Abdul Zakir Khondakar and others Vs. Bimal Kumar Kunda and others

Appellate Division Cases

(Civil)

PARTIES

Abdul Zakir Khondakar and others……………… Petitioners.

-Vs-

Bimal Kumar Kunda and others……………… Respondents

JUSTICES

Mohammad Fazlul Karim J

Md. Tafazzul Islam J

Md. Joynul Abedin J

Judgment Dated:  25th November 2007.

Specific performance of contract on the averments that the suit property belonged to the defendant petitioners and the respondent No.3 (the proforma defendant No.5) and they agreed to sell the same to the respondent No.l at a consideration of Tk.3,00,000/-and he having paid Tk.l,50,000/-a bainanama was executed whereupon the possession of the suit property was delivered to him and the petitioners subsequently received further amount from him by executing “wasil receipt” and the respondent No.l thus, in total, paid Tk.2,66,500/- and then he tendering the balance amount requested the petitions and the respondent No.3 to execute and register the sale deed but only the respondent No.3 executed and regis tered a sale deed in respect of his por tion of the suit property and the petitioners refused……………….. (2)

As it appears the High Court Division dismissed the appeal holding that in their written statements the petitioners did not deny the receipt of part consideration money and though their case is that at the time of execution of the bainanama, as earnest money, they received only Tk. 50,000/-and not Tk.l,50,000/-and the figure ‘1’ has been illegally inserted in the bainanama before the figure ‘50,000’ but the petitioners measurably failed to prove that in the bainanama in question the figure ‘1’ was illegally inserted before the figure ‘50,000’ and as against that the respondent No.l proved the bainanama together with payment of total Tk.2,66,500/- by installments which is evident from the bainanama itself and its back page and separate receipts and the execution of those has also not been denied by the petitioners and the trial Court, considering all these facts minutely, decreed the suit ……………….(4)

AH Imam Khaled Rahim, Advocate (appeared with the leave of the Court) instructed by Md. Nawab AH, Advocateon-Record. ……………….For the Petitioners

Syed Mahbubur Rahman, Advocate-on-Record ……………..For Respondent No.l

Respondent Nos.2-4 Not represented.

Civil Petition For Leave To Appeal No. 1491 of 2005

(From the judgment and order dated 18.4.2005 passed by the High Court Division in First Appeal No. 714 of 1991).

JUDGMENT

Md. Tafazzul Islam J: This petition for leave to appeal at the instance of the defendant petitioners is directed against the judgment and decree dated 18.4.2005  of the High Court Division passed in First Appeal No.714 of 1991 dismissing the appeal and thereby affirming the judgment and decree dated 18.11.1989 of the learned Subordinate Judge (now Joint District Judge). Magura passed in Title Suit No. 18 of 1988 decreeing the suit.

2. Facts, in brief are that the respondent No.l filed the above Title Suit No. 18 of 1988 for specific performance of contract on the averments that the suit property belonged to the defendant petitioners and the respondent No.3 (the pro form a defendant No.5) and they agreed to sell the same to the respondent No.l at a consideration of Tk.3.00,000/-and he having paid Tk.l,5().000/-a bainanama was executed whereupon the possession of the suit property was delivered to him and the petitioners subsequently received further amount

from him by executing “wasil receipt” and the respondent No.l thus, in total, paid Tk.2,66.500/- and then he tendering the balance amount requested the petitions and the respondent No.3 to execute and register the sale deed but only the respondent No.3 executed and registered a sale deed in respect of his portion of the suit property and the petitioners refused. The petitioners contested the suit by filing written statements contending that the suit property is an cjmali property with a two storied building standing thereon and they and the respondent No.3 agreed to sell the same to the respondent No.l at a consideration of Tk.3.00.()00/-and in pursuance thereof the respondent No.l paid Tk.50.000/-on 31.8. 1987 and stipulated to get the suit property registered in his name on payment of the balance consideration money within four months and the possession was to be delivered to him only after execution and registration of the sale deed and it was also stipulated that the above ‘contract would be treated as cancelled if the balance consideration money was not paid within four months and that then a dispute having arisen among the respondent No.l and the co-sharers of the suit property the defendant respondent No.3, who is a man of the plaintiff, obtained

signatures of the petitioner No.l on some blank papers on the plea of settling the

dispute and the respondent No.l might have converted the same into the bainanama in question without mentioning therein the default clause and further the above bainanama was not read over to the petitioners nor they signed the same after going through the same and the petitioner No.l, out of the aforesaid earnest money of Tk.50,000/-, received only Tk. 12,500/while the petitioner No.2 at first received similar amount and subsequently also received Tk. 10,000/-. in total Tk.22.500/.Thc learned Subordinate Judge (now

Joint District Judge), Magura, after hearing, decreed the suit. The petitioners then

preferred First Appeal No.714 of 1991 and the High Court Division, after hearing,

dismissed the appeal.

3. We have heard the learned advocate of the petitioner who appeared with leave and perused the impugned judgment and order and other connected papers.

4. As it appears the High Court Division dismissed the appeal holding that in their written statements the petitioners did not deny the receipt of part consideration money and though their case is that at the time of execution of the bainanama, as earnest money, they received only Tk. 50,000/-and not Tk.l,50,000/-and the figure T has been illegally inserted in the bainanama before the figure ‘50,000’ but the petitioners measurably failed to prove that in the bainanama in question the figure ‘1’ was illegally inserted before the figure ‘50,000’ and as against thai the respondent No.l proved the bainanama together

with payment of total Tk.2,66,500/- by installments which is evident from the bainanama itself and its back page and separate receipts and the execution of those has also not been denied by the petitioners and the trial Court, considering all these facts minutely, decreed the suit.

5. We are of the view that the High Court Division on proper consideration of the materials on record arrived at a correct decision. The learned Advocate-on-record

could also not point out any infirmity of the kind calling for any interference by

this Division.

6. Accordingly, the petition is dismissed.

Source : V ADC (2008),583

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