Ahmed Selim and another Vs. Nasir Uddin Haider and others, (Kashefa Hussain, J.)

Case No: First Appeal No. 403 of 2015 with Civil Rule No. 264(F) of 2016

Judge: S. M. Emdadul Hoque, J And Kashefa Hussain, J

Court: High Court Division,

Advocate: Mr. Moudud Ahmed, Senior Advocate with Mr. Muhammad Rejaul Hussain Morshed, Advocate ,

Citation: 2018(2) LNJ

Case Year: 2017

Appellant: Ahmed Selim and another

Respondent: Nasir Uddin Haider and others

Subject: Specific Relief Act

Delivery Date: 2019-11-30

HIGH COURT DIVISION

(CIVIL APPELLATE JURISDICTION)

S. M. Emdadul Hoque, J

And

Kashefa Hussain, J

Judgment on

24.08.2017

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Ahmed Selim and another

. . . Appellants

-Versus-

Nasir Uddin Haider and others

. . .Respondents

Specific Relief Act (I of 1877)

Section 21(A)

Registration act (XVI of 1908)

Section 52(A)

This incorrect finding reflect that the Trial court failed to appreciate that Section 21(A) of the Specific Relief Act and Section 52(A) of the Registration Act came into force on 1st July 2005 that is, at a much later date subsequent to filing of the suit. The Trial court could not or did not even appreciate or comprehend the settled principle of law that no retrospective effect can be given to any law. All laws in general are prospective. Even though the trial court in its findings did not mention any particular provision of law or any provision of any particular statute, yet it may be upon logical presumption be concluded that he was relying upon Section 21(A) of the Specific Relief Act and Section 52(A) of the Registration Act. But neither of these provisions of the respective statutes were in force at the time the suit was filed and therefore are not applicable to the appellant’s case. However at the time of hearing of the appeal, the plaintiffs by way of specific performance of contract deposited the rest of the consideration amount of the suit property in schedule No. 1 and Schedule No. 2 land through treasury Challan being No. 1096 dated 31.07.2017. We have perused all documents on record and have gone through the decisions cited by the learned Counsel for the appellant. Under the facts and circumstances and relying upon the observations made above and upon hearing the learned Advocate for the Appellant we find merits in the Appeal.   . . .(12 and 13)

Nasima Akhter Vs. Md. Siraj Miah and another, 57 DLR (AD) 38 ref.

Mr. Moudud Ahmed, Senior Advocate with

Mr. Muhammad Rejaul Hussain Morshed, Advocate

. . . For the Appellants.

None appears

. . . For the Respondents.

JUDGMENT

Kashefa Hussain, J This appeal is directed against judgment and decree dated 26.04.2012 (Decree signed on 03.05.2012) passed by the learned Joint District Judge, 3rd Court, Sadar, Chittagong, in Other Class Suit No. 255 of 2004 dismissing the suit.

2.             Facts arising for disposal of the Appeal in short is that the plaintiffs No. 1 and 2 being husband and wife respectively entered into a contract with the defendant Nos. 1-5 for purchase of the disputed land. The plaintiff No. 1 husband entered into a contract of agreement for purchase of the schedule 1 land from the defendant Nos. 1-5 on 06.12.2001 while the plaintiff No. 2 wife executed second bainanama with the defendant Nos. 1-5 for purchase of the schedule No. 2 land by executing a contract on 18.03.2003. The terms of the first bainanama dated 06.12.2001 fixed the consideration amount for payment of purchase of the schedule 1 land for a consideration sum of Taka 2,80,000/- and on the very date of execution that is on 06.12.2001, the plaintiff No. 1 made a payment of Taka 50,000/-. Subsequently on 25.04.2002 the plaintiff No. 1 paid another Taka 50,000/- and against those payments the defendants gave the plaintiff No. 1 a receipt. In that same receipt the defendants by way of written assurance stated that the defendant Nos. 1-5 shall execute the shaf-kabala deed and register the schedule No. 1 property upon payment of the remaining consideration amount of Taka 1,40,000/- on 25.04.2002. It is also stated in the original agreement dated 06.12.2001 with the plaintiff No. 1 that in the event of refusal or failure by the defendants to perform their part of the contract, the plaintiff No. 1 shall be entitled to obtain the shaf-kabala deed and obtain registration of the schedule 1 land through a court order. Subsequently the plaintiff No. 2 being the wife of the plaintiff No. 1 executed a second bainanama for purchase of the schedule No. 2 land on 18.03.2002 with the defendants No. 1-5 at a total consideration amount of Taka 3,60,000/-. On the very date of execution of agreement that is on 18.03.2002 plaintiff No. 2, wife of plaintiff No. 1 made a payment of Taka 80,000/- to the defendant Nos. 1-5. The parties agreed upon the condition that upon payment of the remaining consideration amount of Taka 2,80,000/-, the defendant Nos. 1-5 shall mandatorily execute the shaf-kabala deed upon payment and register the same accordingly. Both the schedule No. 1 and schedule 2 of the property belongs to R.S 5700, Dag No. 2 and the amount of the total area of land comprise of 4 gondas. Delivery of possession has been granted to the plaintiffs and they are in possession of the same by building homestead etc. and are enjoying possession of the same. The defendant Nos. 1-5 at a subsequent time after the execution of the Bainanama corrected the previously wrongly recorded B.S khatian. However as time went by the defendants No. 1-5 inspite of several requests by the plaintiff refused to execute the shaf kabala deed and register the schedule No. 1 and schedule No. 2 land in favour of the plaintiffs. At one stage on 28.01.2004 both the plaintiff Nos. 1 and 2, husband and wife sent a legal notice to the defendants demanding execution of the shaf kabala deed and registration of the schedule No. 1 and schedule No. 2 land upon receipt of remaining consideration amount of Taka 1,40,000/- and Taka 2,80,000/- respectively as per the provisions of the contract. But the defendant Nos. 1-5 however through their reply dated 15.02.2004 admitted to the bainanama and asked the plaintiff to pay the remaining sum and register the shaf kabala deed within 15 days. In pursuance of these exchanges, the plaintiffs on 04.03.2004 asked the defendants to correct the B.S record which was decreed upon earlier and execute the shaf kabala deed. But in spite of the second reminder by the plaintiffs dated 04.03.2004 the defendants did not respond in any manner. Hence the plaintiffs filed Other Suit No. 255 of 2004 on 18.10.2004 with the prayer for a decree for execution of the shaf kabala deed and registration of the schedule No. 1 and Schedule No. 2 land upon payment of the consideration amount.

3.             The trial court pursuant to trial, hearing the parties, adducing  evidences etc. dismissed the suit against the plaintiffs. The defendants however did not enter appearance during the trail in the trial court.

4.             Being aggrieved by the judgment and decree dated   26.04.2012 (Decree signed on 03.05.2012) passed by the learned Joint District Judge, 3rd Court, Sadar, Chittagong, in Other Class Suit No. 255 of 2004, the plaintiffs initially inadvertently filed a review Miscellaneous Case No. 56 of 2012 (arising out of Other Suit No. 255 of 2012). However the review petition was dismissed on the ground of being barred by limitation considering the 30(thirty) days limitation but the actually limitation is 90(ninety) days.

5.             Subsequently against the judgment and decree dated 26.04.2012 (Decree signed on 03.05.2012) passed by the learned Joint District Judge, 3rd Court, Sadar, Chittagong, in Other Class Suit No. 255 of 2004 plaintiff preferred the instant First Appeal which is before us for disposal.

6.             No issue were framed in the suit by the trial court, 2(two) witnesses deposed from the plaintiff’s side while none appeared from the defendant’s side.

7.             Mr. Moudud Ahmed, Senior Counsel along with Mr. Muhammad Rejaul Hussain Morshed, Advocate appeared on behalf of the appellant while none appears for the respondent.

8.             Learned Senior Counsel Mr. Moudud Ahmed opens his submissions upon assertion that the trial court upon misapplication of mind incorrectly and unlawfully dismissed the suit causing grave injustice to the plaintiffs. Upon elaborating his contention he points out that the trial court arrived upon an incorrect finding that the defendants did not have any title to the suit land since no B.S record was prepared in their name. Against this finding of the trial court Learned Senior Counsel argues that R.S record was duly prepared and which is indispensable. He further contends that the R.S record was correctly recorded in the name of defendants. He now takes us to exhibit 11 and assails that the defendants had filed Other Suit No. 178 of 2001 for correction of B.S record and the court of the learned Senior Assistant Judge, Rawjan, Chittagong had by its order No. 5 dated 13.03.2002 decreed the suit in favour of the defendants. Learned Senior Counsel pursued that the order dated 13.03.2002 passed by the learned Senior Assistant Judge, Rawjan, Chittagong infavour of the defendant is conclusive evidence that the defendants were holding valid title to the property at the time of execution of contract with the plaintiffs. Learned Senior Counsel further points out that the trial court incorrectly found that there is no mention or reference to any plot or khatian in the respective schedule in the bainanama. He takes us to both the bainanamas which were produced as exhibits before the Trial court and draws our attention to the fact that the schedules and khatians are duly mentioned in both the bainanamas. He now takes us to the finding of the trial court that there was no specification in the bainanama regarding the period of time by which the contract must be performed. Controverting this finding he again takes us to the second bainanama which is exhibit 3 wherefrom he shows us that the 3(three) years time limit was duly fixed for performance of the contract. Learned Senior Counsel asserts that the trial court wrongly found that there was no signature of the deed writer (­j¡p¡¢hc¡L¡lL) in the bainanama. He takes us through the documents again and shows that from the bainanama it is clear that the signature of the deed writer  (­j¡p¡¢hc¡L¡lL) is there under the name of Ojit Kumar. Learned Senior counsel for the appellant further continues that the Trial court incorrectly and upon total misapplication of mind came upon the finding that the boundary of the schedule No-1 and schedule No. 2 suit land is not mentioned in the bainanama given that the second bainanama exhibit 3 has specifically mentioned the boundary of the scheduled land. Learned Senior Counsel now takes us to a very relevant point of law necessary for disposal of the appeal. He takes us to the judgment of the trial court where the trial court has in dismissing the suit also taken a ground that the plaintiffs during filing the suit did not make the payment of the balance amount of consideration. In this context learned Senior Counsel contends that dismissing the suit on this ground under Section 21(A) of the Specific Relief Act was wrongly done by the Trial court. He takes us to Section 21(A) of the Specific Relief Act and draws our attention to the act and persists that Section 21(A) of the Specific Relief Act came into force on 1st July 2005. He confines his focus on the fact that the suit being Other Suit No. 255 of 2004 was filed on 18.10.2004. Against this fact he submits that as a general rule a law does not or cannot have retrospective effect and that the operation of any law can be only contemplated prospectively, from the date it comes into force. He therefore argues that since the suit was filed before Section 21(A) of the Specific Relief Act came into force, therefore the mandatory provision for payment of balance amount of consideration at the onset of the filing of the suit is not applicable in this case. Learned Senior Counsel also contends another ground taken by the Trial court in dismissing the suit is that under section 52(A) of the Registration Act no property shall be registered unless the specification of the latest khatian or the current khatian is shown in the relevant documents. On this issue also he argues that Section 52(A) of the Registration Act also came into force on 1st July 2005 and consequently the new insertion became effective long after the date the instant suit was filed and therefore Section 52(A) of the Registration Act also has no applicability in this case. In this context learned Senior Counsel submits that even given that in a case where Section 52(A) might be applicable even in that event registration might not be given but there is no bar upon the court in decreeing the suit. In support of his arguments he relied upon a few decisions of this court and the Apex Court one of them being the case of Nasima Akhter Vs. Md. Siraj Miah and another reported in 57 DLR(AD)(2005) 38. He concludes his submissions upon reiteration that the trial court upon total misapplication of its judicial mind unjudiciously and unlawfully dismissed the suit and therefore the instant appeal bears merit and the appeal ought to be allowed.

9.             We have heard the Learned Advocate for the appellant, perused all materials on records including the judgment of the Trial court. Upon perusal of the judgment of the Trial court and upon comparison with the several exhibits produced before us which are relevant, regrettably enough it is clear that the Trial court while considering the evidence by way of documents etc., did not apply its judicial mind at any stage whatsoever.

10.         On the contrary upon examination of exhibit 3 the second bainanama dated 18.03.2002 we find that the 3(three) years time limitation has been specifically mentioned including the boundary of the property. It also appears upon scrutiny that the signature of the deed writer is also there. It is therefore strange and surprising as to what prompted the Trial court to arrive at such an absurd finding in the presence of the exhibits which prove the contrary. Regarding the trial court’s finding that:

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11.         We are constrained to hold that it is surprising and strange that the trial court did not apply its mind at all to exhibit to No. 11 which is a valid order passed by the learned Senior Assistant Judge, Rawjan, Chittagong by which order the Title of the defendant to the suit land has been established upon a decree by correction of the B.S khatian. The court below did not even take into consideration exhibit-7, that is the reply by the defendant to the first legal notice of the plaintiffs. As is quite clear from our perusal of exhibit 7 the defendants clearly acknowledge having entered into a bainanama with the plaintiffs. Therefore the trial court upon misapplication of mind whatsoever ignored these vital facts which are necessary to arrive upon a proper finding in this particular case. Furthermore upon comparison with the finding of the Trial court with those of the documents by way of exhibits, we find several inconsistencies in its finding. Furthermore the Trial court upon an error of law came upon the finding that :

e¢b fkÑ¡­®m¡Qe¡u B­®l¡ ®cM¡ k¡u ®k, h¡c£fr h¡ue¡l Ah¢nø V¡L¡ Sj¡ ¢cu¡­®Re ¢Le¡ a¡q¡ Bl¢S­a E®­õM e¡Cz 

12.         This incorrect finding reflect that the Trial court failed to appreciate that Section 21(A) of the Specific Relief Act and Section 52(A) of the Registration Act came into force on 1st July 2005 that is, at a much later date subsequent to filing of the suit. The Trial court could not or did not even appreciate or comprehend the settled principle of law that no retrospective effect can be given to any law. All laws in general are prospective. Even though the trial court in its findings did not mention any particular provision of law or any provision of any particular statute, yet it may be upon logical presumption be concluded that he was relying upon Section 21(A) of the Specific Relief Act and Section 52(A) of the Registration Act. But neither of these provisions of the respective statutes were in force at the time the suit was filed and therefore are not applicable to the appellant’s case. However at the time of hearing of the appeal, the plaintiffs by way of specific performance of contract deposited the rest of the consideration amount of the suit property in schedule No. 1 and Schedule No. 2 land through treasury Challan be No. 1096 dated 31.07.2017.

13.         We have perused all documents on record and have gone through the decisions cited by the learned Counsel for the appellant. Under the facts and circumstances and relying upon the observations made above and upon hearing the learned Advocate for the Appellant we find merits in the Appeal.

14.         In the result, the appeal is allowed and the Civil Rule being No. 264(F) of 2016 is disposed of and judgment and decree dated 26.04.2012 passed by the learned Joint District Judge, 3rd Court, Sadar, Chittagong, in Other Class Suit No. 255 of 2004 is hereby set aside.

15.         The order of status-quo granted earlier by this court is hereby recalled.

16.         Send down the lower court records at once.

17.         Communicate this judgment and order at once.

Ed.



First Appeal No. 403 of 2015 with

Civil Rule No. 264(F) of 2016