) [14 LM (AD) 50]

Section 42

Declaration of title and confirmation of possession in the suit land–– Appellate Division is of the opinion that the decision of the High Court Division is erroneous and also not based on proper assessment of the evidence and materials on record. Accordingly, the appeal is allowed and the judgement and order of the High Court Division is set aside. The judgement and decree of the appellate Court is upheld. .....Abdul Hakim Maishan =VS= Md. Jahirul Haque, (Civil), 2023(1) [14 LM (AD) 54]

Specific Relief Act, 1877

Section 42 r/w

The Code of Criminal Procedure

Section 145

Adverse possession–– It is now well established that a person who set up the plea of his title of adverse possession must prove by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to deny of its title to the property claimed–– The defendant Monir Ahmed and others filed Title Suit No. 17 of 1957 in the First Court of Munsif, Satkania, Chittagong against Golam Khan and others for declaration of their title and confirmation of possession in the suit land and got decree and that decree was upheld that the High Court Division. All the Courts found title and possession of defendant Monir Ahmed and others in the suit land. It further appears from the materials on record that in connection with the proceeding under section 145 of the Code of Criminal Procedure the property, in question, was attached. In view of such circumstances, it is difficult to hold that the plaintiffs have had peaceful uninterrupted and continuous possession in the suit land. –Considering the aforesaid facts and circumstances, Appellate Division is at the view that the High Court Division rightly dismissed the suit holding that the plaintiffs are not entitled to get decree in the suit land on the basis of adverse possession. .....Rezia Begum =VS= Hafez Ahmed, (Civil), 2023(1) [14 LM (AD) 77]

Section 42

Declaration of title over ‘Kha’ schedule–– The suit land was recorded in the name of the government in M.R.R. and B.S. Khatian. ––It is settled principle of law that mere recording of the suit land in the name of the defendant No.1 without proof of title does not devolve any ownership of the suit land upon the defendant No.1. In the light of the discussion made above, it is crystal clear that the plaintiff has title and possession of the suit land prior to dispossession on 18.11.1980. ––Therefore, Appellate Division does not find any merit in the submissions of the learned Counsel for the appellant and as such the instant Civil Appeal is liable to be dismissed. .....Deputy Commissioner, Noakhali =VS= Md. Rafiquzzaman Bhuiyan, (Civil), 2023(1) [14 LM (AD) 82]

Section 42

Possession follows the title– The learned District Judge as the last Court of fact also found that the rent receipts though not document of title but are important evidence of possession and possession may be used as collateral evidence of title since possession follows the title. He further opined that the trial Court has not considered and discussed the evidence of the plaintiffs in its true perspective and he found that the plaintiffs are in joint possession of the suit land. Appellate Division finds that the learned appellate Court below after due consideration of evidence on record have arrived at a proper decision regarding title and possession of the plaintiffs over the suit land, but as a revisional Court (the High Court Division) have acted without jurisdiction and thereby reversed the judgment passed by the appellate Court below without adverting its cogent findings. The appeal is allowed without any order as to costs. The impugned judgment and order of the High Court Division is set aside and that of the appellate Court below is restored. ...Amarendra Nath Saha =VS= Pronoy Kumar Sarker, (Civil), 2021(2) [11 LM (AD) 42]

Specific Relief Act, 1877

Section 42 r/w

Transfer of Property Act, 1882

Section 129 r/w

Registration Act, 1908

Section 17 & 49

Declaration of title– The plaintiff filed copy of electricity bill, copy of holding tax receipt etc. from which it is seen that plaintiff, Shehida Begum, during the course of possessing the suit premises, has paid all those taxes and bills. The documentary evidence goes to show that the plaintiff is in peaceful possession of the suit land. The facts, circumstances as well as other materials on record as has been divulged in our discussion, led us to hold that the learned Judge of the Single Bench of High Court Division did not commit any wrong in reversing the judgment and decree of the lower appellate Court who as being a final court of facts totally mis appreciated and misdirected in reversing the Judgment and decree of the trial court which is based on sound reasoning. The appeal is dismissed without any order as to costs. ...Ahammed Hosain =VS= Shahida Begum, (Civil), 2021(2) [11 LM (AD) 604]

Consequential Relief must be sought

When the plaintiff himself is a party to some kabalas a purely declaratory suit is not maintainable. The plaintiff must seek further consequential relief by way of cancellation of the deeds. Md. Nazir Hossain Khan vs Md. Mujal Mollah, Shahida Begum (Mustafa Kamal J)(Civil) 2ADC 822

For declaration of title and recovery of khas possession

Lower appellate Court rightly sent the case on remand to the trial Court for ascertaining the claim of the parties on the basis of their respective original deeds after determining their genuineness and as such the High Court Division ought to have remanded the case to the trial Court for deciding the matter in controversy between the par- ties. So the findings and decisions of the High Court Division cannot be sus- tained in law. Bhulu Miah and others vs-Begum shakhina Khatun and oth- ers(Syed J.R. Mudassir Husain CJ) (Civil) 3ADC 914

Decree itself was objected to on the ground that without payment of ad- valorem Court fee the relief for setting aside the decree could not be granted.

Decree passed by the learned Subordinate Judge was severable and in so far as it relates to the declaratory part, it ought to have been upheld or in the alternative the plaintiffs should have been given an opportunity to pay the ad valorem Court fee if they wanted to have the benefit of the other part of the decree also even though it was not necessary for them, but the learned District Judge and the High Court division failed to do either occasioning an apparent failure of justice. Md. Umed Ali vs M Hamida Khatoon (A. T. M. Afzal CJ (Civil) 3ADC 616

Section 42 —Whether or not transfer of land of a wakf estate by the mutwalli in violation of the terms and conditions of the wakf deed and without the approval of the Wakf Administrator is illegal and void.

The Appellate Division is of the view that the transfer of land of the wakf estate by a bainanama is neither permitted by the terms and conditions of the wakf deed, nor is such transfer permissible under the Wakf Ordinance. Moreover, it has not been authorised by the Wakf Administrator nor does the bainanama create any right by adverse possession. Appellate Division finds the reasons given by the High Court Division and the conclusion arrived at is entirely in accordance with the law applicable in the case. Dr. Md. Hamidur Rahman -Vs.-Rahi-muddin Ahmed and others. (Civil) 10 ALR (AD) 337-339

Declaration of title, for khas possession and also for further declaration that the compromise decree passed in Title Suit No. 220 of 1981 is collusive, void, ille- gal and not binding upon them Md. Kamaluddin Mollah & another vs. Ayesha Khatun & others (Md. Tafazzul Islam J) (Civil) 4ADC 582

Petitioner could not point out that findings and decisions of the High Court Division that plaintiff failed to prove his possession in the land in suit and also could not show that the finding that the plaintiff failed to prove his case of taking settlement is not based on evidence Jatindranath Mondal VS. The Government of the People's Republic of Bangladesh (Md. Ruhul Amin J (Civil) 4ADC 585

Section 42 —The plaintiff has no subsisting lease hold right at present. If it has no subsisting interest, it cannot claim lease hold right in the suit land under section 42 of the Specific of Relief Act.

The Appellate Division held that even if it is assumed that the cancellation was il-legal. For such illegal cancellation its re-medy is to claim damages. More so, the tenure of lease has already expired. Both the appellate court and the High Court Di-vision committed fundamental error in treating the lease as perpetual one without perusing the lease deed and its terms.

Government of Bangladesh -Vs.- Mess-ers Friends Ind-ustries Corporation and others (Civil) 12 ALR (AD) 1-5

Section 42 —Whether the High Court Division was justified in interfering with the concurrent findings of the courts below in the absence of any finding as to the misreading or non-consideration of the material evidence.

The Appellate Division observed that the High Court Division has totally ignored that aspect and illegally interfered with the judgments keeping those finding intact. Thus it has exercised power not vested by law, inasmuch as, it cannot interfere with the findings of fact arrived at by the final court of fact in the absence of any mi-sreading or non-consideration of the evi-dence on record. Besides, in presence of clear finding as to the findings as to the creation of a forged boinama and non-deli-very of possession pursuant to the alleged auction sale, the High Court Division committed error of law occasioning failure of justice in decreing the suit. The appellate court has thoroughly discussed the evi¬dence independently and came to a definite finding that exhibit-1 is a forged one, which could be detected in naked eyes and that the plaintiff has failed to prove his pre¬decessors’ title by calling for the record of the certificate case inspite of the definite finding by the trial court in that regard. The judgment of the High Court Division is set aside. The appeal, is therefore, allowed without any order as to costs.

Additional Deputy Commissioner (Rev), Rangpur and another: -Vs.- Amir Hos-sain and others (Civil) 10 ALR (AD) 274-275

Section 42 —See also Reported in Ja-hangir Khandaker and others -Vs.- Mo-sammat Ayesha and others (Civil) 7 ALR (AD) 28

Section 42 —See also Reported in Kanchan Mallik and others -Vs.-Saleha Begum and others (Civil) 9 ALR (AD) 115-118

Section 55 —See also Reported in Md. Azizur Rahman Chowdhury -Vs.- Tauhi-duddin Chowdhury and others (Civil) 12 ALR (AD) 143-146

Specific Relief Act, 1877(I of 1877)

Section 42

The High Court Division found that the trial Court totally misconstrued, misconceived and totally misdirected and without proper consideration of the oral and documentary evidence as adduced by the D.Ws. at the time of trial seriously erred in law in passing the decree. Mostafa Kamal Pasha alias Hajee Md. Kamaluddin and another -Vs.-Yusuf Ali and others. 4 ALR 2014(2) 337

As it appears both the trial court as well as the lower appellate court disbelieved the case of the plaintiff that he purchased the suit land from his personal income which he earned after getting the license of export and import in the year 1966; the trial court specially found it incredible that the plaintiff, within such a short time of starting his provate business, could purchase the suit land and observed that the plaintiff failed to prove his business from which he obtained money to purchase the suit land and accordingly dismissed the suit holding that the fact of previous separation of the brothers prior to purchase of the suit land could not be presumed to be true and the plaintiff failed to prove separate business and the claim of purchase of the suit land out of his own earning and the plaintiff also failed to prove his exclusive title in the suit land. Md. Sanowar Ali vs. Md. Nonahar Ali (Md. Tafazzul Islam J(Civil) 5 ADC 869

Specific Relief Act, 1877 (I of 1877)

Section-42 Part decree as equitable relief

In a suit for specific performance of permissible under special circumstances contract a part decree is not ordinarily granted. But under special circumstances it may be permissible to grant a part decree when it is found compatible with the principle of equity, justice and good conscience. Sree Naru Gopal Roy -Vs.- Parimal Rani Roy 3 ALR(2014)(1) 105

Specific Relief Act [I of 1877]

Section 42 —Maintainability of the application for rejection of the plaint.

The Appellate Division found that the very nature of the claim that the decree has been obtained by practicing fraud upon the court without impleading the plaintiff pre-supposes the maintainability of the suit. Its stated that the defendants attempted to get the said decree executed for which the plaintiff are prejudiced seriously and that there are disputed facts which cannot be adjudicated upon without recording any evidence. The High Court Division miserably failed to consider that aspect to the matter and thereby has committed error of law resulting on error in the decision occa-sioning failure of justice in rejecting the plaint. The judgment of the High Court Di-vision is set aside. The Appellate Division directed the triad Court to dispose of the trial of the suit expeditiously, accordingly the appeal was allowed.

পক্ষভুক্ত না করে কোর্টের সাথে প্রতারণা করে ডিক্রী নেয়া হলে এটি জালিয়াতি হিসেবে গন্য হবে।

আপীল বিভাগের সিদ্ধান্ত এই যে, দাবীটির ধরণই এমন যে, বাদীকে পক্ষভুক্ত না করে কোর্টের ওপর প্রতারণা করে ডিক্রীটি নেয়া হয়েছে। বলা হয়েছে যে, বিবাদী পক্ষ ঐ ডিক্রীটি জারীতে দেয়ার চেষ্টা করেছিল যার ফলে বাদীপক্ষ মারাত্মকভাবে ক্ষতিগ্রস্ত হয়েছে এবং মামলাটিতে এমন অনেক বিতর্কিত ঘটনা/ তথ্য রয়েছে যে গুলো সাক্ষ্য প্রমাণ ছাড়া সঠিকভাবে বিচার করা চলে না। হাইকোর্ট বিভাগ ঐ বিষয়টি বিবেচনায় নিতে চরম ব্যর্থ হয়েছে এবং পরিণতিতে অর্থাৎ আরজিটি নাকচ করার ফলে যে ব্যর্থতা দেখা দিয়েছে তাতে ন্যায় বিচার মারাত্মক ক্ষতিগ্রস্ত হয়েছে। হাইকোর্ট বিভাগের রায়টি রদরহিত করা হলো। আপীল বিভাগ যত শিঘ্র সম্ভব মামলাটির বিচার নিস্পত্তির জন্য বিচারিক আদালতকে নির্দেশ দেন এবং তদানুযায়ী আপীলটি মঞ্জর করেন। Jahangir Khandaker and others -Vs.- Mosammat Ayesha and others (Civil) 7 ALR (AD) 28

Section 42, 56F

Respondent has submitted regarding the immunity of the respondent to be used in our Courts, for which the suit is not maintainable. The question of immunity is a mixed questions of law and fact and the material has to be produced by way of averments in the written statement and thereafter the materials are required to be considered in the light of the evi- dence in the suit and a decision should be arrived at accordingly. Ismet Zerin Khan vs The World Bank (Mohammad Fazlul Karim J)Civil 3ADC 117

Section 42

Averments having been made in the plaint alleging fraud and malafide and that in the light thereof relief having been sought civil court is quite competent to investigate the question of fraud and malafide and the said allegation as can only finally adjudicate upon full dress hearing of he suit, the High Court Division was in error in rejecting the plaint upon an erroneous view that the suit is barred under section 37 of the PDR Act. Md. Marfat Ali Miah vs Sree Jagadish Chandra Sheel (Md. Ruhul Amin J)(Civil) 3ADC 476

Section 42, 60, 114(c)

Seeking declaration that the kabala described in the schedule attached to the plaint is forged, fraudulent and void. Md. Aslam Khan vs Haji Abdur Rahim and others (MD. RUHUL AMIN J (Civil) 3ADC 793

Order VII Rule 4

Specific Relief Act[ I of 1872]

Section 42 —In reversing the findings of the final Court of facts, the revisional Court must identify the evidence which has been misread or not considered by the appellate Court.

The Appellate Division held that in the instant case the High Court Division has not adverted to any evidence or materials which has been misread or not considered by the appellate Court and also there is no suggestion that the appellate Court miscon-ceived any provision of law. It is an estab-lished principle that in reversing the find-ings of the final Court of facts, the revi-sional Court must identify the evidence which has been misread or not considered by the appellate Court. This having not been done, the impugned judgement cannot be said to be in accordance with law and settled legal principles. Kanchan Mallik and others -Vs.-Saleha Begum and others (Civil) 9 ALR (AD) 115-118

Order 21 Rule 95 —Applicants are necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit.

The High Court Division held that it is true that in a suit for specific performance of contract for sale a stranger third party is not a necessary party, but this is not such a case. So High Court Division finds that the presence of the applicants are required for proper adjudication of the suit.

Mir Shahjahan and another, -Vs.- Jamil Ahmed. (Civil) 10 ALR (HCD) 279-281

Specific Relief Act, 1877 (I of 1877)

Section 42-- Want of prayer for consequential relief when not fatal for a suit ?

On plain reading of the prayer portion of the plaint together with the contents of the plaint, it is evident that the prayer of the plaintiff for relief is complete and exhaustive and as such there is no scope to hold that the suit is bad for want of necessary consequential relief. Aftabuddin Ahmed, Executive Director, UCEP -Vs.- Md. Shamsul Alom 2 ALR (2013)(HCD) 348

Specific Relief Act (1 of 1877)

Sections 42 and 54

It appears that the Sub-Divisional Officer has cancelled the petitioner's lease not on the ground of any violation of any terms of the lease rather on the ground not provided by law. The right occurred to a citizen by the act of the government cannot be taken away on the ground that such officer made an error in acting in such manner. The government is in no better footing than any other citizen. Since through act of the government official , the plaintiffs title to the settled land has not been destroyed a declaratory suit will be a superfluous one. The purported cancellation of settlement will be deemed to be a threatening for such cancellation and as much the suit for permanent injunction with the relief of declaration is adequate relief. Moreso, the action of the government has violated the rules of natural justice Delawar Hossain-Vs-Government of Bangladesh 1 ALR(2012) (HCD) 30

Section 42–– Appellate Court being the last Court of facts–– The appellate Court being the last Court of facts, found that the plaintiffs were eight annas owners of the suit property including houses which may be standing thereon. We find that the evidence and materials on record fully support such finding. The view taken by the High Court Division, is in our view erroneous and, hence, the impugned judgement is not sustainable. The impugned judgement and order of the High Court Division is set aside. .....Hena Begum(Most.) =VS= Abdul Kader, [3 LM (AD) 229]

Section 42–– Plaintiff has not asked for any relief that the suit is hit by the provision of Sec. 42 of S.R. Act–– It also appears that the plaintiff has mentioned in his plaint that he was served with a notice by the defendant to quit the said land and it has been admitted at the time of hearing that the said notice was served asking the plaintiff to quit the suit land. It appears from the plaint that that the plaintiff has not asked for any relief regarding the notice nor did he file the same in the Court. It has further been averred that the defendants are conspiring to oust him from the suit land and accordingly threatened him on 30.06.1989 with dispossession therefrom. Thus, it is also apparent that the plaintiff had further relief or reliefs to ask for and in that view of the matter the suit is hit by the provision of Section 42 of the Specific Relief Act. .....Hashmat Ullah Tapadar(Md.) =VS= Baset Khan(Md.), [5 LM (AD) 397]

Section 42–– Declaration of title with khas possession–– We find no wrong, illegality or infirmity in the impugned judgment of the High Court Division. Rather, we find that the High Court Division was quite correct and justified in restoring the judgment and decree of the trial Court setting aside the judgment and decree of the appellate Court. .....Bishow Ram Chawhan =VS= Rabeya Bari Chowdhury, [3 LM (AD) 181]

Section 42–– The suit for declaration simpliciter was barred in view of the provision of Section 42 of the Specific Relief Act in the absence of any prayer for recovery of khas possession–– The learned Judge of the High Court Division has resolved the points as regards title and possession of the suit land in favour of the plaintiff in accordance with law. In view of the conflicting evidence of the parties with regard to possession the possession should be found with the party having better title and when the possession is found in favour of the plaintiff, the suit for declaration simpliciter is maintainable. The appeal is accordingly dismissed without any order as to costs. .....Hemayet Uddin =VS= Md. Rustam Ali, [4 LM (AD) 228]

Section 42–– Declaration of title–– The High Court Division has totally ignored that aspect and illegally interfered with the judgments keeping those finding intact. Thus it has exercised power not vested by law, inasmuch as, it cannot interfere with the findings of fact arrived at by the final court of fact in the absence of any misreading or non-consideration of the evidence on record. .....ADC (Rev), Rangpur =VS= Amir Hossain, [3 LM (AD) 3]

Section 42–– It is apparent that on the date of filing the suit or on the date of cause of action for filing the suit, the plaintiffs were under the constant threat of dispossession by the defendant. Therefore, they were legally obliged either to pray for permanent injunction or to pray for confirmation of possession as consequential relief along with the prayer for declaration of title to the suit land within the meaning of the proviso to section 42 of the Specific Relief Act, but they did not make any such prayer and they only prayed for a declaration of title to the suit land. Therefore, the plaintiffs' suit was not maintainable in law within the meaning of the said proviso to section 42 of the Specific Relief Act. It is true that the trial Court dismissed the suit not on the ground of its maintainability, but on other grounds as noted down hereinbefore, but this being a point of law and maintainability of the suit goes at the very root of the matter and when this has come to the notice of this Court, this Court cannot overlook the provision of law.

Section 42–– Amendment of Plain–– It is now settled that as to the question of limitation there are two ways in which the same may arise . “First, whether the claim to be included was barred on the date of the institution of the suit. Secondly, whether the claim is barred on the date of the prayer for amendment. On the first case, the prayer for amendment can not be allowed as it is barred on the date of institution of the suit and on the second case, the prayer can be allowed.” The suit was instituted on 7th March, 1964 and though the amendment of the plaint was made on 19th April, 1977, as soon as the prayer for amendment was allowed, the said amendment related back to the date of institution of the suit, as if those statements in the amendment petition were made in the original plaint. In that view of the matter, the learned Counsel is absolutely wrong in his contention that the amendment is barred by limitation. Article 142 of the Limitation Act applies when a plaintiff set up a case of possession followed by dispossession. In such a case the onus is on the plaintiff to prove that he was in possession within 12 years from the date of the institution of the suit. …Monowara Begum(Most.) =VS= Malanch Bibi, [8 LM (AD) 102]

Section 42–– Where the plaintiffs are out of possession and the defendants are in possession, the “further relief” would be recovery of possession and the suit for declaration of title without prayer for recovery of possession is hit by the proviso to section 42 of the Specific Relief Act. …Delipjan =VS= Shahed Badsha, [8 LM (AD) 142]

Section 42–– The words 'further relief' are meant not any and every kind of relief but one which would complete the claim of the plaintiff and not to lead to a multiplicity of suits. That further relief must flow necessarily from the relief of declaration. What is contemplated is a relief arising from the cause of action on which the plaintiff's suit is based. The relief which is inherent in original declaration claimed relief without which declaratory decree claimed would be meaningless and infructous. …Alimuzzaman (Reza)(Md.) =VS= Masudar Rahman(Md.) @ Babul, [8 LM (AD) 164]

Section 42–– Declaration of Title–– It is the cardinal principle of law as enunciated by this Division that revision Court cannot interfere in concurrent finding of facts, when there is no misreading and non-consideration of the material evidence on records. In the instant case the Single Judge of the High Court Division in the judgment wrongly opined that both the Courts misread and non-considered the materials evidence on record or rebutted the facts of finding of the Courts below as both the Courts below correctly found that the case of the defendant for the Specific Performance of Contract was not proved. We are of the view that the judgment of the High Court Division is not a proper judgment of reversal, hence, it is set aside. The judgment of the Court of appeal below is affirmed. ...Safaruddin Bhuiyan(Md.) =VS= Hazi A. Hannan Bhuiyan, [10 LM (AD) 103]

Section 42–– Declaration of title and recovery of khas possession of the suit land–– A suit for declaration of title and recovery of possession on the strength of title, the plaintiffs can succeed on estableshing their title to the scheduled property and they cannot succeed on the weakness of the case put forward by the defendants. Only weakness of the defendants is that they failed to mutate their names in the khatian and paid rent which did not extinguish their title.

The defendants’ deed was acted upon and that since the plaintiffs hopelessly failed to prove their possession and dispossession, they are not entitled to get relief for declaration of their title as well as recovery of possession in the suit land, the learned Courts below committed an error of law in decreeing the suit. ...Nadim Hossain =VS= Halima Kader, [10 LM (AD) 118]

Section 42–– Title Suit–– It is well settled that the plaintiff must prove his case by cogent evidence and that his suit cannot be decreed based on any weakness of the defendant’s case 39 DLR (AD) 237.

We are of the opinion that the High Court Division has properly assessed the evidence and materials on record and has reversed the judgement and decree of the courts below upon proper appreciation of the law. Hence, wedo not find any illegality or impropriety in the impugned judgement and order of the High Court Division. ...Sibpada Biswas =VS= Chitta Ranjan Biswas, [10 LM (AD) 277]

Sections 42–– Declaration of the title–– Considering the fact that Tota Mia ultimately got a plot of 305.60 sq.yds. in place of his allotted 325.70 sq. yds., Delu Mia should get 300 sq. yds. in place of his originally allotted 325 sq. yds. Consequently, Afaz Uddin will be left with the corner plot comprising 103.20 sq.yds. Respondent Nos.2, 3 and 4 are hereby directed to measure the land within plots Nos.21/1 and 21/2 and demarcate the areas for each of the plots in the light of our decision above within two weeks of receipt of a copy of this judgement. Respondent No.1 is hereby directed to cooperate with respondent Nos.2, 3 and 4 in carrying out the measurement and demarcation of the plots in question. Observations and directions the instant appeal is disposed of. ...Dilu Miah(Md.) =VS= Afazuddin, [6 LM (AD) 109]

Sections 42–– Declaration of Title Suit–– The decree-holder-respondents obtained decree in Title Suit No.241 of 1998 of the First Court of the then Subordinate Judge, Dhaka on 28.11.2000. For execution of the aforesaid decree, the decree-holder-respondents filed Title Execution Case No.01 of 2001. But in execution of the decree, the decree-holder-respondents could not obtain possession for the last 17 years because of filing of multifarious cases one after another by the plaintiff-petitioner. The plaintiff-petitioner alleged that fraud was practiced upon him in obtaining the judgment and decree dated 19.11.2000 passed in Title Suit No.241 of 1998 of the then Subordinate Judge, Dhaka.

The disposal of the aforesaid suit will take long time but in the meantime, execution of a decree obtained on 19.11.2000 could not be stayed for indefinite period. Meanwhile 17 years have elapsed but the decree-holder-respondents could not enjoy the fruit of the decree.

We are of the view that the High Court Division was perfectly justified in rejecting the revisional application summarily upholding the order dated 09.05.2016 passed by the learned Joint District Judge, First Court, Dhaka in Title Execution Case No.01 of 2001. In the light of the findings this civil petition is dismissed. ...Abdul Haque Milu =VS= Mst. Hamida Khatun, [6 LM (AD) 175]

Sections 42–– Declaration that the kabala deed as described in schedule-‘Kha’ to the plaint in respect of the land described in schedule-‘Ka’ to the plaint is unlawful, void, fraudulent and for cancellation of the same–– P.W.1 in his cross-examination stated that after execution and registration of the suit kabala, the defendants made plantation in the suit land and that he did not know whether the defendants started any shop in the suit land meaning thereby that the plaintiff did not deny that the defendants constructed shop in the suit land. The plaintiff while deposing as P.W.1 stated in his cross-examination that after reading the suit deed he put his signature on it which means that he had no complaint about recital of the suit deed. P.W.1 further stated that his father-in-law Md. Sirajul Islam was an attesting witness of the kabala but said Md. Sirajul Islam did not turn up to support the case of the plaintiff.

The High Court Division exhaustively considered the evidence on record and finally found that the plaintiff could not prove the case as made out in the plaint. In the light of the findings this civil petition is dismissed. ...Mohammad Abdul Motaleb =VS= Gazi Nur Hossain, [6 LM (AD) 178]

Sections 42–– Cancellation of the registered Power of Attorney with khas possession of the title suit–– Plaintiff, instituted Title Suit No.849 of 2010 in the Court of Joint District Judge, First Court, Dhaka for cancellation of the registered Power of Attorney No.23707 dated 23.09.2007/24.09.200 executed by the plaintiff in favour of defendant No.2 and registered Kabla No.8401 dated 27.10.2008 executed by defendant No.2 in favour of defendant No.1 and for declaring that those are inoperative and not binding upon the plaintiff. He also prayed for khas possession of the suit land. The fact that the plaintiff did not take any step for almost two years while a civilian Government was in power, we are of the opinion that the High Court Division and the trial Court rightly disbelieved the plaintiff’s allegation of torture and duress in obtaining his signature and creating false documents. The civil petition for leave to appeal is dismissed. ...Mohammad Yahiya =VS= Mrs. Shefali Begum, [6 LM (AD) 58]

Sections 42–– Declaration of title–– Appellate Court being the last court of fact–– The appellate Court, being the last court of fact, reversed the finding of the trial Court that Mofezuddin died after Dholu Sikder upon proper appreciation of the evidence and materials on record. The appellate Court allowed the cross objection filed by defendant Nos.1-3. The High Court Division upon considering the judgement and decree of the appellate Court upheld the same. We find that the impugned judgement and order does not suffer from any illegality or infirmity and does not call for any interference by this Division. The civil petition for leave to appeal is dismissed without, however, any order as to costs. …Aysha Siddika(Most) =VS= Nizam Uddin Sikder, [7 LM (AD) 212]

Sections 42–– Declaration Suit–– The High Court Division correctly found that the transaction was a sale and not a gift, but then erred in not concluding that consequently the plaintiffs claim of the deed being a deed of gift was not proved. The plaintiff had to prove that he signed the papers believing that he was signing an agreement for the cinema hall and not a deed of gift. But none of the plaintiffs witnesses supported the plaintiffs claim. Hence, the plaintiffs case was not proved. Thus the impugned judgement and order cannot be sustained.

We are of the opinion that the plaintiff did not prove his case in accordance with law. Accordingly, the appeal is allowed. The impugned judgement and order of the High Court Division is set aside. …Nazimuddin Mondal =VS= Abul Kalam Azad, [7 LM (AD) 312]

Sections 42–– Title suit–– It is a cardinal principle of law that the plaintiff must prove his case in order to get a decree in his favour. Time and again this Court has held that the weakness of the defendants case is no ground for passing a decree in favour of the plaintiff (Md. Naimuddin Sarder @ Naimuddin Sarder Vs. Md. Abdul Kalam Biswas @ Md. Abul Kalam Basiruddin @ Abul Kalam Azad & anr reported in 39 DLR(AD)237 and also Khondoker Mobarak Ali –vs- Jahanara Begum and others reported in 1 ADC 401.)

The judgement of the High Court Division is palpably erroneous, being contrary to settled principle of law and wrong interpretation of statute.

We find merit in the appeal, which is accordingly allowed. The judgement and order of the High Court Division is hereby set aside. ...Nazimuddin Mondal =VS= Kushal Mondal, [7 LM (AD) 25]

Section 42–– Declaration of title and recovery of Khas possession–– Having considered the documentary evidence on record including exhibit-1, the sale deed of the plaintiff and exhibit-Uma(1), the deed standing in the name of the plaintiff’s father Jachechu Mamud, the High Court Division came to a finding that the kabala in favour of the plaintiff was registered earlier than the kabala in the name of the plaintiff’s father. The High Court Division also found that from recital of the deed of sale, it appeared that the suit land was purchased by the plaintiff with his own money and that the consideration in respect of exhibit-1 having been paid by the plaintiff, it should be treated as a genuine document. We do not find any substance in this appeal. Accordingly, this appeal is dismissed without any order as to costs. …Kazi Nayebul Haque =VS= Md. Jalal Uddin, [8 LM (AD) 120]

Section 42–– Title suit cancellation of the registered Hiba-bil-ewaz deed–– The plaintiff who is a well educated man and was the chairman of the union parishad for 2 terms, admittedly executed this hiba-bil-ewaz deed. The evidence produced by the defendant has proved sufficiently that the plaintiff executed this hiba-bil-ewaz deed being fully conversant with the contents of it and on receipt of the consideration as mentioned in the hiba-bil-ewaz deed in the year 1991. So, this suit filed in the year 1999 is hopelessly barred by limitation also. The appellate court below and the High Court Division committed wrong and illegality in holding that the hiba-bil-ewaz deed in question was obtained by practicing fraud and as such the limitation for this suit will run from the date when the defendant left the house of the plaintiff leaving him in breach of condition of this hiba-bil-ewaz deed. From the above discussions, it is evident that no fraud was practiced at all in getting this hiba-bil-ewaz deed executed and registered. The trial court rightly found that there was no fraud at all in causing execution and registration of this hiba-bil-ewaz deed and that this suit is hopelessly barred by limitation. This appeal be allowed on contest without any order as to cost. The impugned judgment and decree of the High Court Division and also those of the appellate court below are set aside. The judgment and decree of the trial court dismissing the suit be upheld. …Rani Akther(Most) =VS= Mobarak Ali Mridha, [8 LM (AD) 128]

Section 42–– Declaration suit–– The trial Court and the High Court Division overlooked the admission corroborated by documentary evidence that the deeds of transfer by the plaintiff and his others siblings show that the land which they transferred prior to 1980 had been theirs by dint of amicable partition.

We find that the decision of the High Court Division upholding that of the trial Court cannot be sustained. Accordingly, the appeal is allowed. The judgement of the High Court Division is set aside and the suit is thus dismissed. ...Nurjahan Begum =VS Ali Ahammad Mollah, [9 LM (AD) 28]

Section 42–– Declaration suit–– We are of the view that both the trial Court as well as the High Court Division properly decided that the plaintiffs are in possession of the suit property uninterruptedly for more than 30-35 years. We find no misreading or non-consideration of the evidence on record by the trial Court or the High Court Division. Therefore, the declaration of the plaintiffs’ title to the suit property (C.S. Plot No. 1069, 2nd schedule property) appears to be lawful. The judgment and decree in favour of the plaintiffs relating to the suit property (2nd schedule) is hereby affirmed. ...Binode Chandra Debnath =VS= Harendra Debnath, [9 LM (AD) 50]

Section 42–– Declaration of title and recovery of khas possession–– The trial Court by its judgment and order dated 30.09.1998 dismissed the suit. Against the judgment and decree of the trial Court, the plaintiffs preferred Title Appeal No. 406 of 1998 before the learned District Judge, Dhaka. On transfer, the appeal was heard and disposed of by the learned Additional District Judge, Third Court, Dhaka, who by his judgment and order dated 08.04.2001 dismissed the appeal affirming the judgment and decree of the trial Court. Being aggrieved by and dissatisfied with the judgment and decree of the appellate Court, the plaintiffs moved the High Court Division by filing a revisional application and obtained Rule in Civil Revision No. 3839 of 2001. Upon hearing the parties by the judgment and order dated 14.05.2009 made the Rule absolute without any order as to costs.

We find substance in this appeal and accordingly, the appeal is allowed and the impugned judgment delivered by the High Court Division is set aside and the judgments and decrees passed by the Courts below are restored. ...Arshad Hossain Haider =VS= Suza Uddoula, [9 LM (AD) 32]

Section 42–– Title Suit–– The practice of endorsing return of consideration money on the back of the deed of transfer is sufficient to indicate a mortgage. It is not a case of oral evidence contradicting the terms of a written document. Here, the term of the Patta deed is amended by written endorsement which has been signed by the maker of the endorsement. Moreover, the endorsement on the back of the Patta is supported by the witness to the endorsement, namely, Md. Abdul Aziz Mulla(P.W.3) and the fact that the original Patta with the endorsement was returned to the predecessor of the plaintiffs is evidenced by the fact that it was produced in court from the custody of the plaintiffs.We note the half-hearted attempt of the defendants while cross examining P.W.1 to prove that the Patta deed was cleverly taken by P.W.1 from D.W.1 at the settlement office. This was not supported by the sole witness of the defendants, namely D.W.1.

We find merit in the appeal, which is accordingly allowed. The judgement and order of the High Court Division is hereby set aside, and the judgement and decree of the appellate Court is restored. ...Abdul Hadi Gazi =VS= Mostafa Alamgir Siddique, [10 LM (AD) 687]

Section 42–– Declaration Suit–– The execution of the plaintiff’s deed of gift by the admitted 4 owners of the suit land is admitted by the contesting defendants. The contesting defendants case is that since the four owners of the suit land executed the transfer deeds in their favour earlier though those are subsequently registered, the plaintiff’s deed executed later by the same vendors was invalid. But it appears that to substantiate this case the contesting defendants could not adduce any evidence at all to prove the genuineness of their alleged deeds. None of the scribe, attesting witnesses or identifiers of the alleged deeds of the defendants have been examined before Court by the contesting defendants. The Courts below, therefore, rightly found that the contesting defendants could not prove the genuineness of their alleged deeds at all. The High Court Division rightly made observation to the effect also that since the defendants failed to prove the genuineness of their deeds the plaintiff did not require to make a prayer for declaration of these deeds as false, forged and invalid etc. .....Sreenath Sen =VS= Laxmi Rani Boiragi, [5 LM (AD) 159]

Section 42–– Declaration of title to the suit land and for recovery of its possession––– The trial Court did not at all discuss the evidence of the PWs in deciding the question of possession of the suit land. The Appellate Court being the last Court of fact did not at all apply its mind and it simply dittoed the findings of the trial Court. The High Court Division also relied upon the judgment of the Appellate Court saying that it was the last Court of fact without looking in to the fact whether the Courts below considered the evidence on record in dismissing the suit. We find it proper to send the revision back to the High Court Division for hearing afresh and dispose of the same in accordance with law on the evidence on record. .....Md. Chan Miah & others =VS= Md. Afazuddin Bhuiyan & another, [1 LM (AD) 143]

Section 42–– Declaration of her title in .39 acre of land stating for declaration of title without prayer for partition is not maintainable–– We find from the plaint that the description of the suit land as given in the schedule to the plaint is discrepant vis-à-vis the deposition of the plaintiff in cross-examination. Also in his deposition P.W. 1 admitted that in 29 decimals of land in the Southern part, both he and the defendant are in possession. In such circumstances, the parties, if so advised, may take recourse to a proper suit. In view of such facts and circumstances the proper course would have been for the parties to file a partition suit. .....Arabind Mallik & others =VS= Joydeb & others, [1 LM (AD) 282]

Section 42–– Declaration of title–– Appellate Court misread the evidence in finding that the suit land is cultivable land–– Part of the suit plot was halot. In this regard we find from the khatian that plot No. 51 is recorded as halot whereas plot No. 102 is recorded as beel. The appellate Court has therefore misread the evidence in finding that the suit land is cultivable land. A proper scrutiny of Ext.1 would show that in C.S. Khatian No.3 plot No.51 is a “halot” and plot No.102 is a “beel”. Thus, clearly the suit land is a waterbody and not cultivable land. Hence, the claim of the plaintiffs of possession in land of plot No.102 was rightly rejected by the trial Court. .....Hajee Abdul Majid =VS= Jahir Uddin, [4 LM (AD) 217]

Section 42–– Declaration of title and confirmation of possession–– The High Court Division elaborately discussed the evidence and materials afresh and noted that DW1 in his evidence admitted that during pendency of the suit, the plaintiffs side entered into possession in the disputed plot and erected a pucca dwelling house. Erecting a pucca dwelling house on 1 decimal land was found to be improbable by the trial Court and the High Court Division. In view of the partial admission of possession and also the voter list of 1976, the High Court Division held that the Courts below were justified in holding that the plaintiffs were in possession of the disputed plot. The High Court Division also observed that one bigha land normally comprises 33 decimals. The onus lay upon the defendants to show that three bighas land equal to 178 decimals, which they did not prove. There is a road separating plot Nos.1135 and 1137 from the suit plot No.1136. In our view it has been rightly held that the compact 3 bighas plot does not extend to the other side of the road onto the suit plot. We do not find any illegality or impropriety in the impugned judgement and order of the High Court Division. .....Mohammad Rois Uddin =VS= Sree Anil Kumar Mondol, [5 LM (AD) 145]

Section 42–– Declaration that Kabala No. 908 dated 04.03.2001 executed by defendant No. 3 in favour of defendant No. 1 and Kabala No. 7442 dated 26.07.2001 that the learned Judge of the Single Bench considered the evidence on record, both oral and documentary, the findings of the Appellate Court on the question of plaintiffs title and possession in the suit land and the genuineness of the kabalas challenged in the suit and found those based on proper appreciation of the evidence on record. .....Abdul Malek =VS= Abdul Jalil & others, [1 LM (AD) 275]

Section 42–– Possession-For declaration of title in the suit land–– The claim by the plaintiffs is that they took pattan from the C.S. tenant Brojo Hori, but they could not produce any document to substantiate their claim. In the absence of any evidence as to how the plaintiffs got title to the suit land and considering the fact that the S.A. and R.S. records are in the name of the Government, the admission by D.W. 2 regarding possession by the plain-tiffs is of no help to the plaintiffs. .....Md. Soleman Ali Akan & others =VS= Mst. Taramon Bewa & others, [1 LM (AD) 235]

Section 42–– Title Suit No. 27 of 1983 decreeing the suit for a decree of permanent injunction restraining the defendants form disturbing their peaceful possession in the suit land.

Leave is granted on the ground which is quoted below:–

The parties are directed to maintain status quo in respect of the suit land till disposal of the appeal. .....Upendra Lal Saha &others =VS= Sheikh Sujai & others, [1 LM (AD) 323]

Section 42–– Title Suit–– We are of the opinion that the trial court rightly dismissed the suit of the plaintiff, but the appellate court below most erroneously and illegally set aside the judgment and decree of the trial court and decreed the suit of the plaintiff and the High Court Division also most erroneously affirmed this judgment and decree of the appellate court below. Appeal be allowed without any order as to cost. The impugned judgment and order of the High Court Division and also the judgment and decree of the appellate court below are set aside and the judgment and decree of the trail court be restored. .....Younus Mia (Md.) =VS= Mosharaf Hossain, [4 LM (AD) 342]

Section 42–– The rent receipts as proof of title–– Both the trial Court and the High Court Division appear to have accepted the rent receipts as proof of title of the plaintiffs. We also note that the rent receipts were not legally proved and no attempt was made to call for the counterfoils of the rent receipts, which, according to P.W.2, would be kept at the office of the Zaminder. Also, we note that the High Court Division mentioned a deed of 1310 in support of the plaintiffs’ title. However, we do not find any reference to this deed in the judgement of the trial Court or how it helps the plaintiffs to prove their title. The High Court Division has not based its decision on any cogent reason in reversing the decision of the appellate Court. On the contrary, there is evident misreading of the materials on record. The impugned judgement and order of the High Court Division is hereby set aside. .....Executive Engineer, Roads & Highways =VS= Abirun Begum, [3 LM (AD) 223]

Section 42–– Assessment of the evidence and materials–– Title Suit No. 1 of 1998 for declaration of title in the suit land with further– view of the discussion of the High Court Division upon assessment of the evidence and materials on record, we do not ﬁnd that the impugned judgment calls for any interference by this Division. .....Abu Zaher & another =VS= Abu Taher Mijhi & others, [1 LM (AD) 320]

Section 42

The following conditions are to be satisfied for seeking declaratory relieves under Section 42 of Specific Relief Act, 1877 are (1) the plaintiff must be entitled- to a legal character at the time of; the suit, or (2) to a right to property (3) defendant should have denied these or be interested in denying this character or right, and (4) the plaintiff should not be in a position to ask for relief consequential upon declaration sought. On perusal of the plaint it is found that in the present case the plaintiff side fulfills all the first 03 conditions. Side by side, as the suit land’s inclusion in the list of Enemy Properties, at present, Vested Properties is illegal; Manindra Bachhar died in this land leaving behind the plaintiffs predecessor as sole heir prior to enforcement of Enemy Properties laws (The Defence of Pakistan Ordinance 1965 and The Defence of Pakistan Rules of 1965) and the plaintiffs are in possession of the suit land, then it is not a sine qua non to include consequential relief such as declaration of title for getting decree in the instant suit as it’s plaint was framed. Appellate Division finds that the impugned judgment and order of the High Court Division is immune from any sort of interference. This Civil Appeal is dismissed without any order as to cost. .....Deputy Commissioner, Khulna =VS= Netai Bachhar, (Civil), 2022(1) [12 LM (AD) 22]

Section 42

Declaration of title with possession– The plaintiff is entitled to a decree of his share only in respect of point .58 decimal land in five plots. .58 decimal land in the plot/dag as mentioned as follows: 24 decimals from plot No.351; 10 decimals out of 70 decimals land from plot No.1154 and 12 decimals from plot No.1231. Therefore, the decree as has been passed by the trial Court may be modified to the extent of .58 decimal land and the suit in respect of the remaining land as mentioned in the plaint of the suit may be dismissed. Upon assessment of the evidence and materials on record, and in the light of the admission by the appellant, Appellate Division is of the view that this civil appeal may be allowed in part and the judgment and decree of the trial Court be modified. .....Eakubbar Shaikh =VS= Abdul Khalek Shaikh, (Civil), 2022(1) [12 LM (AD) 184]

Section 42

Title Suit for partition on declaration of their title– The plaintiff is entitled to get a decree in preliminary to the suit land but they are not entitled to evict the defendants from their homestead–From the facts, circumstances, evidence as well as on record, it appears that the plaintiff is entitled to get a decree in preliminary form since they have acquired title to the suit land by way of inheritance from the CS tenant, but they are not entitled to evict the defendants from their homestead.

Having conceded those facts, circumstances and evidence on record, Appellate Division holds the view that the learned Judge of the Single Bench of the High Court Division arrived at a wrong decision in making the Rule absolute. The impugned judgment and decree is hereby set aside and thereby the judgment passed by the appellate Court below is hereby restored with modification to the effect that the defendants are entitled to retain in possession of their homestead. The Advocate Commissioner (if he engaged by the trial Court) is to take consideration of the fact of existing possession of the parties in course of executing the preliminary decree. .....Forman Ali =VS= Rokeya Begum, (Civil), 2022(1) [12 LM (AD) 587]

The trial court in consideration of the evidence found that D. W. I could not bring home the claim of granting dakhilas by the predecessor of the plaintiffs in favour of the defendants predecessor. The trial court as well as the court of appeal below disbelieved D.Ws.1 and 2 in this regard. The kabuliyats produced by the defendant appellants being registered documents much emphasis has been given by the learned counsel of the appellants and also the trial Court and the court of appeal below. But it will suffice to say that the kabuliyats without any patta cannot give rise to title. In the instant case no patta could be produced by the defendants. Execution of kabuliyats unilaterally as produced by the defendants, do not give the defendant appellants any semblance of title. Mohiuddin vs Shwkat Ali (Amirul Kabir Chowdhury J(Civil) 3ADC 37

Section 42

Declaration Suit– Finding of the trial Court appears to be genuine and has not been controverted by any of the Court–The trial Court has found that the rent of the land was initially 6 taka IV ana and 7 pai for 1.95 acres land. We find a corroboration from the schedule the kabala that rent for the whole 1.95 of land is 6 taka ana and 7 pai. The trial Court arrived at a decision to the effect that if 1.56 acres land has been sold to the plaintiffs in that case the rent has been fixed to the extent to reduced rate. This finding of the trial Court appears to be genuine and has not been controverted by any of the Court. Furthermore, the sum 1.95 acres has been written in three places of the kabala dated 11.04.1960 and this aspect has not been considered by the revisional. Over and above, among the local people PW5, Rafiqul Islam is a man of 45 years who deposed that total area of the suit land is 1.95 acres. We have no reason to disbelieve him since the defendants have not tried to controvert such piece of evidence of PW5 by adducing counter evidence corroborating and impartial witness. Having considered the entire facts and circumstances and evidence on record, we are of the opinion that the area of total 1.95 has been sold through the disputed kabala. Thus, the question of seeking a prayer for partition does not arise at all as has been held by the revisional Court. The impugned judgment including the judgment of the appellate Court below are set aside and thereby affirm the judgment passed by the trial Court. .....Abdul Latif =VS= Md. Hamjer Sarder, (Civil), 2022(1) [12 LM (AD) 624]

Section 42, 55, 56(e)

It is clear that the High Court Division had fallen into an error in giving the declaration because that would amount to forcing an employee upon an unwilling master. Such declaration cannot be given in law and only relief, if at all could be a claim for damages but in this case the plaintiff did not frame his suit for damages therefore, under the Law, he could not claim any relief. The appeal is allowed. The judgment and order dated 23.01.2013 passed by the High Court Division is hereby set aside and the suit is dismissed. .....Akhil Chandra Tarafder =VS= Md. Abul Hossain, (Civil), 2023(2) [15 LM (AD) 20]

Section 42

Declaration of title the weakness of the defendants case cannot be a ground for getting decree the plaintiffs–– The revisional Court reversed the finding as to the possession and dispossession arrived at the appellate Court holding that the conclusion arrived at by the last Court of fact is not based on evidence. In the plaint, the plaintiffs stated that they were dispossessed by the defendant on 25.10.1985 from the suit land, plaintiff No.1 was examined as P.W.1 who in his evidence did not utter a word about the alleged date of dispossession. Similarly their another witness P.W.2 has also said nothing about the date of dispossession of the plaintiffs from the same. Appellate Division has also gone through the judgment of the Courts below it appears to us that the conclusion arrived at by the High Court Division is correct.

The appellate Court mainly relied upon the weakness of the case of the defendants that they have failed to prove of the story auction sale and their alleged settlement but in order to get a decree for recovery of possession along with prayer for declaration of title the weakness of the defendants case cannot be a ground for getting decree the plaintiffs. .....Md. Isaq Biswas =VS= Abdus Samad Sheikh, (Civil), 2023(2) [15 LM (AD) 532]

The Specific Relief Act, 1877

Section 42 r/w

The Land Revenue Act, 1967

Section 42 r/w

The Code of Civil Procedure

Order XXXII, Rule 15

Suit for declaration and cancellation of the disputed mutation–– It is a well-settled principle of law that mutation does not confer title, however, it may be considered as a piece of evidence if it is affected in accordance with law. .....Zaffar Afzal =VS= Ashiq Hussain, (Civil), 2023(2) [15 LM (SC) 28]

Section 7—Clause 25 of the Terms and Condition of the Work order of the Agreement.

When a party in a pending proceeding wil¬lingly participate by filling a written statement instead of invoking provision of the Arbitration clause raising legal issue in a suit surrendering his jurisdiction of arbitration and thereby the provision of section 7 of the Arbitration Act become nugatory regarding the said proceeding.

The Appellate Division on a careful reading of the stipulations of clause 25 of the h¡wm¡cn glj ew 2911 is of the view that it can’t be treated as bar to sought relief in a suit claiming compensation. The terms and subjects of the said clause of arbitration as laid down specifically which are not the subject of the suit nor on a plain reading of the averment of the suit it appears that its touch the subject of clause 25 of the Agreement. Executive Engineer, Roads and High¬way Department (RHD), Road Division, Munshiganj -Vs.- Md. Nurul Islam and others (Civil) 16 ALR (AD) 163-168

Bangladesh Abandoned Property (Control, Management and Disposal) Order, 1972

Section 7

The civil courts have been excluded to take cognizance of any suit for specific performance of contract in respect of any building the possession of which has been taken by the government as abandoned property, or a declaration that the building is not an abandoned property or has been vested in the government under P.O.16 of 1972. Section 7 provides the remedy to the Court of Settlement within a period of one hundred and eight days from the date of publication of the lists in the official Gazette. Md. Shahidul Haque Bhuiyan and others-Vs.- The Chairman First Court of Settlement and another (Civil) 23 ALR (AD) 114

Code of Civil Procedure [V of 1908]

Section 16 read with

Civil Rules & Order

Rule 757(1)—Whether is there any legal requirement for naming a suit as ‘Title Suit’, ‘Money Suit’, ‘Mortgage Suit’, ‘Partition Suit’ etc?

While the classification of suits, as reveals from the provisions of Section 16 of the CPC, rule 757(1) of the CRO and Form Nos. (S)11, & (S)12 appended to the Part 2 of the CRO, are amply useful for the aforesaid administrative purpose, naming the suits again by the litigants or Sheristadar as Title Suits, Money Suits, Mortgage Suits, Rent Suits, Eviction Suits, Other Class Suit etc appears to me to be pleonasm. Because since it is a well-established practice of drafting a plaint that at the very beginning of the averments of the plaint there should be a ‘cause title’; meaning a brief statement about the reason for institution of the suit, that infor¬mation should be sufficient for the Nazarat Section of the Court for classifying the suit as ‘Suit for declaration of title’, ‘Suit for specific performance of contract’, ‘Suit for recov¬ery of rent, etc. If there is really a need of naming the suit, the litigants, Advocates and Courts may use the simple expressions of ‘Civil Suit’ for all classes of substantive suits and ‘Civil Miscellane¬ous Case’ for all types of civil miscellaneous pro¬ceedings, such as, preemption case, application for restoration of the suit or any other miscellane¬ous application arising out of the substantive suit. Md. Akram Ali and others -Vs.- Khasru Miah and others (Civil) 19 ALR (HCD) 124-148

Specific Relief Act [I of 1877]

Sections 42, 55 and 56

Suit for a Mandatory injunction for service benefits etc. The plaintiff respondents was an employee of the trust and was not an employee of any statutory corporation and his service was not under the control of the Government or statutory corporation and his office had no public character and the power of dismissal was not exercised on behalf of public corporation and his terms of services are not regulated by statutory provisions and he has no legal character and hence, the order passed by the trial court, affirmed by the appellate Court and maintained by the High Court Division that the defendant will not create any hindrance to the plaintiff from performing his responsibilities in his post with his pay are not sustainable in law.

The Appellate Division held that the instant case is a suit for declaration and for a permanent injunction as a consequential relief to the effect that the defendant be restrained from disturbing the plaintiff in his service. It is the admitted position that the plaintiff is out of his office consequent to the order of his dismissal from service and, therefore. the decree for permanent injunction cannot be an effective relief if the plaintiff gets the declaratory decree to the effect that his dismissal is illegal. Under such circumstances the plaintiff ought to have prayed for a decree for a mandatory injunction under section 55 of the Specific Relief Act but clause (e) of section 56 of the Specific Relief Act is a bar to get the decree for mandatory injunction in the case of the plaintiff and hence the suit as framed is not maintainable on the ground that a declaratory decree will not be enough and that even a decree for mandatory injunction as consequential relief is barred under the law. Further, applying the principles of the decisions as referred to above in the instant case, it is clear that the High Court Division had fallen into an error in giving the declaration because that would amount to forcing an employee upon an unwilling master. Such declaration cannot be given in law and only relief, if at all could be a claim for damages but in this case the plaintiff did not frame his suit for damages therefore, under the Law, he could not claim any relief." It would be worthwhile if the plaintiff respondent could ventilate his grievances in a properly instituted money suit or so to say for damages. In view of the above, the Appellate Division finds merit in the appeal. Accordingly, the appeal is allowed. [2023] 29 ALR (AD) 17

Section 53

Mr. M. Qumrul Haque Siddique, learned counsel has placed the judg- ments and oal on record and submitted that the High Court Division erred in law in affi affirming the judgment of the trial Court in failing to consider that admittedly the petitioner is in phys- ical possession of the suit property and therefore, the balance of convenience and inconvenience are in its favour and that the petitioner being a bonafide pur- chaser for value without notice to the previous transaction between Capital Ship Breakers Limited and the respon- dent No.2, the High Court Division erred in law in maintaining the judg- ment and order of the trial Court reject- ing the prayer for temporary injunction. Ayat Steel Limited vs. Mohammad Ali (S.K. Sinha J) (Civil) 9 ADC 366

Sections 53, 54

Perpetual injunction– The High Court Division as a revisional Court had hardly any jurisdiction to set aside the finding of fact as has been found by the appellate Court below specially when there is no fault in the factual finding by the said Court– On perusal of the entire evidence and other materials on record, Appellate Division finds that all the Courts have arrived at a concrete decision that before handing over the possession of the disputed land by the receiver, the plaintiff was in possession in the suit land. Thus, this Division appreciated the Courts below in granting the appropriate order with a view to give full relief to the plaintiff without amending the plaint. The learned Single Judge of the High Court Division also is of opinion that the High Court Division as a revisional Court had hardly any jurisdiction to set aside the finding of fact as has been found by the appellate Court below specially when there is no fault in the factual finding by the said Court. It has been further held that there is no misreading of non consideration of the evidence on record. ...Shahid Uddin Ahmed =VS= Md. Abdul Jaher, (Civil), 2021(2) [11 LM (AD) 435]

Section 53

The facts of the case, in brief, are that the petitioners instituted a suit being Title Suit No.90 of 1978, before the Court of Munsif, Nawabganj, praying for a decree for permanent injunction, on being threatened dispossession by the defendants. The defendant Nos. I to 4 contested the suit by filing a written statement, denying all material averments made in the plaint. Mosammat Rahima Khatun vs. Emran Ali (A.B.M. Khairul Haque J) (Civil) 8 ADC 991

Specific Relief Act (I of 1877) Section 53 & 54

Permanent injunction-Its scope in a dispute over landed property-In a simple suit for permanent injunction with regard to a disputed landed property the relief is available to a person who is in possession. The Court may enquire incidentally into the respective claims of the parties to the suit for determining whether the plaintiff is in possession of the disputed property and entitled to the specific relief of permanent injunction.

If the dispute involves complicated questions of title the plaintiff must establish his title by filing a regular suit for declaration of title. A simple suit for permanent injunction should not be allowed to be used as a testing device for ascertainment of title. In this case the plaintiff assails the presumption of the CS Khatian, a kind of exercise the Court in a simple suit fore Permanent injunction should ordinarily avoid. ... (8)

43 DLR(AD) (1991) 215

Code of Civil Procedure [V of 1908]

Section 115(1) read with

Specific Relief Act [I of 1877]

Section 54

A simple suit for permanent injunction should not be allowed to be used as a testing device for ascertainment of title.

The High Court Division held that if the dispute involves complicated questions of title, the plaintiff must establish his title by filing a regular suit for declaration of title. A simple suit for permanent injunction should not be allowed to be used as a testing device for ascertainment of title. In this case the plaintiff assails the presumption of the Khatian, a kind of exercise the Court in a simple suit for permanent injunction should ordinarily avoid. Assistant Horticulturist -Vs.- M.A. Sattar Bhuiyan and others (Civil) 21 ALR (HCD) 348-356

Section 54

On appraisal of the evidence of D. Ws. it transpires that there is no definite evi- dence that the defendants are in posses- sion in the suit land.

It further transpires to me that the find- ings arrived at by the Court of appeal below having been rested upon consid- eration and discussions of legal evi- dence and materials on record and also on a correct and proper analysis of the legal aspects involved in the suit land the findings being a finding of facts are not liable to be disturbed by the High Court Division in exercising of power under Section 115(1) of the Code of Civil Procedure". Matiur Rahman vs. Md. Nowab Ali (Shah Abu Nayeem Mominur Rahman J)(Civil) 9 ADC 325

Section 54

The plaintiffs filed the suit for permanent injunction to restrain the defendants from dispossessing the plaintiffs from the suit land and that the cause of action arose on 6.10.97 when the defendants threatened the plaintiffs of dispossession. Matiur Rahman vs. Md. Nowab Ali (Shah Abu Nayeem Mominur Rahman J) (Civil) 8 ADC 468

Code of Civil Procedure [V of 1908]

Order VII, rule 11 read with

Specific Relief Act [I of 1877]

Sections 54, 55 and 56(F)

For rejection of plaint

There is no hard and fast rule that by any single action if several individuals are aggrieved, all the aggrieved individuals should redress their grievance jointly or severally. The High Court Division does not find any bar for any single individual to seek legal remedy against any action by which he has been aggrieved with some others.

The defendant-petitioners after appearing in the suit have not filed written statement and from the order-sheets including the impugned order, it clearly transpires that the defendants were repeatedly taking times for filing written statement in the suit and in the juncture of taking time, the defendants suddenly filed the application for rejection of the plaint under Order VII, rule 11 of the Code beyond the provision of law.

There is no such provision of Arbitration in the Agreement. Rather, there is provision for settlement of dispute and difference between the parties in “mutual good faith.” The term “mutual good faith” does not fall within the ambit of Arbitration. Therefore, the submission of the learned Advocate for the petitioner relating to Arbitration has got no basis at all.

The High Court Division is of the view that the application under Order VII, rule 11 of the Code of Civil Procedure has not been filed lawfully and the same has rightly been rejected by the learned Judge of the Trial Court. In such view of the matter, the Rule issued in Civil Revision No. 1265 of 2016 relating to rejection of the application under Order VII, rule 11 of the Code has got no merit. Accordingly, the Rule is discharged without any order as to costs. As regards the Rule issued in Civil Revision No. 583 of 2016 relating to rejection of application under section 151 of the Code praying for ad-interim injunction, the High Court Division is of the view that since an application under Order XXXIX, rules 1 and 2 of the Code filed by the plaintiff is pending before the Trial Court, the Trial Court is competent enough to consider the same. Therefore, the Trial Court is directed to dispose of the aforesaid application in accordance with law positively within thirty days from receiving copy of the judgment. Accordingly, the Rule issued in Civil Revision No. 583 of 2016 is disposed of. Unicom Education Consultant Services Limited and another-Vs.- Redwanul Bari (Civil) 23 ALR (HCD) 56

Praying for permanent injunction on the averments that the suit land originally belonged to Nowab Court of Wards Estate. Md. Nazim Uddin vs Managing Director and others (Md. Tafazzul Islam J) (Civil) 5 ADC 690

Section 54

Seeking decree for permanent injunction restraining the defendant Nos. 2-10 from admitting girl students in Nalchity Merchants High School.

In violation of the norms of the non- government education at institutions, that the High School under the law was required to apply to the Deputy Director of Secondary and Higher Secondary Education Board for according permission to start a girl school but no such application was filed and as such the High school was not authorized to establish any school for admitting girls within one Kilometer of the existing girls school.

The view so taken by the High Court Division as to the matter of admission of girl students into Nalchity Girls High School as the exclusive right thereof in our view is not well founded since a particular school imparting education to the girl students of the locality can not have the exclusive claim to have the girl students of the locality admitting therein alone as it is the option of the parents of the girls as well as of the girls to decide the matter of admission in the institution or school wherein girls would have bet- ter education and as such the action of the High school in admitting girl students in our view has in no way invaded or threatening proprietary right or any kind of right of the School, and in that view of the matter the Nalchity Girls High School was not on correct legal footing in going to the Court for having an order restraining the High School from admitting girl students in it and that the High Court Division was in error in discharging the Rule and there- by affirming the order of the lower appellate Court granting injunction restraining the High School from admit- ting girl students upon setting aside the order of the trial Court. The kind of right ie. to have girl students exclusively admitted in the School as claimed by the School and accepted by the High Court. Division and thereupon made the same basis of the judgment was erroneous as the right claimed by the School is by no standard is 'property' and thus right. claimed by the School was not 'right to. or enjoyment of, property' and conse- quent thereupon the School was neither entitled to temporary injunction, nor to a decree of permanent injunction. Md. Shahid Hossain Khan vs. Abdul Bashed Lashkar and others (Md. Ruhul Amin J) (Civil) 4 ADC 214

The relief sought for in the plaint is one for permanent injunction restraining the appellant herein, her men, and her agents from evicting the respondent institution from the scheduled mentioned property. Hence, it is clear that the relief sought-for by the respondent is a permanent injunction against the landlord -- the appellant herein from evicting the respondent herein. When, admittedly, such a relief cannot be granted, the decrees of the Courts below also cannot be sustained, since it is an embargo on the right of the appellant to enjoy the property. Hence, the judgments and decrees of the Courts below cannot be sustained. [AIR 2001 MAD 417]

Section 54: Exclusive possession

The learned Advocate appearing for the leave petitioners submitted that the High Court Division erred in arriving at its decision on misreading and non-con- sideration of the materials on record inasmuch as the High Court Division has found both the parties in possession and the suit land has not been divided or partitioned on metes and bounds and that the Appellate Court below erred in decreeing the suit without discussing and considering the depositions of the witnesses and evidences adduced and produced in the case by the respective parties and that the Appellate Court below though reversed the judgment of the trial Court but did not reverse the findings of the trial Court relating to the exclusive possession on the undivided suit plots. Joynal Abedin vs. Shahidul Islam (Shah Abu Nayeem Mominur Rahman J) (Civil) 8 ADC 492

Section 55

The learned Subordinate Judge upon hearing the parties by judgment and order dated 29th April, 1997 allowed the application for mandatory injunction on the reasonings that a local inspection was held wherein the Advocate Com missioner reported that the respondents no. 1 and 2 had started construction of a house towards 3 ft. west of the appel- lant's house, and thereafter the Second Advocate Commissioner reported that the respondents had already completed the house and they had started a con- struction of a new one and they also dug up a ditch towards the north-west- ern corner and thereby the they made the constructions in utter violation of the Court's order and accordingly, di- rected the respondents to remove the said constructions within 15 days at their own cost, failing which, it was di- rected that the plaintiff-appellant would be able to remove the constructions through the process of the Court. Md.Azizur Rahman Chowdhury vs. Tauhiduddin Chowdhury (S. K. Sinha J) (Civil) & ADC 915

Specific Relief Act, 1877 (Act No.I of 1877)

Section 55

Held; A scrupulous appraisal of the section demonstrates that a Court of law can provide mandatory injunction if it is required to compel the performance of certain acts which the Court is capable of enforcing and also to compel performance of the requisite acts to prevent the breach of an obligation by the defendant(s) and to get a relief in a suit as in the instant case, the plaintiff must satisfy the Court by producing evidence that the defendants had an obligation to her which they were breaching. [Para-20] [31BLT(AD) (2023) 57]

Specific Relief Act, 1877 (Act No.1 of 1877)

Section 55

The plaintiff filed title suit for mandatory injunction with a prayer for direction upon the defendant-respondent No.1 to appoint her as Religious teacher and allow her to join in the post- the trial Court decreed the suit- the defendants preferred title appeal and the appellate Court below disallowed the appeal and thereby affirmed the judgment and decree of the trial Court and decreed the suit. The defendant preferred Civil Revision before the High Court Division and the High Court Division made the rule absolute.

Held; Our considered view in this end is that, the Trial as well as the Appellate Court arrived at these decisions conceiving that the school authority was legally required to employ the present justice seeker in the aforementioned post. However, there are differences between legal obligation and mere hope or expectation as explained by the High Court Division. We are absolutely concurring with the view of the High Court Division - this is not a fit case for granting an order of mandatory injunction; rather, if mandatory injunction is granted there is apprehension to suffer internal and external management and smooth function of an educational institution. [Para-23 & 27] [31BLT(AD) (2023) 57]

Specific Relief Act [I of 1877]

Section 55 —Where a party raises constructions in violation of interim in-junction and obstructs the right of way, the Court can order for demolishing the construction.

The Appellate Division held that disobedience of an order of injunction is a punishable offence under Rule 2(3) of Order 39 but this disobedience of an order of in-junction or status-quo is a civil contempt. Disobedience to an order of injunction or status-quo made under Rule 1 or Rule 2 by doing something for a party’s unadvantage entitles a Court under its inherent power to bring back that party to a position where it originally stood as if the or-der passed have not been contravened . Even if it is assumed that the Court made such order of restitution or restoration of the status-quo ante as a consequence of the finding of guilt of disobedience, if there can be such a power , there can always be ancillary to it the power to make an interim order to the said effect subject to the final determination of the case. There are cases where a party raises constructions in viola-tion of interim injunction and obstructs the right of way, the Court can order for demolishing the construction under section 151 C.P.C. Md. Azizur Rahman Chowdhury -Vs.- Tauhiduddin Chowdhury and others (Civil) 12 ALR (AD) 143-146

Specific Relief Act, 1877 (Act No.I of 1877)

Section 55

Section 55- Disobedience of an order of injunction or status-quo is a civil contempt. Disobedience to an order of injunction or status-quo made under Rule 1 or Rule 2 by doing something for a party's unadvantage entitles a Court under its inherent power to bring back that party to a position where it originally stood as if the order passed have not been contravened Even if it is assumed that the Court made such order of restitution or restoration of the status-quo ante as a consequence of the finding of guilt of disobedience, if there can be such a power, there can always be ancillary to it the power to make an interim order to the said effect subject to the final determination of the case. There are cases where a party raises constructions in violation of interim injunction and obstructs the right of way, the Court can order for demolishing the construction under section 151 C.P.C. In this case though the plaintiff-appellant filed the application under section 55 of the Specific Relief Act, the trial Court treated it as one under section 151 C.P.C. and rightly made the order of restoration of the status-quo ante as a consequence of the finding of guilt of disobedience.

"This principle is in consonance with fair administration of justice and this power of making an order of mandatory injunction on an interlocutory application may be exercised irrespective of the merits of the main case as it is one of the main concerns of the Court of law to see that no one dares to interfere with the course of justice by presenting the Court with a fait accompli". Though this sort of dispute relates to private rights of the contending parties to the litigation but the higher courts termed it a new character and it turned into a matter concerning public policy relating to administration of justice. ... Azizur Rahman Chowdhury (Md.) -VS= Tauhiduddin Chowdhury. [8 LM (AD) 29]

Specific Relief Act, 1877 (Act No.1 of 1877)

Section 55

Section 56

No injunction can be passed against a true owner– There is no doubt that present respondent is the owner of the suit land. When this respondent as defendant submitted the deed of purchase in Other Suit No.96 of 1996, the Court could have considered the same. This respondent claimed as true owner and no injunction can be passed against a true owner. Therefore, to exhibit and composite complete justice, the judgment and decree of Other Suit No.96 of 1996 and Other Appeal No.136 of 1997 are hereby set aside. The appeal is dismissed without any order as to costs. .....Shahid Miah =VS= Md. Faisul Islam alias Farhad, (Civil), 2022(1) [12 LM (AD) 632]

Code of Civil Procedure [V of 1908]

Order 39, Rule 1 and 2 read with

Specific Relief Act [I of 1877]

Section 56(a) and (b)

Temporary injunction.

An injunction cannot be granted—

(a) to stay a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings;

(b) to stay proceedings in a Court not subordinate to that from which the injunction is sought; The Court of 5th Additional family Court, Dhaka is not subordinate Court of this Court. That’s why I am in a view that there is a legal bar to stay the proceedings of suit No. 210 of 19 pending in the Court of 5th additional family Court, Dhaka under aforesaid section.

The High Court Division opined that the Court of 5th Additional family Court, Dhaka is not subordinate Court of this Court. That’s why the High Court Division is in a view that there is a legal bar to stay the proceedings of suit No. 210 of 19 pending in the Court of 5th additional family Court, Dhaka under aforesaid section. The above quoted finding of the learned Joint District Judge, 4th Court, Dhaka certainly indicates that the learned Joint District Judge considered all aspects of the case and thereafter, recorded the order of rejection. Besides, on going through the impugned order together with the application for injunction, it appears that the application for temporary injunction is incompetent, misconceived, ill advised and that the plaintiff filed the application for temporary with malafide intention to frustrate the Family suit No. 210 of 2019. Thus, the High Court Division does not find any substance in this first miscellaneous appeal. In the result, the first miscellaneous appeal is dismissed summarily. Abir Ahmed Shamim -Vs.- Soniya Akter Munni and others. (Civil) 23 ALR (HCD) 18

Section 56

The suit land is in peaceful possession of the Forest Department and the forest Department planted various valuable trees. The further case of the defendants is that in was decided to constitute the suit plots as reserve forest along with other plots by notification No.3125 dated 13.04.1955 and the collector of Dhaka was appointed as forest Settlement Officer .As per provision of Forest Act objections were invited from the interested persons within 90 days but neither the plaintiffs or anybody raised any objection as they had no title and possession in the suit land Subsequently the Forest department by its memo No.3755(2)/8-12 dated 15.09.1967 requested the Government to declare the suit plots along with other lands as reserve forest which is under active consideration of the Government. The suit lands were correctly recorded in the name of the defendants but the plaintiffs created some false deeds of grab these valuable forest lands of the Government. Abdur Rahman & others VS. Government of Bangladesh (M.M.Ruhul Amin J) (Civil) 5 ADC 310

Specific Relief Act [I of 1877]

Section 56(d)

Sui for temporary injunction

Since there has been clear legal bar both in section 44 of the Acquisition and Requisition of Immovable Property Act, 1982 as well as clause (d) of section 56 of the Specific Relief Act, there is no scope for the court restraining the government officials.

When the High Court Division poses a question to the learned counsel appearing for the petitioners as to whether that very orders have ever been challenged by those three government entities that is, defendants nos. 247, 248 and 327 before any higher court, the learned counsel very readily submits that, it has not yet been challenged other than by the present petitioners before this Hon’ble court. Since there has been clear legal bar both in section 44 of the Acquisition and Requisition of Immovable Property Act, 1982 as well as clause (d) of section 56 of the Specific Relief Act, there is no scope for the court restraining the government officials herein the defendant nos. 247, 248 and 327 from paying compensation money to the affected persons herein the petitioners. Since the initial order of interim injunction dated 22.10.2017 has been passed most illegally so impugned order dated 23.11.2017 extending earlier order is also illegal and cannot be sustained. Regard being had to the above facts and circumstances, the High Court Division doesn’t find any shred of substance in the impugned order. In the result, the rule is made absolute. Adv. Sirajul Islam and another -Vs.- Faizul Azim and others (Civil) 27 ALR (HCD) 90

Case Reference

সার্চ ইন্টারফেসে আপনাকে স্বাগতম

Specific Relief Act, 1877 | Case Reference

Section 3 —

Sections 8 and 9—

Section 8

Section 9

Section 12

Section 18 - Lease property

Section 21A(b) —

Section 21

Section 22 (I) —Specific Performance of Contract.

Section 27—

Section 31—

Section 39, 42

Section 42 -Declaratory suit

Section 53

Section 54

Section 55

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