Mst. Shahina Vs. M. A. Rashid Mia and another, (Md. Nuruzzaman, J.)

Case No: Civil Revision No. 3494 of 2012

Judge: Md. Nuruzzaman, J And S.H. Md. Nurul Huda Jaigirdar, J

Court: High Court Division,

Advocate: Mr. M. A. Mannan Bhuiyan, with Mr. Abdur Razzak, Advocates ,

Citation: 2019(1) LNJ

Case Year: 2017

Appellant: Mst. Shahina Akter

Respondent: M. A. Rashid Mia and another

Subject: Specific Relief Act

Delivery Date: 2019-11-27

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Md. Nuruzzaman, J

And

S.H. Md. Nurul Huda Jaigirdar, J

 

Judgment on

28.11.2017

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Mst. Shahina Akter

. . Petitioner

-Versus-

M. A. Rashid Mia and another

. . . -Opposite parties

Specific Relief Act (I of 1877)

Section 39

Any person against whom written instrument is void and voidable who has reasonable apprehension that such instrument, if left outstanding, may cause in serious injury, may suit to have it adjust void and voidable. If the instrument has been registered under the 1[ Registration Act, 1908], the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.    . . .(18 and 23)

Specific Relief Act (I of 1877)

Section 39

The legislature without any ambiguity has indicated in the language of the section 39 who has clear right, title and interest over any property and his such right and title threatened due to any such instrument then only that person can invoke this provision.  So, we cannot but to opine that to proceed with the suit the plaintiff must narrate in the averments of the plaint he would be affected if the deed in question is left out standing. The cancellation of the deed who is not the party in the instrument he has  no status to seek the cancellation of the instrument rather, if by such instrument he apprehend any injury in that case he can filed a suit for declaration to the effect that such instrument is not binding upon him.                      . . . (24)

Specific Relief Act (I of 1877)

Section 17 (A) (B) and 21 A

It is very essential to mention here the provisions of sections 17A and 17B of the Registration Act and 21A of the Specific Relief Act came into effect from the 1st July 2005(Act No. XXV of 2004) and from the language of the above laws it is clearly divulged that unregistered agreement for sale cannot be enforced unless within six months of the amendment of the law as mentioned herein above put in to execution for registration in accordance with law or instituted a law suit for registration of the unregistered instrument. Due to misconception of the aforesaid provisions of law a good number of Civil litigation have been going on by filing such type of vexatious suit like the present one for declaration of title, cancelation of the registration instrument or protection of the possession by dint of such unregistered agreement for sale. Such type of Civil litigation cannot be continued because ultimate result of which is nothing but misuse the process of the Court with the cost of the litigant. Therefore, we are, of the view that such type of litigation must be discouraged and deprecated by the learned members of the Bar.   . . . ( 29 and 34)

Sultana Begum and another Vs. Abul Kalam 43 D.L.R (HCD) 177; Momtaz Begum and others Vs. Md. Masud Khan 52 D.L.R (AD) 46 and Abdul Jalil and others Vs. Islamic Bank Bangladesh Ltd and others 53 DLR (AD) 12 ref.

Mr. M. A. Mannan Bhuiyan, with

Mr. Abdur Razzak, Advocates

. . .For the petitioner

None appears

. . .For the opposite parties

JUDGMENT

Md. Nuruzzaman, J: On an application under section 115(1) of the Code of Civil Procedure the instant Rule was issued calling upon the Opposite Party No. 1 to show cause as to why the Judgment and Order dated 08.08.2012 passed by the learned Joint District Judge, 1st Court, Dhaka in Title Suit No. 255 of 2009 rejecting an application for rejection of plaint should not be set aside and/or such other or further order or orders passed as to this Court may seem fit and proper.

2.             The material facts, relevant for the disposal of the instant Rule, in short, are that, the defendant No. 2 i.e. the opposite party No. 2 herein was the owner of the land in suit by purchase from Md. Monirunddin by a registered deed of sale dated 20.06.1979 and having been in possession thereof the defendant No. 2 entered into an agreement with the plaintiff to sell the suit land for a consideration of Tk. 16,75,000/-. The defendant No. 2 on receipt of a sum of tk. 5,00,000/- as earnest money out of total consideration executed a deed of agreement on 01.07.2004 which was duly authenticated by a Notary Public. Thereafter the defendant No. 2 received another sum of Tk.9,75,000/- on different dates till 29.11.2005. The plaintiff subsequently requested the defendant No. 2 to execute the necessary deed of sale on receipt the balance consideration money but of little avail. On 21.03.2009 the defendants dispossess the plaintiff from the land in suit. Thereafter it is revealed that by a registered deed dated 31.3.2009 the defendant No. 2 transferred the suit land to the defendant No.1.

3.             The defendant No. 1 petitioner herein contested the suit by filing written statement denying the plaint case contending, inter alia, that by a registered deed of sale dated 31.3.2009 the defendant No. 2 transferred the land to the defendant No. 1 and delivered possession thereof. The defendants did not dispossess the plafintiff from the land in suit or any part thereof. The story of possession and dispossession of the plaintiff is absolutely false and fraudulent.

4.             During the pendency of the suit, the defendant No. 1 on 13.5.2012 filed an application under Order 7 Rule 11 (a) and (d) of the Code of Civil Procedure (hereinafter referred as Code) for rejection of the plaint on the allegation that the plaint does not disclose any cause of action. The plaintiff has not disclosed any legal and lawful right and interest save and accept an unregistered deed of agreement in respect of the suit land.

5.             However, by dint of such unregistered deed of agreement the plaintiff has not created any right title and interest in the suit land. Furthermore the plaintiff in a same suit prayed for following reliefs which could not get because the same is barred by the specific provision of law of the specific relief Act:

(L) ¢e­jÀ ag¢pm h¢ZÑa i¨¢j h¡ pÇf¢š pÇf­LÑ ¢hNa 31/03/09 a¡¢l­Ml p¡h Lhm¡ c¢mm ew-2258 fÐa¡lZ¡ j§mL, i¨u¡, ®h-A¡Ce£, NZfÐhª¢šq£e, a’La¡j§mL J 2ew ¢hh¡c£ J 1ew ¢hh¡c£¢el f­r Eš² c¢mm pÇf¡ce J œ²u L¢l h¡l A¡Ce¡e¤Ni¡­h ®L¡e p¤­k¡N e¡C Hhw fÐa¡lZ¡j§mLi¡­h pwN¢Wa qJu¡u Eš² c¢mm à¡l¡ 1 ew ¢hh¡c£¢el f­r e¡¢mn£ i¨¢jl Efl ®L¡e üšÆ ASÑ£a qu e¡C ¢hd¡u Eš² c¢mm lc l¢qa qJu¡l ¢X¢œ² ¢c­a,

(M) Eš² lc J l¢q­al ¢hou AhNa Ll¡l J ac¢ho­u pw¢rç ¢VL¡ ¢m¢Mh¡l SeÉ ¢MmN¡yJ p¡h-®l¢S¢ØVÌ A¢g­p ®j¡ql¡¢ˆa L¡kÑ¡m­u ¢X¢œ² HL A¢hLm eLm f¡W¡Ch¡l A¡­cn ¢c­a,

(N) 21/03/09 Cw a¡¢l­M h¡c£l cMm£u J M¢lc¡ ¢ejÀ ag¢pm h¢ZÑa pÇf¢š k¡q¡ 1 ew ¢hh¡c£¢e J 2 ew ¢hh¡c£ ®k¡Np¡S­p A¯hd ®h-A¡Ce£i¡­h h¡c£l cMm qC­a E­µRc J ®h-cMm L¢lu¡­R a¡q¡ eÉ¡u ¢hQ¡­ll ü¡­bÑ A¢a Sl¦l£i¡­h 1877 p­el 1 A¡C­el 9 d¡l¡ j­a h¡c£l hl¡h­l f¤Zx cMm f¡Ju¡l ¢X¢œ² ¢c­a,

6.             In view of such prayer it has been alleged in the application for rejection of the plaint that in a title suit recovery of khash possession under section 9 of the Specific Relief Act and cancellation of the title deed cannot run side by side. Because the nature of reliefs for recovery of khash possession under section 9 of the Specific Relief Act and cancellation of deed under section 39 of the Specific Relief Act. Therefore, a suit cannot proceed with such two reliefs because the suit is of different nature and necessary facts for such prayers also different.

7.             The plaintiff contested the application against the rejection of the plaint by filing written objection, stating, inter alia, that the defendants jointly in connivance created the deed in respect of the suit property and thereby dispossessed the plaintiff from the suit property for which he has been compelled to file the suit. It is clear from the averments of the plaint that there is a statement disclosing cause of action therefore the application for rejection is liable to be rejected as there is no reasons to reject the plaint.

8.             The learned Joint District Judge after hearing both the sides by his judgment and order dated 08.08.2012 rejected the application for rejection of the plaint.

9.             The defendant feeling aggrieved by the judgment and order dated 08.08.2012 passed by the Joint District Judge, Dhaka in title suit No. 255 of 2009 preferred the instant revisional application before this Court and obtained the instant Rule with an order of stay.

10.         Mr. Faruque Ahmed, the learned Advocate appearing for the petitioner argued that on bare reading of the averments of the plaint it is patently visible and crystal clear that the plaintiff has no right, title, interest and possession over the suit land. Therefore, the plaintiff cannot challenged the right and title of the defendant praying for cancellation of deed under section 39 of the Specific Relief Act and side by side cannot seek redress in a such title suit for recovery of Khash possession under section 9 of the Specific Relief Act. However, the learned Judge of the Court below has patently misunderstood the provision of law as enacted in section 39 of the Specific Relief Act as well as section 9 of the same Act. Therefore, misconstrued himself the provision of law as well as the contents of the application under order 7 Rule 11 of the Code filed by the defendant petitioner and, as such, the impugned judgment and order is liable to be set aside. Mr. Ahmed further submitted that, even if, all the facts and circumstances and the averments of the plaint are accepted as true those do not prove that the plaintiff has any right and interest over the suit property. Therefore, how the Court of justice specifically can grant any relief to the plaintiff as sought in the instant suit. Therefore, he argued that the continuation of the proceedings is nothing but it is futal exercise and sheer misuse of the process of Court and, as such, the plaint of the suit is liable to be rejected.

11.         Mr. Ahmed has further argued that for the  same property in the earlier occasion the present plaintiff and one Mr. Md. Rezaul Hoque who is non but the vendor of the present defendant  No. 1 had contested in a Title Suit being suit No. 454 of 2006 which was also a suit for declaration of title and permanent injunction and the defendant Dr. Md. Rezaul Hoque had filed an application under order 7 Rule 11 of the Code of Civil Procedure and rejection of the plaint of title suit No. 454 of 2006 after hearing both the parties the learned Joint District Judge, 1st Court rejected the application for rejection of the plaint.

12.         However, the defendant unsuccessfully preferred a Civil Revision being Revision No. 2353 of 2007 before this Court which was heard by a Division Bench of this Court. After hearing both the sides the Rule was made absolute rejecting the plaint of Title Suit No. 454 of 2006.

13.         The plaintiff, however, unsuccessfully preferred a Civil Petition for Leave to Appeal being No. 2484 of 2009 against the judgment and order dated 15.10.2009 passed by the High Court Division in Civil Revision No. 2353 of 2007.

14.         The Hon’ble Appellate Division after hearing both the sides by its judgment dated 16.5.2010 affirmed the judgment of the High Court Division passed in Civil Revision No. 2353 of 2007. Mr. Ahmed has produced both the judgment i.e. judgment of Civil Revision No. 2353 of 2007 and Leave to Appeal No. 2484 of 2009 and took us through the aforementioned judgments of both the Division. He has pointed that the vendor of the defendant No. 1 of the instant suit was the party in the earlier suit as the defendant No.1and litigating with same land. The plaintiff of the earlier suit had claimed the suit property by dint of same unregistered sale deed of agreement. However, the Apex Court has affirmed the judgment of the High Court Division wherein it has been held that by dint of unregistered sale agreement the plaintiff does not acquire any right, title and interest over the suit property. While earlier litigation has been continuing the same plaintiff instituted the instant Title Suit being No.  455 of 2009 and that was brought to the notices to the High Court Division at the time of hearing of Civil Revision No. 2353 of 2007. Therefore, the plaintiff suit for cancellation of the deed and recovery of khash possession under section 9 of the Specific Relief Act does not require tested further by the Court of law as on earlier occasion the apex Court has already passed the dictum against the plaintiff and in favour of the vendor of the defendant No. 1 who is the defendant No. 2 in the instant suit. The plaintiff has failed to establish any right and title over the suit property in earlier suit up to Hon’ble Appellate Division. Since the plaintiff has no right, title and interest over the suit property as found earlier by the apex Court, so, the present suit cannot continue seeking redress to recovery of khash possession as well as cancellation of the deed and, as such, the impugned order is liable to be set aside.

15.         We have gone through the impugned order dated 08.8.2012 along with plaint of Title Suit No. 255 of 2009 and the application for rejection of plaint. We have considered the submissions advanced by Mr. Faruque Ahmed the learned Advocate appearing for the petitioner. We at first look into the plaint of the instant suit.  On perusal of the plaint it appears in the cause title of the suit there are two defendants. The Petitioner is the defendant No. 1 and another is his vendor Dr. Md. Rezaul Hoque the defendant No. 2 who admittedly sold the suit property to the petitioner defendant No. 1. The plaintiff in earlier suit claimed that he made a deed of agreement for sale with Dr. Md. Rezaul Hoqaue. Considering the averment made in the plaint it cannot be said that the schedule of the suit property and schedule of the earlier suit property i.e. Title Suit No. 254 of 2006 are quite different rather, we find that both the schedules of the two suits are same.

16.         The plaintiff in the suit prayed for cancellation of the deed. However, we are of the considered view that it is necessary to discuss the matter in accordance with law whether the prayer for cancellation of a registered deed is tenable in law or not.

17.         Therefore, we feel that it would be noteworthy to quote the relevant law i.e. section 39 of the Specific Relief Act for convenient of the discussion and ready reference to come in a conclusion in accordance with law which runs as follows:

39. When cancellation may be ordered- Any person against whom a written instrument is void or voidable, who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, may due to have it adjudged void or voidable; and the Court, in its discretion, may, adjudge it and order it to be delivered up and cancelled.

18.         If the instrument has been registered under the 1[ Registration Act, 1908], the Court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.

19.         We are also of the considered opinion that who can file a suit for recovery of khash possession under section 9 of the Specific Relief Act in accordance with law should be discussed in this case. We are, of the considered view that therefore, it would be profitable to reproduce the provision of section 9 herein below for ready reference.

9. Suit by person dispossessed of immoveable property- If any person is dispossessed without his consent of immoveable property otherwise than in due course of law, he or any person claiming through him may, by suit 2*** recover possession thereof, notwithstanding any other title that may be set up in such suit.

20.         Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.

21.         No suit under this section shall be brought against 3[ the 4 government].

22.         Considering the provision of the section 39 of the Specific Relief Act it is clearly divulged that any person against whom written instrument is void and voidable who has reasonable apprehension that such instrument, if left outstanding, may cause in serious injury, may suit to have it adjust void and voidable.

23.         The legislature without any ambiguity has indicated in the language of the section 39 who has clear right, title and interest over any property and his such right and title threatened due to any such instrument then only that person can invoke this provision.  So, we cannot but to opined that to proceed with the suit the plaintiff must narrated in the averments of the plaint he would be affected if  the deed in question is left out standing. However, on perusal of the averment regarding the right, title and possession over the suit property of the plaintiff was not found by dint of any legal instrument in accordance with law or by dint of alleged unregister deed of sale agreement. The plaintiff has claimed the possession of the suit property without any reference in the averment of the plaint through unregistered sale deed of agreement or without mentioning any date for handing over the possession by the counter part of agreement. In this connection we may referred the earlier litigation between the plaintiff and the defendant No. 2 who is none but vendor of the defendant No. 1 and in the earlier litigation a Division Bench of this Court has already decided the fate of the same unregistered sale deed for agreement. To settle the facts of the such unregistered sale of agreement once for all we would like to say that after amendment of Registration Act 2005 which has been effected from 1st July 2005 as well as Specific Relief Act on the same year and effected on the same day it cannot be said that an unregistered deed of sale for agreement is enforceable unless from 1st July 2005 the bearer of unregistered sale agreement file a suit for registration of the instrument within six months. It is obvious that after expiry of the six months by dint of operation of the law such deed for sale agreement is nothing nor legal instrument which is not binding upon the executants. In the present Case in hand from the averments as narrated in the plaint we do not find anywhere of the plaint that the plaintiff has claimed the right and title of the suit property by dint of any legal instrument rather his claim for cancelation of the deed of the defendant by dint of an unregistered void deed of sale agreement against which dictum of apex Court has already given in earlier occasion. Moreover, the plaintiff of the instant suit is not the party of the said instrument as prayed for cancellation. It is settled by the apex Court regarding the cancellation of the deed who is not the party in the instrument he has no status to seek the cancellation of the instrument rather, if by such instrument he apprehend any injury in that case he can filed a suit for declaration to the effect that such instrument is not binding upon him. In this regard we may place reliance to the case of Sultana Begum and another Vs. Abul Kalam reported 43 D.L.R (HCD) 177 and to the case of Momtaz Begum and others Vs. Md. Masud Khan reported 52 D.L.R (AD) 46.

24.         In the present case however, we find from the prayer and cause title of Title Suit No. 255 the plaintiff did not seek any such relief. Rather he prayed for cancellation of the deed. It is more interesting that who executed the registered sale deed he is the defendant No. 2 never concede with the plaintiff that the said instrument is void or voidable, neither give any written statement narrating the facts that the such instrument has been obtained by the defendant No. 1 from the defendant No. 2 making any fraud and forgery. We are, therefore, of the considered view that allegation made by the plaintiff in the prayer ‘Ka’ of the plaint is nothing but a superfluous and colorable prayer against the defendant No. 1 only to continue the litigation on the second phase unsuccessfully in the earlier litigation up to the apex Court.

25.         In view of the provision of the section 9 we must consider whether plaintiff can file a suit invoking the provision of section 9 of the Specific Relief Act to recover Khash possession of the suit property.

26.         On a bare reading and careful scrutiny of the averments of the plaint we find in paragraph 26 the plaintiff has narrated that he has been dispossessed from the suit property on 21.3.2009 by the defendant No. 1 and 2 but on perusal of the averments of the plaint we do not find any averments on what date the plaintiff was put in on possession by the vendor by dint of sale agreement, in other words, how the plaintiff got the possession of the property. Rather, he has claimed the possession by dint of an unregistered deed of sale agreement. However, on meticulously scrutiny it is not revealed from the narrative of the averments made in the plaint that nowhere of the plaint he quoted any date that has been admitted by the defendant No. 2 that possession of the suit property was handed over to the plaintiff. Therefore, we cannot conclude that claim of this possession followed by admitted possession or wrongful possession or adverse possession of the plaintiff. We may conclude that 

27.         In view of the discussion made herein above we find that submission advanced by the learned Advocate for the petitioner has substance.

28.         In the Rule though we find a power filed by the opposite party No. 1 engaging one learned Advocate Mr. Md. Khalilur Rahman. However, he has never appeared before the Court to support the case of the O.P. No. 1. The learned Advocate for the petitioner also search him and Court once again adjourned the case looking for Mr. Khalilur Rahamn whether he appear   before the Court or not. However, all the time he was absent.

29.         It is very essential to mention here the provisions of sections 17A and 17B of the Registration Act and 21A of the Specific Relief Act came into effect from the 1st July 2005(Act No. XXV of 2004) and from the language of the above laws it is clearly divulged that unregistered agreement for sale cannot be enforced unless within six months of the amendment of the law as mentioned herein above put in to execution for registration in accordance with law or instituted a law suit for registration of the  unregistered instrument. So, we are of the view that for better understanding and ready reference we must reproduce the provision of sections 17A and 17B of the Registration Act and section 21A of the Specific Relief Act, 1877 which runs thus:

Section 17 A and 17 B of the Registration Act:

[17A. Registration of contract for sale etc.- (1) Notwithstanding anything to the contrary contained in this Act or any other law for the time being in force, a contract for sale of any immovable property shall be in writing, executed by the parties thereto and registered.

(2) A contract for sale referred to in sub-section (1) shall be presented for registration within thirty days from the date of execution of the contract and the provisions regarding registration of instruments shall apply.]

[17B. Effect of unregistered contract for sale executed prior to section 17A becomes effective –(1) Where a contract for sale of immovable property is executed but not registered prior to coming into force of section 17A-

the parties to the contract shall, within six months from the date of coming into force of that section,-

Present the instrument of sale of immovable property under the contact for registration, or

(ii) present the contract for sale itself for registration; or,

(b) either of the parties, if aggrieved for non-compliance with any of the provisions mentioned in clause (a), shall, notwithstanding anything contained to the contrary in any law for the time being in force as to the law of Limitation, institute a suit for specific performance or recession of the contract within six months next after the expiry of the period mentioned in clause (a),

30.         Falling which the contract shall stand void.

(2) The provision of sub-section (1) shall not apply to any contract for sale of immovable property on the basis of which a suit has been instituted in a civil court before coming into force of section 17A.

31.         Section 21 and section 21A of the Specific Relief Act:

S.21. Contracts not specifically enforceable.- The following contracts cannot be specifically enforced:

(a)       a contract for the non-performance of which compensation in money is an adequate relief;

(b)       a contract which runs into such minute or numerous details, or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the Court cannot endorse specific performance of its material terms;

(c)       a contract the term of which the Court cannot find with reasonable certainty;

(d)       a contract which is in its nature revocable;

(e)       a contract made by trustees either in excess of their powers or in breach of their trust;

(f)        a contract made by or on behalf of a corporation or public company created for special purposes, or by the promoters of such company, which is in excess of its powers;

(g)       a contract the performance of which involves the performance of a continuous duty extending over a longer period than three years from its date;

(h)       a contract of which a material part of the subject matter, supposed by both parties to exist, has before it has been made, ceased to exist.

32.         And, save as provided by the [Arbitration Act, 1940] (X of 1940) no contract to refer [present or future difference] to arbitration shall be specifically enforced; but if any person who has made such a contract [other than an arbitration agreement to which the provisions of the said Act apply] and has refused to perform it sues in respect of any subject which he has contracted to refer, the existence of such contract shall bar the suit.

        S [21.A. unregistered contract for sale not specifically enforceable- Notwithstanding anything to the contrary contained in this Act or any other law for the time being in force, no contract for sale of any immoveable property can be specifically enforced unless-

(a)       the contract is in writing and registered under the Registration Act, 1908, whether or not the transferee has taken possession of the property or any part thereof; and

(b)       the balance amount of consideration of the contract is deposited in the Court at the time of filing the suit for specific performance of the contract.]

33.            However, even then, due to misconception and misconstrued of the aforesaid provisions of law a good number of Civil litigation have been going on by filing such type of vexatious suit like the present one for declaration of title, cancelation of the registration instrument or protection of the possession by dint of such unregistered agreement for sale. It is therefore, our considered view that such type of Civil litigation cannot be continued because ultimate result of which is nothing but misuse the process of the Court with the cost of the litigant. Therefore, we are, of the view that such type of litigation must be discouraged and deprecated by the learned members of the Bar.

34.         In view of the above discussions we are of the view that it is fit case to interfere by this Court to protect the abuse of the process of the Court and we find support of our view to the case of Abdul Jalil and others Vs. Islamic Bank Bangladesh Ltd and others reported 53 DLR (AD) 12.   

35.         Thus, the Rule having merit, it succeeds.

36.         In the result the Rule is made Absolute.

37.         The judgment and order dated 8.8.2012 passed by the Joint District Judge 1st Court, Dhaka in title suit No. 255 of 2009 is hereby set aside. The application dated 13.5.2012 filed by the defendant No. 1 under order 7 Rule 11 (a) and (d) of the Code of Civil procedure is hereby allowed. The plaint of the title suit No. 255 of 2009 is hereby rejected.

38.         Office is directed to communicate the judgment at once.

          Ed.


Civil Revision No. 3494 of 2012