SPECIFIC RELIEF ACT, 1877

 

SPECIFIC RELIEF ACT, 1877 (I OF 1877)

Sections—9 and 54

In a suit under Section 9 of the Specific Relief Act the plaintiff is required to file the suit within 6 months of dispossession. To obtain a decree he must prove that he was in possession of the suit property till before he was dispossessed by the defendant. In such a suit the Court will not adjudicate upon the title of the parties.

Section 54 of the Act provides for granting of perpetual injunctions. There is no scope for granting injunction in a suit u/s 9 of the Act for recovery of possession.

Munshi Kamal Hossain Vs. Shamsul Hoque, 14 BLD (HCD) 385.

Ref: Ganga Din Vs. Gokul, A.I.R. 1950 All. 407; Noab Zada Mohamed Umar Khan Vs. Mohammed Asif, 16 D.L.R. (WP) 164;Dr. Kudrat All Vs. Md. Monsur Au, 16 DLR 599; Debendra Mohan Das Vs. Mohammed Afaz Uddin, 17 DLR 187; Abdur Rahman Vs. Mofiz Uddin Bhuiyan, 7 D.L.R. 335. Mohammad Shafl Vs. The State 19 DLR (SC) 216 and Abdul Hamid Vs. Karam Dad, PLD 1966 Lahore 16-Cited.

 

Section—9

In a suit for recovery of possession under section 9 of the Specific Relief Act, notwithstanding any question of title that may be setup in such a suit, the person disposed without his consent or otherwise than in due course of law can claim for recovery of possession. A tenant having lawfully entered into possession of an immovable property cannot transfer possession to a third party without the consent of the landlord. In such a case, the plaintiff is entitled to recovery possession in the suit property.

Mohammad Abdur Rouf Vs. Abdul Hamid, 16 BLD (AD) 277.

 

Section—9

Code of Civil Procedure, 1908, Order XXI Rules 100 and 101

The suit framed under section 9 of the Act is title suit, though, summary in nature. But an application under Order XXI Rule 100 of the Code takes the form of miscellaneous proceeding. There was no scope of converting the suit under section 9 of the Act into a miscellaneous proceeding under Order XXI Rule 100 of the Code. So the question of converting the suit under section 9 of the Act into a miscellaneous proceeding under Order XXI Rule 100 of the Code does not at all arise.

No litigant has a right to get his affairs settled in the manner as he wishes. Every access to justice must not be used as a licence to a litigant.

Delwar Hossain Khan Vs Amzad hossain and others, 19 BLD (HCD) 523.

 

Section—9

A plaintiff in a suit under section 9 of the Act is required to prove is his possession and dispossession within 6 (six) months next before the institution of the suit. In a suit of this nature the court is quite competent to pass a decree in favour of the plaintiff for recovery of the possession of the suit land, notwithstanding any claim of title that may be set up in defence.

Md. Yakub Ali Vs Md. Atiar Rahman and others, 20 BLD (AD) 183.

 

Section—18 (a)

It provides that where a person contracts to sell or let certain property, having only an imperfect title thereto, and the vendor or lessor has subsequent to the sale or lease acquired any interest in the property, the purchaser or lessee may compel him to make good the contract out of such interest.

Khatibun Nahar and others Vs. Syed Haflzullah and others, 15 BLD(HCD)565

 

Section—22

Hardship of a party in a contract for sale

Unless the defendants able to prove that facts constituting hardships were present surrounding the disputed agreement for sale and the plaintiff was in an advantageous position over the defendant, he will not get the benefit of item No. II of Section 22 of the Specific Relief Act.

Most. Hamida Begum Chowdhury Vs. Ahamad Hossan Khan and others, 18BLD (HCD)189

Ref: 6BLD(AD)131 1984 B.C.R. (AD) 127: 2CLC (Volume-2)1983 Karachi page 1085—Cited.

 

Section—22

When the plaintiffs-substantive prayer is for a decree for specific performance of the contract and only alternatively he prays for refund of the earnest money in the event of refusal of specific performance of the contract, it cannot be argued that in the face of an alternative prayer for the refund of the earnest money the plaintiff is not entitled to a decree for specific performance of contract.

The granting of a decree for specific performance of a contract is the discretion of the court but it must be exercised on the basis of sound judicial principles capable of correction by a superior court. The court may not exercise the discretion for specific performance of a contract where such performance involves hardships on the part of the defendant which he did not foresee whereas its non- performance would not cause such hardships to the plaintiff.

Amena Khatun and others Vs. Hajee Abdul Jabbar being dead his heirs: Mst. Maleka Banu and others, 14 BLD (AD) 267.

 

Sections—22(11), 24(b) and 28(a)

When a party does riot come to the court with a clean hand, he is not entitled to get benefit of Section 22(11) on grounds of hardship. Hardship’ as contemplated in Section 22(11) of the Act means hardship has to be considered in the circumstances that existed at the time of the contract.

Enforcement of a contract or refusal to enforce it lies in the discretion of the Court but this discretion is. not arbitrary, but sound and reasonable, guided by established judicial principles and capable of correction by a Court of appeal.

The condition as to deposit of the balance of the consideration in the Court is not an essential term of the contract the violation of which will render the contract unenforceable.

When the plaintiff comes to the Court seeking specific performance of a contract, it is -implied that he is ready to make the deposit whenever so directed by the Court. Section 24(b) cannot be a bar against the Plaintiff.

Mere inadequacy of price does not bring a case within the ambit of Section 28(a) of the Act. To attract this sub-section an inadequate price must be attended with evidence of fraud or of undue advantage taken by the Plaintiff.

Quazi Din Mohammad Vs. Al-haj Arzan Ali and another, 14 BLD(AD)211

Ref: ‘A.I.R. 1928 (PC) 208; 43 l.A. 26 (PC), A.I.R. 1965 (SC) 1405; 39 DLR(AD) 242; 6 BLD(AD) 231; 5 BLD(AD)45; 3 BLD (AD)225—Cited.

 

Section—31

Rectification of a document

To secure an order for rectification of a document under section 31 of the Act it requires to be proved that through the mutual mistakes of the parties the instrument in question did not truly express the intention of the parties. When both the Courts concurrently found that the plaintiff purchased the suit property from the recorded tenant for valuable consideration and obtained delivery of possession pursuant thereto and duly mutated his name in respect of the suit land, mere failure of the plaintiff for filing a suit for rectification of the sale deed for inserting the wrong name of the mouza does not stand in his way of getting a decree for declaration of title, the mistake in question occurring in the disputed sale deed being due to mutual mistake of the parties. The failure of the plaintiff to rectify a mistake in the sale deed does not extinguish his title in the suit property which was actually sold to him and in which he is in possession.

Binode Bihari Ghose Vs. Assistant Custodian, Vested and Non-Resident Property and others, 18 BLD (HCD) 194.

Ref: AIR 1956 Orissa 83; AIR 1930 Allahabad 387; A1R1931 Madras 783; 36 DLR 337—Cited.

 

Sections—31, 39 and 42

As the document in question in respect of transfer of 0.30 decimals of land is admitted as legal but the remaining portion of the land in the document has been affected by fraud for which the suit can be treated as a Suit under section 3.1 and not under section 39 of the Act and as the whole document is not denied or challenged where cancellation of the document is not necessary, mere rectification is sufficient and section 42 still can come to rescue the plaintiff to get the proper relief.

Joynal Abedin Vs Maksuda Khatun and others, 18 BLD (HCD) 647.

 

Sections—39 and 42

Void and Voidable instrument

Where a written instrument is void ab initio the transaction is a nullity and in such a case a plaintiff is not required to have it cancelled or set aside. If, on the other hand, the instrument is only voidable, then it is incumbent upon the plaintiff to have it cancelled or set aside under section 39 of the Specific Relief Act.

Since in the present case the plaintiffs are parties to the disputed Kabala, it is undisputedly not a void document but only a voidable one. In order to remove the impediment in the way of the plaintiffs to get complete relief, along with the declaration the plaintiffs must also pray for cancellation of the document on payment of advalorem Court fee.

Sree Chitta Ranjan Chakraborty being dead his heirs Ashish Chakraborty and others Vs Md. Abdur Rob alias Mvi. Md. Abdur Rob, 17 BLD(AD)127

Ref: 16 DLR (SC) 477; 17 DLR (Dhaka) 119; 21 DLR (Dhaka) 507; 39 DLR (AD) 46—Cited.

 

Sections—39 and 42

A person in possession of a land on assertion of his right, title and interest finds a decree obtained by any other person in respect of such land affecting his interest or possession, or clouding his right or title in such land, he is always entitled to have such decree adjudged or declared void. When such person is not a party to such decree, he does need to get the decree set aside or cancelled. Under the law, he is also not required to seek further declaration that the decree is not binding upon him or that he has got title in the suit land.

Abul Kashem Howlader v. Sultan Ahmed and others, 22 BLD (HCD) 606.

Ref: Md. Yunus v. Md. Yusuf, 21 DLR 466; Imanuddin Rarhi v Lilabati Das, 32 DLR 75; M A Mallik v M H Mallik, 6 BCR(AD)56 and Sufia Khanom v Faizunnessa, 39 DLR (AD)46; Abdul Sukur v Bhasan Mondal, (2001) BLC 549.

 

Section—42

In the face of the evidence on record showing that the plaintiffs have been possessing the suit land on taking pattan from the recorded tenant in 1351-52 B.S. and their names have been recorded in the S.A. Khatian and there being no evidence on record to prove that the Government ever took over possession of the land as an enemy property, defendants claim of enemy property does not stand.

The Additional Deputy Commissioner (Revenue), Manikgonj Vs. Md. Siddiqur Rahman and others, 14 BLD(AD)80

 

Section—42 Proviso

Simple suit for declaration without a proper prayer for a decree for cancellation of the deed of gift is not maintainable and the same is barred under the proviso to section 42 of the Act.

The plaintiff was fully aware that defendant No. 3 had already transferred the disputed properties in favour of defendant No. 5 by a deed of gift and filed a simple suit for declaration of title without praying for cancellation of the said deed of gift. In such circumstances, a simple suit for declaration without a prayer for cancellation of the disputed document is not maintainable.

Although he knew that such cancellation is required because P.W.1 the father of the minor plaintiff, himself admitted in his cross- examination that he prayed for cancellation of the earlier deed of gift also which is not correct. Under the circumstances the suit for simple declaration, without a proper prayer for decree for cancellation of deed of gift, is also barred under proviso to section 42 of the Act.

Minor Md. Basihur Rahman Biswas Vs Md. Hanif Ali  Biswas and others, 21 BLD (HCD) 89.

 

Section—42

Mere recording in the SA Khatian of the suit land cannot confer any title on the holder of the record.

Md. Azizur Rahman Vs Most. Hasina Jamil, 21 BLD (HCD) 163.

 

Section—42

Part decree as equable relief

In a suit for specific performance of a contract a part decree is not ordinarily granted. But under special circumstances it may be permissible to grant a part decree when it is found in consonance with the principle of equity, justice and good conscience.

Sree Naru Gopal Roy Vs Parimal Rani Roy and others, 21 BLD (HCD) 282.

 

Section—42

Plaintiff being in possession seeking for declaration he need not seek any further relief as contemplated under proviso to section 42 of the Act.

Ali Akbar Khan Vs Gurudas Mondal and others, 19 BLD (HCD) 122.

 

Section—42

Code of Civil Procedure, 1908, Section—115(1)

The plaintiff has not sought for any decree for setting aside the order of his termination from service but has sought for his reinstatement with back wages. The plaintiff did not prefer the statutory appeal as provided in the service regulations. The suit as framed is. thus not maintainable.

Mujibur Rahman Vs Abdul Maleque Akon and others, 21 BLD (AD) 86.

 

Section—42

Where a plaintiff is a party to a document or decree that has clouded his title to property in suit, he is to seek a declaration either that the document or decree is void or void abinitio, or for a declaration and cancellation. In the absence of seeking a declaration against such document or decree, a plaintiff cannot have a declaration of title to the property in suit.

Dudu Mia v. Ekram Mw Chowdhury, 21BLD(AD,)157 Citations: Sufia Khanam Chowdhury v. Faizun Nesa Chowdhury 39DLR(AD)46; Abdul Hamid v. Dr. Sadeque Ali Ahmed and others 21DLR507. Cases distinguished: 44 DLR(AD)46; 21 DLR (SC)365; AIR 1924 (Cal) 411; 17 DLR 119.

 

Section—42

It is now well-settled that each suit seeking relief within the scope of section 42 must be decided on its own merits and its own peculiar circumstances and that no hard and fast rule can be laid down for all cases.

The expression ‘legal character’ in section 42 of the Act denotes a personal and special right not arising out of contract or tort, but of legal recognition. Herein rejection of plaintiff’s application for allotment has created a legal recognition enforceable against a person whose similar application is accepted.

Mirpur Mazar Co-operative Market Society Ltd. Vs Secretary, Ministry of Works, Government of Bangladesh and ors., 19 BLD (HCD)164

 

Section—42

Discretion of Court as to declaration of status or right

A declaratory suit need not be confined within the terms of section 42 of the Specific Relief Act which is meant for obtaining a specific relief. A declaration can be sought for various other matters as well.

Bangladesh Water Development Board, represented by its Chairman Vs. Syed Moazzem Hossain and others, 15 BLD (AD) 239.

 

Section—42

In a suit for cancellation of a decree passed by competent court, whether exparte or contested, it is incumbent upon the plaintiff to prove by cogent evidence that the decree impugned was obtained by practicing fraud upon the court or by other fraudulent means.

Most. Jinnatunessa Vs. Bangladesh, represented by the Deputy Commissioner Mymensingh, 15 BLD (HCD) 104.

Ref. Md. Namiuddin Sarder Vs. Abdul Kalam Biswas, 39 DLR (AD) 237; Bangladesh Vs. Israil Ali and others, I BLD (AD) 371—Cited.

 

Section—42

A suit for a mere declaratory relief under Section 42 of the Act without stating anywhere in the plaint as to what is the plaintiff’s ‘legal character’ or ‘status’ conferred by law entitling him to make such a prayer for declaration, is not maintainable in law. Such a plaint is no plaint in the eye of law and it should be rejected under the inherent power of the Court.

Md. Ayub Vs. Sonali Bank & ors., 14 BLD (HCD) 236.

Ref: Sk. Md. Junaid and others Vs. Turner Morrison and Co. Ltd. 26 DLR 111; National Bank Ltd. Vs. Haroon Malik and others, 42 DLR 103; Burmah Eastern Ltd. Vs. l3urmah Eastern Employees Union and others, 18 DLR 709, -Cited.

 

Section—42

A suit for simple declaration that the order of termination of plaintiffs service is illegal, inoperative and not binding upon him without a prayer for consequential relief is hit by proviso to section 42 of the Specific Relief Act and as such it is not maintainable in law.

Sonali Bank and another Vs. Chandon Kumar Nandi, 15 BLD(HCD)249

Ref. Abdul Mannan Sikder Vs. Bangladesh Bank and others, 31 DLR(AD) 298; State Vs. Abdul Awal, 35 DLR(HCD) 151; Mr. Shahabuddin Vs. Janata Bank, 41 DLR (HCD) 94; Senior Manager. Messrs Dost Textile Mills Ltd. and another Vs. Sudhansu Bikash Nath, 8BLD (AD)66; 41 DLR (HCD) 94; 44DLR (AD)260; Manager, Personal Division Vs. Sazahan Miah and others, 35 DLR (HCD) 224-Cited.

 

Section—42

Bar to simple declaration

It provides that no Court shall make any declaration as to title or legal character where the plaintiff being able to seek further relief other than a mere declaration omits to do so.
In the instant case, the defendant- petitioner took delivery of possession in the suit property through Court on 8.4. 1985 in pursuance of the order of redemption passed on contest by the Sub-Divisional Magistrate under sub-section (4) of section 95 of the S.A.T. Act. In the eye of Law even a symbolical possession obtained through court has the effect of actual possession so far as the judgment- debtors are concerned. Under such circumstances, the plaintiffs suit for simple declaration of title without any prayer for recovery of khas possession is barred under Section 42 of the Specific Relief Act.

Osman Gani Talukder alias Sujat Au Talukder Vs. Md. Osman Ali Mondal, 16 BLD (HCD) 165

 

Section—42

Oral agreement for sale

Although an oral agreement for sale of an immoveable property is not barred by any law, nevertheless it has to be looked at with some suspicion unless such agreement is proved by convincing and reliable evidence and circumstances. The superior Courts of the sub-continent usually discourage a decree for specific performance of a contract on the basis of an agreement solely supported on oral evidence.

Md. Moslemuddin and others Vs Md. Jonab Ali and another, 17BLD(AD)328

Ref: (1969)2 SCWR 347;—Cited.

 

Section—42

Proviso

A simple prayer for declaration that the impugned order of dismissal from service is illegal, void and not binding upon the plaintiff without a further prayer for consequential relief in the form of back salary and for mandatory injunction to reinstate him in his former post is hit by the proviso of section 42 of the Specific Relief Act and such a suit is not maintainable in law.

Basharatullah Vs Managing Committee for New Academy and another, 17 BLD (HCD)68

 

Section—42

A declaration with regard to the contractual or financial obligation involved or transacted between the parties cannot come within the ambit of section 42 on the Act. If a declaration is given that a plaintiff is not a defaulter or borrower or loanee, a bank as creditor may be prejudiced in filing a suit for repayment of loan.

Mere issuance of a notice by Bangladesh Bank, who is not a creditor, enclosing a letter of a bank for the purpose of removing the plaintiff director of the bank, will not entitle him to file a suit for a declaration with regard to his liabilities, which is an entirely different matter.

Shaft A. choudhury v. Pubali Bank Ltd. and others, 22 BLD(HCD)423

 

Section—42

Suit for declamation

Since the plaintiffs are in joint possession of the immovable property, they are entitled to file a suit praying for declaratory relief only with a view to removing the cloud on their title created due to wrong recording of ROR, because in such a suit, declaration of title is all that the plaintiff needs. So, they are not called upon to ask for consequential relief by way of partition.

Md. Gias Uddin and others v. Md. Nowab Au & others, 22 BLD(HCD)586

Ref: Enjaheruddin Miah alias Md. Enjaharuddin Vs. Mohammad Hossain and others,18 BLD(AD)3; Narayan Sarker Vs. Siraj Miah,1989 BLD(AD)9; Paran and others, AIR 137 (Rangun) 427 and Kaup Nath Singh vs. Lala Ram Din Lal, ILR 15 Calcutta, 117; Shankar Chandra Das Vs. Kala Chand Das, 46 DLR 419; Joy Narayan Vs. Shree Nanta, AIR 1922 Cal, 8; 18BLD(AD) 77.

 

Section—42

Proviso

The proviso to section 42 of the Specific Relief Act provides that no Court shall make any declaration as to plaintiff’s legal character or his right to any property where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. In the instant case, the plaintiff prayed only for declaration of his title in the suit land and did not ask for either joint possession or partition as a co-sharer of the defendants in the disputed land. Although the plaintiff’s possession was found in some portion of the suit property, the learned Courts below committed no error of law in dismissing the suit for declaration of title simpliciter.

Enjaheruddin Mia alias Md. Enjaheruddin Mw Vs. Mohammad Hossain and ors., 18 BLD(AD)77

 

Section—42

Since the plaintiff has no possession in the suit land, the suit for declaration of title on the basis of adverse possession is not maintainable.

Kala Miah Vs Sree Gopal Chandra Paul and others, 18 BLD (HCD) 670.

Ref: 8DLR65; 531.A. 89; A.I.R. 1930 Patna 610; 35 Indian Cases 14; AIR. 1927 (Cal) 197;—Cited.

 

Sections—53 and 54

A suit for permanent or perpetual injunction is contemplated in sections 53 and 54 of the Specific Relief Act. For the grant of permanent or perpetual injunction the existence of a right in the plaintiff and its threatened violation will have to be found. Every suit for permanent injunction necessarily involves a determination of the right of the plaintiff. [Per Latifur Rahman. J, delivering the dissenting judgment].

Barada Sundari Paul and others Vs. The Assistant Custodian, Enemy Property (Land and Buildings), Comilla and others, 15 BLD (AD) 95.

Ref: 13 D.L.R. 576; 40 C.W.N.81; 16 DLR (Dhaka) 355; 13 DLR 865; A.I.R. 1927 (Madras)984; A.I.R. 1968 (Andra Pra) 291; A.I.R. 1971 (Cal) 252; A.I.R. 1965 (SC) 271—Cited.

 

Section—54

Whether a party acquired valid title in the suit property by dint of registered documents cannot be a prime issue in a suit for permanent injunction. In such a suit the question of possession is the main consideration before the Court.

Abul Hashem Dhali and others Vs. Md. Idris Ban and others, 15 BLD(AD) 106

 

Section—54

Permanent injunction—when to be granted

The earlier trend of judicial pronouncements for granting permanent injunction was that the plaintiff was required to prove his exclusive possession in the suit property and incidentally a prima facie title thereto. If these two requirements were fulfilled, the plaintiff was entitled to a decree for permanent injunction. It appears from a review of the judicial pronouncements of the superior courts of the sub-continent that the aforesaid view of late has undergone a change. It is now well-settled that if the plaintiff can prove his possession in the suit land he is entitled to protect his possession by way of permanent injunction. Even the rightful Owner cannot evict by force a person in long and continuous possession in the suit property. The question of title has thus become a matter of little significance.

 

Kalyan Krishna Goswami Vs. Madhyapara High School and another, 15BLD (HCD) 509.

Ref: Manindra Nath Sen Sarma Vs. Bangladesh, 4 BLD(AD)285; Kuttan Narayan Vs. Thomman Mathai, AIR 1966(Ker)199; 14 BLD (AD) 229-Cited.

 

Section—56(e)

On the de-nationalisation of Rupali Bank and corporatisation, it became a private bank, and the relationship with its employees became that of master and servants. But even though by a vendor’s agreement Rupali Bank Limited agreed to follow the Service Regulations of Rupali Bank when it was a nationalised bank, the plaintiff is not entitled to get a decree for mandatory injunction in view of the bar of section 56(e) of the Specific Relief Act 1877 against granting injunction for breaches of contract for personal service.

Rupali Bank Limited v. Haji Md. Arab Ali and others, 22 BLD (AD) 13.

Ref: 38 DLR (AD) 81.

 

Section—56(k)

If the money in dispute had not fountained from the plaintiff and if the same cannot lawfully be redirected to him in the event other beneficiaries fail to receive it, the plaintiff has no legal right or interest over the money which is the subject matter of an injunction prayer.

S.M. Faziul Haque i. Salahuddin Ahmed and another, 22 BLD (HCD) 155.

Ref: Gouriet v. Attorney-General (1978) Act 435; Paton v. British Pregnancy Advisory Services Trustees (1979) QB 276.

Specific Relief Act, 1877

 

Specific
Relief Act, 1877


Sections—9
and 54

In
a suit under Section 9 of the Specific Relief Act the plaintiff is required to
file the suit within 6 months of dispossession. To obtain a decree he must
prove that he was in possession of the suit property till before he was
dispossessed by the defendant. In such a suit the Court will not adjudicate
upon the title of the parties.

Section
54 of the Act provides for granting of perpetual injunctions. There is no scope
for granting injunction in a suit u/s 9 of the Act for recovery of possession.



Munshi Kamal
Hossain Vs. Shamsul Hoque, 14 BLD (HCD) 385.

Ref:
Ganga Din Vs. Gokul, A.I.R. 1950 All. 407; Noab Zada Mohamed Umar Khan Vs.
Mohammed Asif, 16 D.L.R. (WP) 164;Dr. Kudrat All Vs. Md. Monsur Au, 16 DLR 599;
Debendra Mohan Das Vs. Mohammed Afaz Uddin, 17 DLR 187; Abdur Rahman Vs. Mofiz
Uddin Bhuiyan, 7 D.L.R. 335. Mohammad Shafl Vs. The State 19 DLR (SC) 216 and
Abdul Hamid Vs. Karam Dad, PLD 1966 Lahore 16-Cited.

 

Section—9

In
a suit for recovery of possession under section 9 of the Specific Relief Act,
notwithstanding any question of title that may be setup in such a suit, the
person disposed without his consent or otherwise than in due course of law can
claim for recovery of possession. A tenant having lawfully entered into
possession of an immovable property cannot transfer possession to a third party
without the consent of the landlord. In such a case, the plaintiff is entitled
to recovery possession in the suit property.

Mohammad
Abdur Rouf Vs. Abdul Hamid, 16 BLD (AD) 277.

 

Section—9

Code of
Civil Procedure, 1908, Order XXI Rules 100 and 101

The
suit framed under section 9 of the Act is title suit, though, summary in
nature. But an application under Order XXI Rule 100 of the Code takes the form
of miscellaneous proceeding. There was no scope of converting the suit under
section 9 of the Act into a miscellaneous proceeding under Order XXI Rule 100
of the Code. So the question of converting the suit under section 9 of the Act
into a miscellaneous proceeding under Order XXI Rule 100 of the Code does not
at all arise.

No
litigant has a right to get his affairs settled in the manner as he wishes.
Every access to justice must not be used as a licence to a litigant.

Delwar
Hossain Khan Vs Amzad hossain and others, 19 BLD (HCD) 523.

 

Section—9

A
plaintiff in a suit under section 9 of the Act is required to prove is his
possession and dispossession within 6 (six) months next before the institution
of the suit. In a suit of this nature the court is quite competent to pass a
decree in favour of the plaintiff for recovery of the possession of the suit
land, notwithstanding any claim of title that may be set up in defence.

Md. Yakub
Ali Vs Md. Atiar Rahman and others, 20 BLD (AD) 183.

 

Section—18
(a)

It
provides that where a person contracts to sell or let certain property, having
only an imperfect title thereto, and the vendor or lessor has subsequent to the
sale or lease acquired any interest in the property, the purchaser or lessee
may compel him to make good the contract out of such interest.

Khatibun
Nahar and others Vs. Syed Haflzullah and others, 15 BLD(HCD)565

 

Section—22

Hardship
of a party in a contract for sale

Unless
the defendants able to prove that facts constituting hardships were present
surrounding the disputed agreement for sale and the plaintiff was in an
advantageous position over the defendant, he will not get the benefit of item
No. II of Section 22 of the Specific Relief Act.

Most. Hamida
Begum Chowdhury Vs. Ahamad Hossan Khan and others, 18BLD (HCD)189

Ref:
6BLD(AD)131 1984 B.C.R. (AD) 127: 2CLC (Volume-2)1983 Karachi page 1085—Cited.

 

Section—22

When
the plaintiffs-substantive prayer is for a decree for specific performance of
the contract and only alternatively he prays for refund of the earnest money in
the event of refusal of specific performance of the contract, it cannot be
argued that in the face of an alternative prayer for the refund of the earnest
money the plaintiff is not entitled to a decree for specific performance of
contract.

The
granting of a decree for specific performance of a contract is the discretion
of the court but it must be exercised on the basis of sound judicial principles
capable of correction by a superior court. The court may not exercise the
discretion for specific performance of a contract where such performance
involves hardships on the part of the defendant which he did not foresee
whereas its non- performance would not cause such hardships to the plaintiff.

Amena Khatun
and others Vs. Hajee Abdul Jabbar being dead his heirs: Mst. Maleka Banu and others,
14 BLD (AD) 267.

 

Sections—22(11),
24(b) and 28(a)

When
a party does riot come to the court with a clean hand, he is not entitled to
get benefit of Section 22(11) on grounds of hardship. Hardship’ as contemplated
in Section 22(11) of the Act means hardship has to be considered in the
circumstances that existed at the time of the contract.

Enforcement
of a contract or refusal to enforce it lies in the discretion of the Court but
this discretion is. not arbitrary, but sound and reasonable, guided by established
judicial principles and capable of correction by a Court of appeal.

The
condition as to deposit of the balance of the consideration in the Court is not
an essential term of the contract the violation of which will render the
contract unenforceable.

When
the plaintiff comes to the Court seeking specific performance of a contract, it
is -implied that he is ready to make the deposit whenever so directed by the
Court. Section 24(b) cannot be a bar against the Plaintiff.

Mere
inadequacy of price does not bring a case within the ambit of Section 28(a) of
the Act. To attract this sub-section an inadequate price must be attended with
evidence of fraud or of undue advantage taken by the Plaintiff.

Quazi Din
Mohammad Vs. Al-haj Arzan Ali and another, 14 BLD(AD)211

Ref:
‘A.I.R. 1928 (PC) 208; 43 l.A. 26 (PC), A.I.R. 1965 (SC) 1405; 39 DLR(AD) 242;
6 BLD(AD) 231; 5 BLD(AD)45; 3 BLD (AD)225—Cited.

 

Section—31

Rectification
of a document

To
secure an order for rectification of a document under section 31 of the Act it
requires to be proved that through the mutual mistakes of the parties the
instrument in question did not truly express the intention of the parties. When
both the Courts concurrently found that the plaintiff purchased the suit
property from the recorded tenant for valuable consideration and obtained
delivery of possession pursuant thereto and duly mutated his name in respect of
the suit land, mere failure of the plaintiff for filing a suit for
rectification of the sale deed for inserting the wrong name of the mouza does
not stand in his way of getting a decree for declaration of title, the mistake
in question occurring in the disputed sale deed being due to mutual mistake of
the parties. The failure of the plaintiff to rectify a mistake in the sale deed
does not extinguish his title in the suit property which was actually sold to
him and in which he is in possession.

Binode
Bihari Ghose Vs. Assistant Custodian, Vested and Non-Resident Property and
others, 18 BLD (HCD) 194.



Ref:
AIR 1956 Orissa 83; AIR 1930 Allahabad 387; A1R1931 Madras 783; 36 DLR
337—Cited.

 

Sections—31,
39 and 42

As
the document in question in respect of transfer of 0.30 decimals of land is
admitted as legal but the remaining portion of the land in the document has
been affected by fraud for which the suit can be treated as a Suit under
section 3.1 and not under section 39 of the Act and as the whole document is
not denied or challenged where cancellation of the document is not necessary,
mere rectification is sufficient and section 42 still can come to rescue the
plaintiff to get the proper relief.

Joynal
Abedin Vs Maksuda Khatun and others, 18 BLD (HCD) 647.

 

Sections—39
and 42

Void and
Voidable instrument

Where
a written instrument is void ab initio the transaction is a nullity and in such
a case a plaintiff is not required to have it cancelled or set aside. If, on
the other hand, the instrument is only voidable, then it is incumbent upon the
plaintiff to have it cancelled or set aside under section 39 of the Specific
Relief Act.

Since
in the present case the plaintiffs are parties to the disputed Kabala, it is
undisputedly not a void document but only a voidable one. In order to remove
the impediment in the way of the plaintiffs to get complete relief, along with
the declaration the plaintiffs must also pray for cancellation of the document
on payment of advalorem Court fee.

Sree Chitta
Ranjan Chakraborty being dead his heirs Ashish Chakraborty and others Vs Md.
Abdur Rob alias Mvi. Md. Abdur Rob, 17 BLD(AD)127

Ref:
16 DLR (SC) 477; 17 DLR (Dhaka) 119; 21 DLR (Dhaka) 507; 39 DLR (AD) 46—Cited.

 

Sections—39
and 42

A
person in possession of a land on assertion of his right, title and interest
finds a decree obtained by any other person in respect of such land affecting
his interest or possession, or clouding his right or title in such land, he is
always entitled to have such decree adjudged or declared void. When such person
is not a party to such decree, he does need to get the decree set aside or
cancelled. Under the law, he is also not required to seek further declaration
that the decree is not binding upon him or that he has got title in the suit
land.

Abul Kashem
Howlader v. Sultan Ahmed and others, 22 BLD (HCD) 606.

Ref:
Md. Yunus v. Md. Yusuf, 21 DLR 466; Imanuddin Rarhi v Lilabati Das, 32 DLR 75;
M A Mallik v M H Mallik, 6 BCR(AD)56 and Sufia Khanom v Faizunnessa, 39 DLR (AD)46;
Abdul Sukur v Bhasan Mondal, (2001) BLC 549.

 

Section—42

In
the face of the evidence on record showing that the plaintiffs have been
possessing the suit land on taking pattan from the recorded tenant in 1351-52
B.S. and their names have been recorded in the S.A. Khatian and there being no
evidence on record to prove that the Government ever took over possession of
the land as an enemy property, defendants claim of enemy property does not
stand.

The
Additional Deputy Commissioner (Revenue), Manikgonj Vs. Md. Siddiqur Rahman and
others, 14 BLD(AD)80

 

Section—42 Proviso

Simple
suit for declaration without a proper prayer for a decree for cancellation of
the deed of gift is not maintainable and the same is barred under the proviso
to section 42 of the Act.



The
plaintiff was fully aware that defendant No. 3 had already transferred the
disputed properties in favour of defendant No. 5 by a deed of gift and filed a
simple suit for declaration of title without praying for cancellation of the
said deed of gift. In such circumstances, a simple suit for declaration without
a prayer for cancellation of the disputed document is not maintainable.

Although
he knew that such cancellation is required because P.W.1 the father of the
minor plaintiff, himself admitted in his cross- examination that he prayed for
cancellation of the earlier deed of gift also which is not correct. Under the
circumstances the suit for simple declaration, without a proper prayer for
decree for cancellation of deed of gift, is also barred under proviso to
section 42 of the Act.

Minor Md.
Basihur Rahman Biswas Vs Md. Hanif Ali 
Biswas and others, 21 BLD (HCD) 89.

 

Section—42

Mere
recording in the SA Khatian of the suit land cannot confer any title on the
holder of the record.

Md. Azizur
Rahman Vs Most. Hasina Jamil, 21 BLD (HCD) 163.

 

Section—42

Part decree
as equable relief

In
a suit for specific performance of a contract a part decree is not ordinarily granted.
But under special circumstances it may be permissible to grant a part decree
when it is found in consonance with the principle of equity, justice and good
conscience.

Sree Naru
Gopal Roy Vs Parimal Rani Roy and others, 21 BLD (HCD) 282.

 

Section—42

Plaintiff
being in possession seeking for declaration he need not seek any further relief
as contemplated under proviso to section 42 of the Act.

Ali Akbar
Khan Vs Gurudas Mondal and others, 19 BLD (HCD) 122.

 

Section—42

Code of
Civil Procedure, 1908, Section—115(1)

The
plaintiff has not sought for any decree for setting aside the order of his
termination from service but has sought for his reinstatement with back wages.
The plaintiff did not prefer the statutory appeal as provided in the service
regulations. The suit as framed is. thus not maintainable.

Mujibur
Rahman Vs Abdul Maleque Akon and others, 21 BLD (AD) 86.

 

Section—42

Where
a plaintiff is a party to a document or decree that has clouded his title to
property in suit, he is to seek a declaration either that the document or
decree is void or void abinitio, or for a declaration and cancellation. In the
absence of seeking a declaration against such document or decree, a plaintiff
cannot have a declaration of title to the property in suit.

Dudu
Mia v. Ekram Mw Chowdhury, 21BLD(AD,)157 Citations: Sufia Khanam Chowdhury v.
Faizun Nesa Chowdhury 39DLR(AD)46; Abdul Hamid v. Dr. Sadeque Ali Ahmed and
others 21DLR507. Cases distinguished: 44 DLR(AD)46; 21 DLR (SC)365; AIR 1924
(Cal) 411; 17 DLR 119.

 

Section—42

It
is now well-settled that each suit seeking relief within the scope of section
42 must be decided on its own merits and its own peculiar circumstances and
that no hard and fast rule can be laid down for all cases.



The
expression ‘legal character’ in section 42 of the Act denotes a personal and
special right not arising out of contract or tort, but of legal recognition.
Herein rejection of plaintiff’s application for allotment has created a legal
recognition enforceable against a person whose similar application is accepted.

Mirpur Mazar
Co-operative Market Society Ltd. Vs Secretary, Ministry of Works, Government of
Bangladesh and ors., 19 BLD (HCD)164

 

Section—42

Discretion
of Court as to declaration of status or right

A
declaratory suit need not be confined within the terms of section 42 of the
Specific Relief Act which is meant for obtaining a specific relief. A
declaration can be sought for various other matters as well.

Bangladesh
Water Development Board, represented by its Chairman Vs. Syed Moazzem Hossain
and others, 15 BLD (AD) 239.

 

Section—42

In
a suit for cancellation of a decree passed by competent court, whether exparte
or contested, it is incumbent upon the plaintiff to prove by cogent evidence
that the decree impugned was obtained by practicing fraud upon the court or by
other fraudulent means.

Most.
Jinnatunessa Vs. Bangladesh, represented by the Deputy Commissioner Mymensingh,
15 BLD (HCD) 104.

Ref.
Md. Namiuddin Sarder Vs. Abdul Kalam Biswas, 39 DLR (AD) 237; Bangladesh Vs.
Israil Ali and others, I BLD (AD) 371—Cited.

 

Section—42

A
suit for a mere declaratory relief under Section 42 of the Act without stating
anywhere in the plaint as to what is the plaintiff’s ‘legal character’ or
‘status’ conferred by law entitling him to make such a prayer for declaration,
is not maintainable in law. Such a plaint is no plaint in the eye of law and it
should be rejected under the inherent power of the Court.

Md. Ayub Vs.
Sonali Bank & ors., 14 BLD (HCD) 236.

Ref:
Sk. Md. Junaid and others Vs. Turner Morrison and Co. Ltd. 26 DLR 111; National
Bank Ltd. Vs. Haroon Malik and others, 42 DLR 103; Burmah Eastern Ltd. Vs.
l3urmah Eastern Employees Union and others, 18 DLR 709, -Cited.

 

Section—42

A
suit for simple declaration that the order of termination of plaintiffs service
is illegal, inoperative and not binding upon him without a prayer for
consequential relief is hit by proviso to section 42 of the Specific Relief Act
and as such it is not maintainable in law.

Sonali Bank
and another Vs. Chandon Kumar Nandi, 15 BLD(HCD)249

Ref.
Abdul Mannan Sikder Vs. Bangladesh Bank and others, 31 DLR(AD) 298; State Vs.
Abdul Awal, 35 DLR(HCD) 151; Mr. Shahabuddin Vs. Janata Bank, 41 DLR (HCD) 94;
Senior Manager. Messrs Dost Textile Mills Ltd. and another Vs. Sudhansu Bikash
Nath, 8BLD (AD)66; 41 DLR (HCD) 94; 44DLR (AD)260; Manager, Personal Division
Vs. Sazahan Miah and others, 35 DLR (HCD) 224-Cited.

 

Section—42

Bar to
simple declaration

It
provides that no Court shall make any declaration as to title or legal
character where the plaintiff being able to seek further relief other than a
mere declaration omits to do so.



In
the instant case, the defendant- petitioner took delivery of possession in the
suit property through Court on 8.4. 1985 in pursuance of the order of redemption
passed on contest by the Sub-Divisional Magistrate under sub-section (4) of
section 95 of the S.A.T. Act. In the eye of Law even a symbolical possession
obtained through court has the effect of actual possession so far as the
judgment- debtors are concerned. Under such circumstances, the plaintiffs suit
for simple declaration of title without any prayer for recovery of khas
possession is barred under Section 42 of the Specific Relief Act.

Osman Gani
Talukder alias Sujat Au Talukder Vs. Md. Osman Ali Mondal, 16 BLD (HCD) 165

 

Section—42

Oral
agreement for sale

Although
an oral agreement for sale of an immoveable property is not barred by any law,
nevertheless it has to be looked at with some suspicion unless such agreement
is proved by convincing and reliable evidence and circumstances. The superior
Courts of the sub-continent usually discourage a decree for specific
performance of a contract on the basis of an agreement solely supported on oral
evidence.

Md.
Moslemuddin and others Vs Md. Jonab Ali
and
another, 17BLD(AD)328

Ref:
(1969)2 SCWR 347;—Cited.

 

Section—42

Proviso

A
simple prayer for declaration that the impugned order of dismissal from service
is illegal, void and not binding upon the plaintiff without a further prayer
for consequential relief in the form of back salary and for mandatory
injunction to reinstate him in his former post is hit by the proviso of section
42 of the Specific Relief Act and such a suit is not maintainable in law.

Basharatullah
Vs Managing Committee for New Academy and another, 17 BLD (HCD)68

 

Section—42

A
declaration with regard to the contractual or financial obligation involved or
transacted between the parties cannot come within the ambit of section 42 on
the Act. If a declaration is given that a plaintiff is not a defaulter or
borrower or loanee, a bank as creditor may be prejudiced in filing a suit for
repayment of loan.

Mere
issuance of a notice by Bangladesh Bank, who is not a creditor, enclosing a
letter of a bank for the purpose of removing the plaintiff director of the
bank, will not entitle him to file a suit for a declaration with regard to his
liabilities, which is an entirely different matter.

Shaft A.
choudhury v. Pubali Bank Ltd. and others, 22 BLD(HCD)423

 

Section—42

Suit for
declamation

Since
the plaintiffs are in joint possession of the immovable property, they are
entitled to file a suit praying for declaratory relief only with a view to
removing the cloud on their title created due to wrong recording of ROR,
because in such a suit, declaration of title is all that the plaintiff needs.
So, they are not called upon to ask for consequential relief by way of
partition.

Md. Gias
Uddin and others v. Md. Nowab Au & others, 22 BLD(HCD)586

Ref:
Enjaheruddin Miah alias Md. Enjaharuddin Vs. Mohammad Hossain and others,18
BLD(AD)3; Narayan Sarker Vs. Siraj Miah,1989 BLD(AD)9; Paran and others, AIR
137 (Rangun) 427 and Kaup Nath Singh vs. Lala Ram Din Lal, ILR 15 Calcutta,
117; Shankar Chandra Das Vs. Kala Chand Das, 46 DLR 419; Joy Narayan Vs. Shree
Nanta, AIR 1922 Cal, 8; 18BLD(AD) 77.

 

Section—42

Proviso

The
proviso to section 42 of the Specific Relief Act provides that no Court shall
make any declaration as to plaintiff’s legal character or his right to any
property where the plaintiff, being able to seek further relief than a mere
declaration of title, omits to do so. In the instant case, the plaintiff prayed
only for declaration of his title in the suit land and did not ask for either
joint possession or partition as a co-sharer of the defendants in the disputed land.
Although the plaintiff’s possession was found in some portion of the suit
property, the learned Courts below committed no error of law in dismissing the
suit for declaration of title simpliciter.

Enjaheruddin
Mia alias Md. Enjaheruddin Mw Vs. Mohammad Hossain and ors., 18 BLD(AD)77

 

Section—42

Since
the plaintiff has no possession in the suit land, the suit for declaration of
title on the basis of adverse possession is not maintainable.

Kala Miah Vs
Sree Gopal Chandra Paul and others, 18 BLD (HCD) 670.

Ref:
8DLR65; 531.A. 89; A.I.R. 1930 Patna 610; 35 Indian Cases 14; AIR. 1927 (Cal)
197;—Cited.

 

Sections—53
and 54

A
suit for permanent or perpetual injunction is contemplated in sections 53 and
54 of the Specific Relief Act. For the grant of permanent or perpetual
injunction the existence of a right in the plaintiff and its threatened
violation will have to be found. Every suit for permanent injunction
necessarily involves a determination of the right of the plaintiff. [Per
Latifur Rahman. J, delivering the dissenting judgment].

Barada
Sundari Paul and others Vs. The Assistant Custodian, Enemy Property (Land and
Buildings), Comilla and others, 15 BLD (AD) 95.

Ref:
13 D.L.R. 576; 40 C.W.N.81; 16 DLR (Dhaka) 355; 13 DLR 865; A.I.R. 1927
(Madras)984; A.I.R. 1968 (Andra Pra) 291; A.I.R. 1971 (Cal) 252; A.I.R. 1965
(SC) 271—Cited.

 

Section—54

Whether
a party acquired valid title in the suit property by dint of registered
documents cannot be a prime issue in a suit for permanent injunction. In such a
suit the question of possession is the main consideration before the Court.

Abul Hashem
Dhali and others Vs. Md. Idris Ban and others, 15 BLD(AD) 106

 

Section—54

Permanent
injunction—when to be granted

The
earlier trend of judicial pronouncements for granting permanent injunction was
that the plaintiff was required to prove his exclusive possession in the suit
property and incidentally a prima facie title thereto. If these two
requirements were fulfilled, the plaintiff was entitled to a decree for
permanent injunction. It appears from a review of the judicial pronouncements
of the superior courts of the sub-continent that the aforesaid view of late has
undergone a change. It is now well-settled that if the plaintiff can prove his
possession in the suit land he is entitled to protect his possession by way of
permanent injunction. Even the rightful Owner cannot evict by force a person in
long and continuous possession in the suit property. The question of title has
thus become a matter of little significance.



Kalyan Krishna
Goswami Vs. Madhyapara High School and another, 15BLD (HCD) 509.

Ref:
Manindra Nath Sen Sarma Vs. Bangladesh, 4 BLD(AD)285; Kuttan Narayan Vs.
Thomman Mathai, AIR 1966(Ker)199; 14 BLD (AD) 229-Cited.

 

Section—56(e)

On
the de-nationalisation of Rupali Bank and corporatisation, it became a private
bank, and the relationship with its employees became that of master and
servants. But even though by a vendor’s agreement Rupali Bank Limited agreed to
follow the Service Regulations of Rupali Bank when it was a nationalised bank,
the plaintiff is not entitled to get a decree for mandatory injunction in view
of the bar of section 56(e) of the Specific Relief Act 1877 against granting
injunction for breaches of contract for personal service.

Rupali Bank
Limited v. Haji Md. Arab Ali and others, 22 BLD (AD) 13.

Ref:
38 DLR (AD) 81.

 

Section—56(k)

If
the money in dispute had not fountained from the plaintiff and if the same
cannot lawfully be redirected to him in the event other beneficiaries fail to
receive it, the plaintiff has no legal right or interest over the money which
is the subject matter of an injunction prayer.

S.M. Faziul
Haque i. Salahuddin Ahmed and another, 22 BLD (HCD) 155.

Ref:
Gouriet v. Attorney-General (1978) Act 435; Paton v. British Pregnancy Advisory
Services Trustees (1979) QB 276

 

SPECIFIC RELIEF ACT, 1877

 

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 contractRepudiation 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

 

Specific Relief Act, 1877

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.