SPECIFIC RELIEF ACT, 1877
(I OF 1877)
Section—9
Temporary injunction—Temporary
injunction to restrain the decree holder from proceeding with the execution
tse—Whether judgment debtor against whom a decree for recovery of possession
was passed is entitled w restrain the decree-holder — If an injunction is
granted on the prayer of the judgment debtor the object and purpose of the suit
under section 9 of the Specific Relief Act will be frustrated — If the judgment
debtor against whom a decree has been passed under section 9 can establish his
title in a suit subsequently filed by him he can get relief on the basis of
title so found in such suit — The defendant must first surrender possession to
the decree holder in execution of a decree obtained by him in such a suit — No
injunction can be granted on the plea of title to restrain the execution
proceeding — Code of Civil Procedure, 1908 (V of 1908), Order XXXIX Rule
Mosammat
Monowara Begum Vs. Syed Asrafuddin and others. 6 BLD (AD) 102
Ref:
AIR. l955(All)64; A.I.R. l972(AlI)41 8; — Cited.
Section — 9
Trespasser — Ejectment of — Whether a
trespasser in possession for a long time without acquiring title can eject the
subse1uent trespasser dispossessing him -p— It is well—settled that in the case
of successive independent trespassers, the first trespasser who has been
continuously in possession has a right to maintain his possession against all
the world except the rightful owner: he can sue for ejectment and recovery of
possession from any person who subsequently dispossessed him unless the latter
is the real owner or claims under him or justifies his authority — A long line
of decisions show that prior possessor can eject the subsequent trespassers —
As such title must be held in the first trespassers unless, of course, the
subsequent trespasser acquired better title — It is not a valid defence that
real title lies in the 3rd party.
Abdul
Hamid and others Vs. Afazuddin Ahrned and others 7BLD (AD) 177
Section — 12
Right to property — Whether specific
performance of contract is a right to property — Right to specific performance
of contract for sale of any property is a right relating to property It must
receive protection in the absence pf any provisions of law to the contrary —
Such right will no longer remain a right unless when threatened or invaded it
can be protected in the Court of law.
Asaduzzaman
Vs. Bangladesh, represented by the Secretary, Ministry of Public Works and
Urban Development, 4BLD (AD) 189
Sections — 12, 19 and 22
Specific performance of contract—
Payment of compensation or solatium to the vendor when to be made — When the
vendor as an ordinary prudent man with his eyes open agreed to sell the
property by duly executing the agreement without being influenced by fraud,
misrepresentation, mistake of fact, etc. and the stipulated price was not
grossly inadequate there was no reason to hold that there is any ground for
asking the purchaser to pay any compensation or solatium to the vendor.
Md.
Azharul Islam Vs. Md. Idris Au and another, 7BLD(HCD)202
Ref:
37DLR(AD)21; AIR. 1926(Iorn) 189; AIR. 1928(PC)208; 15CW,N. 935: 38 Cal 805: 4
C.L.J. 250: 36 DLR 114: 3BLD (AD) 225 — Cited.
Section — 12
Specific performance of contract — In a
suit for specific performance the question is whether there was a concluded
contract between the parties which could be enforced — It is well-settled that
the Court will not decree a suit for specific performance of a contract the
terms of which are uncertain — As there was no concluded contract the same could
not be enforced.
H.N.
Fabrics Ltd. Vs. Mallick Textile industries and others, 5 BLDAD)271
Ref:
AIR. 1916 page l(FB); 1878. 3A.C. 1124: 1912. 1 Ch. 284-288: A.1.R. 1933
(PC)31; 1924 CA. 97 (atP. 114)—Cited.
Section — 16
Specific performance —Of the three
vendors one is a minor and the contract is void in respect of minor’s 1/3 share
— Contract in the facts of the case found divisible — Purchaser entitled to a
decree for specific performance in respect of 2/3 shares of the property.
Archana
Prasad Nandi Vs. Miss (‘hula Randolph and others, 2 BLD(AD)90
Ref:
36C.W.N. 1002—Cited.
Sections — 19 and 29
Refund of consideration money — The
unsuccessful plaintiff in a suit for specific performance of contract whether
entitled to i-efund of consideration money — Question requires to be decided on
evidence.
Ali
Haider Vs. Md. Jonab Ali Bepari and others, 3 BLD(AD)313
Section — 21
Breach of contract — Relief’s available
When a contract is broken it gives rise to two releifs namely, compensation or
specific performance — Where the contract cannot be specifically enforced the
relief available is compensation — Contract Act, 1872 (XI of J72). S. 73.
Burmali
Eastern Ltd. Vs. MIs. Hazi Mohammad Au and others, 5 BLD(HCD)159
Ref:
13 DLR(SC)228 PLD 196 1(SC)531; PLD 1958 (W.P.)(Lah)63; 17 DLR(SC)l I; PLD
l965(SC)83; A.I.R. 1944 Oudh)l39; PLD1964 (SC)l06; 35 DLR(AD)127 14 DLR3O7; 16
DLR(SC)198; —Cited.
Section — 22
Suit for specific performance — Court
is to be guided by the principles laid down in Chapter II of the Specific
Relief Act — Direction in such suit is regulated by law — The discretion is not
wide enough to vary the terms of a contract without assigning good reasons for
the variation — Sale of Goods Act. 1930 (III of 1930), S. 58.
Bazlur
Rahman Bhuiyan Vs. Bangladesh Shipping Corporation, 1BLD(AD)443
Section — 22
Contract of sale of ship—Specific
performance—Court has wide discretionary power to vary the terms of the relief
sought or the terms of the contract in passing the decree for specific
performance — Sale of Goods Act, 1930 (111 of 1930), S. 58.
Bazlur
Rahman Bhuiyan Vs. Bangladesh Shipping Corporation, 1BLD(HCD) 320
Section
— 22
Specific performance of contract —
Exercise of discretion by the Court in such suit — The discretion should be
judicial arid not arbitrary — Adequate compensation in lieu of specific
performance of Contract may be given — Contract of sale of entire property of
defendant — Plaintiff not in possession of the property — Balance of
consideration not tendered within stipulated time — Court exercised discretion
in granting compensation in lieu of specific performance.
Meghial
Moizdal and others Vs. Najma Beguin and another, 1BLD(HCD)447
Ref:
71)LR556; 28DLR238; A.1.R.1928 (PC)208 I6DLR 239; F.A. 68 of 975 Unreported) —
Cited.
Section—22
In a suit for specific performance is
discretionary—The Court is not bound to give such a relief merely because
it is lawful to do so—In consideration of the facts and circumstances of the
case, specific performance would give the plaintiff an unfair advantage over
the defendants and as such it is a fit case where the decree for specific
performance should not be granted as a matter of course—The defendants to
return the consideration with compensation.
Jogesh
Chandra Das and others Vs. Farida Hasan, 3BLD(AD)225
Section 22
Specific performance of contract —
Hardship as a ground for refusal of specific performance — The defendants were
under panic because of the fact that there was a rumour that the lives of the
Hindus were not safe in the then East Pakistan — Some of the Hindu families of
the village also left for India after selling their hearth and home — It was
not therefore wrong in refusing the specific performance to the palintiff.
Osmanuddin
Vs. Subäl Chandra Mondal and others, 3 BLD(HCD)226
Section — 22
A decree for specific performance of
contract is discretionary — The Court is not bound to grant such relief
merely because it is lawful to do so — II is not to be granted as a matter of
course.
Ram
Chandra Das and others Vs. Md. Khalilur Rahman and another, 5BLD (AD)41
Ref;
36 C.W.N, 285; 55 C.W.N. 557; 34 C.L.J. 364; 3BLD(AD)225 — Cited.
Section 22
Specific performance of contract — When
it should be refused — It is true that the plaintiff did not resort to any
fraud or misrepresentation, but in the circumstances it can reasonably be held
that the specific performance of the contract would cause hardship to the
appellant and as such it should be refused — But since the plaintiffs earnest
money was held up for a long time she deserves a reasonable compensation.
Rakhal
Dasi Rajakini Vs. Ayesha Khatun City and ano, 5 BLD(AD)49
Section — 22
Question of exercising discretion by the
Court —Specific performance is an equitable relief but equity is not
available to a person whose intention is not honest when the purpose of the
contract was defeated and the plaintiff was not ready and willing to perform
his part of the contract within a reasonable time, the High Court was justified
in refusing specific performance of the contract reversing the concurrent decision
of the trial Court and the lower appellate Court.
Rash
Behari Moshalkar Vs. Hiran Bala Debi and another, 5BLD(AD)51
Ref:
45 C.W.N. 837; 7DLR 556; 28 DLR 238—Cited.
Section—22
When specific performance of contract for
sale may be refused— If hardship will be caused to the party the specific
performance of contract may be refused — In the case before us no case has been
made out that the property contracted to be transferred was even a substantial
part of the assets of the Wakf and that if the contract is enforced it would
cause extreme hardship to the defendant.
Anwar
Hossain Vs. Haji Abdul Malek and others, 5BLD(HCD)290
Section — 22
Specific performance of contract— When
the Court should use its discretion in refusing decree for specific
performance?— The plaintiff entered into a deal and a contract was concluded
and now he wants to enforce it — Suit property is the only homestead of the
defendants and they will be on the street if the contract is enforced — The
defendants did not for-see the hardship at the time of the con-tract.
Non-performance of the contract would deprive the plaintiff to the acquisition
of the property for which he entered into a deal, but that will not be “such
hardship” on him as it would be a hardship on the defendant if the contract is
enforced — The Contract should not be enforced specifically if the appellant
returns the advance money with a solatium of Tk. 1, 00,000/-
Md.
Latifur Rahman and others Vs, Golam Ahmed Shah and others, 6 BLD (AD)231
Ref:
38 Calcutta 805(P.C.); AIR. 1952 (Mad)389; AIR. I 927(Cal)889; I 6(Allah) 423;
A.I.R. 1965(SC). 1405: 3 BLD(AD)225; — Cited.
Section —22
Specific performance of contract—
Exercise of discretion not to decree the suit though the contract is proved —
Where the hardship has been brought upon a party by himself the Court will not
consider that as a circumstance in favour of refusal of specific performance —
In any particular case the bargain may be found to be onerous but unless it is
found to be unconscionable it would not be allowed to be avoided — There is
nothing to show that the defendant had to agree to sell her homestead under
some circumstances but for which she would not have parted with her property —
When the plaintiff is in possession of the land in part performance of the contract
and has been residing on the land by constructing homestead, refusal to
specifically perform the contract would amount to hardhsip to the plaintiff.
Md.
Siddiqur Rahman Vs. Sarala Sundan Devi and another, 7 BLD (AD) 138
Ref:
5BLD(AD)49; AIR. 1914 (Cal)137; A.1.R. 1927 (Cal) 889 — Cited.
Section — 22
Specific performance of contract —
Exercise of discretion to decree or not to decree such suit though contract
proved — Payment of solatium to the defendant when to be paid — When the
defendant is going to transfer the suit property to others there is no reason
not to decree the suit for specific performance of contract — Though the price
of the suit property is not shockingly low the present market price will be
much higher — So the plaintiff should pay a reasonable sum as solatium to the
defendant for the ends of justice — Tk. 3,00,000/00 to be paid as solatium in
addition to the balance consideration of Tk. 1,20,100/00
Matin
Vs. Abdul Khalegue Siddique, 7BLD(HCD)170
Ref;
37DLR(AD)2l: 5BLD(AD)41; 3BLD(AD)225 — Cited.
Section —22
Decree for specific performance of contract
—Court is not bound to pass such a decree only because it is lawful —It is a
discretionary relief not to be granted to a party who is not clean in his
conduct.
Nur
Mohammad and another Vs. Sultan Ahmed and others, 9BLD(HCD)35I
Ref:
4BCR(AD)127; 2BCR(HCD)270; 38 DLR 240 —Cited.
Section—22
Possession of suit land — It merits no
consideration for a decree for specific peformance of contract in view of the
fact that the suit is not one for declaration of title on the basis of adverse
possessiop. –
Nur
Mohammad and another Vs. Sultan Ahmed and another, 9BLD (HCD) 351
Sections —22 and 24
Solaitum — Suit for specific
performance of contract for sale of land — Contract between parties in 1969 — The
plaintiff ad vanced part of consideration money to the defendant who promised
to execute necessary kabala on receipt of the balance but ultimately failed to
execute the sale deed denying contract — Defendant died, her heirs were
substituted and contested the suit. The trial Court dismissed the suit. On
appeal, the first lower appellate Court decreed the suit and ordered specific
performance of contract On second appeal the High Court Division maintaining
findings of the first appellate Court refused specific performance of contract
and ordered refund of earnest money with a certain amount of solatium to the
plaintiff which was considered veiy inadequate by the appellant.
In
view of the facts and circumstances of the case a solalitum of Taka 25,400/-
was considered reasonable and adequate in this case. This along with the
earnest money of Taka 4,600/- in all 30,000/- Taka, should be paid to the
appellant
Tobarakulla
Vs. Rani Gupta and another, 10BLD (AD)285
Section — 22
Suit for specific performance of contract
— When such a suit may be decreed— When the contract was legally proved,
although as a matter of right plaintiff cannot claim the decree for specific
performance of contract, the Court should not also refuse to grant relief for
its performance as a matter of course — No case of non-enforcement of the
contract having been made out by the defence at the trial, the legal course was
to decree the suit.
Feroja
Khatoon Vs. Brajalal Nath and others, 10BLD(HCD)218
Section —24
Specific performance of a contract — Repudiation of non-essential terms of the
contract and its legal effect — The agreement of sale is a separate
contract and the payment of profit on account of business is completely
different — The section makes a distinction between the essential terms and the
non-essential terms of the contract — The repudiation of the non-essential
terms would not disentitle the plaintiff to specific performance of the
contract.
Saieh
Ahmed being dead his heirs Rabeya Khatun and others Vs. Md. Shamsher, Mi and
others, 4BLD (AD) 73.
Section — 24
Specific performance of contract—
Whether failure to prove full payment of consideration disentitles the
plaintiff—The failure to prove full payment of the consideration money will not
be fatal to the suit as no time was fixed for the performance of the
contract—As they paid the balance consideration money within the time granted
by the Court, they will be deemed to be ready and willing to perform their part
of the contract.
Shahadat
Hossain and others Vs. Md. Jabed Ali, 4BLD (HCD)215
Ref:
1979 B.S.C.R. 547 (601) — Cited.
Section —26
Specific performance—Variation of contract —
Variation made in the decree as to the mode of payment — Defendant not setting
up a case for variation of the contract — Variation by the Court is fully unauthorised.
Baziur
Rahman Bhuiyan Vs. Bangladesh Shipping Corporation, 1BLD (AD)443
Section —27
Whether
a contract for sale of property can be enforced against the Custodian of Enemy
Property — As the custodian stepped into the shoes of the owner with the power
of transfer he can execute the kabala in favour of the plaintiff who got decree
for the specific performance of contract for sale.
Rahima
Akhter and others Vs. Asim Kumar Bose and others, 5BLD(AD)155
Section — 27
Amendment of plaint—Whether in a suit
for specific performance of contract for sale of property prayer for amendment
of plaint by inclusion of a prayer for execution and registration of the sale
deed also by the purchaser subsequent to the contract with the plaintiff should
be allowed— The suit is for specific performance of a contract which was
executed ‘on 22nd January, 1981 on which date the purchaser defendant was not
in the scene — The contract related to properties which then solely belonged to
defendant No. I — Defendant No. 2 came into the picture nearly eight months
after — Unless he can claim ownership of the properties on and from this date
how he can be compelled to execute the sale deed on the basis of such a
contract — Since defendant No. Z has already been impleaded in the suit, he
being subsequent transferee will be bound by the decree in the suit — The
prayer for declaration that subsequent deed was void and fraudulent if allowed
the plaintiff will have no ground for more grievance — Rejection of prayer for
amendment of the plaint by the Courts below is approved — Code of Civil
Procedure, 1908(V of 1908), Or. VI Rule 17.
Nurul
Amin and others Vs. Md. Faziul Huq and others, 7BLD(AD)185
Section —31
Presumption of registered deed— In the
registered deed of exchange plot number was mentioned as 6640 and not 6641
while in the copy of the power of attorney it was mentioned as 6641 — The
registered deed shall be presumed to be authentic — This discrepancy in a duly
executed and registered deed of exchange cannot be simply explained away as an
error because a registered instrument has always a presumption of validity
unless mistake thereof is corrected in an appropriate proceeding.
Alim
Mohammad Vs. Tamizuddin, 4BLD(HCD) 71
Sections — 31 and 42
Rectification of a deed — Whether such
relief can be granted in a suit for declaration —— A Court of law would always
be competent even in a declaratory suit to correct mistake even when the
plaintiff does not bring a separate action for the rectification of the
instrument within 3 years.
Shahabuddin
Vs. Sajuddin Talukder and others, 4BLD(HCD)291
Ref:
A.I.. 1930(A11) 387; AIR. 1931 (Madras) 783 — Cited.
Sections —39 and 42
Declaratory suit—Further relief—
Plaintiff executing kabala as a result of fraud— Plaintiff being a party to the
kabala cannot get a declaration of inoperativeness of the kabala without
seeking further relief of cancellation of the kabala.
Mominuddin
Howladar and others Vs. hutu Bibi, 1BLD(HCD)396
Ref:
I7DLR(Dacca)l22 — Cited.
Sections —39 and 42
Cancellation of a deed — Whether such a
relief is a consequential relief or an independent relief — Declaration of
nullity of a deed is the main and substantive relief whereas cancellation of
the deed is a consequential relief — A suit for declaration that the instrument
is void and that it has not affected the plaintiffs right or that the defendant
has not acquired any right thereby is a suit falling under both sections 39 and
42 of S.R. Act — In a suit under section 39 the plaintiff may seek merely a
decree for nullity of the instrument but if he prays for its cancellation he
must pay for it — But cancellation of the instrument is not always necessary
—Where the document s ex facie void its cancellation is not necessary even if
the plaintiff is a party to it — The declaratoiy decree that the document is
void and the plaintiff s right has not been affected thereby will give him
adequate relief — Of course, in view of this decree the instrument will not
stand cancelled — In his own interest the plaintiff should also seek additional
relief by way of cancelling the deed — Where the document has been adjudged
voidable it will have to be cancelled but when it is adjudged void it need not
be cancelled.
Sufia
Khanam Chowdhury Vs. Faizun Nessa Chowdhury, 7BLD(AD)55
Ref:
A.I.R. I 932(A1l)485(F.B.): I.L.R. 54 (All)812; I.L.R. 55(AIl)791; 17 DLR 119;
A.I.R. 1929 (Mad) 393; LL.R. 35 (Cal) 551; AIR. 1939 (Mad) 894; 6 DLR 254; 21
DLR 626;—Cited.
Section — 42
Temporary injunction—Suit for
declaration of title without prayer for consequential relief—Temporary
injunction restraining defendant from interfering with possession whether can
be granted?
The
principle that in a suit for declaration of title to lands simplicities without
any prayer for consequential relief the plaintiff is not entitled to ask for
temporary injunction against the defendants restraining them from interfering
the with plaintiffs alleged possession of the suit land is generally applicable
to a case where a suit for title relating to immoveable property is filed and
consequential prayer ought to have been made, but has not been made, and an
injunction is sought for. Normally this male is to be observed, but it cannot
be taken as an absolute rule, because if the suit is otherwise maintainable,
and if it is found that the defendant without being in possession, wants to
disturb the possession, the Court cannot be powerless to grant temporary
injunction in an appropriate case. The order granting injunction must be a
speaking order — Code Civil Procedure, 1908 (V of 1908),Or. XXXIXR.2
Ramani
Marak Vs. Jamini Marak, 1BLD (AD) 57
Ref:
I 6DLR272; 29DLR (SC) 168— Cited.
Section — 42
Property attached under section 145 or 146
Cr. P. Code is in custodialegis—Suit for declaration of title without a
prayer for recovery of possession in respect of such property is competent —
Civil Court competent to appoint receiver in such suit—Code of Civil Procedure,
1908 (V of 1908), Or. XL. R.1; — Code of Criminal Procedure, 1898 (V of
1898),Ss. 145 and 146.
Jogendra
Kumar Dutta Vs. Nur Mohainniad and others, 1 BLD (AD) 248
Ref:
AIR. I 943(PC)94; A.I.R. 1938(PC) 73; A.IR. 1966(SC)369 -— Cited. –
Section —42
Court-fees—Property attached under
section 145 Cr. P. Code and receiver appointed — Suit for declaration that
plaintiff was in possession tilll taking over of possession by the receiver and
that he was entitled to get back possession—Possession of receiver is
equivalent to possession by the true owner
—Payment
of advalorem court fees is not required — Court-Fees Act, 1870 (VII of 1870),
S. 7(IV)(C), 8C and Art. 17(iii) of Sch. II — Code of Criniinal Procedure, 1898
(V of 1898) S. 145.
Miah
A.M. Noor Vs. Abu Naser Ahmed, 2BLD(AD)97
Section —42
Adverse possession — Question of giving
the benefit of adverse possession in favour of the plaintiffs when the plea of
adverse possession can be taken by the defendant in a suit— The plaintiffs
claim is against the real owner on the basis of bainapatra and they were
possessing the land for more than the statutory period adversely against him
and have perfected their title by such possession against him and not against
the defendants
Plaintiffs
have not derived title against the defendants by adverse possession but against
the real owner — The defendant cannot plead point of limitation as the
defendant was not in physical possession — Though the plaintiffs could not
prove their bainapatra their physical possession had tilted in their favour
against the true owner and the suit was therefore rightly decreed — Limitation
Act, 1908 (IX of 1908), Article 144.
Md.
Ashraf Au and another Vs. Fatique Chandra Saha and others, 3BLD (AD) 315
Ref:
35C.W.N. 953 — Cited.
Section—42
Declaration challenging order of dismissal
from service — Bank employee dismissed from service after compliance with
Rules and Regulations of the Bank — In the absence of violation of any Rules
and Regulations suit for declaration is not maintainable.
Manager,
Personnel Division, Sonali Bank Vs. Md. Shahjahan Miah and others, 3 BLD (HCD)
197
Section — 42
Maintainablity of suit for declaration—-
Suit for declaration that the plaintiffs dismissal by Bank was illegal and not
binding upon him and he was still is service without asking for any
consequential relief by way of mandatory injunction and claim for arrear wages
is maintainable.
Manager,
Personnel Division, Sonali Bank Vs. Md. Shahjahan Miah and others, 3 BLD(HCD)
197
Section — 42
Declaratory suit—Whether a suit for
declaration that the order of removal from service is illegal and void is
maintainable—A suit for declaration that the removal order is bad, illegal and
that the plaintiff is still in service with a prayer for injunction restraining
the management from interfering with his work as Headmaster, would be
maintainable and shall not be hit by the proviso to section 42 of the Specific
Relief Act because a relief to which a plaintiff would be entitled to in some
way because of the declaration but not necessarily consequent upon the right or
title, asserted cannot be called further relief within the meaning of the
proviso to section 42 of the Specific Relief Act.
Sardar
Ahmed Ali Vs. G.M. Ali Baksha and others, 4BLD(HCD)309
Ref:
35 DLR224; 13DLR341; A.IR.l958 (Bom)279 — Cited.
Section — 42
Declaratory suit — Declaration as to
unknown parentage and eligibility as Mutwalli — The suit was misconceived and
on plaintiffs own showing such declaration that Khorshed is of unknown
parentage cannot be made as that is contrary to law – Nor the second prayer can
be allowed which calls for objective determination of fact by the statutory
functionary and as such the plaintiff has to be non-suited.
Khoreshed
Alam alias Shah A lain Vs. Amir Sultan Ali Hyder and anot her, 5 BLD (AD) 121
Ref:
56 I.A.20l; 29DLR (SC) 295— Cited.
Section — 42
Amendment of plaint Whether the prayer
for declaration that the deed of partition is void, fraudulent and illegal can
be amended by substituting prayer for cancellation of the deed of partition —
Since the relief prayed for in the amendment petition appears to follow from
the declaration prayed for in the plaint the contention that there was question
of limitation does not appear to be acc ceptable — If the Court after taking
evidence comes to hold that certain document is null and void being fraudulent,
there is no reason why it cannot order its cancellation after granting the said
declaration — Cancellation of a document seems to be a consequence of the
declaration of the deed as null and void — Code of Civil Procedure, 1908 (V of
1908), Order IV Rule 17.
Jarina
Khatun and others Vs. Pulin Chandra Da and others, 5BLD (AD)253
Ref:
29 DLR(SC)311; I5DLR(SC)120;. (1979) BSCR 135; I7DLR 190— Cited.
Section —42
Plaintiff’s right to declaration — Even
though the heba-bil-ewaz deed in favour of the plaintiff was also found to be a
false document even then he being the legal heir he was entitled to seek the
declaration.
Momtajur
Rahman Vs A.K.M Mokbul Hossain and others, 5 BLD (HCD) 18
Section —42
Declaratory suit—Whether in a suit for
declaration without prayer for recovery of possession maintainable? — Suit land
sold in auction in a certificate proceeding—Plaintiff filed suit for
declaration that the sale was illegal, collusive, fraudulent and not binding—
No prayer for consequential relief is required as the plaintiffs have not filed
this suit for declaration of their title.
Mokbul
Hossain and others Vs. Akhil Kuinar Shaha and others, 5BLD (HD) 76
Ref:
7 DLR 50; 13 DLR 70; 30 DLR 116—Cited.
Section — 42
Whether a stranger need be impleaded in a
suit for partition? Whether in a suit to declare the decree in a partition
suit in which the property of a stranger is included is maintainable?—— A
stranger need not be impleaded in a partition suit, for that matter, in any
suit—When the stranger’s property is included in a suit the ‘stranger’ must be
impleaded as a party, for a person having any interest or share in the
disputed-property cannot be avoided by simply branding him as a stranger—On the
face of the record plaintiff appellants were necessary parties to the partition
suit but were left out. Evidence shows that they have got title as well as
possession in their share of the suit holding—In these circumstances their suit
for declaration of nullity of the decree of the partition suit to which they
were not parties is quite maintainable.
Mobinnessa
and others Vs. Khalilur Rahman, 6BLD (AD)109
Section — 42
Suit for declaration of title — When
the plaintiff is not entitled to the declaration
The
contention was that the plaintiff was entitled to a decree at least to the
extent of 1/3rd share of the suit land and that since he has been in possession
of the entire suit land, an email property, the attempt to oust him without
legal partition is unwarranted — But it is not ascertained what is the
appellant’s share nor is it clear whether the 1/3rd share of the suit land
representing the original owner has been included in the vested property case
Determination of the palintiffs lawful share is not an issue in this suit — It
is a suit for declaration that the vested property case is illegal, collusive
and void — Now that the plaintiff does not have title to the entire suit land
the greater part of which is in fact an enemy and vested property he is not
entitled to a decree he prayed for — He may seek remedy by way of partition in
an appropriate forum.
Nuruzzaman
Sarkar Vs. Seraj Mia and others, 9BLD (AD) 9
Section—42
Suit for Specific performance of contract
When
a suit for specific performance of contract is based on oral contract, the
contract must be proved. If the contract is not proved strictly the suit fails.
Al-haj
Ahmed Hossain Khan Vs. Rezanur Rahman and others, 10 BLD (AD) 172
Ref:
36DLR(AD)52: 4BLD( AD) 107:4 BCR(AD)208;PLD1966(SC)612; 29 C.W.N. (PC) 131
—Cited.
Section—42
Declaratory Suit—The plaintiff is not
entitled to specific performance of the contract for sale of the suit property
when title and possession therein of the defendant contracting to sell the same
is disputed. Complicated question of title and possession of the defendant in
the suit property cannot be decided in the suit for specific performance of
contract for sale of the suit land. There is no scope for deciding the question
of title of the defendant in the suit for specific performance of contract by
the buyer or to declare that defendant Nos. 2 and 3 have no title in the suit
property. Specific performance being an equitable relief, the Court is not
hound to grant the same merely because the contract between the plaintiff and
one defendant has been proved to the prejudice of other defendants who are not
parties to the said contract.
M/s.
Silver Estate Ltd. Vs. Abdul Hakim vtia and others, 11BLD(HCD)270
Ref.
A.I.R.19l5 (Mad) 305; PLD 1947 (PC) 407; 52 IC. 971; A.LR. 1926 (Mad) 579:
A.I.R. 1961 (Raj) 196; A.I.R.1943 (Mad) 497; A.LR.1973 (SC) 2457; I3DLR 554; 28
DLR 238; —Cited.
Section —42
Suit for declaration—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 the plaintiff in such
suit need not ask for any further relief. The object of the proviso is only to
avoid multiplicity of suits where further relief can be sought for at the time
of institution of the suit.
Considering
the facts and circumstances of the present case it has been held that the
present suit for mere declaration is maintain able. –
Faziul
Kariin Vs. Agrani Bank, IIBLD (HCD) 528
Ref:
A.I.R.1948(PC)121; PLD1954 Sind 199; 1 3DLR 341; 35DLR224 — Cited.
Section — 54
Permanent injunction—Whether question
of title or possession is to be considered in such a suit—Failure to prove
title by the plaintiff in a suit for permanent injunction cannot disentitle him
to a decree for permanent injunction if he can prove his possession.
Manindra
Nath Sen Sarma Vs. Bangladesh, 4BLD (AD) 285
Section —54
Permanent injunction — Possession for
more than 12 years can be protected by permanent injunction even against the
rightful owner.
A
person in long possession can be evicted only in due process of law. Even the
rightful owner cannot evict such a man with force. If he cannot be evicted with
force he continues to be in possession and be can resist invasion of his
possession by every one including the rightful owner.
Md.
Abdul Gafur and others Vs. Nazimuddin and others, 4BLD (HCD) 127
Ref:
10 DLR 193; 7DLR95 — Cited.
Section —54
Suit for permanent injunction— Whether
Court needs to enter into a disputed question of title — In a suit for
permanent injunction Court need not enter into a disputed question of title of
the parties except to the extent as it would help the Court in finding which of
the parties has clear possession.
Ansar
Au and others Vs. Sundar Au and others, 4BLD (HCD) 140
Ref:
2 BCR (AD) 32 I — Cited.
Section—54
Suit for permanent injunction against
co-sharers if maintainable — Maintainable till partition if the, plaintiff
is in exclusive possession of the ejmali land.
Whether
in a suit for permanent injunction complicated question of title need be
decided ?—In a suit for permanent injunction the Court need not enter into the
complicated question of title — It is enough for the Court to find who is in
actual and exclusive possession of the suit land.
Pasharuddin
Mir Vs. Ismail il’Iir and others, 6BLD (HCD) 155
Ref:
5DLR22;i ICW.N.517; I2DLR 708; 4BLD(AD)285 —Cited.
Sections —54 and 55
Perpetual injunction—Construction of
building without leaving 4 feet side space as provided under Building
Construction Rules — Whether for such violation perpetual and mandatory
injunction or compensation is to be granted —- That rain water may cause
trouble and fall on the land of the plaintiff because of the elevation of the
defendants multistoried building cannot be overruled — This inconvenience shows
that the injury was not great — So instead of granting perpetual or mandatory
injunction compensation was granted — Building Construction Rules, 1953, Rules
3 and 4.
Beguin
Sufia Khatoon and others, Vs. Abdul Hakinz Khan and another, 7BLD (AD)190
Section — 54
Injunction — Whether a trespasser is
entitled to get a decree for injunction — There is nothing to show that the
land of the notification Ext. A was resumed by the Government through its Land
Administration and Land Reforms Department from the Forest Department — So Land
Administration and Land Reforms Department has no authority to settle the suit
land with the plaintiff — The plaintiff who is more or less a trespasser and
who has not yet acquired any sort of title in the suit land cannot maintain a
suit for injunction against the Forest Department who are in prior possession
of the suit land since 1943.
Karglu
Khasia Vs Thvisional Forest Officer and others, 7BLD(HCD)96
Section —54
Permanent Injunction — When it will not be called for ? —
When a statute imposes a particular negative or. positive duty and the statute
itself provided a penalty for its breach, the penalty would be deemed to be an
adequate remedy in law —Unless a particular property right of the petitioner is
adversely affected a mere breach of duty imposed by a statute would not by
itself call for an injunction
Mst.
Anwara Khatun and others Vs Giasuddin Ahmed & others, 9BLD (HCD) 40
Ref.
(1903)1 Chancery, at page. 101; 1901)1 Chancery, 759; 6 BLD 80; A.LR. 1941
(Nag)364; —Cited..
Section—54
Permanent injunction — Question of
title in a suit for permanent injunction — No doubt the question of title may
be gone into incidentally but decision of title in a suit for permanent injunction
is not the guiding principle.
Sheikh
Ahmed and others Vs. Abdul Alim, 9BLD (HCD)368
Ref:
12 DLR 709; 11 DLR(SC)78; — Cited.
Section — 54
Co-sharer’s suit for permanent injunction
—Maintainability of — Where the plaintiff purchased land of which his
vendor is a co-sharer and where on evidence in a suit for permanent injunction
it is found that the plaintiff is in exclusive possession of the land the suit
for permanent injuction is maintainable without instituting a suit for
partition.
Sheikh
Ahmed and others Vs. Abdul All, 9BLD (HCD) 368
Ref:
12 DLR 708 11 DLR (SC)78 —Cited.
Section — 55
Mandatory injunction — Such injunction
requiring the authority to start a valid acquisition proceeding whether
sustainable? —The authority has no right to possess the.; property in question
as a mere requisitioned property for an indefinite period — They have either to
de-requisition the property and hand over vacant possession thereof to the
owners, or they have to complete the acquisition proceedings in accordance with
the law . The mandatory injunction given under the circumstances is the most
appropriate decree -Requisition and Acquisition of Immovable Property
Ordinance, 1982 (11 of 1982) S. 3.
Government
of Bangladesh and others Vs. Basaratullah being dead his heirs and successors
Fazie Karim and others, 9BLD (HCD) 97
Section—55
Injunction —. Only breach of a legal
obligation calls for injunction — Where the use of some property is permissive
and not as of right no case is made out for injunction, far less a case of
mandatory injunction — The obligation referred to in the relevant law means a
legal obligation and not a moral obligation.
Mr.
Aftabuddin Vs. Mr. Mahfuzur Sobhan and others, 10BLD (AD) 47-.Cited