Specific Relief Act 1877

Section B – Specific Relief Act 1877

Q 1: Exam in 2004

Paresh had a piece of paternal land in his possession. He was dispossessed from his land by his neighbour, claimed bought it from his father. Advise: what kind of suit has to be filed ?

Paresh would file a suit under Ss 8 and 42 of the Specific Relief Act for khass possession and Declaration.

In the Court of the 1st Assistant Judge, Dhaka

Title Suit No. ………./2002

Paresh

Son of Noresh,

Of House No:100

Road No-19, Dhanmondi, Dhaka.

………………..Plaintiff

Versus

Abdur Rahim

Son of Soliman

Of House No-99

Road-199, Dhanmondi, Dhaka.

…………..…Defendant

Suit for declaration of title with recovery of Khass possession.

Suit valuation at Tk. 1,00,000

The above name Plaintiff most respectfully

States as follows:

1.                    That the P is law abiding and permanent citizen in Bangladesh.

2.                    That the P is the absolute owner and peaceful possession paying tax and taxes of the schedule land measuring 20 kathas. He had inherited this land from his father Noresh.

3.                    That the P has all along been in possession of the said lands for up wards of twelve years and been cultivating them by means of his servants.

4.                    That on 20.06.04, the D wrongfully and forcibly entered into possession of the suit land and with P consent and dispossessed the P of the same.

5.                    That the D continues in wrongful possession of the suit land and refuses to allow the P of entering into the land.

6.                    That the defendant claimed that he has purchased that land from P’s father.

7.                    That the claim of the D is untrue and the said kaba la deed is fake.

8.                    That the P’s father Noresh acquired this land from his father’s soruesh by inheritance of C.S khatian No-26, Mouza Dhanmondi, Dhaka.

9.                    That the D is greedy covetous and fraudulent person, he wants to grab the suit land.

10.                 That the right of P to the suit land is disturbed and darkened by the D’s claim.

11.                 That in order to demolish the darkness of P’s right to the disputed land. The P filed this suit for recovery of possession and declaration of P title over the suit land.

12.                 That the cause of action arose under the police station Dhanmondi, Dhaka and the P is resident of the Dhandmondi and suit land is situated in this area. Therefore this court has territorial jurisdiction to try this suit.

13.                 That the valuation of the suit land is Taka 1,00,000, so the court has also pecuniary jurisdiction and the court fees has been paid.

Wherefore it is prayed that your honour would be pleased to give.

i.      a decree of recovery of khass position of the schedule land in favour of the P of the suit

ii.      a decree of mesne profit.

iii.      a decree of declaration that the P is the absolute owner of the suit land.

iv.      A decree of cancellation that the D kabala deed is fake fraudulent and is of no legal effect.

v.      a decree of all cost of the suit in favor of the P and against the D of the suit.

vi.      An order of any others or furthers relief or relieves the P is entitled in law and equity.

Schedule of the land

Verification

That the statements made herein above are true to the best of my knowledge and information. Whereof, I sign this verification on this the 20th April, 2005 at 10.00 before the learned advocate.

Q 2: Exam in 2004

Ronesh refuses to deliver the painting. Can jamal sue Ronesh for delivery of the painting?

Ans: Jamal tenders the entire consideration money of the painting but Ronesh refuses to deliver the painting. In this situation jamal can file a suit against Ronesh under section 12 (B) and 27 of the specific relief Act 1877 for specific performance of contract. Section 12 of the SP Act deals with cases in which specific performance enforceable and section 27 deals with persons against whom specific performance of contract may be enforced.

Therefore painting of Joynal Abedin has no standard for ascertaining the actual value. So that jamal can not get actual damage of it, caused by non-performance of contract of Ronesh. Therefore jamal can sue Ronesh for delivery of the painting.

Q 3: Exam in 2003/4

a) Person dispossessed – want to recover possession – I decided to file s.9 suit- what point shall I ascertain and embody in the plaint?

Ans a): Under s.9 of Specific Relief Act 1877, if any person is dispossessed without his consent of immovable property otherwise than in the due course of law, then the person may by suit, recover possession of the property, notwithstanding any other title that may be set up in such suit.

The points that need to be ascertained from any client are as follows: / In the problem A is able to prove or fulfill the essential conditions of section 9. These are:

  1. Was the dispossessed person in possession?
  2. Has he been dispossessed by any unauthorized person?
  3. Is the dispossession took place without his consent?
  4. Was it done otherwise than in due course of law?
  5. Is the dispossession took place within 6 months before the institution of the suit under S9? Limitation period: within 6 months.
  6. What is the valuation of the suit land?
  7. Was he dispossessed forcibly?
  8. Have any title document of the land?
  9. Whether he has been dispossessed by a government officer because according to a proviso to s.9, no suit under s.9 can be filed against the government.
  10. The value of the property involved in order to determine the Court fee payable.

As she had no title deed for the land she must file under Section 9 of the Specific Relief Act. It was held that in a suit under Section 9 of the SRA the court will not adjudicate upon the title of the parties: Dr. Kudrat Ali vs. Munsur Ali. As she was in possession therefore possessor’s possession is good against all but real owner: Aminul Islam vs. Kilburn & Co. Ltd. It was also held that the P will be entitled to be reinstated even if the D who dispossessed him, be the true owner or a person claiming under him: Gonga Din vs. Bakul.

So, Asma has necessary grounds or some benefits for filing the suit under S 9 of the SRA. S 9 gives her enough privileges. In  a suit under S 9 if the P can prove his previous possession she may recover from the D who dispossessed her without reference to any question of title. Even where the person ousting claims a superior title, the person dispossessed is entitled to be restored to possession if he can prove his previous possession and brings an action within 6 months from the date when dispossession occurred.

b) D pleads for title as a purchaser in written statement- how meet this contention?

The Defendant’s claim that he is the owner of the land will not be a valid defence to the suit that has been filed against him under s.9 of SRA 1877. In fact, it is irrelevant as to who the owner of the land is for the purposes of a suit under s.9. What is important is who was in possession at the time of the dispossession. Even though the person in possession is not the true owner of the property, he may not be dispossessed by the real owner without due recourse to the law.

The Defendant’s claim of ownership will not prevent my client from repossessing the property. The Defendant can however file a suit according to the first proviso to s.9 to establish his title to the property and recover his possession thereof. In this respect, a suit may be filed by the Defendant pursuant to ss. 8 and 42 of SRA 1877.

Rationale of s.9 is to prevent the owner of land from taking the law into his own hands.

Q 4: Exam in 2002:

Rahima had forcibly been deprived of possession, she should file a suit under s.9 SRA 1877 in order to repossess the land.

The Defendant, Akbar Ali’s claim to ownership of the property is irrelevant: this is because for the purpose of filing a suit under s.9, what is important is who was in possession and not who was in ownership. Even if Rahima is not the owner of the property, the fact that she was in possession of the land at the time of the unlawful dispossession would allow her to repossess the land under s.9 SRA 1877.

In the Joint District Judge Court, Dhaka

Civil Suit No. ………./2002

IN THE MATTER OF:

Rahima

Daughter of Rahman

Address (Put in!)

………………..Plaintiff

Versus

Akbar Ali

Son of Matbor Ali

Address (put in!)

…………..…Defendant

AND

IN THE MATTER OF:

An application to recover possession of land under s.9 of Specific Relief Act 1877

Suit valued at Tk. 3,00,000

The above named plaintiff most respectfully

SHEWETH

  1. That the Plaintiff is a poor, deprived and simple woman. That the Defendant is a known criminal and a rich and powerful neighbour of the Plaintiff.
  2. That the Plaintiff was in possession of 4 decimals of land as described in the schedule and she had been in such possession for the last 15 years without interruption until 10th January 2002 when she was dispossessed by the Defendant. A copy of khatian record is attached to this plaint as exhibit A.
  3. That on 10th January, 2002 at about 11 AM, the Defendant forcibly entered the Plaintiff’s premises leading a team of 4 mastans and took possession of the land, shoved her out of the land and threatened to kill her if she comes back again.
  4. That the dispossession was otherwise than in the due course of law.
  5. That the suit filed by the Plaintiff within 6 months of the date of dispossession.
  6. That the valuation of the suit land is Tk. 3 lac and the relevant court fees have been paid.
  7. That if the Plaintiff were not allowed to repossess the land, she would suffer irreparable loss.
  8. That it is in the interests of justice that the Plaintiff be allowed to recover possession of the land.

Wherefore, it is humbly prayed that your honour would graciously be pleased to make an order restoring the possession of the property as mentioned in the schedule to the Plaintiff and to make such other order that your honour would deem fit and proper.

AND

For this act of kindness, the Plaintiff as in duty bound shall ever pray.

Schedule of the Property

Verification

Q 5: Exam in 2002**

Kalimullah was disposed of his land by his neighbour, otherwise than in the due course of law and without his consent.

Accordingly, Kalimullah should have filed a suit under s.9 of the Specific Relief Act 1877 for recovery of possession of the land. s.9 of SRA 1877 states that when a person is dispossessed of immovable property without his consent and otherwise than in the due course of law, then he may file a suit for recovery of possession thereof, notwithstanding any other title that may be set up in such suit.

Alternatively, Kalimullah could have pursuant to s.8 of SRA 1877 attempted to recover possession of the property in accordance with the procedure set out in CPC 1908. Then he could have sought a declaration as to his right to the property by filing a suit against his neighbour and the Court in its discretion could have made such a declaration.

However, instead of following either procedure, Kalimullah only sought declaration of title without prayer for recovery of possession. Such a suit is not maintainable in law for the proviso to s.42 SRA 1877 clearly states that where there is any other remedy available to a person and he omits to seek such relief, then a Court will not make a declaration under s.42. Here, Kalimullah has failed to make use of the procedure in s.8 and s.9 for recovery of possession and therefore the Court would not make a declaration under s.42.

The fact that the Defendant is claiming that he is the rightful owner of the land is irrelevant for the purpose of bringing a successful suit against the Defendant under s.9 1877 Act.

In this circumstance, the suit is not maintainable, because when he has dispossessed he should have filed the suit for recovery of possession under S 9 of the SRA 1877 at the time within 6 months of dispossession. Otherwise if he were filed the suit for declaration under S 42 of the SRA with the recovery for possession under S 8 of the SRA then the suit would be maintainable. Here the P sues a suit for mere declaration, but according to S 42 of the SRA, suit for only declaration where a person who is able to seek for further relief should not be allowed mere declaratory relief if he omits to do. In other words suit for declaration without prayer for khas possession S 42 of the SRA bars such a declaratory suit if the P is in dispossession.

S 42 provided that the court shall make any such declaration where the P being able to seek further relief than a mere declaration of title omits to do so. Here R did not seek the further relief for khas possession with the declaratory suit, the condition which imposed by S 42 of the SRA. So R’s suit is not maintainable. It was held that under S 42 where consequential relief is found necessary but has not been asked for the suit may either be dismissed or the P directed to pay additional court fee.: Sufia Khanam v. Faizunnesa

Q 6: Exam in 2002

Karam Ali died at 80 – a son Mokbul and 2 daughters Rahima and Rehala- a house – Mokbul claim the house by a deed of gift- sisters alleges thumb impression was taken, while in coma–document was fraudulent- Advise. – What remedy they have?

Ans:The two sisters can file a suit for the rectification of instrument under 31 of the SRA. Section 31 provides: When through fraud or a mutual mistake of the parties a contract or other instrument in writing does not truly express their intention either party or his representative in interest may institute a suit to have the instrument rectified and if the court find it clearly proved that there has been a fraud or mistake in framing the instrument and ascertain the real intention rectify the instrument so as to express the intention so far as can be done without prejudice to rights acquired by third persons in good faith and for value.

Q 7: Exam in 2003

Rina enters into a contract to sing for a charity show for one week in aid of private law college in Dhaka.

Ans: the Court cannot compel specific performance of the contract requiring Rina to sing at the private law college in Dhaka. This is because s.21(b) of SRA 1877 provides that a Court will not specifically enforce a contract which runs into very minute and numerous details or which is very much dependant on the personal qualifications or volition of any of the parties.

In this case, the contract for singing at the private law college in Dhaka dependant totally on the personal skills/qualification and/or volition of the parties and accordingly cannot be enforced (s.21(b) SRA 1877). However, on the basis of s.57 of SRA 1877, whilst it may not be possible to force Rina to sing at the private law college, it may be possible to prevent her from singing at the BTV programme.

S.57 provides that where a contract consists of an affirmative agreement to do a certain act and a negative agreement, express or implied, not to do a certain act, the circumstance that the Court is unable to compel specific performance of the affirmative agreement will not preclude it from granting an injunction to perform the negative agreement (provided that the applicant, the college in this case, has not failed to perform the contract so far as it is binding on it). Now, it can be said that there was an implied term in the contract between Rina and the Law College that during the period of the contract, Rina would not sing for any other organisation.

Accordingly, on the basis of s.57, it is possible for the Court to grant an injunction to prevent Rina from singing at the BTV programme.

Also, under s.65 of the Contract Act 1872, when an agreement is void, the person who has received any advance under such agreement is bound to restore it or compensate the person from whom he received it. So, Tk. 25,000 has to be returned to the college.

In the Court of the Joint District Judge, Dhaka

Title Suit No……/2005

IN THE MATTER OF:

The Principal

Dhaka Law College

Address                                                                                                                                     ……………………..Plaintiff

Versus

1. Rina Brown

Daughter of Salim Brown

Address

2. BTV

Address                                                                                                                                         …………………Defendant

AND

IN THE MATTER OF:

An application for an injunction under s.57 of Specific Relief Act 1877

The above named plaintiff most respectfully

SHEWETH:

  1. That the Plaintiff is the Principal of Dhaka Law College.
  2. That the 1st defendant is a singer.
  3. That a contract was entered between the 1st Defendant and the law college whereby the 1st Defendant offered to sing for a Charity Show for 1 week in aid of the college.
  4. That according to the terms and conditions of the contract the show was scheduled to be held on 1st November 2003 in relation to which the 1st Defendant received an advance of Tk. 25,000 from the college.
  5. That it was an implied term of the contract that she will not sing for any other person/ institution on the same day.
  1. That on the 5th October 2003, the Plaintiff received a letter from the 1st Defendant that she would not be able to perform at the Charity Show as she was scheduled to sing at BTV’s special sponsorship programme on the same day.
  2. That the 1st Defendant intends to sing at BTV by breaking the terms of the contract with the Plaintiff.
  3. That the Plaintiff has made extensive preparations and undergone huge expenses in relation to the show to be held on 1st November 2003. That if the 1st Defendant fails to perform at the college on the day, then the Plaintiff is going to suffer irreparable loss.
  4. That it is in the interests of justice that an injunction be granted preventing Rina from singing at the BTV programme on the 1st November 2003.

Wherefore it is humbly prayed that your honour would graciously be pleased to grant an injunction preventing the 1st Defendant from singing at the BTV programme on the 1st November 2003 and make such other orders as it considers fit and proper.

AND

For this act of kindness, the Plaintiff as in duty bound shall ever pray.

Affidavit

Q 8: Exam in 2001**

According to s.21(a)(?) and (b) SRA 1877, contract with Arambagh Sporting Club is not specifically enforceable. However, contract with ASC can be divided into 2 parts namely: i) affirmative agreement to play for ASC and ii) implied negative agreement not to play for any other club during this period. While i) cannot be enforced, courts can enforce ii) under s.57 SRA 1877.

Ans: S.57 provides that where a contract consists of an affirmative agreement to do a certain act and a negative agreement, express or implied, not to do a certain act, the circumstance that the Court is unable to compel specific performance of the affirmative agreement will not preclude it from granting an injunction to perform the negative agreement (provided that the applicant, ASC in this case, has not failed to perform the contract so far as it is binding on it).

Remedy for ASC in this case would be an injunction preventing the player from playing for any other club. On the other hand, Mr. Jalil’s leg injury: He may not be able to play for ASC. But once injunction is granted preventing him from playing for Wari Club, this will not suffice as an excuse for playing for Wari.

Also, under s.65 of the Contract Act 1872, when an agreement is void, the person who has received any advance under such agreement is bound to restore it or make compensation for it. So, if Mr. Jalil has taken any advance from ASC for this contract, he is bound to return it to ASC.

Q 9: Exam in 2001

Mr. S a teacher 15 years- College authority dismissed him from service by resolution – for in subordination- S filed suit under section 42 SRA-challenging the legality of the resolution- seeks to get temporary injunction- Draft petition for injunction stating fact and relevant sections.

Ans: Section 42 states:

-                      Any person entitled to any legal character or to any right as to any property

-                      may institute a suit against any person denying or interested to deny his title to such character or right

-                      And the court may in its discretion make a declaration that he is so entitled and the plaintiff need not in such suit ask for any further relief.

-                      No court shall make any declaration where the P, being able to seek further relief than a mere declaration of title, omit to do so.

In the above circumstances, since he is able to seek further relief, therefore, he should file an order of temporary injunction under section 53 of the SRA. It was held that in order to sustain an action for temporary injunction it would be sufficient if it can be shown that the P has a fair and arguable case as to the existence of his alleged right: Mizanur Rahman vs. Shirajuddin Bapary and others.

Mr. Shawkat can seek a temporary injunction under s.53 of SRA 1877 against giving effect of the resolution. (Why not under Order 39 rule 1 of CPC? Valid point : question wrongly placed, should be in Section A)

In the Court of the Senior Assistant Judge, Rangpur

Title Suit No. …………../2001

IN THE MATTER OF:

Shawkat Islam

Son of Kabir Islam

Village: Biratgonj, District: Rangpur

…………….Plaintiff  / Petitioner

Versus

The college Authority

Rangpur College

Rangpur

…….Defendant / The Opposite Party

AND

IN THE MATTER OF:

An application for the grant of a temporary injunction under s.53 of Specific Relief Act 1877

The humble petition of the Plaintiff above mentioned most respectfully

SHEWETH:

  1. That the Plaintiff is a teacher of Rangpur College where he has served with the utmost sincerity and dedication for the last 15 years.
  2. That on account of the Plaintiff’s popularity in Rangpur College, his contract with the college has been renewed 3 times over the last 15 years.
  3. That on Thursday, 19 August 2001, the governing body of Rangpur College by a resolution dismissed the Plaintiff from service allegedly on account of his insubordination.
  4. That the governing body of the college passed the resolution in excess of its powers and in a manner that was unlawful and that such resolution was accordingly illegal and void.
  5. That in view of the illegality of the resolution, the Plaintiff has instituted a suit under s.42 of SRA 1877 challenging the legality of the resolution.
  6. That until the disposal of the suit instituted by the Plaintiff under s.42 of SRA 1877, a temporary injunction restraining the Defendants from giving effect to the resolution ought granted in the interests of justice.
  7. That if such an injunction is not granted and the Plaintiff is dismissed from service, then he is going to suffer not only financial loss but also loss of reputation.

Wherefore, it is humbly prayed that your honour would graciously be pleased to grant an injunction preventing the resolution from being implemented.

AND

For this act of kindness, the Plaintiff as in duty bound shall ever pray.

Affidavit

This entry was posted in Lower Court Exam. Bookmark the permalink.

Leave a Comment

*