SPECIFIC RELIEF ACT, 1877

(I OF 1877)

Section—9

Temporary injunction—Temporary
injunction to restrain the decree holder from proceeding with the execution
tse—Whether judgment debtor against whom a decree for recovery of possession
was passed is entitled w restrain the decree-holder — If an injunction is
granted on the prayer of the judgment debtor the object and purpose of the suit
under section 9 of the Specific Relief Act will be frustrated — If the judgment
debtor against whom a decree has been passed under section 9 can establish his
title in a suit subsequently filed by him he can get relief on the basis of
title so found in such suit — The defendant must first surrender possession to
the decree holder in execution of a decree obtained by him in such a suit — No
injunction can be granted on the plea of title to restrain the execution
proceeding — Code of Civil Procedure, 1908 (V of 1908), Order XXXIX Rule

Mosammat
Monowara Begum Vs. Syed Asrafuddin and others. 6 BLD (AD) 102

Ref:
AIR. l955(All)64; A.I.R. l972(AlI)41 8; — Cited.

Section — 9

Trespasser — Ejectment of — Whether a
trespasser in possession for a long time without acquiring title can eject the
subse1uent trespasser dispossessing him -p— It is well—settled that in the case
of successive independent trespassers, the first trespasser who has been
continuously in possession has a right to maintain his possession against all
the world except the rightful owner: he can sue for ejectment and recovery of
possession from any person who subsequently dispossessed him unless the latter
is the real owner or claims under him or justifies his authority — A long line
of decisions show that prior possessor can eject the subsequent trespassers —
As such title must be held in the first trespassers unless, of course, the
subsequent trespasser acquired better title — It is not a valid defence that
real title lies in the 3rd party.

Abdul
Hamid and others Vs. Afazuddin Ahrned and others 7BLD (AD) 177

Section — 12

Right to property — Whether specific
performance of contract is a right to property — Right to specific performance
of contract for sale of any property is a right relating to property It must
receive protection in the absence pf any provisions of law to the contrary —
Such right will no longer remain a right unless when threatened or invaded it
can be protected in the Court of law.

Asaduzzaman
Vs. Bangladesh, represented by the Secretary, Ministry of Public Works and
Urban Development, 4BLD (AD) 189

Sections — 12, 19 and 22

Specific performance of contract—
Payment of compensation or solatium to the vendor when to be made — When the
vendor as an ordinary prudent man with his eyes open agreed to sell the
property by duly executing the agreement without being influenced by fraud,
misrepresentation, mistake of fact, etc. and the stipulated price was not
grossly inadequate there was no reason to hold that there is any ground for
asking the purchaser to pay any compensation or solatium to the vendor.

Md.
Azharul Islam Vs. Md. Idris Au and another, 7BLD(HCD)202

Ref:
37DLR(AD)21; AIR. 1926(Iorn) 189; AIR. 1928(PC)208; 15CW,N. 935: 38 Cal 805: 4
C.L.J. 250: 36 DLR 114: 3BLD (AD) 225 — Cited.

Section — 12

Specific performance of contract — In a
suit for specific performance the question is whether there was a concluded
contract between the parties which could be enforced — It is well-settled that
the Court will not decree a suit for specific performance of a contract the
terms of which are uncertain — As there was no concluded contract the same could
not be enforced.

H.N.
Fabrics Ltd. Vs. Mallick Textile industries and others, 5 BLDAD)271

Ref:
AIR. 1916 page l(FB); 1878. 3A.C. 1124: 1912. 1 Ch. 284-288: A.1.R. 1933
(PC)31; 1924 CA. 97 (atP. 114)—Cited.

Section — 16

Specific performance —Of the three
vendors one is a minor and the contract is void in respect of minor’s 1/3 share
— Contract in the facts of the case found divisible — Purchaser entitled to a
decree for specific performance in respect of 2/3 shares of the property.

Archana
Prasad Nandi Vs. Miss (‘hula Randolph and others, 2 BLD(AD)90

Ref:
36C.W.N. 1002—Cited.

Sections — 19 and 29

Refund of consideration money — The
unsuccessful plaintiff in a suit for specific performance of contract whether
entitled to i-efund of consideration money — Question requires to be decided on
evidence.

Ali
Haider Vs. Md. Jonab Ali Bepari and others, 3 BLD(AD)313

Section — 21

Breach of contract — Relief’s available
When a contract is broken it gives rise to two releifs namely, compensation or
specific performance — Where the contract cannot be specifically enforced the
relief available is compensation — Contract Act, 1872 (XI of J72). S. 73.

Burmali
Eastern Ltd. Vs. MIs. Hazi Mohammad Au and others, 5 BLD(HCD)159

Ref:
13 DLR(SC)228 PLD 196 1(SC)531; PLD 1958 (W.P.)(Lah)63; 17 DLR(SC)l I; PLD
l965(SC)83; A.I.R. 1944 Oudh)l39; PLD1964 (SC)l06; 35 DLR(AD)127 14 DLR3O7; 16
DLR(SC)198; —Cited.

Section — 22

Suit for specific performance — Court
is to be guided by the principles laid down in Chapter II of the Specific
Relief Act — Direction in such suit is regulated by law — The discretion is not
wide enough to vary the terms of a contract without assigning good reasons for
the variation — Sale of Goods Act. 1930 (III of 1930), S. 58.

Bazlur
Rahman Bhuiyan Vs. Bangladesh Shipping Corporation, 1BLD(AD)443

Section — 22

Contract of sale of ship—Specific
performance—Court has wide discretionary power to vary the terms of the relief
sought or the terms of the contract in passing the decree for specific
performance — Sale of Goods Act, 1930 (111 of 1930), S. 58.

Bazlur
Rahman Bhuiyan Vs. Bangladesh Shipping Corporation, 1BLD(HCD) 320

Section
— 22

Specific performance of contract —
Exercise of discretion by the Court in such suit — The discretion should be
judicial arid not arbitrary — Adequate compensation in lieu of specific
performance of Contract may be given — Contract of sale of entire property of
defendant — Plaintiff not in possession of the property — Balance of
consideration not tendered within stipulated time — Court exercised discretion
in granting compensation in lieu of specific performance.

Meghial
Moizdal and others Vs. Najma Beguin and another, 1BLD(HCD)447

Ref:
71)LR556; 28DLR238; A.1.R.1928 (PC)208 I6DLR 239; F.A. 68 of 975 Unreported) —
Cited.

Section—22

In a suit for specific performance is
discretionary—The Court is not bound to give such a relief merely because
it is lawful to do so—In consideration of the facts and circumstances of the
case, specific performance would give the plaintiff an unfair advantage over
the defendants and as such it is a fit case where the decree for specific
performance should not be granted as a matter of course—The defendants to
return the consideration with compensation.

Jogesh
Chandra Das and others Vs. Farida Hasan, 3BLD(AD)225

Section 22

Specific performance of contract —
Hardship as a ground for refusal of specific performance — The defendants were
under panic because of the fact that there was a rumour that the lives of the
Hindus were not safe in the then East Pakistan — Some of the Hindu families of
the village also left for India after selling their hearth and home — It was
not therefore wrong in refusing the specific performance to the palintiff.

Osmanuddin
Vs. Subäl Chandra Mondal and others, 3 BLD(HCD)226

Section — 22

A decree for specific performance of
contract is discretionary — The Court is not bound to grant such relief
merely because it is lawful to do so — II is not to be granted as a matter of
course.

Ram
Chandra Das and others Vs. Md. Khalilur Rahman and another, 5BLD (AD)41

Ref;
36 C.W.N, 285; 55 C.W.N. 557; 34 C.L.J. 364; 3BLD(AD)225 — Cited.

Section 22

Specific performance of contract — When
it should be refused — It is true that the plaintiff did not resort to any
fraud or misrepresentation, but in the circumstances it can reasonably be held
that the specific performance of the contract would cause hardship to the
appellant and as such it should be refused — But since the plaintiffs earnest
money was held up for a long time she deserves a reasonable compensation.

Rakhal
Dasi Rajakini Vs. Ayesha Khatun City and ano, 5 BLD(AD)49

Section — 22

Question of exercising discretion by the
Court —Specific performance is an equitable relief but equity is not
available to a person whose intention is not honest when the purpose of the
contract was defeated and the plaintiff was not ready and willing to perform
his part of the contract within a reasonable time, the High Court was justified
in refusing specific performance of the contract reversing the concurrent decision
of the trial Court and the lower appellate Court.

Rash
Behari Moshalkar Vs. Hiran Bala Debi and another, 5BLD(AD)51

Ref:
45 C.W.N. 837; 7DLR 556; 28 DLR 238—Cited.

Section—22

When specific performance of contract for
sale may be refused— If hardship will be caused to the party the specific
performance of contract may be refused — In the case before us no case has been
made out that the property contracted to be transferred was even a substantial
part of the assets of the Wakf and that if the contract is enforced it would
cause extreme hardship to the defendant.

Anwar
Hossain Vs. Haji Abdul Malek and others, 5BLD(HCD)290

Section — 22

Specific performance of contract— When
the Court should use its discretion in refusing decree for specific
performance?— The plaintiff entered into a deal and a contract was concluded
and now he wants to enforce it — Suit property is the only homestead of the
defendants and they will be on the street if the contract is enforced — The
defendants did not for-see the hardship at the time of the con-tract.
Non-performance of the contract would deprive the plaintiff to the acquisition
of the property for which he entered into a deal, but that will not be “such
hardship” on him as it would be a hardship on the defendant if the contract is
enforced — The Contract should not be enforced specifically if the appellant
returns the advance money with a solatium of Tk. 1, 00,000/-

Md.
Latifur Rahman and others Vs, Golam Ahmed Shah and others, 6 BLD (AD)231

Ref:
38 Calcutta 805(P.C.); AIR. 1952 (Mad)389; AIR. I 927(Cal)889; I 6(Allah) 423;
A.I.R. 1965(SC). 1405: 3 BLD(AD)225; — Cited.

Section —22

Specific performance of contract—
Exercise of discretion not to decree the suit though the contract is proved —
Where the hardship has been brought upon a party by himself the Court will not
consider that as a circumstance in favour of refusal of specific performance —
In any particular case the bargain may be found to be onerous but unless it is
found to be unconscionable it would not be allowed to be avoided — There is
nothing to show that the defendant had to agree to sell her homestead under
some circumstances but for which she would not have parted with her property —
When the plaintiff is in possession of the land in part performance of the contract
and has been residing on the land by constructing homestead, refusal to
specifically perform the contract would amount to hardhsip to the plaintiff.

Md.
Siddiqur Rahman Vs. Sarala Sundan Devi and another, 7 BLD (AD) 138

Ref:
5BLD(AD)49; AIR. 1914 (Cal)137; A.1.R. 1927 (Cal) 889 — Cited.

Section — 22

Specific performance of contract —
Exercise of discretion to decree or not to decree such suit though contract
proved — Payment of solatium to the defendant when to be paid — When the
defendant is going to transfer the suit property to others there is no reason
not to decree the suit for specific performance of contract — Though the price
of the suit property is not shockingly low the present market price will be
much higher — So the plaintiff should pay a reasonable sum as solatium to the
defendant for the ends of justice — Tk. 3,00,000/00 to be paid as solatium in
addition to the balance consideration of Tk. 1,20,100/00

Matin
Vs. Abdul Khalegue Siddique, 7BLD(HCD)170

Ref;
37DLR(AD)2l: 5BLD(AD)41; 3BLD(AD)225 — Cited.

Section —22

Decree for specific performance of contract
—Court is not bound to pass such a decree only because it is lawful —It is a
discretionary relief not to be granted to a party who is not clean in his
conduct.

Nur
Mohammad and another Vs. Sultan Ahmed and others, 9BLD(HCD)35I

Ref:
4BCR(AD)127; 2BCR(HCD)270; 38 DLR 240 —Cited.

Section—22

Possession of suit land — It merits no
consideration for a decree for specific peformance of contract in view of the
fact that the suit is not one for declaration of title on the basis of adverse
possessiop. –

Nur
Mohammad and another Vs. Sultan Ahmed and another, 9BLD (HCD) 351

Sections —22 and 24

Solaitum — Suit for specific
performance of contract for sale of land — Contract between parties in 1969 — The
plaintiff ad vanced part of consideration money to the defendant who promised
to execute necessary kabala on receipt of the balance but ultimately failed to
execute the sale deed denying contract — Defendant died, her heirs were
substituted and contested the suit. The trial Court dismissed the suit. On
appeal, the first lower appellate Court decreed the suit and ordered specific
performance of contract On second appeal the High Court Division maintaining
findings of the first appellate Court refused specific performance of contract
and ordered refund of earnest money with a certain amount of solatium to the
plaintiff which was considered veiy inadequate by the appellant.

In
view of the facts and circumstances of the case a solalitum of Taka 25,400/-
was considered reasonable and adequate in this case. This along with the
earnest money of Taka 4,600/- in all 30,000/- Taka, should be paid to the
appellant

Tobarakulla
Vs. Rani Gupta and another, 10BLD (AD)285

Section — 22

Suit for specific performance of contract
— When such a suit may be decreed— When the contract was legally proved,
although as a matter of right plaintiff cannot claim the decree for specific
performance of contract, the Court should not also refuse to grant relief for
its performance as a matter of course — No case of non-enforcement of the
contract having been made out by the defence at the trial, the legal course was
to decree the suit.

Feroja
Khatoon Vs. Brajalal Nath and others, 10BLD(HCD)218

Section —24

Specific performance of a contract — Repudiation of non-essential terms of the
contract and its legal effect — The agreement of sale is a separate
contract and the payment of profit on account of business is completely
different — The section makes a distinction between the essential terms and the
non-essential terms of the contract — The repudiation of the non-essential
terms would not disentitle the plaintiff to specific performance of the
contract.

Saieh
Ahmed being dead his heirs Rabeya Khatun and others Vs. Md. Shamsher, Mi and
others, 4BLD (AD) 73.

Section — 24

Specific performance of contract—
Whether failure to prove full payment of consideration disentitles the
plaintiff—The failure to prove full payment of the consideration money will not
be fatal to the suit as no time was fixed for the performance of the
contract—As they paid the balance consideration money within the time granted
by the Court, they will be deemed to be ready and willing to perform their part
of the contract.

Shahadat
Hossain and others Vs. Md. Jabed Ali, 4BLD (HCD)215

Ref:
1979 B.S.C.R. 547 (601) — Cited.

Section —26

Specific performance—Variation of contract —
Variation made in the decree as to the mode of payment — Defendant not setting
up a case for variation of the contract — Variation by the Court is fully unauthorised.

Baziur
Rahman Bhuiyan Vs. Bangladesh Shipping Corporation, 1BLD (AD)443

Section —27

Whether
a contract for sale of property can be enforced against the Custodian of Enemy
Property — As the custodian stepped into the shoes of the owner with the power
of transfer he can execute the kabala in favour of the plaintiff who got decree
for the specific performance of contract for sale.

Rahima
Akhter and others Vs. Asim Kumar Bose and others, 5BLD(AD)155

Section — 27

Amendment of plaint—Whether in a suit
for specific performance of contract for sale of property prayer for amendment
of plaint by inclusion of a prayer for execution and registration of the sale
deed also by the purchaser subsequent to the contract with the plaintiff should
be allowed— The suit is for specific performance of a contract which was
executed ‘on 22nd January, 1981 on which date the purchaser defendant was not
in the scene — The contract related to properties which then solely belonged to
defendant No. I — Defendant No. 2 came into the picture nearly eight months
after — Unless he can claim ownership of the properties on and from this date
how he can be compelled to execute the sale deed on the basis of such a
contract — Since defendant No. Z has already been impleaded in the suit, he
being subsequent transferee will be bound by the decree in the suit — The
prayer for declaration that subsequent deed was void and fraudulent if allowed
the plaintiff will have no ground for more grievance — Rejection of prayer for
amendment of the plaint by the Courts below is approved — Code of Civil
Procedure, 1908(V of 1908), Or. VI Rule 17.

Nurul
Amin and others Vs. Md. Faziul Huq and others, 7BLD(AD)185

Section —31

Presumption of registered deed— In the
registered deed of exchange plot number was mentioned as 6640 and not 6641
while in the copy of the power of attorney it was mentioned as 6641 — The
registered deed shall be presumed to be authentic — This discrepancy in a duly
executed and registered deed of exchange cannot be simply explained away as an
error because a registered instrument has always a presumption of validity
unless mistake thereof is corrected in an appropriate proceeding.

Alim
Mohammad Vs. Tamizuddin, 4BLD(HCD) 71

Sections — 31 and 42

Rectification of a deed — Whether such
relief can be granted in a suit for declaration —— A Court of law would always
be competent even in a declaratory suit to correct mistake even when the
plaintiff does not bring a separate action for the rectification of the
instrument within 3 years.

Shahabuddin
Vs. Sajuddin Talukder and others, 4BLD(HCD)291

Ref:
A.I.. 1930(A11) 387; AIR. 1931 (Madras) 783 — Cited.

Sections —39 and 42

Declaratory suit—Further relief—
Plaintiff executing kabala as a result of fraud— Plaintiff being a party to the
kabala cannot get a declaration of inoperativeness of the kabala without
seeking further relief of cancellation of the kabala.

Mominuddin
Howladar and others Vs. hutu Bibi, 1BLD(HCD)396

Ref:
I7DLR(Dacca)l22 — Cited.

Sections —39 and 42

Cancellation of a deed — Whether such a
relief is a consequential relief or an independent relief — Declaration of
nullity of a deed is the main and substantive relief whereas cancellation of
the deed is a consequential relief — A suit for declaration that the instrument
is void and that it has not affected the plaintiffs right or that the defendant
has not acquired any right thereby is a suit falling under both sections 39 and
42 of S.R. Act — In a suit under section 39 the plaintiff may seek merely a
decree for nullity of the instrument but if he prays for its cancellation he
must pay for it — But cancellation of the instrument is not always necessary
—Where the document s ex facie void its cancellation is not necessary even if
the plaintiff is a party to it — The declaratoiy decree that the document is
void and the plaintiff s right has not been affected thereby will give him
adequate relief — Of course, in view of this decree the instrument will not
stand cancelled — In his own interest the plaintiff should also seek additional
relief by way of cancelling the deed — Where the document has been adjudged
voidable it will have to be cancelled but when it is adjudged void it need not
be cancelled.

Sufia
Khanam Chowdhury Vs. Faizun Nessa Chowdhury, 7BLD(AD)55

Ref:
A.I.R. I 932(A1l)485(F.B.): I.L.R. 54 (All)812; I.L.R. 55(AIl)791; 17 DLR 119;
A.I.R. 1929 (Mad) 393; LL.R. 35 (Cal) 551; AIR. 1939 (Mad) 894; 6 DLR 254; 21
DLR 626;—Cited.

Section — 42

Temporary injunction—Suit for
declaration of title without prayer for consequential relief—Temporary
injunction restraining defendant from interfering with possession whether can
be granted?

The
principle that in a suit for declaration of title to lands simplicities without
any prayer for consequential relief the plaintiff is not entitled to ask for
temporary injunction against the defendants restraining them from interfering
the with plaintiffs alleged possession of the suit land is generally applicable
to a case where a suit for title relating to immoveable property is filed and
consequential prayer ought to have been made, but has not been made, and an
injunction is sought for. Normally this male is to be observed, but it cannot
be taken as an absolute rule, because if the suit is otherwise maintainable,
and if it is found that the defendant without being in possession, wants to
disturb the possession, the Court cannot be powerless to grant temporary
injunction in an appropriate case. The order granting injunction must be a
speaking order — Code Civil Procedure, 1908 (V of 1908),Or. XXXIXR.2

Ramani
Marak Vs. Jamini Marak, 1BLD (AD) 57

Ref:
I 6DLR272; 29DLR (SC) 168— Cited.

Section — 42

Property attached under section 145 or 146
Cr. P. Code is in custodialegis—Suit for declaration of title without a
prayer for recovery of possession in respect of such property is competent —
Civil Court competent to appoint receiver in such suit—Code of Civil Procedure,
1908 (V of 1908), Or. XL. R.1; — Code of Criminal Procedure, 1898 (V of
1898),Ss. 145 and 146.

Jogendra
Kumar Dutta Vs. Nur Mohainniad and others, 1 BLD (AD) 248

Ref:
AIR. I 943(PC)94; A.I.R. 1938(PC) 73; A.IR. 1966(SC)369 -— Cited. –

Section —42

Court-fees—Property attached under
section 145 Cr. P. Code and receiver appointed — Suit for declaration that
plaintiff was in possession tilll taking over of possession by the receiver and
that he was entitled to get back possession—Possession of receiver is
equivalent to possession by the true owner

—Payment
of advalorem court fees is not required — Court-Fees Act, 1870 (VII of 1870),
S. 7(IV)(C), 8C and Art. 17(iii) of Sch. II — Code of Criniinal Procedure, 1898
(V of 1898) S. 145.

Miah
A.M. Noor Vs. Abu Naser Ahmed, 2BLD(AD)97

Section —42

Adverse possession — Question of giving
the benefit of adverse possession in favour of the plaintiffs when the plea of
adverse possession can be taken by the defendant in a suit— The plaintiffs
claim is against the real owner on the basis of bainapatra and they were
possessing the land for more than the statutory period adversely against him
and have perfected their title by such possession against him and not against
the defendants

Plaintiffs
have not derived title against the defendants by adverse possession but against
the real owner — The defendant cannot plead point of limitation as the
defendant was not in physical possession — Though the plaintiffs could not
prove their bainapatra their physical possession had tilted in their favour
against the true owner and the suit was therefore rightly decreed — Limitation
Act, 1908 (IX of 1908), Article 144.

Md.
Ashraf Au and another Vs. Fatique Chandra Saha and others, 3BLD (AD) 315

Ref:
35C.W.N. 953 — Cited.

Section—42

Declaration challenging order of dismissal
from service — Bank employee dismissed from service after compliance with
Rules and Regulations of the Bank — In the absence of violation of any Rules
and Regulations suit for declaration is not maintainable.

Manager,
Personnel Division, Sonali Bank Vs. Md. Shahjahan Miah and others, 3 BLD (HCD)
197

Section — 42

Maintainablity of suit for declaration—-
Suit for declaration that the plaintiffs dismissal by Bank was illegal and not
binding upon him and he was still is service without asking for any
consequential relief by way of mandatory injunction and claim for arrear wages
is maintainable.

Manager,
Personnel Division, Sonali Bank Vs. Md. Shahjahan Miah and others, 3 BLD(HCD)
197

Section — 42

Declaratory suit—Whether a suit for
declaration that the order of removal from service is illegal and void is
maintainable—A suit for declaration that the removal order is bad, illegal and
that the plaintiff is still in service with a prayer for injunction restraining
the management from interfering with his work as Headmaster, would be
maintainable and shall not be hit by the proviso to section 42 of the Specific
Relief Act because a relief to which a plaintiff would be entitled to in some
way because of the declaration but not necessarily consequent upon the right or
title, asserted cannot be called further relief within the meaning of the
proviso to section 42 of the Specific Relief Act.

Sardar
Ahmed Ali Vs. G.M. Ali Baksha and others, 4BLD(HCD)309

Ref:
35 DLR224; 13DLR341; A.IR.l958 (Bom)279 — Cited.

Section — 42

Declaratory suit — Declaration as to
unknown parentage and eligibility as Mutwalli — The suit was misconceived and
on plaintiffs own showing such declaration that Khorshed is of unknown
parentage cannot be made as that is contrary to law – Nor the second prayer can
be allowed which calls for objective determination of fact by the statutory
functionary and as such the plaintiff has to be non-suited.

Khoreshed
Alam alias Shah A lain Vs. Amir Sultan Ali Hyder and anot her, 5 BLD (AD) 121

Ref:
56 I.A.20l; 29DLR (SC) 295— Cited.

Section — 42

Amendment of plaint Whether the prayer
for declaration that the deed of partition is void, fraudulent and illegal can
be amended by substituting prayer for cancellation of the deed of partition —
Since the relief prayed for in the amendment petition appears to follow from
the declaration prayed for in the plaint the contention that there was question
of limitation does not appear to be acc ceptable — If the Court after taking
evidence comes to hold that certain document is null and void being fraudulent,
there is no reason why it cannot order its cancellation after granting the said
declaration — Cancellation of a document seems to be a consequence of the
declaration of the deed as null and void — Code of Civil Procedure, 1908 (V of
1908), Order IV Rule 17.

Jarina
Khatun and others Vs. Pulin Chandra Da and others, 5BLD (AD)253

Ref:
29 DLR(SC)311; I5DLR(SC)120;. (1979) BSCR 135; I7DLR 190— Cited.

Section —42

Plaintiff’s right to declaration — Even
though the heba-bil-ewaz deed in favour of the plaintiff was also found to be a
false document even then he being the legal heir he was entitled to seek the
declaration.

Momtajur
Rahman Vs A.K.M Mokbul Hossain and others, 5 BLD (HCD) 18

Section —42

Declaratory suit—Whether in a suit for
declaration without prayer for recovery of possession maintainable? — Suit land
sold in auction in a certificate proceeding—Plaintiff filed suit for
declaration that the sale was illegal, collusive, fraudulent and not binding—
No prayer for consequential relief is required as the plaintiffs have not filed
this suit for declaration of their title.

Mokbul
Hossain and others Vs. Akhil Kuinar Shaha and others, 5BLD (HD) 76

Ref:
7 DLR 50; 13 DLR 70; 30 DLR 116—Cited.

Section — 42

Whether a stranger need be impleaded in a
suit for partition? Whether in a suit to declare the decree in a partition
suit in which the property of a stranger is included is maintainable?—— A
stranger need not be impleaded in a partition suit, for that matter, in any
suit—When the stranger’s property is included in a suit the ‘stranger’ must be
impleaded as a party, for a person having any interest or share in the
disputed-property cannot be avoided by simply branding him as a stranger—On the
face of the record plaintiff appellants were necessary parties to the partition
suit but were left out. Evidence shows that they have got title as well as
possession in their share of the suit holding—In these circumstances their suit
for declaration of nullity of the decree of the partition suit to which they
were not parties is quite maintainable.

Mobinnessa
and others Vs. Khalilur Rahman, 6BLD (AD)109

Section — 42

Suit for declaration of title — When
the plaintiff is not entitled to the declaration

The
contention was that the plaintiff was entitled to a decree at least to the
extent of 1/3rd share of the suit land and that since he has been in possession
of the entire suit land, an email property, the attempt to oust him without
legal partition is unwarranted — But it is not ascertained what is the
appellant’s share nor is it clear whether the 1/3rd share of the suit land
representing the original owner has been included in the vested property case
Determination of the palintiffs lawful share is not an issue in this suit — It
is a suit for declaration that the vested property case is illegal, collusive
and void — Now that the plaintiff does not have title to the entire suit land
the greater part of which is in fact an enemy and vested property he is not
entitled to a decree he prayed for — He may seek remedy by way of partition in
an appropriate forum.

Nuruzzaman
Sarkar Vs. Seraj Mia and others, 9BLD (AD) 9

Section—42

Suit for Specific performance of contract

When
a suit for specific performance of contract is based on oral contract, the
contract must be proved. If the contract is not proved strictly the suit fails.

Al-haj
Ahmed Hossain Khan Vs. Rezanur Rahman and others, 10 BLD (AD) 172

Ref:
36DLR(AD)52: 4BLD( AD) 107:4 BCR(AD)208;PLD1966(SC)612; 29 C.W.N. (PC) 131
—Cited.

Section—42

Declaratory Suit—The plaintiff is not
entitled to specific performance of the contract for sale of the suit property
when title and possession therein of the defendant contracting to sell the same
is disputed. Complicated question of title and possession of the defendant in
the suit property cannot be decided in the suit for specific performance of
contract for sale of the suit land. There is no scope for deciding the question
of title of the defendant in the suit for specific performance of contract by
the buyer or to declare that defendant Nos. 2 and 3 have no title in the suit
property. Specific performance being an equitable relief, the Court is not
hound to grant the same merely because the contract between the plaintiff and
one defendant has been proved to the prejudice of other defendants who are not
parties to the said contract.

M/s.
Silver Estate Ltd. Vs. Abdul Hakim vtia and others, 11BLD(HCD)270

Ref.
A.I.R.19l5 (Mad) 305; PLD 1947 (PC) 407; 52 IC. 971; A.LR. 1926 (Mad) 579:
A.I.R. 1961 (Raj) 196; A.I.R.1943 (Mad) 497; A.LR.1973 (SC) 2457; I3DLR 554; 28
DLR 238; —Cited.

Section —42

Suit for declaration—Section 42 of the
Specific Relief Act provides that a suit for mere declaration of any legal
character or any right to property is maintainable and the plaintiff in such
suit need not ask for any further relief. The object of the proviso is only to
avoid multiplicity of suits where further relief can be sought for at the time
of institution of the suit.

Considering
the facts and circumstances of the present case it has been held that the
present suit for mere declaration is maintain able. –

Faziul
Kariin Vs. Agrani Bank, IIBLD (HCD) 528

Ref:
A.I.R.1948(PC)121; PLD1954 Sind 199; 1 3DLR 341; 35DLR224 — Cited.

Section — 54

Permanent injunction—Whether question
of title or possession is to be considered in such a suit—Failure to prove
title by the plaintiff in a suit for permanent injunction cannot disentitle him
to a decree for permanent injunction if he can prove his possession.

Manindra
Nath Sen Sarma Vs. Bangladesh, 4BLD (AD) 285

Section —54

Permanent injunction — Possession for
more than 12 years can be protected by permanent injunction even against the
rightful owner.

A
person in long possession can be evicted only in due process of law. Even the
rightful owner cannot evict such a man with force. If he cannot be evicted with
force he continues to be in possession and be can resist invasion of his
possession by every one including the rightful owner.

Md.
Abdul Gafur and others Vs. Nazimuddin and others, 4BLD (HCD) 127

Ref:
10 DLR 193; 7DLR95 — Cited.

Section —54

Suit for permanent injunction— Whether
Court needs to enter into a disputed question of title — In a suit for
permanent injunction Court need not enter into a disputed question of title of
the parties except to the extent as it would help the Court in finding which of
the parties has clear possession.

Ansar
Au and others Vs. Sundar Au and others, 4BLD (HCD) 140

Ref:
2 BCR (AD) 32 I — Cited.

Section—54

Suit for permanent injunction against
co-sharers if maintainable — Maintainable till partition if the, plaintiff
is in exclusive possession of the ejmali land.

Whether
in a suit for permanent injunction complicated question of title need be
decided ?—In a suit for permanent injunction the Court need not enter into the
complicated question of title — It is enough for the Court to find who is in
actual and exclusive possession of the suit land.

Pasharuddin
Mir Vs. Ismail il’Iir and others, 6BLD (HCD) 155

Ref:
5DLR22;i ICW.N.517; I2DLR 708; 4BLD(AD)285 —Cited.

Sections —54 and 55

Perpetual injunction—Construction of
building without leaving 4 feet side space as provided under Building
Construction Rules — Whether for such violation perpetual and mandatory
injunction or compensation is to be granted —- That rain water may cause
trouble and fall on the land of the plaintiff because of the elevation of the
defendants multistoried building cannot be overruled — This inconvenience shows
that the injury was not great — So instead of granting perpetual or mandatory
injunction compensation was granted — Building Construction Rules, 1953, Rules
3 and 4.

Beguin
Sufia Khatoon and others, Vs. Abdul Hakinz Khan and another, 7BLD (AD)190

Section — 54

Injunction — Whether a trespasser is
entitled to get a decree for injunction — There is nothing to show that the
land of the notification Ext. A was resumed by the Government through its Land
Administration and Land Reforms Department from the Forest Department — So Land
Administration and Land Reforms Department has no authority to settle the suit
land with the plaintiff — The plaintiff who is more or less a trespasser and
who has not yet acquired any sort of title in the suit land cannot maintain a
suit for injunction against the Forest Department who are in prior possession
of the suit land since 1943.

Karglu
Khasia Vs Thvisional Forest Officer and others, 7BLD(HCD)96

Section —54

Permanent Injunction — When it will not be called for ? —
When a statute imposes a particular negative or. positive duty and the statute
itself provided a penalty for its breach, the penalty would be deemed to be an
adequate remedy in law —Unless a particular property right of the petitioner is
adversely affected a mere breach of duty imposed by a statute would not by
itself call for an injunction

Mst.
Anwara Khatun and others Vs Giasuddin Ahmed & others, 9BLD (HCD) 40

Ref.
(1903)1 Chancery, at page. 101; 1901)1 Chancery, 759; 6 BLD 80; A.LR. 1941
(Nag)364; —Cited..

Section—54

Permanent injunction — Question of
title in a suit for permanent injunction — No doubt the question of title may
be gone into incidentally but decision of title in a suit for permanent injunction
is not the guiding principle.

Sheikh
Ahmed and others Vs. Abdul Alim, 9BLD (HCD)368

Ref:
12 DLR 709; 11 DLR(SC)78; — Cited.

Section — 54

Co-sharer’s suit for permanent injunction
—Maintainability of — Where the plaintiff purchased land of which his
vendor is a co-sharer and where on evidence in a suit for permanent injunction
it is found that the plaintiff is in exclusive possession of the land the suit
for permanent injuction is maintainable without instituting a suit for
partition.

Sheikh
Ahmed and others Vs. Abdul All, 9BLD (HCD) 368

Ref:
12 DLR 708 11 DLR (SC)78 —Cited.

Section — 55

Mandatory injunction — Such injunction
requiring the authority to start a valid acquisition proceeding whether
sustainable? —The authority has no right to possess the.; property in question
as a mere requisitioned property for an indefinite period — They have either to
de-requisition the property and hand over vacant possession thereof to the
owners, or they have to complete the acquisition proceedings in accordance with
the law . The mandatory injunction given under the circumstances is the most
appropriate decree -Requisition and Acquisition of Immovable Property
Ordinance, 1982 (11 of 1982) S. 3.

Government
of Bangladesh and others Vs. Basaratullah being dead his heirs and successors
Fazie Karim and others, 9BLD (HCD) 97

Section—55

Injunction —. Only breach of a legal
obligation calls for injunction — Where the use of some property is permissive
and not as of right no case is made out for injunction, far less a case of
mandatory injunction — The obligation referred to in the relevant law means a
legal obligation and not a moral obligation.

Mr.
Aftabuddin Vs. Mr. Mahfuzur Sobhan and others, 10BLD (AD) 47-.Cited

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

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