SPECIFIC RELIEF ACT, 1877 (I OF 1877)
Sections—9 and 54
In a suit under Section 9 of the Specific Relief Act the plaintiff is required to file the suit within 6 months of dispossession. To obtain a decree he must prove that he was in possession of the suit property till before he was dispossessed by the defendant. In such a suit the Court will not adjudicate upon the title of the parties.
Section 54 of the Act provides for granting of perpetual injunctions. There is no scope for granting injunction in a suit u/s 9 of the Act for recovery of possession.
Munshi Kamal Hossain Vs. Shamsul Hoque, 14 BLD (HCD) 385.
Ref: Ganga Din Vs. Gokul, A.I.R. 1950 All. 407; Noab Zada Mohamed Umar Khan Vs. Mohammed Asif, 16 D.L.R. (WP) 164;Dr. Kudrat All Vs. Md. Monsur Au, 16 DLR 599; Debendra Mohan Das Vs. Mohammed Afaz Uddin, 17 DLR 187; Abdur Rahman Vs. Mofiz Uddin Bhuiyan, 7 D.L.R. 335. Mohammad Shafl Vs. The State 19 DLR (SC) 216 and Abdul Hamid Vs. Karam Dad, PLD 1966 Lahore 16-Cited.
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.
Code of Civil Procedure, 1908, Order XXI Rules 100 and 101
The suit framed under section 9 of the Act is title suit, though, summary in nature. But an application under Order XXI Rule 100 of the Code takes the form of miscellaneous proceeding. There was no scope of converting the suit under section 9 of the Act into a miscellaneous proceeding under Order XXI Rule 100 of the Code. So the question of converting the suit under section 9 of the Act into a miscellaneous proceeding under Order XXI Rule 100 of the Code does not at all arise.
No litigant has a right to get his affairs settled in the manner as he wishes. Every access to justice must not be used as a licence to a litigant.
Delwar Hossain Khan Vs Amzad hossain and others, 19 BLD (HCD) 523.
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.
It provides that where a person contracts to sell or let certain property, having only an imperfect title thereto, and the vendor or lessor has subsequent to the sale or lease acquired any interest in the property, the purchaser or lessee may compel him to make good the contract out of such interest.
Khatibun Nahar and others Vs. Syed Haflzullah and others, 15 BLD(HCD)565
Hardship of a party in a contract for sale
Unless the defendants able to prove that facts constituting hardships were present surrounding the disputed agreement for sale and the plaintiff was in an advantageous position over the defendant, he will not get the benefit of item No. II of Section 22 of the Specific Relief Act.
Most. Hamida Begum Chowdhury Vs. Ahamad Hossan Khan and others, 18BLD (HCD)189
Ref: 6BLD(AD)131 1984 B.C.R. (AD) 127: 2CLC (Volume-2)1983 Karachi page 1085—Cited.
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.
Sections—22(11), 24(b) and 28(a)
When a party does riot come to the court with a clean hand, he is not entitled to get benefit of Section 22(11) on grounds of hardship. Hardship’ as contemplated in Section 22(11) of the Act means hardship has to be considered in the circumstances that existed at the time of the contract.
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
Ref: ‘A.I.R. 1928 (PC) 208; 43 l.A. 26 (PC), A.I.R. 1965 (SC) 1405; 39 DLR(AD) 242; 6 BLD(AD) 231; 5 BLD(AD)45; 3 BLD (AD)225—Cited.
Rectification of a document
To secure an order for rectification of a document under section 31 of the Act it requires to be proved that through the mutual mistakes of the parties the instrument in question did not truly express the intention of the parties. When both the Courts concurrently found that the plaintiff purchased the suit property from the recorded tenant for valuable consideration and obtained delivery of possession pursuant thereto and duly mutated his name in respect of the suit land, mere failure of the plaintiff for filing a suit for rectification of the sale deed for inserting the wrong name of the mouza does not stand in his way of getting a decree for declaration of title, the mistake in question occurring in the disputed sale deed being due to mutual mistake of the parties. The failure of the plaintiff to rectify a mistake in the sale deed does not extinguish his title in the suit property which was actually sold to him and in which he is in possession.
Binode Bihari Ghose Vs. Assistant Custodian, Vested and Non-Resident Property and others, 18 BLD (HCD) 194.
Ref: AIR 1956 Orissa 83; AIR 1930 Allahabad 387; A1R1931 Madras 783; 36 DLR 337—Cited.
Sections—31, 39 and 42
As the document in question in respect of transfer of 0.30 decimals of land is admitted as legal but the remaining portion of the land in the document has been affected by fraud for which the suit can be treated as a Suit under section 3.1 and not under section 39 of the Act and as the whole document is not denied or challenged where cancellation of the document is not necessary, mere rectification is sufficient and section 42 still can come to rescue the plaintiff to get the proper relief.
Joynal Abedin Vs Maksuda Khatun and others, 18 BLD (HCD) 647.
Sections—39 and 42
Void and Voidable instrument
Where a written instrument is void ab initio the transaction is a nullity and in such a case a plaintiff is not required to have it cancelled or set aside. If, on the other hand, the instrument is only voidable, then it is incumbent upon the plaintiff to have it cancelled or set aside under section 39 of the Specific Relief Act.
Since in the present case the plaintiffs are parties to the disputed Kabala, it is undisputedly not a void document but only a voidable one. In order to remove the impediment in the way of the plaintiffs to get complete relief, along with the declaration the plaintiffs must also pray for cancellation of the document on payment of advalorem Court fee.
Sree Chitta Ranjan Chakraborty being dead his heirs Ashish Chakraborty and others Vs Md. Abdur Rob alias Mvi. Md. Abdur Rob, 17 BLD(AD)127
Ref: 16 DLR (SC) 477; 17 DLR (Dhaka) 119; 21 DLR (Dhaka) 507; 39 DLR (AD) 46—Cited.
Sections—39 and 42
A person in possession of a land on assertion of his right, title and interest finds a decree obtained by any other person in respect of such land affecting his interest or possession, or clouding his right or title in such land, he is always entitled to have such decree adjudged or declared void. When such person is not a party to such decree, he does need to get the decree set aside or cancelled. Under the law, he is also not required to seek further declaration that the decree is not binding upon him or that he has got title in the suit land.
Abul Kashem Howlader v. Sultan Ahmed and others, 22 BLD (HCD) 606.
Ref: Md. Yunus v. Md. Yusuf, 21 DLR 466; Imanuddin Rarhi v Lilabati Das, 32 DLR 75; M A Mallik v M H Mallik, 6 BCR(AD)56 and Sufia Khanom v Faizunnessa, 39 DLR (AD)46; Abdul Sukur v Bhasan Mondal, (2001) BLC 549.
In the face of the evidence on record showing that the plaintiffs have been possessing the suit land on taking pattan from the recorded tenant in 1351-52 B.S. and their names have been recorded in the S.A. Khatian and there being no evidence on record to prove that the Government ever took over possession of the land as an enemy property, defendants claim of enemy property does not stand.
The Additional Deputy Commissioner (Revenue), Manikgonj Vs. Md. Siddiqur Rahman and others, 14 BLD(AD)80
Simple suit for declaration without a proper prayer for a decree for cancellation of the deed of gift is not maintainable and the same is barred under the proviso to section 42 of the Act.
The plaintiff was fully aware that defendant No. 3 had already transferred the disputed properties in favour of defendant No. 5 by a deed of gift and filed a simple suit for declaration of title without praying for cancellation of the said deed of gift. In such circumstances, a simple suit for declaration without a prayer for cancellation of the disputed document is not maintainable.
Although he knew that such cancellation is required because P.W.1 the father of the minor plaintiff, himself admitted in his cross- examination that he prayed for cancellation of the earlier deed of gift also which is not correct. Under the circumstances the suit for simple declaration, without a proper prayer for decree for cancellation of deed of gift, is also barred under proviso to section 42 of the Act.
Minor Md. Basihur Rahman Biswas Vs Md. Hanif Ali Biswas and others, 21 BLD (HCD) 89.
Mere recording in the SA Khatian of the suit land cannot confer any title on the holder of the record.
Md. Azizur Rahman Vs Most. Hasina Jamil, 21 BLD (HCD) 163.
Part decree as equable relief
In a suit for specific performance of a contract a part decree is not ordinarily granted. But under special circumstances it may be permissible to grant a part decree when it is found in consonance with the principle of equity, justice and good conscience.
Sree Naru Gopal Roy Vs Parimal Rani Roy and others, 21 BLD (HCD) 282.
Plaintiff being in possession seeking for declaration he need not seek any further relief as contemplated under proviso to section 42 of the Act.
Ali Akbar Khan Vs Gurudas Mondal and others, 19 BLD (HCD) 122.
Code of Civil Procedure, 1908, Section—115(1)
The plaintiff has not sought for any decree for setting aside the order of his termination from service but has sought for his reinstatement with back wages. The plaintiff did not prefer the statutory appeal as provided in the service regulations. The suit as framed is. thus not maintainable.
Mujibur Rahman Vs Abdul Maleque Akon and others, 21 BLD (AD) 86.
Where a plaintiff is a party to a document or decree that has clouded his title to property in suit, he is to seek a declaration either that the document or decree is void or void abinitio, or for a declaration and cancellation. In the absence of seeking a declaration against such document or decree, a plaintiff cannot have a declaration of title to the property in suit.
Dudu Mia v. Ekram Mw Chowdhury, 21BLD(AD,)157 Citations: Sufia Khanam Chowdhury v. Faizun Nesa Chowdhury 39DLR(AD)46; Abdul Hamid v. Dr. Sadeque Ali Ahmed and others 21DLR507. Cases distinguished: 44 DLR(AD)46; 21 DLR (SC)365; AIR 1924 (Cal) 411; 17 DLR 119.
It is now well-settled that each suit seeking relief within the scope of section 42 must be decided on its own merits and its own peculiar circumstances and that no hard and fast rule can be laid down for all cases.
The expression ‘legal character’ in section 42 of the Act denotes a personal and special right not arising out of contract or tort, but of legal recognition. Herein rejection of plaintiff’s application for allotment has created a legal recognition enforceable against a person whose similar application is accepted.
Mirpur Mazar Co-operative Market Society Ltd. Vs Secretary, Ministry of Works, Government of Bangladesh and ors., 19 BLD (HCD)164
Discretion of Court as to declaration of status or right
A declaratory suit need not be confined within the terms of section 42 of the Specific Relief Act which is meant for obtaining a specific relief. A declaration can be sought for various other matters as well.
Bangladesh Water Development Board, represented by its Chairman Vs. Syed Moazzem Hossain and others, 15 BLD (AD) 239.
In a suit for cancellation of a decree passed by competent court, whether exparte or contested, it is incumbent upon the plaintiff to prove by cogent evidence that the decree impugned was obtained by practicing fraud upon the court or by other fraudulent means.
Most. Jinnatunessa Vs. Bangladesh, represented by the Deputy Commissioner Mymensingh, 15 BLD (HCD) 104.
Ref. Md. Namiuddin Sarder Vs. Abdul Kalam Biswas, 39 DLR (AD) 237; Bangladesh Vs. Israil Ali and others, I BLD (AD) 371—Cited.
A suit for a mere declaratory relief under Section 42 of the Act without stating anywhere in the plaint as to what is the plaintiff’s ‘legal character’ or ‘status’ conferred by law entitling him to make such a prayer for declaration, is not maintainable in law. Such a plaint is no plaint in the eye of law and it should be rejected under the inherent power of the Court.
Md. Ayub Vs. Sonali Bank & ors., 14 BLD (HCD) 236.
Ref: Sk. Md. Junaid and others Vs. Turner Morrison and Co. Ltd. 26 DLR 111; National Bank Ltd. Vs. Haroon Malik and others, 42 DLR 103; Burmah Eastern Ltd. Vs. l3urmah Eastern Employees Union and others, 18 DLR 709, -Cited.
A suit for simple declaration that the order of termination of plaintiffs service is illegal, inoperative and not binding upon him without a prayer for consequential relief is hit by proviso to section 42 of the Specific Relief Act and as such it is not maintainable in law.
Sonali Bank and another Vs. Chandon Kumar Nandi, 15 BLD(HCD)249
Ref. Abdul Mannan Sikder Vs. Bangladesh Bank and others, 31 DLR(AD) 298; State Vs. Abdul Awal, 35 DLR(HCD) 151; Mr. Shahabuddin Vs. Janata Bank, 41 DLR (HCD) 94; Senior Manager. Messrs Dost Textile Mills Ltd. and another Vs. Sudhansu Bikash Nath, 8BLD (AD)66; 41 DLR (HCD) 94; 44DLR (AD)260; Manager, Personal Division Vs. Sazahan Miah and others, 35 DLR (HCD) 224-Cited.
Bar to simple declaration
It provides that no Court shall make any declaration as to title or legal character where the plaintiff being able to seek further relief other than a mere declaration omits to do so.
In the instant case, the defendant- petitioner took delivery of possession in the suit property through Court on 8.4. 1985 in pursuance of the order of redemption passed on contest by the Sub-Divisional Magistrate under sub-section (4) of section 95 of the S.A.T. Act. In the eye of Law even a symbolical possession obtained through court has the effect of actual possession so far as the judgment- debtors are concerned. Under such circumstances, the plaintiffs suit for simple declaration of title without any prayer for recovery of khas possession is barred under Section 42 of the Specific Relief Act.
Osman Gani Talukder alias Sujat Au Talukder Vs. Md. Osman Ali Mondal, 16 BLD (HCD) 165
Oral agreement for sale
Although an oral agreement for sale of an immoveable property is not barred by any law, nevertheless it has to be looked at with some suspicion unless such agreement is proved by convincing and reliable evidence and circumstances. The superior Courts of the sub-continent usually discourage a decree for specific performance of a contract on the basis of an agreement solely supported on oral evidence.
Md. Moslemuddin and others Vs Md. Jonab Ali and another, 17BLD(AD)328
Ref: (1969)2 SCWR 347;—Cited.
A simple prayer for declaration that the impugned order of dismissal from service is illegal, void and not binding upon the plaintiff without a further prayer for consequential relief in the form of back salary and for mandatory injunction to reinstate him in his former post is hit by the proviso of section 42 of the Specific Relief Act and such a suit is not maintainable in law.
Basharatullah Vs Managing Committee for New Academy and another, 17 BLD (HCD)68
A declaration with regard to the contractual or financial obligation involved or transacted between the parties cannot come within the ambit of section 42 on the Act. If a declaration is given that a plaintiff is not a defaulter or borrower or loanee, a bank as creditor may be prejudiced in filing a suit for repayment of loan.
Mere issuance of a notice by Bangladesh Bank, who is not a creditor, enclosing a letter of a bank for the purpose of removing the plaintiff director of the bank, will not entitle him to file a suit for a declaration with regard to his liabilities, which is an entirely different matter.
Shaft A. choudhury v. Pubali Bank Ltd. and others, 22 BLD(HCD)423
Suit for declamation
Since the plaintiffs are in joint possession of the immovable property, they are entitled to file a suit praying for declaratory relief only with a view to removing the cloud on their title created due to wrong recording of ROR, because in such a suit, declaration of title is all that the plaintiff needs. So, they are not called upon to ask for consequential relief by way of partition.
Md. Gias Uddin and others v. Md. Nowab Au & others, 22 BLD(HCD)586
Ref: Enjaheruddin Miah alias Md. Enjaharuddin Vs. Mohammad Hossain and others,18 BLD(AD)3; Narayan Sarker Vs. Siraj Miah,1989 BLD(AD)9; Paran and others, AIR 137 (Rangun) 427 and Kaup Nath Singh vs. Lala Ram Din Lal, ILR 15 Calcutta, 117; Shankar Chandra Das Vs. Kala Chand Das, 46 DLR 419; Joy Narayan Vs. Shree Nanta, AIR 1922 Cal, 8; 18BLD(AD) 77.
The proviso to section 42 of the Specific Relief Act provides that no Court shall make any declaration as to plaintiff’s legal character or his right to any property where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. In the instant case, the plaintiff prayed only for declaration of his title in the suit land and did not ask for either joint possession or partition as a co-sharer of the defendants in the disputed land. Although the plaintiff’s possession was found in some portion of the suit property, the learned Courts below committed no error of law in dismissing the suit for declaration of title simpliciter.
Enjaheruddin Mia alias Md. Enjaheruddin Mw Vs. Mohammad Hossain and ors., 18 BLD(AD)77
Since the plaintiff has no possession in the suit land, the suit for declaration of title on the basis of adverse possession is not maintainable.
Kala Miah Vs Sree Gopal Chandra Paul and others, 18 BLD (HCD) 670.
Ref: 8DLR65; 531.A. 89; A.I.R. 1930 Patna 610; 35 Indian Cases 14; AIR. 1927 (Cal) 197;—Cited.
Sections—53 and 54
A suit for permanent or perpetual injunction is contemplated in sections 53 and 54 of the Specific Relief Act. For the grant of permanent or perpetual injunction the existence of a right in the plaintiff and its threatened violation will have to be found. Every suit for permanent injunction necessarily involves a determination of the right of the plaintiff. [Per Latifur Rahman. J, delivering the dissenting judgment].
Barada Sundari Paul and others Vs. The Assistant Custodian, Enemy Property (Land and Buildings), Comilla and others, 15 BLD (AD) 95.
Ref: 13 D.L.R. 576; 40 C.W.N.81; 16 DLR (Dhaka) 355; 13 DLR 865; A.I.R. 1927 (Madras)984; A.I.R. 1968 (Andra Pra) 291; A.I.R. 1971 (Cal) 252; A.I.R. 1965 (SC) 271—Cited.
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
Permanent injunction—when to be granted
The earlier trend of judicial pronouncements for granting permanent injunction was that the plaintiff was required to prove his exclusive possession in the suit property and incidentally a prima facie title thereto. If these two requirements were fulfilled, the plaintiff was entitled to a decree for permanent injunction. It appears from a review of the judicial pronouncements of the superior courts of the sub-continent that the aforesaid view of late has undergone a change. It is now well-settled that if the plaintiff can prove his possession in the suit land he is entitled to protect his possession by way of permanent injunction. Even the rightful Owner cannot evict by force a person in long and continuous possession in the suit property. The question of title has thus become a matter of little significance.
Kalyan Krishna Goswami Vs. Madhyapara High School and another, 15BLD (HCD) 509.
Ref: Manindra Nath Sen Sarma Vs. Bangladesh, 4 BLD(AD)285; Kuttan Narayan Vs. Thomman Mathai, AIR 1966(Ker)199; 14 BLD (AD) 229-Cited.
On the de-nationalisation of Rupali Bank and corporatisation, it became a private bank, and the relationship with its employees became that of master and servants. But even though by a vendor’s agreement Rupali Bank Limited agreed to follow the Service Regulations of Rupali Bank when it was a nationalised bank, the plaintiff is not entitled to get a decree for mandatory injunction in view of the bar of section 56(e) of the Specific Relief Act 1877 against granting injunction for breaches of contract for personal service.
Rupali Bank Limited v. Haji Md. Arab Ali and others, 22 BLD (AD) 13.
Ref: 38 DLR (AD) 81.
If the money in dispute had not fountained from the plaintiff and if the same cannot lawfully be redirected to him in the event other beneficiaries fail to receive it, the plaintiff has no legal right or interest over the money which is the subject matter of an injunction prayer.
S.M. Faziul Haque i. Salahuddin Ahmed and another, 22 BLD (HCD) 155.
Ref: Gouriet v. Attorney-General (1978) Act 435; Paton v. British Pregnancy Advisory Services Trustees (1979) QB 276.