Md. Mofazzal Hossain Vs. Md. Muklesur Rahman and others

Appellate Division Cases

(Civil)

PARTIES

Md. Mofazzal Hossain……………………………….Petitioner.

-VS-

Md. Muklesur Rahman and others………………… Respondents.

JUDGES

Md. Ruhul Amin J

Md. Tafazzul Islam Hossain J

Date of Order

25th June 2006

Suit for specific performance of contract and also of permanent injunction

Defendant No. 1 did neither purchase the property nor paid the consideration money but was merely a name lender accordingly in the plaint of the above suit (2)

The learned counsel for the petitioner submits that the High Court Division committed error in finding that the Nadabipatra itself shows that P. W. 2 is the scribe and P.W.3 is the attesting witness of the Nadabipatra and they in their depositions did not state as to when and where they had written or attested the Nadabipatra and as such their evidence specifically in respect of time, place and manner of execution of Nadabipatra are vague and unspecific inasmuch P. Ws. 2 and3 in their deposition specifically stated the time, place and manner of execution and the finding of facts of Civil Petition for Leave to Appeal no. 191 of 2005. both the courts below to the effect that the said Nadabipatra has been proved to be executed by the defendant No.l and that the defendant No.l is also the benamdar of the plaintiff are based on due consideration of the evidence on record and are not at all products of surmises and conjecture and the High Court Division, on misreading the facts and the evidence on record, reversed the concurrent findings of the courts below (3)

The above submission merits consideration (4)

ADVOCATES

Nurul Islam Bhuiyan, Advocate-on-Record. For the petitioner Respondents Not represented.

ORDER

1. Md. Tafazzul Islam J :- The plaintiff filed this petition for leave to appeal impugning the judgment and decree dated 25.7.2004 passed by a single Bench of the High Court Division in Civil Revision No. 3436 of 1993 making the Rule absolute upon reversing the judgment and decree dated 16.9.1993 passed by the learned Subordinate Judge (now Joint

District Judge), Chandpur in Title Appeal No. 66 of 1990 by which the judgment and decree dated 20.5.1990 passed by the learned Assistant Judge, Sadar, Chandpur in Title Suit No. 138 of 1989 decreeing the suit was affirmed .

2. The petitioner, filed the above suit for specific performance of contract and also for permanent injunction restraining defendant No. 1 from transferring the suit land to others stating, inter alia, that one Sree Anukul Chandra Dutta, On 9.2.1977, entered into an agreement with him for sale of 8.31 acres of land out of his 14.31 acres of land out of Plot Nos.6668 and 6669 of Khatian No. 657 of Mouza Chandpur Municipality and on receipt of part payment of Tk.20,000.00 out of the consideration money of Tk.25,000.00, Anukul Chandra dutta executed a bainapatra and put him in possession and agreed to execute sale deed on payment of the balance amount; subsequently Anukul Chandra Dutta having failed to execute the sale deed instate of tender of the balance amount, the plaintiff instituted a suit for specific performance of contract against him; the defendant No. 1 is the sister’s husband of the plaintiff and the plaintiff, for his convenience used the name of defendant No. 1 in the bainapatra as purchaser of the suit land though the plaintiff himself purchased the same with his own money and the defendant No. 1 did neither purchase the property nor paid the consideration money but was merely a name lender accordingly in the plaint of the above suit the defendant No.l was also shown as the plaintiff; after the above suit was decreed Anukul Chandra Dutta preferred title Appeal No. 140 of 1985 in the Court of District Judge, Chandpur; during pendnecy of the said appeal the defendant No.l on 21.10.1986 executed a Nadabipatra in favour of the plaintiff admitting that he was merely a name lender in the earlier contract and undertook to register the said deed after disposal of the above appeal but after disposal of the said Appeal he refused to do the same and hence the suit. The defendant No.l contested the suit by filing a written statement contending, inter alia, that he purchased the suit land jointly with the plaintiff from Anukul Chandra Dutta and paid consideration money according to their shares and jointly got possession; subsequently when Anukul Chandra Dutta refused to execute and register sale deed he and the plaintiff brought a suit for specific performance of contract against Anukul Chandra Dutta and obtained a decree; the plaintiff has created the alleged Nadabipatra showing the defendant No.l executant. The trial court after hearing decreed the suit. The defendant No.l preferred Title Appeal No. 66 of 1990 and the learned Subordinate Judge (now Joint District Judge), Chandpur who heard the appeal dismissed the appeal. The defendant no. 1, then moved the High Court Division and obtained a Rule in Civil Revision No. 3436 of 1993 and after hearing the same was made absolute.

3. The learned counsel for the petitioner submits that the High Court Division committed

error in finding that the Nadabipatra itself shows that P. W. 2 is the scribe and P.W.3 is the attesting witness of the Nadabipatra and they in their depositions did not state as to when and where they had written or attested the Nadabipatra and as such their evidence specifically in respect of time, place and manner of execution of Nadabipatra are vague and unspecific inasmuch P. Ws. 2 and3 in their deposition specifically stated the time, place and manner of execution and the finding of facts of both the courts below to the effect that the said Nadabipatra has been proved to be executed by the defendant No.l and that the defendant No. 1 is also the benamdar of the plaintiff are based on due consideration of the evidence on record and are not at all products of surmises and conjecture and the High Court Division, on misreading the facts and the evidence on record, reversed the concurrent findings of the courts below.

4. The above submission merits consideration.

5. Leave is granted.

6. Security of Tk. 1000/- is to be deposited within one month.

7. The petitioner is permitted to prepare the paper book out of court in accordance with Rules. In part II of the paper book deposition of both the parties and the exhibited documents in the suit are to be included.

Source: III ADC (2006) 918