Act/Law wise: Judgment of Supreme Court of Bangladesh (AD)
Specific Relief Act, 1877 | |||
---|---|---|---|
Section/Order/ Article/Rule/ Regulation | Head Note | Parties Name | Reference/Citation |
Section 3 |
Unless the plaintiff could prove his possession in the schedule-1(ka) land
he could not avail of the benefit of to section 3 of the Specific Relief
Act.
|
Bibi Joynab Begum Chowdhury and others.-Vs.- Osi Mia Osi Mia Sawdagar being dead his heirs | 12 ALR (AD) 12 |
Sections 5 & 56 |
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. |
Sushil Kumar Paik and another vs Harendra Nath Samadder and another | 55 DLR (AD) 9 |
Sections 5 and 56 |
Suit for permanent injunction - Held The High Court Division has rightly held that in a suit for permanent injunction simplicitor an issue whether the registered deed is forged or not cannot be decided. Such a question is to be decided in a separate suit. Sushil Kumer Paik & Anr. Vs. Harendra Nath Samadder &anr. 10 BLT (AD)-103 |
Sushil Kumer Paik & Anr. Vs. Harendra Nath Samadder &anr. | 10 BLT (AD) 103 |
Sections- 8, 9 r/w |
Specific Relief Act, 1877
|
Proddut Kumar Das =VS= A Rashid Howlader | 16 LM (AD) 472 |
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] ....View Full Judgment |
Mojibar Matubbar =VS= Abdul Hamid Matubbar | 15 LM (AD) 638 |
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] ....View Full Judgment |
Nazma Begum(Most.) =VS= Muksed Ali | 13 LM (AD) 1 |
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] ....View Full Judgment |
Ahmed Ali Noor =VS= Nigar Hossain | 13 LM (AD) 123 |
Section 9 |
If the judgment—debtor against whom a decree has been passed under section 9 can establish title in a suit subsequently filed by him, he can get the relief. No injunction can be granted on the plea of title. Mosammat Monowara Begum vs Syed Ashrafuddin 40 DLR (AD) 251. |
Mosammat Monowara Begum vs Syed Ashrafuddin | 40 DLR (AD) 251 |
Section 9 |
Whether the decree obtained by the repondent Nos. 1 and 2 under section 9
of the Specific Relief Act is executable in view of the appellant's
application for temporary injunction against the execution of such decree.
|
Mosammat Monowara vs Syed Ashrafuddin | 40 DLR (AD) 251 |
Section 9 |
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 Rauf (Md) vs Abdul Hamid and othes 49 DLR (AD) 133. |
Abdur Rauf (Md) vs Abdul Hamid and othes | 49 DLR (AD) 133 |
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.
|
Durga Mohan Roy =VS= Most. Belly Khatoon | 14 LM (AD) 552 |
Section 9 |
Specific Performance of Contract — Contract having been mutually
cancelled by issuing a cheque by the petitioner refunding the earnest money
the non-enactment of the cheque might entail other consequences, but that
cannot revive the terminated contract as contended by the learned counsel
of the petitioners.
|
Major (Retd) Md. Afsar Uddin Vs Kamal Rahmari & Ors. | 3 BLT (AD) 190 |
Section 9 |
Temporary injunction—Temporary injunction to restrain the decree holder from proceeding with the execution tse—Whether judgment debtor against whom a decree for recovery of possession was passed is entitled w restrain the decree-holder — If an injunction is granted on the prayer of the judgment debtor the object and purpose of the suit under section 9 of the Specific Relief Act will be frustrated — If the judgment debtor against whom a decree has been passed under section 9 can establish his title in a suit subsequently filed by him he can get relief on the basis of title so found in such suit — The defendant must first surrender possession to the decree holder in execution of a decree obtained by him in such a suit — No injunction can be granted on the plea of title to restrain the execution proceeding — Code of Civil Procedure, 1908 (V of 1908), Order XXXIX Rule Mosammat Monowara Begum Vs. Syed Asrafuddin and others. 6 BLD (AD) 102 |
Mosammat Monowara Begum Vs. Syed Asrafuddin and others. | 6 BLD (AD) 102 |
Section 9 |
Trespasser — Ejectment of — Whether a trespasser in possession for a long time without acquiring title can eject the subse1uent trespasser dispossessing him -p--- It is well—settled that in the case of successive independent trespassers, the first trespasser who has been continuously in possession has a right to maintain his possession against all the world except the rightful owner: he can sue for ejectment and recovery of possession from any person who subsequently dispossessed him unless the latter is the real owner or claims under him or justifies his authority — A long line of decisions show that prior possessor can eject the subsequent trespassers — As such title must be held in the first trespassers unless, of course, the subsequent trespasser acquired better title — It is not a valid defence that real title lies in the 3rd party. Abdul Hamid and others Vs. Afazuddin Ahrned and others 7BLD (AD) 177 |
Abdul Hamid and others Vs. Afazuddin Ahrned and others | 7 BLD (AD) 177 |
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.
|
Khukon =VS= Abdur Rakib | 11 LM (AD) 124 |
Sections 9, 42 |
Specific Relief Act, 1877
|
Anwar Hossain(Md.) =VS= Kamrul Islam | 11 LM (AD) 429 |
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.
|
Mohabbat Ali Shah(Md.) =VS= Mohiuddin | 11 LM (AD) 550 |
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] ....View Full Judgment |
Tayab Ali =VS= Abdul Hakim | 11 LM (AD) 329 |
Section 9 |
In a suit for recovery of possession under section 9 of the Specific Relief Act, notwithstanding any question of title that may be setup in such a suit, the person disposed without his consent or otherwise than in due course of law can claim for recovery of possession. A tenant having lawfully entered into possession of an immovable property cannot transfer possession to a third party without the consent of the landlord. In such a case, the plaintiff is entitled to recovery possession in the suit property. Mohammad Abdur Rouf Vs. Abdul Hamid, 16 BLD (AD) 277. |
Mohammad Abdur Rouf Vs. Abdul Hamid | 16 BLD (AD) 277 |
Section 9 |
A plaintiff in a suit under section 9 of the Act is required to prove is his possession and dispossession within 6 (six) months next before the institution of the suit. In a suit of this nature the court is quite competent to pass a decree in favour of the plaintiff for recovery of the possession of the suit land, notwithstanding any claim of title that may be set up in defence. Md. Yakub Ali Vs Md. Atiar Rahman and others, 20 BLD (AD) 183. |
Md. Yakub Ali Vs Md. Atiar Rahman and others | 20 BLD (AD) 183 |
Section 9 |
Suit for recovery of possession—
|
Suruzzaman (Md.) Vs. Ahmed AH and others | 13 MLR (AD) 69 |
Section 9 |
Suit for recovery of possession filed within six months of dispossession is
maintainable—
|
Maruf Hossain (Swopon) Vs. Diljan Bibi and others | 13 MLR (AD) 196 |
Section 12 |
Suit for specific performance of contract is not maintainable when the suit
property is enlisted as enemy or vested property— Plea of adverse
possession when not taken in the pleadings can not be entertained—
|
Md. Ali Bepary and others Vs. Gitnipranjan Chakraborty and others | 14 MLR (AD) 218 |
Section 12 |
Evidence Act, 1872
|
Rangeo Rani Chowdhury =VS= Abul Kashem | 11 LM (AD) 585 |
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.
|
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, (Civil), 2021(1) [10 LM (AD) 281] ....View Full Judgment |
Abdus Salam(Md.) =VS= Lutfun Nahar | 10 LM (AD) 281 |
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, (Civil), 2017 (2)– [3 LM (AD) 198] ....View Full Judgment |
Comprehensive Holdings Ltd.=VS=MH Khan Monju | 3 LM (AD) 198 |
Section 12 |
Explanation
|
Bazlur Rahman Bhuiyan Vs. Bangladesh Shipping Corporation | 34 DLR (AD) 42 |
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] ....View Full Judgment |
Abu Naser =VS= Ali Karim | 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] ....View Full Judgment |
Abdul Quddus(Md.) =VS= Md. Mahbubul Haque | 12 LM (AD) 690 |
Section 12 |
Right to property — Whether specific performance of contract is a right to property — Right to specific performance of contract for sale of any property is a right relating to property It must receive protection in the absence pf any provisions of law to the contrary — Such right will no longer remain a right unless when threatened or invaded it can be protected in the Court of law. Asaduzzaman Vs. Bangladesh, represented by the Secretary, Ministry of Public Works and Urban Development, 4BLD (AD) 189 |
Asaduzzaman Vs. Bangladesh, represented by the Secretary, Ministry of Public Works and Urban Development | 4 BLD (AD) 189 |
Section 12 |
Specific performance of contract — In a suit for specific performance the question is whether there was a concluded contract between the parties which could be enforced — It is well-settled that the Court will not decree a suit for specific performance of a contract the terms of which are uncertain — As there was no concluded contract the same could not be enforced. H.N. Fabrics Ltd. Vs. Mallick Textile industries and others, 5 BLDAD)271 |
H.N. Fabrics Ltd. Vs. Mallick Textile industries and others | 5 BLD (AD) 271 |
Sections 12, 21 and 22 |
The Transfer of Property Act
|
Md. Dabir Uddin =VS= Md. Moniruddin | 16 LM (AD) 57 |
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] ....View Full Judgment |
Ambia Khatun(Most.) =VS= Sree Shuklal Turaha | 11 LM (AD) 512 |
Section 12 |
Suit for declaration of a registered deed as void and fraudulent is not
maintainable without seeking cancellation—
|
Aslam Khan (Md.) Vs. Haji Abdur Rahim and others | 12 MLR (AD) 149 |
Section 12 |
Suit for specific performance of contract—
|
AH Akbar (Md.) Vs. Shajinmnessa Bezva and others | 11 MLR (AD) 205 |
Section 12 |
Suit for specific performance of contract—
|
Abdul Malek Mollah Vs. Md. Abdul Salam Mora] and another | 14 MLR (AD) 158 |
Section 14 |
The Act contemplates in certain cases payment of money in compensation.
|
Joydeb Agarwala Vs. Baitulmal Karkhana | 16 DLR (SC) 706 |
Section 15 |
Applicability of the section—is confined to a case where the vendor
purports to sell the whole property making no reference to any co sharer,
when in fact a co-sharer exists.
|
Anwara Chowdhury Vs. M. Majid | 16 DLR (SC) 609 |
Section 16 |
Specific performance —Of the three vendors one is a minor and the contract is void in respect of minor’s 1/3 share — Contract in the facts of the case found divisible — Purchaser entitled to a decree for specific performance in respect of 2/3 shares of the property. Archana Prasad Nandi Vs. Miss (‘hula Randolph and others, 2 BLD(AD)90 |
Archana Prasad Nandi Vs. Miss (‘hula Randolph and others | 2 BLD (AD) 90 |
Sections 19 and 29 |
Refund of consideration money — The unsuccessful plaintiff in a suit for specific performance of contract whether entitled to i-efund of consideration money — Question requires to be decided on evidence. Ali Haider Vs. Md. Jonab Ali Bepari and others, 3 BLD(AD)313 |
Ali Haider Vs. Md. Jonab Ali Bepari and others | 3 BLD (AD) 313 |
Section 21A(b) |
The Registration Act, 1908
|
Sree Porikshit Mondal =VS= Sree Paresh Chandra Biswas | 15 LM (AD) 66 |
Section 21A |
The Code of Civil Procedure, 1908
|
Saifuddin Ahmed =VS= Dr. Hosne Ara Begum @Golap | 14 LM (AD) 183 |
Section 21A |
The Registration Act, 1908
|
Comprehensive Holdings Ltd. =VS= MH Khan Monju | 3 LM (AD) 198 |
Section 22 |
Limitation Act, 1908
|
Mosammat Asma Khatun =VS= Md. Abdul Karim | 15 LM (AD) 440 |
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] ....View Full Judgment |
Md. Alamgir Hossain =VS= Md. Samsul Haque | 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.
|
Jahangir Ahmed (Md) =VS= Sayyid Obaidullah | 15 LM (AD) 402 |
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] ....View Full Judgment |
Md. Ali Akram Hossain (Bachchu) =VS= Md. Mostafizur Rahman | 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.
|
Habiba Banu =VS= Aftabullah | 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] ....View Full Judgment |
Laxmi Narayan Chowdhury =VS= Md. Harun Fakir | 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] ....View Full Judgment |
Rajdhani Unnayan Katripakka (RAJUK) =VS= Khan Mohammad Ameer | 13 LM (AD) 233 |
Section 22 |
The proper from of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff in order to avoid all controversies. Ezaher Meah and others vs Shaher Banu and others 49 DLR (AD) 85. |
Ezaher Meah and others vs Shaher Banu and others | 49 DLR (AD) 85 |
Section 22 |
In a suit for specific performance of contract for sale of immoveable property plaintiff is entitled to delivery of possession. A trespasser in the suit property is liable to be impleaded in the suit and evicted from the suit property to give effective relief to the plaintiff. Nurul Islam and others vs Jamila Khatun and others 53 DLR (AD) 45. |
Nurul Islam and others vs Jamila Khatun and others | 53 DLR (AD) 45 |
Section 22 |
The petitioners are mere trespassers and they could not establish their claim of auction purchase of the suit property and as such they cannot challenge the exercise of discretion in favour of the plaintiffs. Nurul Islam and others vs Jamila Khatun 53 DLR (AD) 45. |
Nurul Islam and others vs Jamila Khatun | 53 DLR (AD) 45 |
Section 22, Items I and II |
The relief sought for by the appellant does not lie in Item—I stating that the contract if enforced would give the plaintiff an unfair advantage over the defendant. High relief lies in Item—II wherein it is stated that the performance of the contract would involve hardship on the defendant. L Rahman vs G Ahmed 39 DLR (AD) 242. |
L Rahman vs G Ahmed | 39 DLR (AD) 242 |
Section 22, Items I and II |
Mere hardship to the defendant will not be a circumstance falling under Item—II. L Rahman vs G Ahmed 39 DLR (AD) 242. |
L Rahman vs G Ahmed | 39 DLR (AD) 242 |
Section 22, Items I and II |
Discretion of the court should not be arbitrary but sound and reasonable, guided by judicial principles. L Rahman vs G Ahmed 39 DLR (AD) 242. |
L Rahman vs G Ahmed | 39 DLR (AD) 242 |
Section 22, Items I and II |
It may be better that such principles be left undefined—Each case must be decided on its own fact. L Rahman vs G Ahmed 39 DLR (AD) 242. |
L Rahman vs G Ahmed | 39 DLR (AD) 242 |
Section 22, Items I and II |
When the hardship is on both sides proper course is to examine the admitted facts and circumstances as furnishing the safest guide. L Rahman vs G Ahmed 39 DLR (AD) 242. |
L Rahman vs G Ahmed | 39 DLR (AD) 242 |
Section 22, Items I and II |
The hardship is on the defendant which he did not foresee whereas on the other hand there is no such hardship on the plaintiff. L Rahman vs G Ahmed 39 DLR (AD) 242. |
L Rahman vs G Ahmed | 39 DLR (AD) 242 |
Section 22(II) |
'Hardship' as contemplated in section 22(11) means "Hardship' considered in the circumstances that existed at the time the contract was made. Quazi Din Mohammad vs Alhaj Arzan Ali and another 47 DLR (AD) 48. |
Quazi Din Mohammad vs Alhaj Arzan Ali and another | 47 DLR (AD) 48 |
Sections 22 & 24 |
Solatium—Specific performance was refused on the ground of hardship of the respondent. If solatium is paid only on consideration of the present market value of the land in question then the purpose of refusing specific performance on the ground of hardship will be defeated. Tobarak Ullah vs Rani Gupta 43 DLR (AD) 100. |
Tobarak Ullah vs Rani Gupta | 43 DLR (AD) 100 |
Section 22 |
Hardship— the petitioner didn’t even make out a case for relief—under section 22 of the Specific Relief Act before the High Court Division — belated plea of the hardship cannot be accepted. [Para-4} B. C. Barua Vs. S. C. Barua & Ors. 4BLT (AD)-144 |
B. C. Barua Vs. S. C. Barua & Ors. | 4 BLT (AD) 144 |
Sections 22 (11), 24 (b) and 28(a) |
(a) Section 22 (11) — Hardship’ means hardship considered in the
circumstances that existed at the time the contract was made —
enforcement of a contract of refusal to enforce it lies in the courts
discretion — 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. [Paras-11 & 12]
|
Quazi Din Mohammad Vs Alhaj Arzan Ali & Anr | 2 BLT (AD) 175 |
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.
|
Akteruzzaman Zakir =VS= Md Enamul Kabir Khokan @Bazlur Rahman | 12 LM (AD) 253 |
Section 22 |
Suit for specific performance — Court is to be guided by the principles laid down in Chapter II of the Specific Relief Act — Direction in such suit is regulated by law — The discretion is not wide enough to vary the terms of a contract without assigning good reasons for the variation — Sale of Goods Act. 1930 (III of 1930), S. 58. Bazlur Rahman Bhuiyan Vs. Bangladesh Shipping Corporation, 1BLD(AD)443 |
Bazlur Rahman Bhuiyan Vs. Bangladesh Shipping Corporation | 1 BLD (AD) 443 |
Section 22 |
In a suit for specific performance is discretionary—The Court is not bound to give such a relief merely because it is lawful to do so—In consideration of the facts and circumstances of the case, specific performance would give the plaintiff an unfair advantage over the defendants and as such it is a fit case where the decree for specific performance should not be granted as a matter of course—The defendants to return the consideration with compensation. Jogesh Chandra Das and others Vs. Farida Hasan, 3BLD(AD)225 |
Jogesh Chandra Das and others Vs. Farida Hasan | 3 BLD (AD) 225 |
Section 22 |
A decree for specific performance of contract is discretionary — The Court is not bound to grant such relief merely because it is lawful to do so — II is not to be granted as a matter of course. Ram Chandra Das and others Vs. Md. Khalilur Rahman and another, 5BLD (AD)41 |
Ram Chandra Das and others Vs. Md. Khalilur Rahman and another | 5 BLD (AD) 41 |
Section 22 |
Specific performance of contract — When it should be refused — It is true that the plaintiff did not resort to any fraud or misrepresentation, but in the circumstances it can reasonably be held that the specific performance of the contract would cause hardship to the appellant and as such it should be refused — But since the plaintiffs earnest money was held up for a long time she deserves a reasonable compensation. Rakhal Dasi Rajakini Vs. Ayesha Khatun City and ano, 5 BLD(AD)49 |
Rakhal Dasi Rajakini Vs. Ayesha Khatun City and ano | 5 BLD (AD) 49 |
Section 22 |
Question of exercising discretion by the Court —Specific performance is an equitable relief but equity is not available to a person whose intention is not honest when the purpose of the contract was defeated and the plaintiff was not ready and willing to perform his part of the contract within a reasonable time, the High Court was justified in refusing specific performance of the contract reversing the concurrent decision of the trial Court and the lower appellate Court. Rash Behari Moshalkar Vs. Hiran Bala Debi and another, 5BLD(AD)51 |
Rash Behari Moshalkar Vs. Hiran Bala Debi and another | 5 BLD (AD) 51 |
Section 22 |
Specific performance of contract— When the Court should use its discretion in refusing decree for specific performance?— The plaintiff entered into a deal and a contract was concluded and now he wants to enforce it — Suit property is the only homestead of the defendants and they will be on the street if the contract is enforced — The defendants did not for-see the hardship at the time of the con-tract. Non-performance of the contract would deprive the plaintiff to the acquisition of the property for which he entered into a deal, but that will not be “such hardship” on him as it would be a hardship on the defendant if the contract is enforced — The Contract should not be enforced specifically if the appellant returns the advance money with a solatium of Tk. 1, 00,000/- Md. Latifur Rahman and others Vs, Golam Ahmed Shah and others, 6 BLD (AD)231 |
Md. Latifur Rahman and others Vs, Golam Ahmed Shah and others | 6 BLD (AD) 231 |
Section 22 |
Specific performance of contract— Exercise of discretion not to decree the suit though the contract is proved — Where the hardship has been brought upon a party by himself the Court will not consider that as a circumstance in favour of refusal of specific performance — In any particular case the bargain may be found to be onerous but unless it is found to be unconscionable it would not be allowed to be avoided — There is nothing to show that the defendant had to agree to sell her homestead under some circumstances but for which she would not have parted with her property — When the plaintiff is in possession of the land in part performance of the contract and has been residing on the land by constructing homestead, refusal to specifically perform the contract would amount to hardhsip to the plaintiff. Md. Siddiqur Rahman Vs. Sarala Sundan Devi and another, 7 BLD (AD) 138 |
Md. Siddiqur Rahman Vs. Sarala Sundan Devi and another | 7 BLD (AD) 138 |
Sections 22 and 24 |
Solaitum — Suit for specific performance of contract for sale of land —
Contract between parties in 1969 — The plaintiff ad vanced part of
consideration money to the defendant who promised to execute necessary
kabala on receipt of the balance but ultimately failed to execute the sale
deed denying contract — Defendant died, her heirs were substituted and
contested the suit. The trial Court dismissed the suit. On appeal, the
first lower appellate Court decreed the suit and ordered specific
performance of contract On second appeal the High Court Division
maintaining findings of the first appellate Court refused specific
performance of contract and ordered refund of earnest money with a certain
amount of solatium to the plaintiff which was considered veiy inadequate by
the appellant.
|
Tobarakulla Vs. Rani Gupta and another | 10 BLD (AD) 285 |
Section 22 |
When the plaintiffs-substantive prayer is for a decree for specific
performance of the contract and only alternatively he prays for refund of
the earnest money in the event of refusal of specific performance of the
contract, it cannot be argued that in the face of an alternative prayer for
the refund of the earnest money the plaintiff is not entitled to a decree
for specific performance of contract.
|
Amena Khatun and others Vs. Hajee Abdul Jabbar being dead his heirs: Mst. Maleka Banu and others | 14 BLD (AD) 267 |
Sections 22(11), 24(b) and 28(a) |
When a party does riot come to the court with a clean hand, he is not
entitled to get benefit of Section 22(11) on grounds of hardship.
Hardship’ as contemplated in Section 22(11) of the Act means hardship has
to be considered in the circumstances that existed at the time of the
contract.
|
Quazi Din Mohammad Vs. Al-haj Arzan Ali and another | 14 BLD (AD) 211 |
Section 24(b) |
When the respondent came· to the Court seeking specific performance it is implied that he is ready to make the deposit whenever so directed by the Court. Quazi Din Mohammad vs Al-haj Arizan Ali and another47 DLR (AD) 48. |
Quazi Din Mohammad vs Al-haj Arizan Ali and another | 47 DLR (AD) 48 |
Section 24(b) |
Failure to deposit the balance before filing the suit does not constitute violation of any term of the contract to deposit of the balance is not an essential term of the contract the violation of which will render the whole contract unforceable. Quazi Din Mohammad Vs Alhaj Arzan Ali & Anr. 2BLT(AD)-175 |
Quazi Din Mohammad Vs Alhaj Arzan Ali & Anr. | 2 BLT (AD) 175 |
Section 24 |
Specific performance of a contract — Repudiation of non-essential terms of the contract and its legal effect — The agreement of sale is a separate contract and the payment of profit on account of business is completely different — The section makes a distinction between the essential terms and the non-essential terms of the contract — The repudiation of the non-essential terms would not disentitle the plaintiff to specific performance of the contract. Saleh Ahmed being dead his heirs Rabeya Khatun and others Vs. Md. Shamsher, Mi and others, 4 BLD (AD) 73. |
Saleh Ahmed being dead his heirs Rabeya Khatun and others Vs. Md. Shamsher, Mi and others | 4 BLD (AD) 73 |
Section 26 |
Specific performance—Variation of contract — Variation made in the decree as to the mode of payment — Defendant not setting up a case for variation of the contract — Variation by the Court is fully unauthorised. Bazlur Rahman Bhuiyan Vs. Bangladesh Shipping Corporation, 1BLD (AD)443 |
Bazlur Rahman Bhuiyan Vs. Bangladesh Shipping Corporation | 1 BLD (AD) 443 |
Section 27(b) |
Enforcement of performance of contract is permissible except in the case of
subsequent purchaser on good faith for valuable consideration and without
knowledge of the original agreement— The onus to prove the bonafide lies
upon the subsequent purchaser—
|
Joynab Begum and others Vs. Shaheb AH Akun ji and others | 12 MLR (AD) 337 |
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] ....View Full Judgment |
Ahsanullah @Ahlullah(Md.) =VS= Mohammad Ali @Kuti Miah | 12 LM (AD) 30 |
Section 27 clause-(b) |
Specific performance of a contract may be enforced against “any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract”. The expression “under him” is referable to clause (a) of Section 27 i.e. either party to the contract. In view of the aforesaid provision of law as the defendant No.2 had acquired title to the property as regard which defendant No.1 earlier entered into an agreement for sale with the plaintiffs and as we have already held that defendant No. 2 failed to establish that he has purchased the property in question in good faith without notice of the original contract the High Court Division was quite correct in decreeing the suit against the defendants and in making direction to the defendant No. 2 to execute and register the kabala in favour of the plaintiffs. Hajee Lal Mia Vs. Nurul Amin & Ors. 13 BLT (AD)145 |
Hajee Lal Mia Vs. Nurul Amin & Ors. | 13 BLT (AD) 145 |
Section 27 |
Whether a contract for sale of property can be enforced against the Custodian of Enemy Property — As the custodian stepped into the shoes of the owner with the power of transfer he can execute the kabala in favour of the plaintiff who got decree for the specific performance of contract for sale. Rahima Akhter and others Vs. Asim Kumar Bose and others, 5BLD(AD)155 |
Rahima Akhter and others Vs. Asim Kumar Bose and others | 5 BLD (AD) 155 |
Section 27 |
Amendment of plaint—Whether in a suit for specific performance of contract for sale of property prayer for amendment of plaint by inclusion of a prayer for execution and registration of the sale deed also by the purchaser subsequent to the contract with the plaintiff should be allowed— The suit is for specific performance of a contract which was executed ‘on 22nd January, 1981 on which date the purchaser defendant was not in the scene — The contract related to properties which then solely belonged to defendant No. I — Defendant No. 2 came into the picture nearly eight months after — Unless he can claim ownership of the properties on and from this date how he can be compelled to execute the sale deed on the basis of such a contract — Since defendant No. Z has already been impleaded in the suit, he being subsequent 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 the plaint by the Courts below is approved — Code of Civil Procedure, 1908(V of 1908), Or. VI Rule 17. Nurul Amin and others Vs. Md. Faziul Huq and others, 7BLD(AD)185 |
Nurul Amin and others Vs. Md. Faziul Huq and others | 7 BLD (AD) 185 |
Section 28(a) |
Inadequacy of price—Mere inadequacy of price will not bring a case within the ambit of this sub—section. To attract this subsection, 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. |
Quazi Din Mohammad vs Al—haj Arzan Ali and another | 47 DLR (AD) 48 |
Section 28 (a) |
To attract this subsection, on inadequate price must be an evidence of fraud or of undue advantage taken by the plaintiff— Evidence on record shows that negotiation for the agreement was made and price was settled through the appellant’s relation and benefactor Asgar Hossain (P.W.4) — Asgar Hossain proved to be the appellant’s ‘friend in need’ as well as ‘friend in deed’. As to the respondent the appellant expressed full confidence in him there is no scope for any doubt that these two persons had by fraud or by taking undue advantage got the agreement executed at a grossly inadequate price. With reference to the state of things existing at the date of the agreement — the consideration was not grossly inadequate. Quazi Din Mohammad Vs Alhaj Arzan Ali & Anr. 2BLT(AD)-175 |
Quazi Din Mohammad Vs Alhaj Arzan Ali & Anr. | 2 BLT (AD) 175 |
Section 35 |
Rescission of contract— The plaintiff in the suit for specific performance of contract are deemed to have forsaken their right to have a deed of sale from defendant Rajeshwar when they received his offer to take back from him the advance purchase—money but made no response thereto. Even when Rajeshwar pays back the advance purchase—money with compensation, the contract is not terminable at his option—the option lies with the plaintiffs, not with defendant. Rajeshwar Habibur Rahman vs Sree Jogiswar Roy 44 DLR (AD) 247. |
Rajeshwar Habibur Rahman vs Sree Jogiswar Roy | 44 DLR (AD) 247 |
Section 39 |
Hebabil awaj deed is as good as a sale deed— A registered Hebabil away
deed cannot be avoided by creation of a subsequent cancellation deed—
|
Rahmat Goni Vs. Mehenmnessa and others | 12 MLR (AD) 166 |
Section 39 |
Suit for setting aside exparte decree on ground of non-service of
summons—
|
Bangladesh represented by the Deputy Commissioner, Kiirigram Vs. Mohammad AH Khondaker | 12 MLR (AD) 180 |
Section 39 |
Deed which is void ab-initio need not be sought to be declared void—
|
Abdul Awal and others Vs. Nayan Chandra Das | 13 MLR (AD) 71 |
Section 39 |
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—fee. Sujia Khanam vs Faizun Nessa 39 DLR (AD) 46. |
Sujia Khanam vs Faizun Nessa | 39 DLR (AD) 46 |
Section 39 |
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 ad valorem 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 and others vs Md Abdur Rob alias Mvi Md Abdur Rob 49 DLR (AD) 96. |
Chitta Ranjan Chakraborty and others vs Md Abdur Rob alias Mvi Md Abdur Rob | 49 DLR (AD) 96 |
Sections 39 and 42 |
The plaintiffre-spondents 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. |
Momtaz Begum & others vs Md Masud Khan | 52 DLR (AD) 46 |
Section 39 |
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 advolorem Court fee. [Para- 12] Sree Chittaranjan Chakraborty Vs. Md. Abdur Rob 5 BLT (AD)-135 |
Sree Chittaranjan Chakraborty Vs. Md. Abdur Rob | 5 BLT (AD) 135 |
Sections 39 and 42 |
Cancellation of a deed — Whether such a relief is a consequential relief or an independent relief — Declaration of nullity of a deed is the main and substantive relief whereas cancellation of the deed is a consequential relief — A suit for declaration that the instrument is void and that it has not affected the plaintiffs right or that the defendant has not acquired any right thereby is a suit falling under both sections 39 and 42 of S.R. Act — In a suit under section 39 the plaintiff may seek merely a decree for nullity of the instrument but if he prays for its cancellation he must pay for it — But cancellation of the instrument is not always necessary —Where the document s ex facie void its cancellation is not necessary even if the plaintiff is a party to it — The declaratoiy decree that the document is void and the plaintiff s right has not been affected thereby will give him adequate relief — Of course, in view of this decree the instrument will not stand cancelled — In his own interest the plaintiff should also seek additional relief by way of cancelling the deed — Where the document has been adjudged voidable it will have to be cancelled but when it is adjudged void it need not be cancelled. Sufia Khanam Chowdhury Vs. Faizun Nessa Chowdhury, 7BLD(AD)55 |
Sufia Khanam Chowdhury Vs. Faizun Nessa Chowdhury | 7 BLD (AD) 55 |
Section 42 |
Suit for declaration of title in the absence of satisfactory proof—
not maintainable—
|
Mozaffar Rahman (Md.) and others Vs. Government of Bangladesh and another | 15 MLR (AD) 170 |
Section 42 |
Suit for declaration that there was no marriage solemnized with the
defendant—
|
Abdul Jalil Sarder (Dr.) (Md.) Vs. Selina Akhter | 15 MLR (AD) 240 |
Section 42 |
Declaration of title on the basis of a registered Heba deed— A registered
Heba deed cannot be cancelled by a subsequent registered deed—
|
Jobeda Bewa and others Vs. Md. Abdur Razzaque | 12 MLR (AD) 16 |
Section 42 |
Suit for mere declaration of title without seeking recovery of possession
not maintainable when the plaintiff is out of possession—
|
Nazrul Islam (Babul) and others Vs. Santi Rani Dhupi and others | 12 MLR (AD) 105 |
Section 42 |
Limitation Act, 1908
|
Abdul Hamid Gazi(Md.) =VS= A Samad | 11 LM (AD) 444 |
Section 42 |
Suit for declaratory decree is not maintainable—
|
Bazlur Rahman Sarker Vs. Kamala Kanta Barman and another | 12 MLR (AD) 137 |
Section 42 |
Code of Civil Procedure, 1908
|
Most. Rahela Khatun (Khuki) =VS= Abdul Majid Howlader | 15 LM (AD) 510 |
Section 42 |
The Evidence Act, 1872
|
Monoranjan Pal =VS= DC, Narayangonj | 15 LM (AD) 518 |
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, (Civil), 2021(1) [10 LM (AD) 103] ....View Full Judgment |
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.
|
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.
|
Sibpada Biswas =VS= Chitta Ranjan Biswas | 10 LM (AD) 277 |
Section 42 |
The Code of Civil Procedure, 1908
|
Gita Sen =VS= Md Rafiqul Islam | 13 LM (AD) 49 |
Title Suit– |
Title Suit–
|
Abdul Hadi Gazi =VS= Mostafa Alamgir Siddique | 10 LM (AD) 687 |
Section 42 |
Code of Civil Procedure, 1908
|
Kabir Ahmed =VS= Mahohar Ali | 14 LM (AD) 57 |
Section 42 |
Registration Act, 1908
|
Dr. B.M. Fayzur Rahman =VS= Md. Abdul Mannan Chowdhury | 15 LM (AD) 215 |
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] ....View Full Judgment |
Akhil Chandra Tarafder =VS= Md. Abul Hossain | 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.
|
Md. Isaq Biswas =VS= Abdus Samad Sheikh | 15 LM (AD) 532 |
Section 42 |
The Specific Relief Act, 1877
|
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–
|
Hashmat Ullah Tapadar(Md.) =VS= Baset Khan(Md.) | 5 LM (AD) 397 |
Section-42 |
Declaration of title with khas possession–
|
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–
|
Hemayet Uddin =VS= Md. Rustam Ali | 4 LM (AD) 228 |
Section 42 |
Declaration of title–
|
ADC (Rev), Rangpur =VS= Amir Hossain | 3 LM (AD) 3 |
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] ....View Full Judgment |
Shahin Mia =VS= Parul Begum | 13 LM (AD) 92 |
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] ....View Full Judgment |
Zakir Hossain =VS= Yousuf Kabir(Md.) | 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] ....View Full Judgment |
Shahidul Haque =VS= Md. Fazal Miah | 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] ....View Full Judgment |
Abdul Majid Miah =VS= Md. Ekabbar Miah | 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.
|
Abul Khayer(Md.) =VS= Abul Hashem(Md.) | 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] ....View Full Judgment |
Deputy Commissioner, Khulna =VS= Altaf Hossain Howlader | 13 LM (AD) 190 |
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] ....View Full Judgment |
Syed Akhlekh Hossain =VS= Nabil Ali | 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] ....View Full Judgment |
Abdul Hakim Maishan =VS= Md. Jahirul Haque | 14 LM (AD) 54 |
Section 42 |
Specific Relief Act, 1877
|
Rezia Begum =VS= Hafez Ahmed | 14 LM (AD) 77 |
Section 42 |
Specific Relief Act, 1877
|
Monowara Begum(Most.) =VS= Malanch Bibi | 8 LM (AD) 102 |
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] ....View Full Judgment |
Deputy Commissioner, Noakhali =VS= Md. Rafiquzzaman Bhuiyan | 14 LM (AD) 82 |
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. |
Sufia Khanam vs Faizunessa | 39 DLR (AD) 46 |
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, (Civil), 2020 (1) [8 LM (AD) 142] ....View Full Judgment |
Delipjan =VS= Shahed Badsha | 8 LM (AD) 142 |
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. |
Sufia Khanam vs Faizunessa | 39 DLR (AD) 46 |
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, (Civil), 2020 (1) [8 LM (AD) 164] ....View Full Judgment |
Alimuzzaman (Reza)(Md.) =VS= Masudar Rahman(Md.) @ Babul | 8 LM (AD) 164 |
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. |
Sufia Khanam vs Faizunnessa | 39 DLR (AD) 46 |
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.
|
Dosta Textile Mills vs SB Nath | 40 DLR (AD) 45 |
Section 42 |
State Acquisition and Tenancy Act, 1950
|
Sarhab Ali Molla(Md.) =VS= Md. Farid Master | 14 LM (AD) 338 |
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. |
Dosta Textile Mills vs SB Nath | 40 DLR (AD) 45 |
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.
|
Nuruzzaman Sarker vs Seraj Mia | 41 DLR (AD) 107 |
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. |
Jogendra Kumar Dutta vs Nur Mohammad & others | 45 DLR (AD) 173 |
Section 42 |
The Evidence Act
|
Hajee Abul Hossain =VS= Md. Amjad Hossain | 8 LM (AD) 108 |
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. |
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. |
Tayeb Ali vs Abdul Khaleque | 43 DLR (AD) 87 |
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. |
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. |
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. |
Salma Khatun and others vs Zilla Parishad Chittagong, represented by its Secretary and another | 51 DLR (AD) 257 |
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. |
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. |
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. |
Chief Engineer, C&B and another vs Shah Hingul Mazar Sharif and others | 54 DLR (AD) 73 |
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. |
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. |
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. |
Sufia Khanam vs Faizunnessa | 39 DLR (AD) 46 |
Section 42 |
Suit for declaration — 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. [Para-3] M. B. Ahmed Vs. D. C. Saha & Ors. 4 BLT (AD)-150 |
M. B. Ahmed Vs. D. C. Saha & Ors. | 4 BLT (AD) 150 |
Section 42 |
The plaintiff-respondents filed a suit for declaration of their title to the disputed tank stating, inter alia that during S. A. operation the disputed tank having wrongly been recorded in the name of defendant No. 1 — Trial court without recording any evidence, dismissed the suit holding that the plaintiff having not sought for the consequential relief like confirmation of possession, the suit being hit by the proviso to section 42 of the Specific Relief Act. It was not maintainable. On appeal, the learned District Judge dismissed the appeal and affirmed the judgment and decree of the trial court — High Court Division allowed the appeal — Held: The High Court Division upon assigning proper reasons rightly set aside the judgment and decree of the courts below and sent back the case on remand to the trial court for its expeditious disposal in accordance with law. (Para-3] Kalipada Sarker Vs. Gorihullah Mondal & Ors. 4BLT (AD)-167 |
Kalipada Sarker Vs. Gorihullah Mondal & Ors. | 4 BLT (AD) 167 |
Section 42 |
Suit for declaration of title — R. S. Khatian is not a document of title — In 33 DLR- 126, decision was given In the context of a suit for partition It has no relevance in the context of a suit for declaration of title. Syed Ahmed & Ors Vs. Raja Miah & Ors. 4 BLT (AD)-224 |
Syed Ahmed & Ors Vs. Raja Miah & Ors. | 4 BLT (AD) 224 |
Section 42 |
Suit for declaration of title and recovery of possession—not
maintainable
|
Amanatullah & Ors Vs. Ali Mohammad Bhuiyan & Anr | 6 BLT (AD) 1 |
Section 42 |
The suit property is a requisitioned and acquired property and the defendant’s possession therein will not deprive the plaintiff from maintaining his title and to recover his possession. [Para-7] Ambiya Khatoon & Ors. Vs. Md. Zahirul Islam & Ors 7 BLT (AD)-213 |
Ambiya Khatoon & Ors. Vs. Md. Zahirul Islam & Ors | 7 BLT (AD) 213 |
Section 42 |
In the instant suit, even in pursuance of the contracts for sale the plaintiffs’ possession, so far as the real owners are concerned, has been a permissive possession. It is evident from the Trial Court’s judgment that the plaintiffs have stated in the plaint that their vendors refused on 29.7.88 to execute and register the kabalas for the suit land and on that date the cause of action for the suit arose. Thus, at best from 29.7.88 the plaintiffs’ possession in the suit land may be said to be adverse against the real owners. But such possession does not entitle the plaintiffs to get a decree of declaration of title on adverse possession. [Para-8] Sheik Kamal Boksh & An Vs. Seraj Boksh & Ors. 7 BLT (AD)-328 |
Sheik Kamal Boksh & An Vs. Seraj Boksh & Ors. | 7 BLT (AD) 328 |
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] ....View Full Judgment |
Deputy Commissioner, Khulna =VS= Netai Bachhar | 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] ....View Full Judgment |
Eakubbar Shaikh =VS= Abdul Khalek Shaikh | 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.
|
Forman Ali =VS= Rokeya Begum | 12 LM (AD) 587 |
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] ....View Full Judgment |
Abdul Latif =VS= Md. Hamjer Sarder | 12 LM (AD) 624 |
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.
|
Pear Ali Bepari =VS= Md Abdul Hai | 6 LM (AD) 119 |
Section 42 |
For a declaration–– The record of rights in respect of the suit land in the names of the predecessors of the defendants is wrong and incorrect and for recovery of khas possession of the suit land–– The High Court Division while exercising its revisional jurisdiction is competent to reverse the judgement of the Courts below when the same has been made either upon mis-reading or non- consideration of the material evidence and the said mis-reading and non-consideration of the evidence caused failure of justice. The High Court Division in the exercise of its revisional authority should not ordinarily reassess the evidence on record in reversing a finding of fact. In the case of Golam Sarwar (Md) and others-Vs-Md. Liakat Ali and Others reported in 50DLR(AD)(1998)67. Facts and circumstances, the High Court Division was justified in making the Rule absolute and, therefore, Appellate Division does not find any substance to interfere with the judgement and order of the High Court Division. .....Faruque Miah =VS= Rupan Miah, (Civil), 2024(1) [16 LM (AD) 457] ....View Full Judgment |
Faruque Miah =VS= Rupan Miah | 16 LM (AD) 457 |
Section 42 |
Temporary injunction—Suit for declaration of title without prayer for
consequential relief—Temporary injunction restraining defendant from
interfering with possession whether can be granted?
|
Ramani Marak Vs. Jamini Marak | 1 BLD (AD) 57 |
Section 42 |
Property attached under section 145 or 146 Cr. P. Code is in custodialegis—Suit for declaration of title without a prayer for recovery of possession in respect of such property is competent — Civil Court competent to appoint receiver in such suit—Code of Civil Procedure, 1908 (V of 1908), Or. XL. R.1; — Code of Criminal Procedure, 1898 (V of 1898),Ss. 145 and 146. Jogendra Kumar Dutta Vs. Nur Mohainniad and others, 1 BLD (AD) 248 |
Jogendra Kumar Dutta Vs. Nur Mohainniad and others | 1 BLD (AD) 248 |
Section 42 |
Court-fees—Property attached under section 145 Cr. P. Code and receiver
appointed — Suit for declaration that plaintiff was in possession tilll
taking over of possession by the receiver and that he was entitled to get
back possession—Possession of receiver is equivalent to possession by the
true owner
|
Miah A.M. Noor Vs. Abu Naser Ahmed | 2 BLD (AD) 97 |
Section 42 |
Adverse possession — Question of giving the benefit of adverse possession
in favour of the plaintiffs when the plea of adverse possession can be
taken by the defendant in a suit— The plaintiffs claim is against the
real owner on the basis of bainapatra and they were possessing the land for
more than the statutory period adversely against him and have perfected
their title by such possession against him and not against the defendants
|
Md. Ashraf Au and another Vs. Fatique Chandra Saha and others | 3 BLD (AD) 315 |
Section 42 |
Declaratory suit — Declaration as to unknown parentage and eligibility as Mutwalli — The suit was misconceived and on plaintiffs own showing such declaration that Khorshed is of unknown parentage cannot be made as that is contrary to law - Nor the second prayer can be allowed which calls for objective determination of fact by the statutory functionary and as such the plaintiff has to be non-suited. Khoreshed Alam alias Shah A lain Vs. Amir Sultan Ali Hyder and another, 5 BLD (AD) 121 |
Khoreshed Alam alias Shah A lain Vs. Amir Sultan Ali Hyder and anot her | 5 BLD (AD) 121 |
Section 42 |
Amendment of plaint Whether the prayer for declaration that the deed of partition is void, fraudulent and illegal can be amended by substituting prayer for cancellation of the deed of partition — Since the relief prayed for in the amendment petition appears to follow from the declaration prayed for in the plaint the contention that there was question of limitation does not appear to be acceptable — If the Court after taking evidence comes to hold that certain document is null and void being fraudulent, there is no reason why it cannot order its cancellation after granting the said declaration — Cancellation of a document seems to be a consequence of the declaration of the deed as null and void — Code of Civil Procedure, 1908 (V of 1908), Order IV Rule 17. Jarina Khatun and others Vs. Pulin Chandra Da and others, 5BLD (AD)253 |
Jarina Khatun and others Vs. Pulin Chandra Da and others | 5 BLD (AD) 253 |
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] ....View Full Judgment |
Amarendra Nath Saha =VS= Pronoy Kumar Sarker | 11 LM (AD) 42 |
Section 42 |
Specific Relief Act, 1877
|
Ahammed Hosain =VS= Shahida Begum | 11 LM (AD) 604 |
Sections 53 and 54 |
It was the case of the defendants that their predecessor took settlement of the land of plot Nos. 3/4381 and 3/4382. In that state of the matter, it is clear that defendants have no claim in respect of the land of Plot Nos. 3/3315, 3/3317 and 3/3319 which are the plots in suit. In the background of the said fact, the High Court Division as well as the trial Court were quite correct in decreeing the suit which was for a decree for permanent injunction. Alauddin (Md) vs Abdul Hakim 12 BLC (AD) 212. |
Alauddin (Md) vs Abdul Hakim | 12 BLC (AD) 212 |
Section 53 |
Contract—Time-limit made the essence of contract—Responsibility of
which party is carrying out the contract in time.
|
Ram Chandra Das vs Md Khalilur Rahman | 37 DLR (AD) 21 |
Section 53 |
Time gap between the date of execution of sale deed and the date of decree being very wide the defaulting party ordered to pay additional sum besides the consideration amount—Contract once entered into must be fulfilled. Ram Chandra Das vs Md Khalilur Rahman 37 DLR (AD) 21. |
Ram Chandra Das vs Md Khalilur Rahman | 37 DLR (AD) 21 |
Sections 53 & 54 |
Permanent injunctionIts 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. Rafizuddin Ahmed vs Mongla Barman 43 DLR (AD) 215. |
Rafizuddin Ahmed vs Mongla Barman | 43 DLR (AD) 215 |
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] ....View Full Judgment |
Shahid Uddin Ahmed =VS= Md. Abdul Jaher | 11 LM (AD) 435 |
Section 54 |
Permanent injunction may be granted on establishment of Primafacie title
and exclusive possession—
|
Habibullah (Md.) Vs. Sher AH Khan and others | 11 MLR (AD) 1 |
Section 54 |
Suit for permanent injunction is maintainable when the plaintiff is in
exclusive possession of the suit land—
|
Sultan Ahmed and others Vs. Md. Monsur All and another | 13 MLR (AD) 359 |
Section 54 |
Injunction can not be granted on the seeking of the plaintiff when he has
no legal character as to title and possession of the suit property—
|
Dewan Shamsul Abedin, Mutwali of Dewan Aftebur Reza Chowdhury Waqf Estate Vs. Government of Bangladesh and others | 13 MLR (AD) 163 |
Section 54 |
Non consideration of the vital piece of evidence as to injunction granted by the Civil Court—in the face of such an order of injunction no criminal Court can accept beyond reasonable doubt the claim of possession made on oral and other evidence. Samiruddin Ahmed Vs. State 41 DLR (AD) 129. |
Samiruddin Ahmed Vs. State | 41 DLR (AD) 129 |
Section 54 |
In a suit for permanent injunction the Court need not enter into disputed title except to the extent that it would help the Court in finding which of the parties have prima facie title and exclusive possession. Jobayer Hossain and ors vs Noor Hafez and another 56 DLR (AD) 22. |
Jobayer Hossain and ors vs Noor Hafez and another | 56 DLR (AD) 22 |
Section 54 |
—Circumstances when perpetual relief is granted. Perpetual injunction is
granted as provided under section 54.
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M/S. Hossain Ahmed Vs. HD Hossain | 32 DLR (AD) 223 |
Section 54 |
Permanent Injunction—the learned Munsif on consideration of the evidence
on record found that the plaintiff was in exclusive possession of the
disputed land and neither the defendants nor their vendors had any right to
or possession in any portion thereof by virtue of their alleged purchase.
The trial court further discarded the evidence of the defendants with
proper reasonings. Accordingly he decreed the suit—Lower appellate court
reversed the decision of the trial court.
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Md. Shamsuzzaman Khan & Ors Vs. Han Mondal & Ors. | 4 BLT (AD) 173 |
Section 54 |
Permanent injunction—Whether question of title or possession is to be considered in such a suit—Failure to prove title by the plaintiff in a suit for permanent injunction cannot disentitle him to a decree for permanent injunction if he can prove his possession. Manindra Nath Sen Sarma Vs. Bangladesh, 4BLD (AD) 285 |
Manindra Nath Sen Sarma Vs. Bangladesh | 4 BLD (AD) 285 |
Sections 54 and 55 |
Perpetual injunction—Construction of building without leaving 4 feet side space as provided under Building Construction Rules — Whether for such violation perpetual and mandatory injunction or compensation is to be granted —- That rain water may cause trouble and fall on the land of the plaintiff because of the elevation of the defendants multistoried building cannot be overruled — This inconvenience shows that the injury was not great — So instead of granting perpetual or mandatory injunction compensation was granted — Building Construction Rules, 1953, Rules 3 and 4. Begum Sufia Khatoon and others, Vs. Abdul Hakinz Khan and another, 7BLD (AD)190 |
Begum Sufia Khatoon and others, Vs. Abdul Hakinz Khan and another | 7 BLD (AD) 190 |
Section 54 |
Whether a party acquired valid title in the suit property by dint of registered documents cannot be a prime issue in a suit for permanent injunction. In such a suit the question of possession is the main consideration before the Court. Abul Hashem Dhali and others Vs. Md. Idris Ban and others, 15 BLD(AD) 106 |
Abul Hashem Dhali and others Vs. Md. Idris Ban and others | 15 BLD (AD) 106 |
Section 55 |
Suit for permanent injunction is not maintainable where the plaintiff is an
yearly lessee in Government Khas land—
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Government of Bangladesh represented by the Deputy Commissioner, Patuakhali Vs. Md. Nurul Haque 'and others | 12 MLR (AD) 257 |
Section 55 |
Temporary injunction in Mandatory form— Code of Civil Procedure, 1908—
Section 151— Temporary injunction in mandatory nature can be granted in
appropriate case— Partition suit— Possession of a co-sharer in specific
portion of land can be maintained in a partition suit—
|
Azizur Rahman Chowdhury (Md.) Vs. Touhiduddin Chowdhury and others | 15 MLR (AD) 160 |
Section 55 |
The High Court Division committed an error in interfering with the order of mandatory injuction in spite of the fact that the respondents have made construction and changed the nature and character of the suit land in utter violation of the Court's Order of status quo. Azizur Rahman Chowdhury vs Tauhiduddin Chowdhury 16 BLC (AD) 26. |
Azizur Rahman Chowdhury vs Tauhiduddin Chowdhury | 16 BLC (AD) 26 |
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] ....View Full Judgment |
Gulshanara Khatun =VS= Md. Abul Hossain | 13 LM (AD) 134 |
Section 55 |
read with
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Azizur Rahman Chowdhury(Md.) =VS= Tauhiduddin Chowdhury | 8 LM (AD) 29 |
Section 55 |
Where the use of property is permissive and not as of right no case is made out for injunction far less a question of mandatory injunction—The obligation referred to in this section means a legal obligation and not a moral obligation. Aftabuddin vs Mahfuzus Sobhan 42 DLR (AD) 78. |
Aftabuddin vs Mahfuzus Sobhan | 42 DLR (AD) 78 |
Section 55 |
An order of mandatory injunction cannot be sustained if the subject matter of the dispute is not sufficiently specified. In cases of injunctions the Court must always be very cautious in specifying the property so that on account of vagueness disputes do not erupt. Fazlul Karim Chowdhury (Md) and others vs Lutfunnessa Begum and others 50 DLR (AD) 188. |
Fazlul Karim Chowdhury (Md) and others vs Lutfunnessa Begum and others | 50 DLR (AD) 188 |
Section 55 and Clause (e) of Section 56 |
Bar to the decree for mandatory injunction— an injunction cannot be granted to prevent the breach of a contract, the performance of which would not be specifically enforced. Thus courts ordering the employer to retain the employee in his service do not restrain breaches of contract for personal service. Speaking generally, it is the right of the employer to discharge his employee, and that of the employee to quit his employer’s service, subject to the right to pay damages for breach of the contract, Court 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. Rupali Bank Limited Vs. Haji Md. Arab Ali & Ors. 11 BLT (AD)-61 |
Rupali Bank Limited Vs. Haji Md. Arab Ali & Ors. | 11 BLT (AD) 61 |
Section 55 |
Injunction —. Only breach of a legal obligation calls for injunction — Where the use of some property is permissive and not as of right no case is made out for injunction, far less a case of mandatory injunction — The obligation referred to in the relevant law means a legal obligation and not a moral obligation. Mr. Aftabuddin Vs. Mr. Mahfuzur Sobhan and others, 10BLD (AD) 47 |
Mr. Aftabuddin Vs. Mr. Mahfuzur Sobhan and others | 10 BLD (AD) 47 |
Section 56(e) |
Bars granting of mandatory injunction againt breach of contract—
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Jahiruddin (Md.) Vs. Rupali Bank Ltd. and others | 13 MLR (AD) 47 |
Section 56 |
Permanent Injunction from judgments pronounced by the trial Court and the appellate Court show that these Courts did not record any finding that the plaintiffs are in exclusive possession of a specific and separate share of the suit plot well demarcated by boundaries so as to entitle the plaintiffs to retain their possession against their co—sharers till partition by metes and bounds. Abdus Samad Akand and others vs Abdul Halim Miji and others 50 DLR (AD) 6. |
Abdus Samad Akand and others vs Abdul Halim Miji and others | 50 DLR (AD) 6 |
Section 56(e) |
A civil Court cannot stay a criminal prosecution by preventing the proceedings from continuing by an injunction. Jobeda Khatun vs Mamtaz Begum 45 DLR (AD) 31. |
Jobeda Khatun vs Mamtaz Begum | 45 DLR (AD) 31 |
Section 56 |
—Even if section 56 does not limit court’s inherent power to grant temporary injunction against Government department, Court must not do so unless compelling reasons demand that course. Shahzada Muhammad Umar Beg Vs. Sultan Mahmood Khan (1970) 22 DLR (SC) 41. |
Shahzada Muhammad Umar Beg Vs. Sultan Mahmood Khan | 22 DLR (SC) 41 |
Section 56(d)(f) |
Injunction cannot be granted when it will interfere with the carrying on of
public duties.
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M/s. Hossain Ahmed Vs. M/s. HD Hossain & Brothers | 32 DLR (AD) 223 |
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] ....View Full Judgment |
Shahid Miah =VS= Md. Faisul Islam alias Farhad | 12 LM (AD) 632 |