Specific Relief Act, 1877 [1 of 1877]
Sections-5 and 56
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
Section- 9
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.
Major (Retd) Md. Afsar Uddin Vs Kamal Rahman
& Ors. 3BLT (AD)-190
Section-9
Under
Section 9 of the Act any person is entitled to institute a suit for possession
when he was without his consent dispossessed of immovable property otherwise
than in due course of law. The section provides for a summary procedure in
order to discourage people to take law in their own hands however good their
title may be, Even Government under the rule of law as enshrined in our
Constitution has no power to dispossess a citizen from immovable property
without due process of law.
M/S Shan Hosiery Vs. Bangladesh Jatiya
Shamabaya Shilpa Samitee Ltd. & Ors. 10 BLT (HCD)-83
Section-9
Constructive
possession of a sub-lessee tenant
In the
facts and circumstances of the case, the nature of the possession of defendant
no.2 also demands consideration for the decision in the suit. It is not
disputed that under the monthly lease agreement any kind of sublease was
prohibited. Possession of the plaintiff as a monthly tenant was the
constructive possession of her landlord, defendant No.1 If such monthly tenant
allows someone as subleassee to enter into possession of the leased shop by
infracting the terms of the lease, and without the consent of the landlord, the
possession of such sub lessee cannot of the tenant, to be the constructive
possession of the tenant for purpose of a suit under section 9 of Specific
Relief Act. Because, in case of dispute, such tenant is not entitled to
maintain a suit for ejectment of such sub lessee under the laws of monthly
tenancy
Jabun Nessa Zaman & Ors Vs Hosneara Lili 9
BLT (HCD)-251
Section-9
The High
Court Division in our view rightly found that the suit is maintainable inasmuch
as the suit premises does not belong to Government. It further appears that the
High Court Division found that the defendant Nos. 1-2 along with the ‘Gondas’
entered into the suit premises, drove away the employees and staffs of the
plaintiff by beating them up and thereby dispossessed the plaintiff-respondents
from the suit premises and this aspect has not been considered by the learned
Subordinate Judge and as such the learned Subordinate Judge wrongly took the
view that the suit was not filed within 6 (six) months of his possession and
rejected the plaint on some extraneous consideration.
Bangladesh Jatiya Samabaya Shilpa Samity Ltd
Vs. M/S. Shan Hosiery & Ors 12 BLT (AD)253
Section —9
The
Plaintiff’s case is that the suit land belonged to the defendants Nos. 1-3 who
entered into a contract for sale of the suit land in favour of the plaintiff.
He paid the entire consideration money but the Kabala deed was not executed and
registered but he was handed over possession in the suit land. While he was in
possession by running a furniture business, he was dispossessed —Held: From the
evidences of both the parties it is crystal clear like sunshine of broad
daylight that the plaintiff while was running his furniture business in the
suit hut, was dispossessed by the defendant on 19.9.1997. The suit having been
filed within 2(two) months of the date of dispossession, the same was
maintainable under Section 9 of the Specific Relief Act.
Akram alias Akram Goldar Vs.Chandi Charan
Mondal & Ors 14 BLT (HCD)525
Section-12 read with Limitation Act, 1908,
Section-19
Section
19 of the Limitation Act provides that before the expiration of the period
prescribed for a suit or application in respect of any property or right, an
acknowledgement of liability, in respect of such property or right has been
made in writing signed by the party against whom such property or right is
claimed, or by some person through whom he derives title or liability, a fresh
period of limitation shall he computed from the time when the acknowledgement
was signed. The acknowledgement to take effect for fresh computation of the
period of limitation must be proved to be of a time before the expiration of the
period prescribed for an action and secondly, must he in writing and lastly, be
signed by the person against whom the right is claimed.
Saroj Kanta Sarker & Ors. Vs.
Seraj-ud-Dowla & Ors 12 BLT (HCD)-28
Section -22
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.
B. C. Barua Vs. S. C. Barua & Ors. 4 BLT
(AD)-144
Section-22
Suit for
specific performance of an agreement for sale of land—the agreement,
Exhibit-3—–it is written on a sheet of non judicial stamp, It is an
unilateral agreement and written addressing Amir Hossain Miah (father of the
plaintiff Sharijan Nessa) agreed to sell the land at a to sell the land at a
price of Taka 60,000.00 and on receipt of Taka 37,000.00 as earnest money
promised and requested to take the ‘Kabala; within 3 months of payment of the
balance of Taka 23,000.00 Possession of the land was also delivered. On the
back of the stamp, out of the balance on 28.11.1979 she received in writing
Taka 8,000.00 and on 12.12.1979 Taka 15,000.00 from the plaintiff in presence
of the witnesses. It also appears that on 16.02.1982 said Amir Hossain by an
‘Ekrarnama’ exhibit 13 demitted the case of the plaintiff that the earnest
money of Taka 37,000 was paid out of the money kept in him by the plaintiff
that his name wrongly crept in the agreement that the plaintiff actually
obtained the agreement, the plaintiff then paid the balance of the agreement, the
plaintiff got possession and that he had no interest in the land under the
agreement. Amir Hossain died in 1989. This ‘Ekrarnama’ was proved by PW.-5
younger brother of the plaintiff . He also testified that the plaintiff
purchased the land and paid the entire consideration. Besides the evidence of
the plaintiff as PW-1, PW-2 the scribe of the agreement also testified that the
agreement executed between the plaintiff and Sharijan Nessa was written by him.
But the defendant No.11 did not cross-examine them on the question who
purchased the land. Moreover the defendants no.1 and 2 sons of said Sharijan
Nessa have not come forward to contest the claim of the plaintiff. The
petitioner as DW- 1 testified that if the plaintiff got an agreement from
Sharijan Nessa that would not be effective in respect of his share. In the
circumstances and on the above evidence the intention of the parties did not
leave any doubt to sell the land to the plaintiff and the trail Court rightly
exercised in discretion in decreeing specific performance of the agreement
exhibit No. 3. The Court of appeal below therefore did not commit any error in
accepting the agreement and affirming the decree for specific performance.
Md. Eser Ali Sheik Vs. Md Mokarram Ali &
Ors. 9BLT(HCD)-197
Sections-22 (11), 24 (b) and 28(a)
(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.
Quazi Din Mohammad Vs Alhaj Arzan Ali &
Anr. 2BLT (AD)-175
(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 unforceable.
Quazi Din Mohammad Vs Alhaj Arzan Ali &
Anr. 2BLT(AD)-175
(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 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
Section-27 clause-(b)
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
Section-27(b) read with Transfer of Property
Act, 1882 Section-53 (a)
Under
the provisions of Section 27(b) the interest of the plaintiff not at all
protected since he entered into subsequent agreement in respect of the selfsame
land with the selfsame vendors with full knowledge and notice of the agreement
and also the suit brought for enforcement of the said agreement, Section 53(a)
of the Transfer of Property Act does not entitle such a plaintiff to maintain a
suit for specific performance of his subsequent agreement. Nor he can defend
his possession, if any, he got on the basis of his agreement.
Md. Azizul Islam & Anr. Vs. Sheik Shamsur
Rahman & Ors. 10 BLT (HCD)-274
Section-39
Held: I
am of view that the plaintiff not being a party to the lease deed the prayer
for cancellation of the same within the meaning of section 39 of the Specific
Relief Act was not necessary, but in no case without such prayer and payment of
advalorem court fees the plaintiff was not entitled to get a decree declaring
the lease dated 11.07.1975, illegal as has been passed by the courts below as
by such declaration in fact the registered lease deed of the defendant No. 5
has been cancelled.
Sugar & Food Industries Vs. Kashem Motors
12 BLT (HCD)-56
Section-39 read with Section-42
If 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. Such suit will
be governed by Section 39 not by Section 42 of the Specific Relief Act. When
such person is not a party to such decree, he does need to get the decree set
aside or cancelled. Under such 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 Vs. Sultan Ahmed &
Ors. 10 BLT (HCD)-122
Section – 31
Plaintiff-father
wanted to make a gift by way of Heba-bil-ewaz of .30 acres land, but
fraudulently and illegally, the defendant who is the only son of the plaintiff
obtained the disputed deed in respect of 1.7212 acres land showing it as a
document of Heba-bil-ewaz fraudulently. But the plaintiff was all along in
possession of the land in dispute excepting the said admitted .30 acres
land—the relief should be prayed under section 31 of the Specific Relief Act by
way of rectification of the documents since the execution and registration is accepted
and since the plaintiff and the defendant are parties in the deed itself.
Zainal Abedin Vs. Maksuda Khatoon & Anr.
6BLT (HCD)-44
Section – 39
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 advalorem Court fee.
Sree Chittaranjan Chakraborty Vs. Md. Abdur
Rob 5BLT (AD)-135
Section-39
In the
instant suit plaintiffs contention is that she executed the documents with
intention that she was going to transfer only .09 acres land in favour of the
defendant No. 1, but sub- sequentially she came to learn after taking out the
certified copies of the documents that in the name of Heba-bil-ewaz about 60
bighas of land have been taken away in place of .09 acres land and her second
contention is that no consideration, namely, the Holy Quran as written in the
deeds have been paid to her from the side of the donee’s—plaintiff prayed for
cancellation of the documents—Held: ft is very much maintainable.
Md. Nurul Islam & Ors. Vs. Azimom Bewa
6BLT (HCD)-116
Section-42
(a)
Courts below did not assign any reason for finding the khatians to be erroneous
and kabala to have no legal effect—Plaintiffs utterly failed to make out any
such case of payment of rent to the Government— Contesting defendants paid
rents for the year 1379-82 B.S. These go the show that all previous rents were
paid by the recorded owners of the said land.
Madaris Ali & Ors Vs Biswamber Das 2BLT
(HCD)-1
(b)
Plaintiffs failed to prove their case of settlement of the suit land in their
favour 40 years before the filing of the suit or that they acquired title in
the suit land on the basis of adverse possession beyond the statutory period of
limitation—Plaintiffs failed to prove their possession, in the suit land their
simple suit for declaration of title is barred under the proviso to section 42
of Specific Relief Act for want of prayer for further relief.
Madaris Ali & Ors Vs Biswamber Das2BLT
(HCD)-1
Section-42
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.
M. B. Ahmed Vs. D. C. Saha & Ors. 4BLT
(AD)-150
Section-42
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.
Kalipada Sarker Vs. Goribullah Mondal &
Ors. 4BLT (AD)-167
Section-42
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.
4BLT (AD)-224
Section-42
Suit
is not maintainable
— The plaintiff-opposite party No.1 filed the suit for declaration, challenging
the validity and legality of the resolution dated 1.7.90 passed in the
Governing Body in their meeting held on the aforesaid date as well of the memo
dated 1.7.90 communicated to him under the signature of the President of the
Governing Body — Held : On a perusal of the impugned judgment as well as the
judgment of the trial court we notice that both the courts below surely missed
the point that the instant suit suffers from gross illegality in as much as it
was hit by the proviso to section 42 of the Specific Relief Act — relied on
C.P.S. L.A. No. 225 of 1983.
Dhunat Degree College Vs. M. A. Samad &
Ors. 5BLT (HCD)-110
Section-42
Section
42 contemplates that any person is entitled to any legal character or to any
right to any property and the other person denies or interested in denying his
title to such character or right. If by an instrument a person’s right and
title is clouded and threatened, he may seek a declaration under this section
that by the instrument his right and title has not been affected. More so, if a
prayer is couched to the terms that a person acquired no right and interest
over any property, it is also covered by section 42.
Zamiruddin Ahmed Vs. Md, Ziaul Haq & Ors.
6BLT (HCD)-5
Section-42
In the
present case, a declaration is sufficient as the, document is partly admitted
and partly denied. Section 42 still can come to rescue the plain tiff if to get
the proper relief.
Zainal Abedin Vs. Maksuda Khatoon & Anr.
6BLT (HCD)-44
Section-42
Suit
for declaration—possession
is not material—The settlement of the suit land made earlier in favour of the
plaintiff—In the present suit, the plaintiffs admittedly have not got the deed
of lease, their title therefore, is also wanting. In the suit of this nature
for declaration of title no relief can be given.
Abdul Kader& Ors Vs. Abdullah & Ors.
6BLT (HCD)-112
Section-42
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.
Amanatullah & Ors Vs. Ali Mohammad Bhuiyan
& Anr. 6BLT (AD)-1
Section-42
The suit
property is a requisitioned and acquired property and the defendants possession
therein will not deprive the plaintiff from maintaining his title and to
recover his possession.
Ambiya Khatoon & Ors. Vs. Md. Zahirul
Islam & Ors. 7BLT (AD)-213
Section-42
Not
maintainable—When the plaintiff himself is a party to some kabalas a purely
declaratory suit is not maintainable. The plaintiff must seek further
consequential relief by way of cancellation of the deeds.
Md. Nazir Hossain Khan & Anr. Vs. Shahida
Begum & Ors. 7BLT (AD)-7
Section-42
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.
Sheik Kamal Boksh & Anr. Vs. Seraj Boksh
& Ors. 7BLT (AD)-328
Section-42
Suit for
declaration—the plaintiffs are entitled to get appointment on the basis of
offer letter of appointment is maintainable.
Bangladesh Railway & Ors Vs. Din Mohammad
& Anr. 7BLT (AD)-361
Section-42
Suit for
declaration of title and recovery of possession—It is a settled law that a suit
by a co-sharer against another for recovery of possession is maintainable if
separate possession by amicable arrangement is proved.
Md. Shaher Ali & Anr Vs. Md. Abdur Rahman
& Anr. 7BLT (AD)-370
Section-42
A
declaration with a regard to the contractual or financial obligation involved
or transacted between the parties cannot come within the ambit of Section 42 of
the Specific Relief Act.
Shafi A. Chowdhury Vs. Pubali Bank Ltd. &
Ors. 10 BLT (HCD)-347
Section-42
Although
Section-42 of the Specific Relief Act is not exhaustive and declarations
independent of that provision is even permissible but a suit for declaration,
however, would not lie when the plaintiff is neither entitled to any legal
character or status nor clothed with any right.
Shafi A. Chowdhury Vs. Pubali Bank Ltd. &
Ors. 10 BLT (HCD)-347
Section -42
The
right title and interest of the plaintiffs in respect of 62 acres of land of
C.S. Plot No. 44 has been extinguished due to the adverse possession of the
defendant No. 1 and his predecessor in interest and since the plaintiffs had no
right title and interest in respect of .62 acres of land at the time of filing
of Title Suit No. 13 of 1994, the prayer as made out in the plaint of the
aforesaid suit to the effect that the sale deed No. 4512 and 4513 are illegal,
fraudulent and collusive and that the plaintiff are not bound by the same, is
not maintainable under Section 42 of the Specific Relief Act.
Md. Shamsuzzaman Vs. Abdul Gani & Ors. 10
BLT (HCD)-339
Section-42
Without
any prayer for consequential relief
Maintainability
plaintiff instituted the suit for a decree of declaration that letter of
resignation and the acceptance thereof by the decision is illegal, void and of
no legal effect- Held: We do not think that the suit will be barred by the
proviso to section 42 of the Specific Relief Act,
Shahabuddin Akand & Anr. Vs. Ajit Kumer
Shah & Ors. 10 BLT (HCD)-440
Section-42
A discretionary relief
Section
42 does not postulate all types of declarations but only a declaration that the
plaintiff is entitled to legal Character or to any right as to any property and
it warrants this kind of relief only under certain special circumstances.
Relief enshrined under Section-42 of the Specific Relief Act is a discretionary
relief and the said discretion is to be exercised on sound judicial principles
Govt. of Bangladesh Vs. A.S. M. Ferojuddin
Bhuiyan 9BLT (HCD)-149
Section-42
Further relief
Under
the proviso the section 42 of the Specific Relief Act. No Court shall make any
declaration of title where the plaintiff is able to seek “further relief’ than
mere declaration but omits to do so. It has now been settled by long line of
decisions interpreting the phrase further relief that the “further relief’
referred to in the proviso to section 42 of the Specific Relief Act must be a
relief flowing directly and a relief necessarily from the declaration sought
and a relief appropriate to and necessarily consequent on, the right or title
asserted. Sometime, it is called consequential relief and is said to be a
consequential only when the relief of declaration is essential to the grant of
that relief. No relief is consequential if it cannot be granted without
declaration.
Abdus Sukur & Ors. Vs. Bhasani Mondal
& Ans. 9BLT (HCD)-273
Section-42
A suit
for declaration that the order of the removal of the plaintiff, a bank officer,
from service, is maintainable without any further relief—relied on 45 DLR (HCD)-375
Md. Abu Taher Vs. Pubali Bank Ltd. & Ors.
9 BLT (HCD)-299
Section-42
The
plaintiff has filed the suit for declaration of their title on assertion that
the suit is in their possession and the recording in C.S. R.S. and S.A. are
wrong. Section 42 of the Specific Relief Act provides that a suit for mere
declaration of any legal character or any right to property is maintainable and
in view of the evidence of possession in favour of the plaintiff, the plaintiff
need not ask for any further relief and the object of the proviso is only to
avoid multiplicity of the suit where further relief can be sought for at the
time of the institution of the suit. Considering the facts and circumstances of
the present suit we hold that the present suit for mere declaration is
maintainable.
Nurul Haque & Anr. Vs. Lutfur Rahman &
Ors. 10BLT (AD)-173
Section —42
Whether
the plaintiff is required to avoid by seeking declaration against the decrees
in the rent suits wherein he was party to have the relief sought in the instant
suit for mere declaration of title.
The
plaintiff cannot have the relief sought in the suit, i.e. mere declaration of
title, in the absence of seeking declaration either that the rent decrees were
not binding on him being collusive or that void in-abinitio.
Dudu Mia & Ors. Vs. Ekram Mia Chowdhury
& Ors. 10BLT(AD)-163
Section-42
Not
maintainable—
plaintiff-respondent No. 1 also dismissed from the defendant-Bank’s Service on
25.05.1987 — when the order of dismissal from service was Passed, the
relationship between the Bank employer and the plaintiff-employee also that of
a master and servant the suit is not maintainable on the ground that a
declaratory decree will not be enough and that a decree for a mandatory
injunction necessary as a consequential relief is barred under the law.
Rupali Bank Limited Vs. Haji Md. Arab Ali
& Ors. 11BLT (AD)-61
Section-42
Since
plaintiffs vendor Amdeka Khatun acquired title by exchange and plaintiff having
had established his title so acquired from Amdeka Khatun and also having had
established that defendant No.1 was his tenant and he stopped payment of rent
from 1st of January, 1983 and the description of the land given in the schedule
being quite clear to identify the land in suit, as such the decree that was
passed by the trial Court was quite sustainable.
Md. Ishaque Mia Vs. Alias Alam Mia & Ors.
11 BLT (AD)-168
Section -42
Since
plaintiffs failed to prove his possession on the basis of auction purchase and
that no definite date of dispossession could be proved in the suit land in
spite of the fact that the defendant only claimed .35 decimals of the suit
land, the plaintiff is not entitled to any decree of the suit for declaration
of title and recovery of possession in respect of the alleged admitted portion
of the suit land in possession of the plaintiff.
Diljan Bibi Vs. Gheta Bewa & Ors. 11 BLT
(AD)-143
Section-42
An order of dismissal passed against the Government servant is illegal, inoperative and
void without a prayer for consequential relief is maintainable and section 42
of the Specific Relief Act does not bar such a suit.
Md. Tomser Ali Sarder Vs. Md. Nazrul Islam
& Ors. 11 BLT (HCD)-35
Section-42
Not
maintainable—In
this case, the plaintiff merely submitted his tenders but those tenders even
with 25% deposit, of own quoted price did not clothe him with any right to
property, as such, suit for declaration was not maintainable. Since, there were
no agreements, his suit for specific performance of contract had also no basis.
Shaikh Jahangir Hossain Vs. Government of
Bangladesh & Ors. 11 BLT (HCD)-142
Section-42
Possession
—In the
facts and circumstances of the case and the evidence on record and the
particular the fact that the plaintiff are in possession of the suit land since
1963 by virtue of the registered power of Attorney, I am of the view that the
plaintiff have acquired a right to the ‘A’ scheduled property at least to
protect their possession to maintain a suit within the meaning of Section 42
the Specific Relief Act and their suit is maintainable.
Shishir Kanti Pal & Ors. Vs. Nur Muhammad
& Ors. 11 BLT (HCD)-146
Section-42
After
the lease was granted which the trial court correctly found validly, the
plaintiffs have got no right under Section 42 of the Specific Relief Act to
challenge such lease just on the ground that they hold land contiguous to the
land leased out and such a suit definitely hits the provision of aforesaid
section 42 of the Specific Relief Act.
Abdul Khaleque Vs. Akram Hossain. 11 BLT
(HCD)-470
Section-42
The plaintiff
filed the suit for setting aside the decree obtained by the defendant in title
suit for specific performance of contract —Held: Simple suit for setting arised
the decree without filing a regular suit for cancellation of registered deed
obtained through court is not maintable.
Abdur Rashid & Ors. Vs. Abdul Bashir &
Ors 8 BLT (AD)-49
Sectiou-42
Ownership of the property—payment of consideration
money
Members
of the Muslim Family-In
the absence of legal evidence that the consideration money was paid out of the
fund of the joint family, joint-ownership could not be claimed. The High Court
Division rightly observed that if the consideration money flowed from the
source of income of the joint family the case might have been otherwise but
since the defendant- petitioners failed to prove that the consideration money
was paid from the common fund of the joint family their claim does not sustain.
Moklesur Rahman & Ors. Vs. Zulfiker Ali
& Ors. 12 BLT (AD)105
Section -42
Plaintiff
is a Private Limited Company —the Suit for simple declaration that the property
in schedule belonged to and its part of the assets of the company and a further
declaration that the petitioner is entitled to transfer of the property in
schedule by virtue of the agreement dated 13.9.76.
The suit
property having been vested upon dis-investment as abandoned property and not
having been included in the profile and the schedule to the agreement for sale
in respect of the property of the purchaser, no legal right has been accrued to
the plaintiff-petitioner in respect of the same for any declaration or any
Permanent injunction as sought for in the
instant suit.
Paper Converting & Packaging Ltd. Vs.
Government of Bangladesh & Ors 13 BLT (AD)214
Section-42
Adverse Possession
A
permissive possession to become adverse must be established by cogent and
convincing evidence to show hostile animus and possession adverse to the
knowledge of real owner. Mere possession for a long time does not result in
converting permissive possession into adverse possession.
Had Ashraful Alam Vs Md. Moniruddin & Ors
13 BLT (HCD)86
Section-42
Misconception of law
The
plaintiff having proved acquired good title in the suit property by way of gift
has got every right to protect such property. The view of the learned Subordinate
Judge that the suit for declaration of title on the basis of oral gift is
barred by section 42 of the Specific Relief Act is therefore wholly based on
misconception of law.
Mrs. Hasina Begum Vs Deputy Commissioner &
Ors 13 BLT (HCD)132
Section —42
Reliefs
as sought by plaintiff —mere declaration of title. Case projected by plaintiff
in plaint was that out of 26 and 14 kathas of land, 13 kathas and 7 chattaks of
land was outside acquired land of Rajuk and 13 kathas and 7 chattaks of land
was acquired land. Out of 13 kathas and 7 chattaks of land, 9 kathas more or
less had been used for effecting development of road and 4 kathas and 7
chattaks of land more or less had not been at all used and said 4 kathas and 7
chattaks of land had been and has been in possession of plaintiff. Rajuk
created plot no.2 in respect of 4 kathas of land and created plot no. 3 in
respect of 7 chattaks of land and allotted 4 kathas of land in favour of Md.
Omar Faruk and Abdul Masrur and allotted 7 chattaks of land in favour of Md.
Iqbal. Plaintiff s assertion that 13 kathas and 7 chattaks of land including
unused 4 kathas and 7 chattacks of land had been acquired for the purpose
detailed in Rule 6 of Martial Regulation No.V1II. of 1986 and the purposes were
for construction of roads and highways and for development for commercial and
public recreational purposes and for such other public purposes as the said
Trust might in consultation with the Government decide. Allotment of 4 kathas
and 7 chattaks of land in favour of allottees Md. Omar Faruk and two others
were absolutely illegal, void and contrary to Martial Regulation No.VIII of
1986. 4 kathas and 7 chattaks of land having been unused land, plaintiff in
the, capacity of original owner of said land was entitled to have property
released and by allotments in favour of Md. Omar Faruk and two others right of
plaintiff to the said 4 kathas and 7 chattaks of land had been infringed and
plaintiff, thus, got legal character and legal status to file and maintain
suit. It, thus, cannot be said that suit is barred under provision of section
42 of Specific Relief Act.
RAJUK & Ors Vs Habibur Rahman & Ors 13
BLT (HCD)506
Section -42
A decree
for declaration of title could not be given unless the plaintiff is found to be
in possession or in a suit for declaration of title and partition that the
plaintiff is entitled to a declaration of title if he is in joint possession
with his co-sharers. But such decree would be barred if the plaintiff is not
found to be in possession because of the decree for permanent injunction in
Other Suit No.26 of 1983. Thus unless the decree for permanent injunction in
Other Suit No.26 of 1983 is set aside, no suit for declaration of title is
maintainable under the provision of section 42 of the Specific Relief Act.
Md. Shamsul Haque Vs. Md. Salimullah & Ors
14BLT(AD)07
Section – 42
When it
is the admitted case of the plaintiff that 30 decimals of land out of 2.30
acres of land of Suit Plot No.533 is within the acquired land of the Government
as per gazette notification dated 20.02.1950, the plaintiff’s suit for entire
2.30 acres of Plot No.533 on the face of it was not maintainable.
Bangladesh Vs. Shamsunnessa Bibi & Ors. 14
BLT (AD)71
Section-42
Suit
for declaration of title and recovery of possession without a Prayer for
Partition.
The suit
land was already recorded in the names of original plaintiff Obaidul Islam and
his wife Gulshan Begum during survey under the State Acquisition and Tenancy
Act, 1950 in plot no. 298/302 and 298/303 appertaining to SA Khatian No.196 and
197. Such record of rights published sometime in 1964. On the basis of such
record of rights the plaintiff possessed the suit land exclusively on payment
of rents on proper receipt exhibit 8 series. Similarly, under the RS survey the
suit land was again recorded in the names of Obaidul Islam and his wife Gulshan
Begum in RS Plot No. 1207, 1208 and 1209 appertaining to RS Khatian No.202 and
225 and RS record of rights was published in 1980. In view of such exclusive
possession of their specific land under distinct and separate holdings for more
than 12 years, the plaintiffs no more need partition of their land.
M/S. N.F.M. Universeum Estate Ltd. Vs Gulshan
Begum & Ors. 14 BLT (HCD)225
Section – 42
The
property was listed as enemy property and Upendra himself filed a suit in 1978
against that listing of the property as enemy property. That suit was dismissed
and the judgment passed in that suit is binding on the plaintiff who claimed to
have purchased the suit land from Upendra. Moreover, we have found that at the
instance of the plaintiff himself Upendra filed that suit. So, plaintiff was
fully aware that property was enemy property and as such he did not acquire any
title on the basis of the sale deed dated25.3.1985. The courts below on the
above ground found that the plaintiff acquired no title. The courts below also
found that Title Suit No.123 of 1990 was barred by limitation held The High
Court Division held that the plaintiff acquired title by adverse possession.
This finding of the High Court Division is without any basis. Moreover, this
relief given by the High Court Division appears to be a gratuitous relief
because the plaintiff himself did not claim title by adverse possession.
Dulal Chandra Das & Ors. Vs. Ratan Chandra
Sarker & Ors 14 BLT (AD)166
Section —42
Suit for recovery of Khas Possession
Substantive
relief — Since the property and assets of the plaintiff were never an abandoned
property and have never been vested in the Government under the law, there was
no valid or lawful transfer of the same of the appellant and the Govt.
including its subsequently transferee is legally and duty bound to restore
possession to the plaintiff.
Sena Kalayan Sangstha Vs. Mr. Nagar Mohiuddin
& Ors 14 BLT (AD)230
Section-42
Knowledge
of wrong Record of Right can be starting point of limitation and a litigant
public even if aware of wrong record of a Record of Right can wait and wait
till his right is invaded by other side and his suit will be well within time
if he institutes suit within six years from date when his right on suit
property is denied and invaded by other party.
Bangladesh Bank Vs. Saiyed Shohidul Haque
& Ors 15BLT(HCD)239
Section—42
The
defendants petitioners had already taken delivery of possession through court
on 02.10.1984. The plaintiffs opposite parties filed Title Suit No.04 of 1992
on 21.01.1992 when they had no possession in the suit land. Thus the suit filed
by the plaintiffs for declaration without the prayer for khas possession is not
maintainable in its present form.
Abdul Aziz & Ors Vs. Kabir Ahmed Patwary
& Ors 15 BLT (HCD)328
Section 42
The
plaintiff claims that- he purchased the suit land from Nitya Nanda Munshi and
Noni Gopal Munshi in the benami of his close friend, Ahmed Reza who is
defendant No. I and he has been possessing the same mutating his name and
paying rent to the government. — A benami transaction has been described
briefly as one in which the real owner of the property allows it to appear in
the name of an ostensible owner under a sort of secret trust. This system of
acquiring property is well known in our country on various reasons till 26
January, 1984 when the Land Reforms Ordinance was promulgated as the benami
transaction gave rise to countless litigations which caste evil effect on the
society. On coming into force of this on 26 January, 1984 now no one is allowed
to set upon his claim on the benami transaction. Since this ordinance has no
retrospective effect and as the suit was filed on 03.07.1975 long before the
pronouncement of the said ordinance, so the suit is quite maintainable.
Bangladesh Vs. Shamshur Rahman & Ors 15
BLT (HCD)23
Section-42
Decree
for declaration without any consequential relief
Plaintiff
served as Branch Manager of the Rupali Bank Ltd. who in a suit seeking
declaration that the order suspending him from service and the show cause
notice dated 14.6.99 proposing his dismissal from service is illegal, void and
not binding upon him —trial court as well as appellate court below decreed the
suit —The defendant Bank then move the High Court Division and the High Court
Division held that admittedly on and from 6.4.1984 the defendant bank, being
denationalised, was converted into a private bank incorporated under the
Companies Act 1994 and as such the relationship between the plaintiff petitioner
and the defendant bank became that of master and servant from that date and
therefore the petitioner is not entitled to get a decree for declaration
without consequential relief; in the instant case there is no prayer for
mandatory injunction for consequential relief; even if there is a prayer for
mandatory injunction but that too cannot be granted in view of legal bar under
clause (e) of section 56 of the Specific Relief Act which provides that an
order of mandatory injunction cannot be granted to prevent the breach of a
contract the performance of which could not be specifically enforced; the
breach of contract for personal service cannot be restrained by court ordering
an employer to retain the employee in the service as it is the prerogative right
of the employer to discharge his employee and the Court cannot compel a person
against his will to employ any person and the employer bank is liable for
damage and compensation in terms of Service Rules and Regulations; the suit is
not maintainable as the plaintiff challenged the order of suspension and the
final show cause notice but did not challenge the order of dismissal in which
the impugned order of suspension and show cause merged and with the order of
dismissal the orders of suspension and final show cause became infructuous and
in the instant case this issues, which cuts the case at its root, have not been
considered at all by the appellate Court below —Held: we are of the view that
the High Court Division on proper consideration of the evidence and the
materials on record arrived at the correct decision. The learned counsel could
not point out any illegality or infirmity in the decision of the High Court
Division so as to call for any interference.
Md. Jahir Uddin Vs. Rupali Bank Ltd. & Ors
16BLT(AD)76
Section —42
Whether the Public Debottar Property
completely ceased
High
Court Division held that it is clear from the evidence of D.W. 1 and D.W.2 and
also from the evidence from D.W.4 that the plaintiff has been in possession of
the suit land measuring 2½ kathas of “Mondirghar”. The High Court Division upon
correct assessment of the materials on record held that the plaintiff has been
able to prove his continuous, uninterrupted and hostile possession in the suit
land for over 12 year and accordingly held that good and infeasible title by
adverse possession has accrued in favour of the plaintiff —Held: we are of the
view that the High Court Division upon correct assessment of the materials on
record arrived at a correct decision.
Sri Sri Hari Thakur Deb Bigraha & Ors Vs.
Md.Abdul Hannan & Ors 16 BLT (AD)223
Section-42 and The Bengal Tenancy Act, 1885
Section-266
Whether
suit for declaration of title convert to suit for redemption of mortgage
A suit
for declaration of title and a suit for redemption of mortgage are by nature
and procedure wise different and one cannot be substituted for the other.
Pleadings in the two Suits have to be ‘different. Ordinarily an amendment of
the plaint seeking to convert a suit for declaration of title with prayer for confirmation!
recovery of possession into a suit for redemption of mortgage would never be
permitted because in that case the nature and character of the suit will be
entirely changed.
Mohd. Eusoof & Ors Vs. Haji Golam Bad
& Ors. 6BLT (AD)-89
Section-42 read with Transfer of Property Act,
1882 Section-54
By
entering into agreement on 07.03.96 with the defendants No.1 to 9 the plaintiff
acquired no right nor any lawful interest in the suit land. Section 54 of the
Transfer of Property Act has clearly provided that contract for sale of
immovable property is a contract that a sale of such property shall take place
on terms settled between the parties. It does not of itself clear any interest
in or change on such property. When the plaintiff did not acquire any right in
the suit land nor did he acquire any legal character under any law by such
transaction, he is not a person within the meaning of Section 42 of the
Specific Relief Act to be entitled to seek for a declaration against the decree
dated 25.11.1997.
Md. Azizul Islam & Anr. Vs. Sheik Shamsur
Rahman & Ors. 10 BLT (HCD)-274
Section-42 read with Code of Civil Procedure,
1908 Order-1 Rule-10
Addition
of Parties —changing the nature and character of the suit.
A
stranger to the contract setting up claim of title in the suit property is not a necessary party in a suit for
specific performance of a contact. In such a suit the Court is only to see
whether there was a valid contract between the contending parties and if the
contract is legally enforceable. If a third party is allowed to be added as a
defendant in the suit to plead his title, this will convert a simple suit for
specific performance of a contract into a regular title suit, invariable
changing the nature and character of the suit.
Shaubhada Ranjan Dutta Vs. Md. Yusuf& Ors.
9BLT (HCD)-247
Sections 42 and 55 read with Recognized
Non-Government Secondary School Regulations, 1977
Regulations- 18(1)(b)
Appointment of teachers
When the
managing committee is properly formed i.e. it does not suffer from coram non
judice, and when its decision is not influenced by any bias or malice and do
not contravene any rules having the force of law, and in the absence of rules
or law, do not violate the principles of natural justice or established
fundamental procedure, such decision of a managing committee of a school, or an
educational institution cannot be impeached or set aside by a Court of Law.
Md. Shahjahan Ali & Ors. Vs Paritosh
Chandra Roy & Ors. 9BLT (HCD)-374
Section-42 read with Emergency Requisition of
Property Act, 1948 Section- 14A
The
property in suit was acquired under the provision of the Act and to that
respect gazette notification has been published making the acquisition final
and vesting the property in suit in the Government. As per provision of law on
the publication of the gazette notification the property acquired vests in the
Government and consequent thereupon Government becomes the owner of the
property. The person whose property is acquired under the Act and consequent
thereupon vests in the Government, he is not entitled to claim any interest in
the land so acquired. In that view of the matter there was no scope for the
plaintiffs, who have no interest of any kind in the land in suit, to seek for a
declaration that they are entitled to get the property released.
Director of Housing and Settlement, Dhaka Vs.
Abdul Majid Howlader and Ors 14BLT (AD)36
Section—42 read with Transfer of Property Act,
Section—42
Defendants-Petitioners
were the Original owners in possession of the Suit Property who transferred the
same to Bashirullah Bepari by a Kabala dated 22.12.1960 on condition of
repayment of consideration money within 6 years ensured by a Separate deed of
agreement for re-conveyance made on the same date. But that Bashirullah Bepari
transferred the sute property to Ledu Miah before expiry of the Stipulated
Period of 6 years and Ledu Miah sold the Suit land along with other land to the
Plaintiffs Opposite Parties by 4 Kabalas —Defendant-Petitioners obtained an
Order of redemption of the suit land dated 25.9.1984 in Miscellaneous Case. As
against the said order Ledu Miah preferred an appeal which was dismissed on
24.6.1986 and that the defendant No.1 Additional Divisional Commissioner also
had affirmed the order of redemption by his order passed on 24.11.1991 in
Miscellaneous Appeal No.104 of 1988 —The Plaintiffs came to know about all the
developments relating to the suit land on 23.12.1991 and hence the suit for
declaration that the order of the defendant No.1 dated 24.11.1991 is illegal,
void, without jurisdiction, in operative and not binding upon the plaintiffs-Held:
Scanning the evidence on record, it appears that the plaintiffs opposite
parties as penditlite transferees cannot challenge the impugned judgment dated
24.11.1991 of the Additional Divisional Commissioner when their vendor invoked
the jurisdiction and obtained the order. In such case their vendor could prefer
appeal before the Board of land Administration or could file case before the
court only on grounds of fraud and collusion but their vendors did take neither
of the above courses. Thus his successors, who have no title and possession in
the suit land, cannot challenge the impugned order dated 24.11.1991. Their suit
is also hit by section 42 of the Specific Relief Act. The suit of the plaintiffs
is also hit by section 52 of the Transfer of Property Act as they purchased the
alleged suit land during the pendency of the proceedings and the decisions upon
the predecessors of the plaintiffs are binding upon the plaintiff.
Abdul Aziz & Ors Vs. Kabir Ahmed Patwary
& Ors 15 BLT (HCD)328
Section —42
read with Recognized Non-Governmental
Intermediate College Teacher’s (Board of Intermediate and Secondary Education, Jessore)
1979 Section-11 and 14(1)
No Cause of action in filing the Suit.
From the
resolution of the governing body (exhibit-Kha) and the evidence of PW1 it
appears that the plaintiff at least admitted her(1) absence from duty without
permission from the authority (2)In subordination to the authority
(3)unpunctual to duty assigned to her —Field; the decision in question was
taken under section 14(1 )of the regulation for willful Commission of
professional mis-conduct committed by the plaintiff and deliberate
insubordination committed by her. Although no enquiry was pending against the plaintiff
and no proceeding was drawn but the same shall not nullify the decision in view
of section 14(2)of the regulation .The decision having had taken under section
14(1) of the regulation it was incumbent upon the plaintiff to submit a show
cause within 7 days of her receipt of the decision by her and thereafter the
question would have arisen for constitution of any committee as required by see
14(2) of the regulation. But the plaintiff without waiting for a moment had
instituted the suit which she was not entitled to.
Razia Khanam Vs. Md. Md. Shamsuzzoha Khan
& Ors 15 BLT (HCD)355
Section-53
Section
53 of the Specific Relief Act comes up to mix-up the limitation of the specific
performance of contract and time limit becomes the essence of the contract and
the responsibility is cast upon the plaintiffs in carrying out the contract in
time —the plaintiffs suit after 8 years of death of Gouranga Chandra, on the
basis of an alleged oral agreement is definitely barred by limitation.
Biplob Chandra Das & Anr. Vs. Biren
Chandra Das & Ors. 8BLT (HCD)-370
Section-54
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.
Md. Shamsuzzaman Khan & Ors. Vs Han Mondal
& Ors. 4BLT (AD)-173
Section – 54
The
petitioner
—plaintiff instituted a suit for permanent injunction in respect of the suit
plots No.2 and 206 — learned Trial Court was pleased to decree the suit in
respect of the suit plot No. 206 only — learned Court of Appeal upheld the judgment
of the learned trial court— Held: The Court of Appeal below found that almost
all the witnesses have stated that both the plaintiffs and defendants are on
possession in the suit plots and I also find that plaintiff has failed to prove
his exclusive and specific possession in lands he claims and appellate court
specifically found that in Dag No. 2 defendant has possession — I feel that the
concurrent findings of fact arrived at by the trial court and the appellate
court need no interference.
M. Hasmat Ali Vs. Abed Ati & Ors. 4BLT
(HCD)-57
Section —54
The High
Court Division as well without considering the evidence as to possession
dismissed the suit for permanent injunction. The suit being a suit for
permanent injunction in which the question of title may be gone into
incidentally but decision of title in a suit for permanent injunction ought not
to have been the guiding principle. The Court cannot disentitle the plaintiff
of a decree for permanent injunction if he can prove possession and in that
view the plaintiff could not be evicted with force if continues to be in
possession unless in due process of law and could exercise his right of
possession restraining everybody including the real owners. 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 & anr. Vs. Noor Hafez
& Ors. 11 BLT (AD)-124
Section —54
In a
suit for permanent injunction trial court is not required to decide the title
of respective parties. It is only to look in to the factum of possession.
Chief Engineer Vs. Shah Hingul Mazar Sharif
& Ors 11BLT (AD)-126
Section-54
Seeking a decree for Permanent injunction
We are
of the view that High Court Division as well as the appellate Court were quite
correct in arriving at the finding that plaintiffs as co-sharers of the land of
plot No.2033 and having not established of being in specific possession of any
portion of the land of plot No.2033 cannot have a decree for permanent
injunction against the other co-sharers when the land of the holding was not
partitioned either by metes and bounds or there was amicable partition among
the co-sharers.
Abdul Jabbar Bepari &Ors Vs. Md. Abul
Hossain & Ors. 12 BLT (AD)203
Section-54
Suit for Permanent injunction
In the
present case, the plaintiff respondent has been seeking protection of his
possession against its original owner who is Chowdhury Badruddin. In that view
of the matter, both the courts having found that the plaintiff respondent was
in possession of the suit shop premises, the instant suit for permanent
injunction couldn’t be said to be not maintainable against the defendants
petitioner inasmuch as the relief has been sought no against the admitted real
owner of the suit shop premises.
Abdul Latif Milki Vs. Syed Mamun Murshed 12
BLT (AD)80
Section 54
Order of
injunction, in whatever form, is an equitable relief and in order to invoke the
same, an aggrieved plaintiff must come bona fide with clean hands with a prima
facie case of his loss and injury showing that if an injunction is not granted
he/they will be prejudiced and suffer irreparable loss and injury or his right
will be throttled. An order of mandatory injunction or mandatory ad interim
injunction is an extreme harsh and highly discretionary order passed at the
discretion of the Court to restore a situation existing on the date of filing
of the suit or occurred after filing of the suit and in breach of any order of
the Court. Such order cannot be passed to restore or bring back a situation
which was not in existence on the date of filing of the suit or of passing of
such an order on fulfilling the above conditions.
Md. Nurul Islam (1), Advocate & Ors Vs.
Khatibuddin, Advocate & Ors 12 BLT (HCD)185
Section-54
Property — the matters relating to admission of a girl
as student in a school as claimed in the suit is neither property nor
proprietary right — The kind of right i.e. to have girl students exclusively
admitted in the School as claimed by the School and accepted by the High Court
Division and thereupon made the same basis of the judgment was erroneous as the
right claimed by the School is by no standard is ‘property’ and thus right
claimed by the School was not ‘right to, or enjoyment of, property’ and consequent
thereupon the School was neither entitled to temporary injunction, nor to a
decree of permanent injunction.
Md. Shahid Hossain Khan Vs. Abdul Bashed
Lashkar & Ors 15 BLT (AD)344
Section-54
In a
suit for Permanent Injunction factum of possession in fundamental and plaintiff
can be graced with a decree of permanent injunction in respect of the suit
property if he can prove exclusive possession over suit property. It has
earlier stated that possession by way of construction of shops and kutcha houses,
three and six, in number respectively, no matter whether possession of
Defendants were lawful or not but it became evident that Plaintiff got no
possession in some portion of suit property. It is nowhere in plaint that
Plaintiff had been threatened with dispossession on a particular portion of
suit property and no evidence, as, came forth from the mouth of PW 1 and PW2 on
which portion of suit property Plaintiff was threatened with dispossession. It
cannot be, thus, said that Plaintiff Bank succeeded in proving its exclusive
possession on suit property to be graced with a decree of Permanent Injunction
restraining Defendants — Respondents from entering into suit property.
Bangladesh Bank Vs. Saiyed Shohidul Haque
& Ors 15BLT(HCD)239
Section-54
Permanent Injunction —ejmali properties —
defect of parties.
The
trial court having considered the C.S. Parcha No.160, Ext. l, Petty Parcha
No.20, Ext.2, R.S. Khatian No. 192 together with the rent receipts, relied on
the above case to consider as to the circumstances under which a decree of
permanent injunction should be passed and finding the exclusive possession of
the plaintiff in the suit land held that the plaintiff was entitled to a decree
for permanent injunction as for the purpose of decree for permanent injunction
possession is the cardinal factor. The lower appellate after due, discussion,
dismissed the appeal affirming the above findings. The High Court Division
considering the above position and also on relying on the case of Rafizuddin
vs. Molla Barman, reported in 43 BLD(AD) 215 where it has been held that, “In a
simple suit for permanent injunction with regard to disputed land the relief is
available to a person who is in possession. The court may require incidentally
into the respective claims of the parties for determining whether the
plaintiffs is in possession of a dispute property and entitled to specific
relief of permanent injunction” and also relying on the case of Pasharuddin Mir
vs. Ismail Mir and others (Supra) where it was held that “in a suit for
permanent injunction there is no question of defect of parties. Only those who
threaten the plaintiff with dispossession are necessary parties” discharged the
Rule — Held: It thus appears that the High Court Division on applying correct
principles of law arrived at a correct finding.
Md. Nazrul Islam & Ors Vs. Md. Renu Mia 16
BLT (AD)97
Section 55 and Clause (e) of Section-56
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
General observation on, of teachers
In case
of appointment, removal, promotion etc and discipline of the service of
teachers there must be a uniform law applicable to all schools in the country.
This important aspect of the service of the teachers cannot be left, without a
law, to the managing committee of a school. The fate of hundreds and thousands
of teachers of the country cannot be left to be decided by circulars and
directions time to time to be issued by the Boards, such regulations rules and
circulars in the absence of statutory safeguard when challenged in Court of law
do not come to any help, Against the decision the managing committee in the
matter of appointment removal, promotion and salaries, teachers are pouring in
the courts with cases in hundreds and thousands. In the absence of any uniform
law, the Courts find them in the legal quagmire they often fail to find the way
to come out doing justice in the case, At the end of protracted litigation
teachers go back home totally broken and ruined. It is high time to address
this precarious situation.
Md. Shahjahan Ali & Ors. Vs Paritosh
Chandra Roy & Ors. 9BLT (HCD)-374.
