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.
The Appellate Division held that the plaintiff did not have any possession in schedule-1(ka) land to the plaint. Unless the plaintiff could prove his possession in the schedule-1(ka) land he could not avail of the benefit of the illustration-h to section 3 of the Specific Relief Act. The findings arrived at and the decision made by the High Court Division having been made on proper appreciation of law and fact do not call for interference. Accordingly, this civil petition for leave to appeal is dismissed.
Bibi Joynab Begum Chowdhury and others.-Vs.- Osi Mia Osi Mia Sawdagar being dead his heirs (Civil) 12 ALR (AD) 12-15

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.

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

Specific Relief Act, 1877
Sections- 8, 9 r/w
Limitation Act, 1908
Article 142, 149 (Schedule-1)
Code of Civil Procedure, 1908
Section 115
Declaration of the title and recovery of khas possession–– The trial Court as well as the Appellate Court arrived at concurrent finding that the plaintiffs have been able to prove their title and possession followed by dispossession from the suit land. It appears that the findings of the trial court as well as the Appellate Court are based on the proper appreciation of evidence on record both oral and documentary. It is well settled position in law that under section 115 of the Code of Civil Procedure, the High Court cannot re-appreciate the evidence and cannot set aside the concurrent findings of the Courts below by taking a different view of the evidence. The High Court is empowered only to interfere with the findings of fact if the findings are perverse or there has been a non-appreciation or non-consideration of the material evidence on record by the Courts below. Simply because another view of the evidence may be taken is no ground by the High Court to interfere in its revisional jurisdiction [Masjid Kacha Tank, Nahan-Vs-Tuffail Mohammed, AIR 1991 SC 455]. The civil cases are decided on the basis of preponderance of probability. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given [Vishnu Dutt Sharma-V-Daya Sapra 13 SCC (2009) page 729]. In view of the facts, circumstances and proposition of law discussed above, we are of the view that the preponderance of probability regarding title and possession (before dispossession) of the plaintiffs to the suit land is clearly in favour of the plaintiffs and, there fore, the High Court Division made serious error of law in making the rule absolute which occasioned failure of justice. .....Proddut Kumar Das =VS= A Rashid Howlader, (Civil), 2024(1) [16 LM (AD) 472] ....View Full Judgment

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

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

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

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.

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.
An aggrieved judgment—debtor under section 9 of the Specific Relief Act can institute a suit to establish his title and on obtaining a decree can recover possession of the property in question. Mosammat Monowara vs Syed Ashrafuddin 40 DLR (AD) 251.

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.

A suit under section 9 of the Specific Relief Act is required to prove is his possession and dispossession within 6(six) months next before the institution of the suit–– On scrutiny of the record, it transpires that the predecessor of the appellants namely Durga Mohan Roy as plaintiff instituted the suit for recovery of Khas possession of the suit land by way of eviction under Section 9 of the Specific Relief Act, 1877 impleading the respondent No.1 and three others as defendants No.1-4.
It is evident that the plaintiff has been able to prove his possession prior to his dispossession from the suit land. The trial Court on proper appreciation of the facts and law lawfully decreed the suit, but the High Court Division most illegally set aside the judgment and decree of the trial Court. ––The impugned judgment and decree of the High Court Division warrants interference by this Division. Therefore, In the prevailing circumstances, the impugned judgment and decree of the High Court Division cannot stand at all in the eye of law. The instant civil appeal is allowed. .....Durga Mohan Roy =VS= Most. Belly Khatoon, (Civil), 2023(1) [14 LM (AD) 552] ....View Full Judgment

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.
Held : Although respondent No. 1 accepted the cheque from the petitioner in good faith he did not hand over the agreement to the petitioner and as the cheque was dishonoured by the Bank, the agreement remained in force and as such the suit for specific performance of contract was very much maintainable. Therefore it cannot be said that the contract was mutually cancelled and the suit for specific performance of contract was not maintainable. [Para-5]
Major (Retd) Md. Afsar Uddin Vs Kamal Rahmari & Ors. 3BLT (AD)- 190

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

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

Seeking a decree of recovery of vacant possession of the suit land by evicting the defendants after demolition of the structures thereon–– The evidence that Abdus Sabur died in 1942 and Emdad Ali continued to live in the disputed property until his death in 1964 and no attempt was made to recover the possession of the property until that time. Infact, for the first time the defendants were given notice to vacate the property in 1980, i.e. 39 years after the property was given to defendant Nos.1 and 2 by way of oral gift. The impugned judgement Appellate Division finds that the learned Judge of the High Court Division was not correct in observing that the appellate Court did not reverse the finding of the trial Court regarding the oral gift and as such the judgement is patently erroneous.
Appellate Division finds that the impugned judgement and order of the High Court Division is not based on proper appreciation of evidence on record and accordingly the appeal is allowed, without however, any order as to costs. The impugned judgement is set aside, and the judgement of the appellate Court is upheld. ...Khukon =VS= Abdur Rakib, (Civil), 2021(2) [11 LM (AD) 124] ....View Full Judgment

Specific Relief Act, 1877
Sections 9, 42 r/w
Code of Civil Procedure, 1908
Section 151
Declaration of title with recovery of khas possession– Inherent power cannot be invoked while acting under specific provisions of law– Erroneous insertion of plot number in the disputed patta as well as the plaintiffs’ kabala is a long pending dispute which could be corrected on filing a case for rectification of those deeds but the plaintiffs (respondents) sat idle for more than 50 years without taking such type of steps–– Appellate Division also holds the view that the High Court Division was wrong in making the Rule absolute and sending back the suit on remand to the trial Court directing further local investigation although the local investigation has been held as many as on three occasions and the evidence in this regard having been aptly dealt with by both the Courts below giving specific finding and assigning reasons. This Division further holds that erroneous insertion of plot number in the disputed patta as well as the plaintiffs’ kabala is a long pending dispute which could be corrected on filing a case for rectification of those deeds but the plaintiffs (respondents) sat idle for more than 50 years without taking such type of steps.
Appellate Division also finds that inherent power cannot be invoked while acting under specific provisions of law, the learned Judge of the High Court Division acted beyond the scope of the revision without averting the concurrent finding on title and possession as have been found by the Courts below. The impugned judgment and decree is hereby set aside. This Division restores the judgment passed by the trial Court as well as the Appellate Court below. ...Anwar Hossain(Md.) =VS= Kamrul Islam, (Civil), 2021(2) [11 LM (AD) 429] ....View Full Judgment

Title suit– Non-Speaking Judgment–– The plaintiffs have proved further that since the suit land was recorded in the khas khatian of the government they filed a suit being Title suit No.1164 of 1978 against the government and got a contested decree and thereafter they got the suit land mutated in their names in Mutation Case No.7/XIII/54/5/82-83 and they have been paying rent also for the suit land and in R.S. khatian also the suit land has been recorded in the name of the plaintiffs.
The impugned judgment of the High Court Division is a most non-speaking judgment. The High Court Division committed wrong and injustice in affirming the judgment of the appellate court below without considering the evidence on record at all and without giving its decision with reasoning for doing so and for discarding the judgment of the trial court. This appeal deserves to be allowed. ...Mohabbat Ali Shah(Md.) =VS= Mohiuddin, (Civil), 2021(2) [11 LM (AD) 550] ....View Full Judgment

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

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.

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.

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

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

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—
Decree of compromise effected, by persons having no title and interest does not create any right title and interest. Limitation for execution of decree for specific performance of contract is three years from date of decree. After the expiry of the limitation the decree becomes infructuous. Where the suit property is enlisted as enem) or vested property the proper suit to be filed is for declaration that the suit property is not enemy or vested property. Md. Ali Bepary and others Vs. Gitnipranjan Chakraborty and others 14 MLR (2009) (AD) 218.

Evidence Act, 1872
Sections 73, 111, 114(g)
Specific Relief Act, 1877
Section 12
The alleged bainapatra was not executed by Manoda Sundari out of her free consent rather her thumb impressions were obtained under undue influence– Specific performance of contract– Appellate Division would like to appreciate the finding of the trial Court to the effect that the suit property is the last resort of defendant No.1 and only source of income which extent only abode to live and in case the plaintiff (respondent) gets the decree, defendant No.1 will have no other alternative but to be ousted from the suit premises and to stand on the street under the open sky and to die because of starvation. On the other hand, non-performance of the contract would involve no such hardship on the part of the plaintiff (respondent). To turn to the findings of the Appellate Court below as well as those of the High Court Division, this Division finds that those are full of non-consideration and mispresentation of the aforesaid facts and circumstances and evidence on record, rather this Division is inclined to approve the finding of the trial Court. This Division is of the opinion that the specific performance in the case 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. ...Rangeo Rani Chowdhury =VS= Abul Kashem, (Civil), 2021(2) [11 LM (AD) 585] ....View Full Judgment

Specific performance of contract– The High Court Division noted that subsequent payments of the consideration money were not proved in accordance with law. However, we find that this issue was not raised by D.W.1 in his evidence and payment of further sums was endorsed on the back of the deed of agreement for sale. Also, as noted above, this point was specifically dealt with by the trial Court and the appellate Court with reference to evidence. The observation of the High Court Division in this regard is patently contrary to the evidence on record.
It clearly appears that the High Court Division erred in not properly assessing the evidence and materials on record, and has erroneously reversed the concurrent findings of the Courts of fact. The appeal is allowed, without however, any order as to costs. The judgement and order of the High Court Division is hereby set aside. ...Serajul Islam =VS= Farookh Sobhan, (Civil), 2021(1) [10 LM (AD) 96] ....View Full Judgment

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

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

Explanation
Breach of Contract—Compensation
The principle relating to specific relief’s are contained in the Specific Relief Act, 1877. The explanation to section 12 of the Specific Relief Act raises a presumption that the breach of a contract to transfer movable-property can be adequately relieved by compensation unless and until the contrary is proved. Bazlur Rahman Bhuiyan Vs. Bangladesh Shipping Corporation (1982) 34 DLR (AD) 42.

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

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

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

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

The Transfer of Property Act
Section 54
The Specific Relief Act
Sections 12, 21 and 22
The plaintiff cannot get relief on the strength of ‘aposhnama’— Admittedly, on 14.10.2003 an unregistered ‘aposhnama’ was executed between the plaintiff and defendants. In the said ‘aposhnama’ there was a condition between plaintiff and the defendants that after fulfillment of the conditions they would mutually withdraw their cases at their own responsibility and the defendants would execute a deed in favor of the plaintiff in respect of ‘Ka’ and ‘Kha’ schedule land while the plaintiff would execute a deed in favor of the defendants in respect of homestead measuring 11 decimals. The main contention between both the parties is that whether due to non-fulfillment of terms and conditions of said ‘aposhnama’ the plaintiff is entitled to get the decree of specific performance of contract on the basis of said ‘aposhnama’. —That both the plaintiff and defendants did not withdraw criminal cases filed against each other and as such no compromise was made between the parties. Since the terms and conditions described in the ‘aposhnama’ dated 14.10.2003 regarding the withdrawal of criminal cases had not been fulfilled the said ‘aposhnama’ was impliedly revoked. In the premises made above, the plaintiff cannot get relief on the strength of ‘aposhnama’ dated 14.10.2003.
A sale is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. But in the case in hand no pecuniary consideration was dealt with between the parties and as such the transaction in question cannot be termed as sale. Moreover, as it has already been found that due to non-compliance of the terms and conditions of ‘aposhnama’ dated 14.10.2003 there is no scope to claim right and title over the suit land by virtue of the alleged unregistered sale deeds. —The appellate Court below lawfully set aside the judgment and decree of the trial Court and the High Court Division on proper scrutiny of the record affirmed the judgment of the appellate Court below. Appellate Division does not find any deviation in the impugned judgment and decree of the High Court Division. .....Md. Dabir Uddin =VS= Md. Moniruddin, (Civil), 2024(1) [16 LM (AD) 57] ....View Full Judgment

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

Suit for declaration of a registered deed as void and fraudulent is not maintainable without seeking cancellation—
Where the plaintiff is allegedly a party to the kabala as executant duly registered, his suit for mere declaration of the same as void and fraudulent is not maintainable without seeking for cancellation thereof. Aslam Khan (Md.) Vs. Haji Abdur Rahim and others 12 MLR (2007) (AD) 149.

Suit for specific performance of contract—
To pass a decree in a suit for specific performance of contract is discretion of the court. In order to be entitled to a decree for specific performance of contract, the plaintiff shall have to prove the genuineness of contract by consistent and reliable evidence. When the deed of contract appears to be not genuine and tainted with element of fraud, the plaintiff can not get a decree for specific performance of contract. AH Akbar (Md.) Vs. Shajinmnessa Bezva and others 11 MLR (2006) (AD) 205.

Suit for specific performance of contract—
The trial court after proper appreciation of the evidence on record and having been satisfied decreed the suit for performance of contract. The High Court Division dismissed the appeal. The apex court found that the plaintiff was able to prove his case with convincing evidence such as handing over the title deeds of the suit land to him and as such being in agreement with the High Court Division dismissed the appeal. Abdul Malek Mollah Vs. Md. Abdul Salam Mora] and another 14 MLR (2009) (AD) 158.

Section 14 of Specific Relief Act contemplates the first exception to the general rule laid down in section 17. For application of the provisions of section 14 of the S.R Act two conditions must co-exist, namely, (1) the part left unperformed bears only a small portion to the whole in value and (2) the part performed admits of compensation in money. .....Md. Julhas Uddin Jibon Vs. Md. Ayub Khan & ors, (Civil), 19 SCOB [2024] HCD 130 ....View Full Judgment

Section 16 of the Specific Relief Act assumes that the parts of the contract are severable, and that performance of one part has become either impossible or unlawful. Section 16 differs from sections 14 and 15 in including the element of illegality. In sections 14 and 15 only inability is contemplated as to a part of the contract. On the other hand, in section 16 is included the case where a part of the contract though it can be, but ought not to be specifically performed. This section recognizes the distinction between divisible and indivisible illegal contracts. .....Md. Julhas Uddin Jibon Vs. Md. Ayub Khan & ors, (Civil), 19 SCOB [2024] HCD 130 ....View Full Judgment

The Act contemplates in certain cases payment of money in compensation.
The Specific Relief ACL contemplates the possibility in certain circumstances, one of which is that the unperformed part of a contract in fact admits of compensation in money”, that a decree may be made awarding compensation in money for the deficiency while granting specific performance as to the rest. In equity jurisdiction, it has often been said that equity may treat land as money or money as land for the purpose of doing justice in the case. Joydeb Agarwala Vs. Baitulmal Karkhana (1964)16 DLR (SC) 706.

Under section 15 of the Specific Relief Act, if the unperformed part is large, or does not admit of compensation in money, the case falls under second exception as employed in section 15 of the Act. Under this section if the part of a contract left unperformed is considerably large or does not admit of compensation in money, the party (vendor) who cannot perform his promise in full is not entitled to a decree for specific performance of contract. But the other party (purchaser) can sue for specific performance on payment of full consideration without abatement of price provided he relinquishes all claims to further performance and all rights to compensation either for the deficiency, or for the loss or damage sustained by him due to the defendant’s fault. .....Md. Julhas Uddin Jibon Vs. Md. Ayub Khan & ors, (Civil), 19 SCOB [2024] HCD 130 ....View Full Judgment

In this case, the plaintiff filed the suit for specific performance of part of the contract where part unperformed is large. As per claim of the plaintiff the defendant is unable to perform the whole of his part because the quantum of land, after measurement, was found less and that substantial part of the contract can be performed and the part unperformed is a considerable portion of the whole. Accordingly, this suit obviously comes under the second exception provided in section 15 of the Specific relief Act. As such, to get a decree of specific performance of the part of the contract (i.e for .2123 acre land), the plaintiff must be willing to pay total consideration of Tk. 12.75 crore for said .2123 acre land though as per contract said amount was fixed as the value of entire .2825 acre land. But the plaintiff unilaterally measured the suit land as .2123 acre instead of .2825 acre as was agreed to purchase by him and he is willing to pay part consideration of Tk. 9,58,16,814.16 as value of .2123 acre land instead of entire consideration of Tk. 12.75 crore and with such calculation the plaintiff deposited balance consideration of Tk. 6,08,16,814.23 instead of agreed balance of Tk. 9.25 crore. As per section 15 of the Specific Relief Act the plaintiff was required to file the suit for specific performance of the part of the contract for .2123 acre land by depositing Taka 9.25 crore out of total consideration of Tk. 12.75 crore and being failed to do so, the suit is barred under section 15 of the Specific Relief Act. .....Md. Julhas Uddin Jibon Vs. Md. Ayub Khan & ors, (Civil), 19 SCOB [2024] HCD 130
It is now well settled that if the balance consideration is not deposited in Court at the time of filing of a suit for specific performance of the contract, the plaint must be rejected. .....Md. Julhas Uddin Jibon Vs. Md. Ayub Khan & ors, (Civil), 19 SCOB [2024] HCD 130 ....View Full Judgment

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.
On a proper reading of section 15 of the Specific Relief Act it becomes plain that this section would have application if the vendor had expressly purported to sell the whole property to the plaintiff, making no reference to any co-sharer. But where (as in the present case) the agreement expressly says that the vendor undertakes to get the property duly and legally conveyed in favour of the vendee by his co-sharer the provisions of sec. 15 of the Specific Relief Act have no application.
This circumstance makes it clear that the vendor (as in the present case) was not entering into an agreement by which he was obliging himself to convey the whole property to the plaintiff and consequently the provisions of sec Lion 15 cannot be called in aid (to the present case). Anwara Chowdhury Vs. M. Majid (1964) 16 DLR (SC) 609.

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

It is of the essence of specific performance that except under special circumstances the court shall not direct specific performance of a part of a contract (Ref. Cutts v. Brown ILR 6 Cal. 398). The general rule is that a contract is either to be performed in its entirety or not to be performed at all. This General rule of law is embodied in section 17 of the Specific Relief Act. .....Md. Julhas Uddin Jibon Vs. Md. Ayub Khan & ors, (Civil), 19 SCOB [2024] HCD 130 ....View Full Judgment

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

It is to be mentioned that admittedly, the plaintiff did not deposit the balance consideration money at the time of filing of the suit for specific performance of contract on 12.10.2022. Though the trial Court registered the suit but it fixed the next date on 20.10.2022 for admission hearing of the suit and withheld service of summons upon the defendants. This type of practice in original jurisdiction is unknown to law. Since balance consideration was not deposited at the time of filing of the suit, the trial Court should have refused to register the suit for noncompliance of the provisions under section 21A(b) of the Specific Relief Act and returned the plaint to the plaintiff. .....Md. Julhas Uddin Jibon Vs. Md. Ayub Khan & ors, (Civil), 19 SCOB [2024] HCD 130 ....View Full Judgment

The Registration Act, 1908
Section 17B(1) r/w
The Specific Relief Act
Section 21A(b)
Effect of unregistered bainanama–– The evidence adduced by the plaintiff does not show that he had taken any step(s) for registration of the unregistered bainanama within a period of 6(six) months. In view of the provision of section 17B(1) of the Act of 1908, it is Appellate Division’s considered view that as the plaintiff failed to make registration of the bainanama within the period of 6(six) months from the date of commencement of the act and, that he failed to approach to the defendants within the said period to register the bainanama, this Division is of the view that the bainanama has become void in operation of the law. ––Upon scrutiny of the evidence this Division finds laches on the part of the plaintiff to perform his part of contract and willingness. On this score also, the plaintiff is not entitled to get a decree for specific performance of contract. .....Sree Porikshit Mondal =VS= Sree Paresh Chandra Biswas, (Civil), 2023(2) [15 LM (AD) 66] ....View Full Judgment

The Code of Civil Procedure, 1908
Order VII, Rule 11 r/w
Registration (Amendment) Act
Section 17A and
Specific Relief (Amendment) Act
Section 21A
The maintainability of the suit in view of the provisions of section 17A of the Registration (Amendment) Act and section 21A of the Specific Relief (Amendment) Act could not be decided in an application for rejection of plaint without taking evidence–– Appellate Division finds from the order of the trial Court as well as the plaint that the suit was filed with two prayers. Firstly, for a direction upon defendant No. 1 to execute a deed in respect of the land described in the schedule, failing which a direction that the property is liable to be registered; and secondly, seeking a direction that the registered heba-bil-awaz [14]No. 5168 dated 10.07.2006 is inoperative. The trial Court observed that the two claims of the plaintiff cannot be decided without taking evidence. ––The maintainability of the suit in view of the provisions of section 17A of the Registration (Amendment) Act and section 21A of the Specific Relief (Amendment) Act could not be decided in an application for rejection of plaint without taking evidence. This Division is of the view that the application under Order VII, Rule 11 of the Code was rightly rejected and no illegality has been committed by the High Court Division in upholding the order of the trial Court. .....Saifuddin Ahmed =VS= Dr. Hosne Ara Begum @Golap, (Civil), 2023(1) [14 LM (AD) 183] ....View Full Judgment

The Registration Act, 1908
Section 17A r/w
The Specific Relief Act, 1877
Section 21A r/w
The Contract Act, 1872
In a contract for sale of immovable property, a time, to be effective from the date of registration, shall be mentioned for execution and registration of the instrument of sale and if no time is mentioned, six months shall be deemed to be the time.
17A. Registration of contract for sale etc:
(1) Notwithstanding anything to the contrary contained in this Act or any other law for the time being in force, a contract for sale of any immovable property shall be in writing, executed by the parties thereto and registered.
(2) A contract for sale referred-to in sub-section (1) shall be presented for registration within thirty days from the date of execution of the contract and the provisions regarding registration of instruments shall apply.
21A. Unregistered contract for sale not specifically enforceable—Notwithstanding any thing to the contrary contained in this Act or any other law for the time being in force, no contract for sale of any immovable property can be specifically enforced unless—
(a) the contract is in writing and registered under the Registration Act-1908, whether or not the transferee has taken possession of the property or any part thereof; and
(b) the balance amount of the consideration of the contract is deposited in the court at the time of filing the suit for specific performance of contract." .....Comprehensive Holdings Ltd. =VS= MH Khan Monju, [3 LM (AD) 198] ....View Full Judgment

Limitation Act, 1908
Article 113 (first schedule)
Specific Relief Act, 1877
Section 22
Specific performance of contract is an equitable and discretionary relief to be given by the competent Court exercising the same judiciously–– The story of agreement for sale advanced by the plaintiff creates suspicion–– Trial Court, by its judgment and decree dated 28.05.2005, decreed the suit. Then the defendants preferred Title Appeal No.304 of 2005 in the Court of District Judge, Dhaka, which was heard by the Additional District Judge, 6th Court, who after hearing the parties allowed the appeal reversing the judgment and decree passed by the trial Court and decreed the suit in part. Being aggrieved, the plaintiff filed Civil Revision No.1725 of 2007 in the High Court Division and obtained Rule, which was made absolute.
From the evidence quoted above it is apparent that there are some inconsistencies regarding the claim of the plaintiff, that is, in respect of talk of sale, settlement of consideration, execution of “bainanama”, payment of premium to the Government by the plaintiff, offer made by the plaintiff to the defendants on the basis of alleged agreement to get the sale deed executed and registered upon payment of rest consideration and as to the delivery of possession of the suit land. All those inconsistencies created a doubt about the genuineness of the alleged agreement for sale and transaction.
The pleading and the evidence adduced by the plaintiff and the other materials on record raised a doubt about the talk of sale, payment of consideration, execution of bainanama, delivery of the possession of the disputed property and making construction in the suit land. Without taking any permission and even without making any prayer to the Government to get permission to transfer the suit land, the story of agreement for sale advanced by the plaintiff creates suspicion. Appellate Division is of the view that the instant case was not fit case for exercising discretion for enforcement of contract and the plaintiff was not entitled to get any relief, the High Court Division has committed an error of law in not exercising its discretion judiciously and, thereby, erroneously made the Rule absolute. .....Mosammat Asma Khatun =VS= Md. Abdul Karim, (Civil), 2023(2) [15 LM (AD) 440] ....View Full Judgment

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

Specific performance of contract–– Court allowed the defendant's appeal, refused specific performance of the contract and allowed compensation–– Admittedly, the property in question is the only property of the vendor defendant. The father who is no more in the world entered into an agreement to sell the property to the plaintiffs for want of money. The deed of agreement for sale clearly shows that the sale was caused to settle the loan and to use the remaining money for well being of the children and some other issues but the same was not materialized. On the other hand, the plaintiffs who are bonafide proposed purchasers awaited years long to get the benefit of their agreement.
The Judgment and decrees passed by the Courts below are hereby set-aside. The suit is dismissed. The defendant-petitioners are directed to pay solatium of Taka 50,00,000 (fifty lac) to the plaintiff-respondent along with the amount treated by him of a sum of Taka 4,52,849.54 (four lac fifty two thousand eight hundred forty nine and fifty four paisa) within 6(six) months from date in default both these petitions shall be treated as dismissed. After payment being made in the manner as stated through a pay order to the respondent No. 1, the possession of the flat which was earlier handed over to the plaintiff-respondent should be returned to the defendants. .....Jahangir Ahmed (Md) =VS= Sayyid Obaidullah, (Civil), 2023(2) [15 LM (AD) 402] ....View Full Judgment

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

Specific performance of contract–– A contract cannot be enforced against a bonafide transferee for value who has paid his money in good faith and without notice of the original contract–– In the case of Jagan Nath Vs. Jagdish Rai and others [AIR 1998 SC 2028] it was held that plaintiff would not be entitled to relief of specific performance against subsequent purchaser when there was evidence on record establishing that the subsequent purchaser was bonafide purchaser for value without notice of earlier agreement with plaintiff. It is also well settled proposition of law that a person cannot transfer more than he has.
It appears from the judgment and decree of the last Court of facts that it upon appreciation of the evidence on record, came to the conclusion that the contesting defendants had no knowledge about the alleged agreement for sale of the plaintiff. In Second Appeal, the High Court Division disbelieved the ‘bainanama’ and held that the contesting defendants are the bonafide purchaser without knowledge of alleged ‘bainanama’. Since the last Court of facts and the High Court Division upon proper appreciation of the evidence on record held that the contesting defendants are bonafide purchasers without notice of alleged agreement for sale, Appellate Division is of the view that the suit has been dismissed rightly. .....Habiba Banu =VS= Aftabullah, (Civil), 2023(2) [15 LM (AD) 478] ....View Full Judgment

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

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

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.

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.

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.

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.

Mere hardship to the defendant will not be a circumstance falling under Item—II. L Rahman vs G Ahmed 39 DLR (AD) 242.

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.

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.

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.

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.

'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.

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.

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

(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]
(b) 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 unenforceable. [Para-8]
(c) 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 Asga.r 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. (Para-9l
Quazi Din Mohammad Vs Alhaj Arzan Ali & Anr 2 BLT (AD)-175.

In the absence of corroboration by independent witnesses, the assertion is not proved and hence the suit is barred by limitation– Specific performance of contract– With regard to the claim of PW 1 that defendant No.1 last refused to accept the balance of the consideration money on 14-9-1998. several independent witnesses including SM Nazrul, Manik Mia, Advocate Motiur Rahman, Yousuf Mia, Harunur Rashid. Shahjahan Mia-Chairman were present. Of these named persons Shahjahan Mia deposed as PW 3 and Yousuf Mia deposed as PW 5, but neither of them supported the claim of PW 1 that on 14-9-1998 defendant No.1 refused to execute the deed. This date was merely stated by the plaintiffs to avoid the bar of limitation. In the absence of corroboration by independent witnesses, the assertion is not proved and hence the suit is barred by limitation.
The High Court Division also elaborately discussed the circumstances surrounding Title Suit No.84 of 1992 and came to the conclusion that the deed of gift in favour of defendant No.l. being a registered document established the title of the defendant, particularly, since the plaintiffs of the present suit were the successors of the plaintiff of Title Suit No.84 of 1992 but did not take any further step in that suit and allowed it to be dismissed for default. Appellate Division does not find any illegality or impropriety in the impugned judgment of the High Court Division, which in their opinion does not call for any interference. .....Akteruzzaman Zakir =VS= Md Enamul Kabir Khokan @Bazlur Rahman, (Civil), 2022(1) [12 LM (AD) 253] ....View Full Judgment

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

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

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

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

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

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

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

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.
In view of the facts and circumstances of the case a solalitum of Taka 25,400/- was considered reasonable and adequate in this case. This along with the earnest money of Taka 4,600/- in all 30,000/- Taka, should be paid to the appellant Tobarakulla Vs. Rani Gupta and another, 10BLD (AD)285

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.
The granting of a decree for specific performance of a contract is the discretion of the court but it must be exercised on the basis of sound judicial principles capable of correction by a superior court. The court may not exercise the discretion for specific performance of a contract where such performance involves hardships on the part of the defendant which he did not foresee whereas its non- performance would not cause such hardships to the plaintiff. Amena Khatun and others Vs. Hajee Abdul Jabbar being dead his heirs: Mst. Maleka Banu and others, 14 BLD (AD) 267.

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.
Enforcement of a contract or refusal to enforce it lies in the discretion of the Court but this discretion is. not arbitrary, but sound and reasonable, guided by established judicial principles and capable of correction by a Court of appeal.
The condition as to deposit of the balance of the consideration in the Court is not an essential term of the contract the violation of which will render the contract unenforceable.
When the plaintiff comes to the Court seeking specific performance of a contract, it is -implied that he is ready to make the deposit whenever so directed by the Court. Section 24(b) cannot be a bar against the Plaintiff.
Mere inadequacy of price does not bring a case within the ambit of Section 28(a) of the Act. To attract this sub-section an inadequate price must be attended with evidence of fraud or of undue advantage taken by the Plaintiff. Quazi Din Mohammad Vs. Al-haj Arzan Ali and another, 14 BLD(AD)211

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.

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

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.

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

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—
Subsequent purchaser on good faith and without notice of the original agreement for sale of suit land can be protected under section 27(b) of the Specific Relief Act. The onus lies heavily upon the subsequent transferee to prove that he on good faith purchased the suit land and paid the consideration money and he had no knowledge of the original agreement. Joynab Begum and others Vs. Shaheb AH Akun ji and others 12 MLR (2007) (AD) 337.

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

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

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

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

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.

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

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.

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—
A registerd Hebabil awaj deed is as good as a sale deed which the executant can not undo by a subsequent cancellation deed. Such an instrument can only be avoided by a decree of competent civil court. Rahmat Goni Vs. Mehenmnessa and others 12 MLR (2007) (AD) 166.

Suit for setting aside exparte decree on ground of non-service of summons—
The plaintiff instituted the suit for setting aside the exparte decree on ground of non-service of summons claiming title on the basis of auction purchase by the ex-land lord in rent sale. But on scrutiny it was found the summons were duly served upon the defendants. Except the certified copy of the sale certificate no writ of delivery of possession was produced; nor the records from the Revenue department was called for. The High Court Division disbelieved the story of auction purchase and restored the judgment and decree of the trial court dismissing the suit which the apex court upheld as being one perfectly justified. Bangladesh represented by the Deputy Commissioner, Kiirigram Vs. Mohammad AH Khondaker 12 MLR (2007) (AD) 180.

Deed which is void ab-initio need not be sought to be declared void—
Suit for declaration of title simpliciter— maintainable- Restoration of possession when dispossessed during pendency of the suit—
Suit for declaration of title is maintainable when the plaintiff was in possession of the suit land at the time of institution of the suit. Court is bound to restore possession where the plaintiff has been dispossessed in violation of the order of status quo during pendency of the suit. Abdul Awal and others Vs. Nayan Chandra Das 13 MLR (2008) (AD) 71.

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.

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.

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.

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

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

Suit for declaration of title in the absence of satisfactory proof— not maintainable—
In the instant suit the plaintiffs could not establish his title either by documentary or by oral evidence and as such the trial court on specific findings dismissed the suit which i he High Court Division as well as the Appellate Division upheld. Mozaffar Rahman (Md.) and others Vs. Government of Bangladesh and another 15 MLR (2010) (AD) 170.

Suit for declaration that there was no marriage solemnized with the defendant—
In the instant suit the defendant claims that her marriage with the plaintiff was duly solemnised by executing kabinnama and their marriage was consummated and a son was born out of their wedlock. The plaintiff could not prove that his signature was obtained in the kabinnama under threat and coercion. The trial court dismissed the suit. The appellate court and the High Court Division held the same view and dismissed the appeal and the revision. The apex court found nothing wrong with the impugned judgment and order. Abdul Jalil Sarder (Dr.) (Md.) Vs. Selina Akhter 15 MLR (2010) (AD) 240.

Declaration of title on the basis of a registered Heba deed— A registered Heba deed cannot be cancelled by a subsequent registered deed—
Law is well settled that a registered heba deed duly acted upon can not be done away with by creation of a subsequent deed of cancellation. The settled principle of law is that such a deed can not be avoided except by a decree of civil court. Jobeda Bewa and others Vs. Md. Abdur Razzaque 12 MLR (2007) (AD) 16.

Suit for mere declaration of title without seeking recovery of possession not maintainable when the plaintiff is out of possession—
A suit for mere declaration of title to an unspecified and vague land and when the plaintiff is out of possession is not maintainable without seeking consequential relief for recovery of possession. Ershad AH Hoivlader being dead his heirs Nazrul Islam (Babul) and others Vs. Santi Rani Dhupi and others 12 MLR (2007) (AD) 105.

Limitation Act, 1908
Section 28
Specific Relief Act, 1877
Section 42
Adverse possession– It is found that the defendants have been in possession of the disputed land for more than 12 years as of right and by asserting hostile title against the plaintiffs of their predecessor and there was a complete outer and thus, the right, title and interest of the plaintiffs if any which they alleged had acquired in the properties had been lost by adverse possession.
Appellate Division disapproves the finding of the appellate Court below to the effect that the defendants failed to prove their title in the suit land. But it revealed that if there is any loophole in the title of the defendants, the same has been covered by their long run possession so also by acquisition of statutory title by way of adverse possession.
The plaintiff-respondents hopelessly failed to discharge the onus (as has been ascertained by us) and as such, the suit of the plaintiff-respondent fails. Appellate Division finds that there is illegality or infirmity in the impugned judgment, which in our view calls for interference. The judgment and order of the High Court Division is set aside and there by the judgment passed by the trail Court is hereby restored. ...Abdul Hamid Gazi(Md.) =VS= A Samad, (Civil), 2021(2) [11 LM (AD) 444] ....View Full Judgment

Suit for declaratory decree is not maintainable—
In a case where the plaintiff has no title to the suit property his suit for declaration that the order of cancellation of mutation, by revenue officer as illegal is not maintainable. Bazlur Rahman Sarker Vs. Kamala Kanta Barman and another 12 MLR (2007) (AD) 137.

Code of Civil Procedure, 1908
Order 7 Rule 3
Specific Relief Act, 1877
Section 42
Daliluddin was literate and, therefore, his thumb impression on the solenama made the same highly doubtful–– The plaintiffs in the plaint, simply prayed for the declaration of title in respect of 3.80 acres, that is, ¼th share of total land measuring 15.20 acres but they did not seek any relief against those two registered deedsand it is not their case that those two deeds were not acted upon. Since after execution and registration of deeds dated 14.06.1937 and 30.06.1937, the title of entire property measuring 15.20 acres including the suit land had been vested in favour of four sons of Daliluddin and Serajuddin, that is, long before the alleged acquisition of title by these plaintiffs by way of inheritance, we are of the view that the plaintiffs, who claimed title in the suit land by way of inheritance, did not acquire any title in the same. .....Most. Rahela Khatun (Khuki) =VS= Abdul Majid Howlader, (Civil), 2023(2) [15 LM (AD) 510] ....View Full Judgment

The Evidence Act, 1872
Section 110 r/w
Specific Relief Act, 1877
Section 42
Possession follows title–– It is settled principle that possession may prima-facie raise a presumption of title. If at any time a person with title was in possession of the property, the law allows the presumption that such possession was in continuation of the title vested in him. The accepted proposition law is that possession follows title. Presumption of possession over an open land always is deemed to be that of the owner unless it is proved that he is a trespasser. In the eye of law an owner would be deemed to be in possession of a property so long as there is no intrusion.
Considering the facts and circumstances, Appellate Division is of the view that the High Court Division committed an error of law in not holding that the plaintiffs have been able to prove their title and possession in the suit land. .....Monoranjan Pal =VS= DC, Narayangonj, (Civil), 2023(2) [15 LM (AD) 518] ....View Full Judgment

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

Declaration of title and recovery of khas possession of the suit land– A suit for declaration of title and recovery of possession on the strength of title, the plaintiffs can succeed on estableshing their title to the scheduled property and they cannot succeed on the weakness of the case put forward by the defendants. Only weakness of the defendants is that they failed to mutate their names in the khatian and paid rent which did not extinguish their title.
The defendants’ deed was acted upon and that since the plaintiffs hopelessly failed to prove their possession and dispossession, they are not entitled to get relief for declaration of their title as well as recovery of possession in the suit land, the learned Courts below committed an error of law in decreeing the suit. ...Nadim Hossain =VS= Halima Kader, (Civil), 2021(1) [10 LM (AD) 118] ....View Full Judgment

Title Suit– It is well settled that the plaintiff must prove his case by cogent evidence and that his suit cannot be decreed based on any weakness of the defendant’s case 39 DLR (AD) 237.
We are of the opinion that the High Court Division has properly assessed the evidence and materials on record and has reversed the judgement and decree of the courts below upon proper appreciation of the law. Hence, wedo not find any illegality or impropriety in the impugned judgement and order of the High Court Division. ...Sibpada Biswas =VS= Chitta Ranjan Biswas, (Civil), 2021(1) [10 LM (AD) 277] ....View Full Judgment

The Code of Civil Procedure, 1908
Order VII, rule 11
The Specific Relief Act, 1877
Section 42
After granting of "probate" cannot be looked into by any other civil court other than the court having competent jurisdiction ensured by the statue– The probate court alone has exclusive jurisdiction and the civil Court on original side does not have jurisdiction even if consented to by the parties, to adjudicate upon the proof or validity of the Will propounded by the executrix once the probate is granted. In the instant case the suit instituted by the plaintiff was for declaration under section 42 of the Specific Relief Act for declaring the Will forged, fraudulent invalid etc, such step of the plaintiff is misconceived because so long the probate stands, the plaintiff is not entitled to any legal character or any right to property as required by section 42 of the Specific Relief Act. The Court of Joint District Judge, was to therefore incompetent to proceed with the hearing and determining the present suit. A suit filed in a Court incompetent under the provision of an Act is not maintainable. When the suit is not maintainable it is nothing but a futile exercise which should not be a allowed to proceed with. As such the trial Court as well as the High Court Division committed serious error of law in rejecting the application under Order VII, rule 11 of the Code of Civil Procedure. .....Gita Sen =VS= Md Rafiqul Islam, (Civil), 2022(2) [13 LM (AD) 49] ....View Full Judgment

Title Suit–
The practice of endorsing return of consideration money on the back of the deed of transfer is sufficient to indicate a mortgage. It is not a case of oral evidence contradicting the terms of a written document. Here, the term of the Patta deed is amended by written endorsement which has been signed by the maker of the endorsement. Moreover, the endorsement on the back of the Patta is supported by the witness to the endorsement, namely, Md. Abdul Aziz Mulla(P.W.3) and the fact that the original Patta with the endorsement was returned to the predecessor of the plaintiffs is evidenced by the fact that it was produced in court from the custody of the plaintiffs.We note the half-hearted attempt of the defendants while cross examining P.W.1 to prove that the Patta deed was cleverly taken by P.W.1 from D.W.1 at the settlement office. This was not supported by the sole witness of the defendants, namely D.W.1.
We find merit in the appeal, which is accordingly allowed. The judgement and order of the High Court Division is hereby set aside, and the judgement and decree of the appellate Court is restored. ...Abdul Hadi Gazi =VS= Mostafa Alamgir Siddique, (Civil), 2021(1) [10 LM (AD) 687] ....View Full Judgment

Code of Civil Procedure, 1908
Order VI, rule 17 r/w
Specific Relief Act
Section 42
Where the plaintiffs are out of 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–– Appellate Division has no hesitation to agree with the findings of the trial court as well as the High Court Division that since the plaintiffs have failed to prove their possession in the suit land, the present suit for declaration simpliciter without a prayer for consequential relief is hit by proviso to section 42 of the Specific Relief Act and as such the present suit is not maintainable.
It is a cardinal principle of law that plaintiff has to prove his own case and he cannot be entitled to get a decree on the weakness of the defendant(s), if any. The burden lies on the plaintiff to prove his case and he must succeed on his own strength only and not at the weakness of the adversary. Appellate Division is of the opinion that the High Court Division did not commit any error of law in making the Rule absolute setting aside the judgment and decree of the court of appeal below. The appeal is dismissed without any order as to costs. .....Kabir Ahmed =VS= Mahohar Ali, (Civil), 2023(1) [14 LM (AD) 57] ....View Full Judgment

Registration Act, 1908
Section 47
Specific Relief Act, 1877
Section 42
Partition suit–– The sale deed which was executed earlier but registered later in point of time will prevail over the sale deed executed later–– Appellate Division is of the view that the plaintiff miserably failed to prove their title over the suit land as such they are not entitled to get a preliminary decree in the instant partition suit. Furthermore, the present suit is not maintainable in its present form without a prayer for recovery of khas possession as well as not impugning the Deed Nos.8567, 5078 dated 28.06.1967 and 15.09.1966 respectively. Beside this the plaintiff is also bound by the judgment and decree of Suit No.57 of 1967 passed by the learned Sub-Judge, 1st Court, Chittagong. As such the instant suit is liable to be dismissed. .....Dr. B.M. Fayzur Rahman =VS= Md. Abdul Mannan Chowdhury, (Civil), 2023(2) [15 LM (AD) 215] ....View Full Judgment

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

Declaration of title the weakness of the defendants case cannot be a ground for getting decree the plaintiffs–– The revisional Court reversed the finding as to the possession and dispossession arrived at the appellate Court holding that the conclusion arrived at by the last Court of fact is not based on evidence. In the plaint, the plaintiffs stated that they were dispossessed by the defendant on 25.10.1985 from the suit land, plaintiff No.1 was examined as P.W.1 who in his evidence did not utter a word about the alleged date of dispossession. Similarly their another witness P.W.2 has also said nothing about the date of dispossession of the plaintiffs from the same. Appellate Division has also gone through the judgment of the Courts below it appears to us that the conclusion arrived at by the High Court Division is correct.
The appellate Court mainly relied upon the weakness of the case of the defendants that they have failed to prove of the story auction sale and their alleged settlement but in order to get a decree for recovery of possession along with prayer for declaration of title the weakness of the defendants case cannot be a ground for getting decree the plaintiffs. .....Md. Isaq Biswas =VS= Abdus Samad Sheikh, (Civil), 2023(2) [15 LM (AD) 532] ....View Full Judgment

The Specific Relief Act, 1877
Section 42 r/w
The State Acquisition and Tenancy Act
Section 143A
Appellate Court being the last Court of facts–
The appellate Court being the last Court of facts, found that the plaintiffs were eight annas owners of the suit property including houses which may be standing thereon. We find that the evidence and materials on record fully support such finding. The view taken by the High Court Division, is in our view erroneous and, hence, the impugned judgement is not sustainable. The impugned judgement and order of the High Court Division is set aside. .....Hena Begum(Most.) =VS= Abdul Kader, (Civil), 2017 (2)– [3 LM (AD) 229] ....View Full Judgment

Plaintiff has not asked for any relief that the suit is hit by the provision of Sec. 42 of S.R. Act–
It also appears that the plaintiff has mentioned in his plaint that he was served with a notice by the defendant to quit the said land and it has been admitted at the time of hearing that the said notice was served asking the plaintiff to quit the suit land. It appears from the plaint that that the plaintiff has not asked for any relief regarding the notice nor did he file the same in the Court. It has further been averred that the defendants are conspiring to oust him from the suit land and accordingly threatened him on 30.06.1989 with dispossession therefrom. Thus, it is also apparent that the plaintiff had further relief or reliefs to ask for and in that view of the matter the suit is hit by the provision of Section 42 of the Specific Relief Act. .....Hashmat Ullah Tapadar(Md.) =VS= Baset Khan(Md.), (Civil), 2018 (2) [5 LM (AD) 397] ....View Full Judgment

Declaration of title with khas possession–
We find no wrong, illegality or infirmity in the impugned judgment of the High Court Division. Rather, we find that the High Court Division was quite correct and justified in restoring the judgment and decree of the trial Court setting aside the judgment and decree of the appellate Court. .....Bishow Ram Chawhan =VS= Rabeya Bari Chowdhury, (Civil), 2017 (2)– [3 LM (AD) 181] ....View Full Judgment

The suit for declaration simpliciter was barred in view of the provision of Section 42 of the Specific Relief Act in the absence of any prayer for recovery of khas possession–
The learned Judge of the High Court Division has resolved the points as regards title and possession of the suit land in favour of the plaintiff in accordance with law. In view of the conflicting evidence of the parties with regard to possession the possession should be found with the party having better title and when the possession is found in favour of the plaintiff, the suit for declaration simpliciter is maintainable. The appeal is accordingly dismissed without any order as to costs. .....Hemayet Uddin =VS= Md. Rustam Ali, (Civil), 2018 (1) [4 LM (AD) 228] ....View Full Judgment

Declaration of title–
The High Court Division has totally ignored that aspect and illegally interfered with the judgments keeping those finding intact. Thus it has exercised power not vested by law, inasmuch as, it cannot interfere with the findings of fact arrived at by the final court of fact in the absence of any misreading or non-consideration of the evidence on record. .....ADC (Rev), Rangpur =VS= Amir Hossain, (Civil), 2017 (2)– [3 LM (AD) 3] ....View Full Judgment

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

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

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

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

Declaration of title and recovery of khas possession– High Court Division was justified in reversing the concurrent finding of the Courts below– The learned Judge of the Single Bench of the High Court Division after proper appreciation of facts and circumstances arrived at a decision that the plaintiffs failed to prove the facts of getting delivery of possession through Court as well as the date of dispossession by the defendants. It has been further held that since the defendants found to have obtained title of the suit land by way of registered sale deed dated 17.12.1974 from the original owner, Abdur Rahman and remained in possession thereof, unless and until the said deed is cancelled in a proper suit, the title and possession of the defendants cannot be said to be illegal and unauthorized and as such, the suit must fail.
Having considered those facts, circumstances and evidence on record, Appellate Division finds that the learned Judge of the trial Court as well as the appellate Court below failed to assess and appreciate the evidence on record which is full of misreading and non-consideration of the evidence on record. This Division holds that the learned Judge of the Single Bench of the High Court Division was justified in reversing the concurrent finding of the Courts below. This Division also holds the view that there is no illegality and infirmity in the impugned judgment which calls for no interference. The appeal is dismissed. .....Abul Khayer(Md.) =VS= Abul Hashem(Md.) , (Civil), 2022(2) [13 LM (AD) 178] ....View Full Judgment

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

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

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

Specific Relief Act, 1877
Section 42 r/w
The Code of Criminal Procedure
Section 145
Adverse possession–– It is now well established that a person who set up the plea of his title of adverse possession must prove by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to deny of its title to the property claimed–– The defendant Monir Ahmed and others filed Title Suit No. 17 of 1957 in the First Court of Munsif, Satkania, Chittagong against Golam Khan and others for declaration of their title and confirmation of possession in the suit land and got decree and that decree was upheld that the High Court Division. All the Courts found title and possession of defendant Monir Ahmed and others in the suit land. It further appears from the materials on record that in connection with the proceeding under section 145 of the Code of Criminal Procedure the property, in question, was attached. In view of such circumstances, it is difficult to hold that the plaintiffs have had peaceful uninterrupted and continuous possession in the suit land. –Considering the aforesaid facts and circumstances, Appellate Division is at the view that the High Court Division rightly dismissed the suit holding that the plaintiffs are not entitled to get decree in the suit land on the basis of adverse possession. .....Rezia Begum =VS= Hafez Ahmed, (Civil), 2023(1) [14 LM (AD) 77] ....View Full Judgment

Specific Relief Act, 1877
Section 42 read with
The Code of Civil Procedure
Order 6, Rule 17 read with
The Limitation Act
Article 142
Amendment of Plain– It is now settled that as to the question of limitation there are two ways in which the same may arise . “First, whether the claim to be included was barred on the date of the institution of the suit. Secondly, whether the claim is barred on the date of the prayer for amendment. On the first case, the prayer for amendment can not be allowed as it is barred on the date of institution of the suit and on the second case, the prayer can be allowed.” The suit was instituted on 7th March, 1964 and though the amendment of the plaint was made on 19th April, 1977, as soon as the prayer for amendment was allowed, the said amendment related back to the date of institution of the suit, as if those statements in the amendment petition were made in the original plaint. In that view of the matter, the learned Counsel is absolutely wrong in his contention that the amendment is barred by limitation. Article 142 of the Limitation Act applies when a plaintiff set up a case of possession followed by dispossession. In such a case the onus is on the plaintiff to prove that he was in possession within 12 years from the date of the institution of the suit. …Monowara Begum(Most.) =VS= Malanch Bibi, (Civil), 2020 (1) [8 LM (AD) 102] ....View Full Judgment

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

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.

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

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.

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

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.

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

State Acquisition and Tenancy Act, 1950
Section 19A
The Specific Relief Act, 1877
Section 42
Declaration of title and recovery of khas possession–– The defendants names were also admittedly recorded in the S.A. Khatian in respect of the suit property and the plaintiffs' objection under section 19A of the SAT Act, 1950 was rejected finding it to be in the possession of the defendants. Rather it is well settled principle of law that the plaintiff had to prove his case in order to get the decree prayed for, in no way the burden can be shifted over the defendants to do so. ––Finding and decision arrived at by the High Court Division being based on proper appreciation of fact and law the same does not call for any interference by this Division. .....Sarhab Ali Molla(Md.) =VS= Md. Farid Master, (Civil), 2023(1) [14 LM (AD) 338] ....View Full Judgment

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.

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

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.

The Evidence Act
Section 110 r/w
Specific Relief Act
Section 42
Section 110 of the Evidence Act provides for a presumption of ownership in favour of the person who is in possession of the property. A person in possession of land however inperfect his title may be, has a good title against whole world except the true owner and until the true owner comes in Court to assert a claim to the property. Possession is evidence of title, and gives a good title as against wrong doer. …Hajee Abul Hossain =VS= Md. Amjad Hossain, [8 LM (AD) 108] ....View Full Judgment

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

Section 42 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.

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

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

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

Suit for declaration of title and recovery of possession—not maintainable
There is no averment in the plaint of plaintiffs dispossession from the suit land within twelve years of bringing the suit which is for recovery of khas possession: notwithstanding this, both the trial court and the lower appellate court concurrently found that the plaintiffs had never been in possession of the suit land. In such circumstances the suit is not maintainable. (Para-1 1) Amanatullah & Ors Vs. Ali Mohammad Bhuiyan & Anr 6 BLT (AD)- 1

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

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

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

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

Title Suit for partition on declaration of their title– The plaintiff is entitled to get a decree in preliminary to the suit land but they are not entitled to evict the defendants from their homestead–From the facts, circumstances, evidence as well as on record, it appears that the plaintiff is entitled to get a decree in preliminary form since they have acquired title to the suit land by way of inheritance from the CS tenant, but they are not entitled to evict the defendants from their homestead.
Having conceded those facts, circumstances and evidence on record, Appellate Division holds the view that the learned Judge of the Single Bench of the High Court Division arrived at a wrong decision in making the Rule absolute. The impugned judgment and decree is hereby set aside and thereby the judgment passed by the appellate Court below is hereby restored with modification to the effect that the defendants are entitled to retain in possession of their homestead. The Advocate Commissioner (if he engaged by the trial Court) is to take consideration of the fact of existing possession of the parties in course of executing the preliminary decree. .....Forman Ali =VS= Rokeya Begum, (Civil), 2022(1) [12 LM (AD) 587] ....View Full Judgment

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

It is apparent that on the date of filing the suit or on the date of cause of action for filing the suit, the plaintiffs were under the constant threat of dispossession by the defendant. Therefore, they were legally obliged either to pray for permanent injunction or to pray for confirmation of possession as consequential relief along with the prayer for declaration of title to the suit land within the meaning of the proviso to section 42 of the Specific Relief Act, but they did not make any such prayer and they only prayed for a declaration of title to the suit land. Therefore, the plaintiffs' suit was not maintainable in law within the meaning of the said proviso to section 42 of the Specific Relief Act. It is true that the trial Court dismissed the suit not on the ground of its maintainability, but on other grounds as noted down hereinbefore, but this being a point of law and maintainability of the suit goes at the very root of the matter and when this has come to the notice of this Court, this Court cannot overlook the provision of law.
The High Court Division, like the Appellate Court affirming the judgment and decree of the Appellate Court consider the factual finding arrived at by the trial Court about the amalnama, the basis of the plaintiffs title the maintainability of the suit and therefore, erred in law in discharging the Rule.
We find merit in the appeal and accordingly, the same is allowed. The impugned judgment and order affirming those of the Appellate Court is set aside and those of the trial Court are restored. ...Pear Ali Bepari =VS= Md Abdul Hai, (Civil), 2019 (1) [6 LM (AD) 119] ....View Full Judgment

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

Temporary injunction—Suit for declaration of title without prayer for consequential relief—Temporary injunction restraining defendant from interfering with possession whether can be granted?
The principle that in a suit for declaration of title to lands simplicities without any prayer for consequential relief the plaintiff is not entitled to ask for temporary injunction against the defendants restraining them from interfering the with plaintiffs alleged possession of the suit land is generally applicable to a case where a suit for title relating to immoveable property is filed and consequential prayer ought to have been made, but has not been made, and an injunction is sought for. Normally this male is to be observed, but it cannot be taken as an absolute rule, because if the suit is otherwise maintainable, and if it is found that the defendant without being in possession, wants to disturb the possession, the Court cannot be powerless to grant temporary injunction in an appropriate case. The order granting injunction must be a speaking order — Code Civil Procedure, 1908 (V of 1908),Or. XXXIXR.2 Ramani Marak Vs. Jamini Marak, 1BLD (AD) 57

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

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
—Payment of advalorem court fees is not required — Court-Fees Act, 1870 (VII of 1870), S. 7(IV)(C), 8C and Art. 17(iii) of Sch. II — Code of Criniinal Procedure, 1898 (V of 1898) S. 145. Miah A.M. Noor Vs. Abu Naser Ahmed, 2BLD(AD)97

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
Plaintiffs have not derived title against the defendants by adverse possession but against the real owner — The defendant cannot plead point of limitation as the defendant was not in physical possession — Though the plaintiffs could not prove their bainapatra their physical possession had tilted in their favour against the true owner and the suit was therefore rightly decreed — Limitation Act, 1908 (IX of 1908), Article 144. Md. Ashraf Au and another Vs. Fatique Chandra Saha and others, 3BLD (AD) 315

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

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

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

Specific Relief Act, 1877
Section 42 r/w
Transfer of Property Act, 1882
Section 129 r/w
Registration Act, 1908
Section 17 & 49
Declaration of title– The plaintiff filed copy of electricity bill, copy of holding tax receipt etc. from which it is seen that plaintiff, Shehida Begum, during the course of possessing the suit premises, has paid all those taxes and bills. The documentary evidence goes to show that the plaintiff is in peaceful possession of the suit land. The facts, circumstances as well as other materials on record as has been divulged in our discussion, led us to hold that the learned Judge of the Single Bench of High Court Division did not commit any wrong in reversing the judgment and decree of the lower appellate Court who as being a final court of facts totally mis appreciated and misdirected in reversing the Judgment and decree of the trial court which is based on sound reasoning. The appeal is dismissed without any order as to costs. ...Ahammed Hosain =VS= Shahida Begum, (Civil), 2021(2) [11 LM (AD) 604] ....View Full Judgment

The plaintiffs filed the present suit for mere declaration that impugned registered kabala deed was collusively made and obtained by forgery and not binding upon them. The plaintiffs filed the suit as the disputed kabala cast cloud upon title of the plaintiffs to the suit land and on the basis of the deed in question, the defendant claimed title to the suit land. Since, before filing of the suit, a cloud has been cast upon the plaintiffs’ title to the suit land and that the defendant denied their title therein by dint of a registered kabala, the plaintiffs should have filed the suit for a decree of declaration of title to the suit land as principal relief along with other consequential relief that impugned registered kabala deed was collusively made and obtained by forgery and not binding upon them, as provided under section 42 of the Specific Relief Act. Accordingly, this suit as framed is not maintainable. ...Abul Kasem & anr Vs. Asfaque Ahmed & anr, (Civil), 17 SCOB [2023] HCD 93 ....View Full Judgment

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.

Contract—Time-limit made the essence of contract—Responsibility of which party is carrying out the contract in time.
When time is made the essence of the contract under which parties thereto agree mutually to undertake certain obligations, it would be necessary to find whose failure to carry out his obligations within the time mentioned in the contract the same could not be performed.
It is necessary to find whose unwillingness to perform his part of the obligation under the contract eventually led to the non-performance of the contract. In a suit for specific performance of the contract which makes time the essence of the contract, the plaintiff must succeed if his readiness and willingness to perform the obligations undertaken by him are proved.
Ram Chandra Das vs Md Khalilur Rahman 37 DLR (AD) 21.

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.

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.

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

Permanent injunction may be granted on establishment of Primafacie title and exclusive possession—
Unless the plaintiff succeeds in establishing his primafacie title to and exclusive possession in the suit land he is not entitled to get a decree for permanent injunction. When the suit land is unspecified and the plaintiff could not establish his exclusive possession therein no injunction can be granted. Habibullah (Md.) Vs. Sher AH Khan and others 11 MLR (2006) (AD) 1.

Suit for permanent injunction is maintainable when the plaintiff is in exclusive possession of the suit land—
In a suit for permanent injunction the plaintiff has to prove that he is in exclusive possession of the suit land. Question of title can incidentally be gone into. Sultan Ahmed and others Vs. Md. Monsur All and another-13 MLR (2008) (AD) 359.

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—
The period of lease having been expired the plaintiff has no legal character as to the title and possession of the suit fishery and as such he is not entitled to get any injunction against the Government restraining it from leasing out the suit fishery by auction. The possession of the plaintiff in the suit fishery is the possession of a trespasser which can not be protected under any law. Dewan Shamsul Abedin, Mutwali of Dewan Aftebur Reza Chowdhury Waqf Estate Vs. Government of Bangladesh and others 13 MLR (2008) (AD) 163.

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.

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.

—Circumstances when perpetual relief is granted. Perpetual injunction is granted as provided under section 54.
It lays down that an injunction may be granted to prevent the breach of an obligation in favour of the applicant, whether expressly or by implication, provided there exists no measure for ascertaining the actual damage or likely to be caused, by threat of the defendants and where such invasion or threat is such that pecuniary compensation would not afford adequate relief. M/S. Hossain Ahmed Vs. HD Hossain, (1980)32 DLR (AD) 223.

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.
Held : The High Court Division noticed that the lower appellate court while reversing the decision of the trial court did not apply its judicial mind to a consideration of the whole of the evidence in the case. The lower appellate court did neither consider all the material evidence taken into consideration by the trial court in their true perspective nor did it advert to all its reasoning. In the circumstances the High Court Division set aside the judgment of the lower appellate court and restored that of the trial court. We do not find any good ground to differ from the view taken in the said judgment of the High Court Division. [Para-9] Md. Shamsuzzaman Khan & Ors Vs. Han Mondal & Ors. 4 BLT (AD)- 173

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

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

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

Suit for permanent injunction is not maintainable where the plaintiff is an yearly lessee in Government Khas land—
Suit instituted by the plaintiff against the Government for permanent injunction, in respect of the Government Khas land where he is an yearly lessee is not maintainable. Government of Bangladesh represented by the Deputy Commissioner, Patuakhali Vs. Md. Nurul Haque 'and others 12 MLR (2007) (AD) 257.

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—
It is well settled that a co-sharer in possession of specific portion of suit land in a partition suit can maintain his possession. In the instant suit the trial court passed an order of status-quo against the defendant not to change the nature of the suit land who by violating the order of status-quo made construction. The trial court upon prayer of the plaintiff and upon consideration of the reports of Advocate Commissioners passed order of temporary injunction in mandatory nature directing the defendant to demolish the construction and restore the suit land to its original position. The High Court Division and the Appellate Division upheld the impugned order as one deemed to have been passed under section 151 C.P.C. Azizur Rahman Chowdhury (Md.) Vs. Touhiduddin Chowdhury and others 15 MLR (2010) (AD) 160.

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.

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

read with
C.P.C.
Section 151 and Order 39 rule 2(3)
Disobedience of an order of injunction or status-quo is a civil contempt. Disobedience to an order of injunction or status-quo made under Rule 1 or Rule 2 by doing something for a party’s unadvantage entitles a Court under its inherent power to bring back that party to a position where it originally stood as if the order passed have not been contravened . Even if it is assumed that the Court made such order of restitution or restoration of the status-quo ante as a consequence of the finding of guilt of disobedience, if there can be such a power , there can always be ancillary to it the power to make an interim order to the said effect subject to the final determination of the case. There are cases where a party raises constructions in violation of interim injunction and obstructs the right of way , the Court can order for demolishing the construction under section 151 C.P.C. In this case though the plaintiff-appellant filed the application under section 55 of the Specific Relief Act, the trial Court treated it as one under section 151 C.P.C. and rightly made the order of restoration of the status-quo ante as a consequence of the finding of guilt of disobedience.
“This principle is in consonance with fair administration of justice and this power of making an order of mandatory injunction on an interlocutory application may be exercised irrespective of the merits of the main case as it is one of the main concerns of the Court of law to see that no one dares to interfere with the course of justice by presenting the Court with a fait accompli” . Though this sort of dispute relates to private rights of the contending parties to the litigation but the higher courts termed it a new character and it turned into a matter concerning public policy relating to administration of justice. …Azizur Rahman Chowdhury(Md.) =VS= Tauhiduddin Chowdhury, (Civil), 2020 (1) [8 LM (AD) 29] ....View Full Judgment

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.

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.

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

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

Bars granting of mandatory injunction againt breach of contract—
Rupali Bank after denationalisation and its incorporation under the Companies Act, 1994 has become a private Bank and as such the relationship between its employer and employee is that of master and servant. As in a suit for declaration against dismissal from service no mandatory injunction can be granted, such suit is not maintainable. An employer can not be compelled to retain its employee whom it is not willing to retain. However the plaintiff may get compensation as per service regulation. Jahiruddin (Md.) Vs. Rupali Bank Ltd. and others 13 MLR (2008) (AD) 47.

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.

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.

—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.

Injunction cannot be granted when it will interfere with the carrying on of public duties.
Section 56, clauses (d) and (f) provide that no injunction can be granted to interfere with the public duties of any Department of the Government or for that matter to prevent the breach of a contract the performance of which would not be specifically enforced.
Contract, when can be validly revoked—The respondent’s tenders were not accepted. In others words, proposal made by them for supplying the labour and transport was not accepted. Therefore, no jural relationship was crcated.
M/s. Hossain Ahmed Vs. M/s. HD Hossain & Brothers (1980) 32 DLR (AD) 223.

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