Act/Law wise: Judgment of Supreme Court of Bangladesh

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Easements Act, 1882
Section/Order/Article/Rule/Regulation Head Note
Sections 2,4, 15 and 18

Customary right — Right of way when not available — It has been noticed that the plaintiffs were recent purchasers and there was no clear evidence that the right of’ way was exercised peaceably from time immemorial — Easement being a right super-added to ordinary common law incidents of the ownership of a dominant tenement, which connotes a corresponding burden on a servant tenement, can only be created by grant or by statute — Customary rights though unappurtenant to dominant tenement and no fixed period of enjoyment is necessary to establish it, the custom must be reasonable and certain— The plaintiffs claimed customary right and no customary easement right but they failed to prove customary right on evidence. Abdul Matin and ors. Vs. Shuruj Mm being Dead his heirs: Taibunnessa and others; 9BLD(AD)74 ....View Full Judgment

Section 4

Definition of easement– An easement is always appurtenant to the dominant tenement– There can be no easement without dominant tenement.
The definition of easement given in section 4 clarifies that an easement is always appurtenant to the dominant tenement and inseparably attached to it and cannot be severed from it. There can be no easement without dominant tenement and a servient tenement. Section 18 deals with customary easement and it says that casement may be acquired by virtue of local custom. But it is completely different from customary right because customary right is not an easement. Abdul Matin vs Taibunnessa 41 DLR (AD) 88. ....View Full Judgment

Section 13

Section 13 of the Easement Act is applicable only when properties owned jointly are partitioned amongst co-sharers, which is not admittedly the scenario in the instant case. It is also revealed by the transcript of evidence that the plaintiff himself stated during cross examination that he has an alternative pathway to the north-east side of his house, as such, he is not a land-locked property owner. The High Court Division has unwarrantedly transgressed into the domain of evidence to open new door on evidence analysis, which, as a revisional Court it cannot ordinarily do, unless analyses of evidence by the Courts of fact are palpably perverse. In this case the trial Court in evaluating the depositions of PWs 1, 2 and 3, who deposed to prove the existence of a pathway. The trial Court has given cogent reasons for not believing the PWs. We find merit in the appeal, which is accordingly allowed, without however, any order as to costs. The impugned judgement is set aside. …Anowara =VS= Abdul Rab Hawlader, (Civil), 2019 (2) [7 LM (AD) 53] ....View Full Judgment

Section 15

Easement Act, 1882 deals with customary easement, Easement Act does not deal with customary right. It refers to customary rights no doubt, but that is for the purpose of making it abundantly clear that while the Act governs the former it has no concern with the latter.
What the plaintiffs claimed was customary right and not customary easement.
Hence the Courts below while approaching the case made an erroneous decision by taking in view the principles of Easement Act. The submission is devoid of any substance because it makes a distinction without any difference. Abdul Matin vs Taibunnessa 41 DLR (AD) 88. ....View Full Judgment

Section 15

The Easements Act, 1882
Section 15 read with
Limitation Act, 1908
Section 23
One should bring a suit within 2(two) years of interruption of his enjoyment (distinct from actual user) of easement right when the cause of action arises–
The Appellate Division observed that the High Court Division took the view that since the suit was not filed within two years from 1990, i.e. when the wall was erected by the defendants, the suit is barred. The Appellate Division is of view the finding of the High Court Division is quite erroneous. The requirement of the law is that in establishing the right of easement it has to be shown that the right was openly enjoyed as an easement, and as of right, without interruption for 20 years and the period of 20 years shall be taken to be a period ending with the interruption of the enjoyment of the easement right when the cause of action arises and the suit is to be instituted within 2 years from the date when the cause of action arises. .....Shamsul Huq Molla =VS= Shunil Chandra Biswas, (Civil), 2016-[1 LM (AD) 373] ....View Full Judgment

Section 18

Customary right — Essential elements of a valid custom — Reasonableness is an essential element of a valid custom — Considering the changed circumstances the Court may modify, extend or even disallow a right based on custom that was otherwise resonable at its inception — A limited user or indulgence will neither make it a custom from time immemorial nor reasonable. Moniruddin Sarker being dead his heirs Faziul Huq and others Vs. Nurul Huq Khan and others; 8BLD(AD)80 ....View Full Judgment

Section 52

Lease and Licence—Distinction of—. Exclusive possession of land cannot convert a licence into a lease — Intention of the parties is to be looked into whether the agreement creates lease or licence—Conduct of the parties is immaterial where there is a written document creating the relationship between the parties — Transfer of Property Act. 1882 (IV of 1882) S. 105. The New Dhamai Tea Estate Ltd. Vs. ArJun Kurmi, 3 BLD(AD)121 ....View Full Judgment

Section 52

Licensee's right to transfer– No particular meaning of licence having been given in the lease deed it will have the meaning given in the Easements Act and accordingly a licensee has no right to transfer the property in question. Bangladesh vs Ibrahim Bepari 42 DLR (AD) 184. ....View Full Judgment

Section 60

Natural justice —Cancellation of licence in violation of the terms of the agreement to give 30 days notice before termination — Whether such cancellation is legal — Termination of the licence has not been done in accordance with the terms of the agreement — Revocation of the licence is wrongful and illegal — No opportunity was given to the licensee to deny or disprove the allegations leading to violation of the principles of natural justice A citizen’s property can be taken over if the law authorises the taking — In addition to strict compliance ut law opportunity must be given to the owner to legally defend its right to property. M/s. Hajee Mohamnmad Ali and sons Vs. Burma Eastern Limited and others; 6BLD (AD)146 ....View Full Judgment

Section 60

The plaintiff having filed all the material documents showing the title to the suit land including the Khatian being an evidence of possession as well as collateral evidence of title, was entitled to recovery of possession from the defendant, which under the circumstances, go to show that he was in permissive possession in the suit land as asserted by the plaintiff. Badal Chandra Das vs Amena Khatun 11 BLC (AD) 94. ....View Full Judgment

Section 60

On perusal of the judgment of the trial Court it appears that the trial Court failed to appreciate the difference between the owner and licensee in respect of the property and, as such, did not place any reliance on Exhibits 'E' and 'U' which proved that the permission given by the defendant No. 3 to the suit property for a short period and the plaintiff, is none but a mere licensee and the period having been expired the plaintiff had no subsisting legal interest for enforcement by way of an injunction. Paper Converting and Packaging Ltd vs Bangladesh 11 BLC (AD) 100. ....View Full Judgment

Section 60

The Easements Act, 1882
Section 60 read with
Transfer of Property Act, 1882
Section 118
An exchange, value of which exceeds Tk.100/-, is to be registered–
The Appellate Division held that an exchange, value of which exceeds Tk.100/-, is to be registered but in the present case the value of the alleged exchange though more than Tk.100/-was not registered and accordingly having not been registered the alleged exchange is not admissible in evidence and so the finding of the courts below that the exchange has not been proved cannot be interfered and accordingly in the present case Rajab Ali was a custodian of the property and not a licensee. Appellate Division is of the view that the High Court Division on correct assessment of the evidence and the materials on record arrived at a correct decision. Accordingly the appeal is dismissed. .....Munshi Firoz & others =VS= Ruhul Amin & others, (Civil), 2016-[1 LM (AD) 434] ....View Full Judgment