দায়বর্জন বিবৃতি (DISCLAIMER)

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                  IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

      (Civil Appellate Jurisdiction)

First Appeal No. 15 of 2020

        with

(Civil Rule No. 336 (F) of 2020)

In the matter of:

Shamim Ahmed and another

… Appellants-petitioners

             -Versus-

Nahid-E-Subha and others 

                        …Respondents-opposite parties

Mr. Sikder Mahmudur Razi with

Mr. Md. Zahirul Islam and 

Mr. Md. Rased Uddin Advocates 

                      …For the appellants-petitioners None appears  

           ....For the respondents-opposite parties

Heard and Judgment on 25.07.2024

Present:

Mr. Justice Md. Mozibur Rahman Miah

And

Mr. Justice Md. Bashir Ullah

Md. Mozibur Rahman Miah, J.

Since the point of law and facts so figured  in the appeal as well as rule are intertwined they have heard together and are being disposed of by this common judgment.

At the instance of the defendant nos. 1 and 2 of Title Suit No. 531 of 2014, this appeal is directed against the judgment and decree dated 29.09.2019 passed by the learned Joint District Judge, 1st Court, Dhaka in that Title Suit so far as regards to decreeing taka 1,40,00,000/- against the defendant nos. 1-2 as the suit value of the plaintiffs directing them to


1

pay the same as of compensation in favour of the plaintiffs within 90

days

The short facts in preferring this appeal are:

The present respondent nos. 1-3 as plaintiffs filed the aforesaid

suit seeking following reliefs:

(L)  e¡¢mn£  ag¢pm  h¢ZÑa  pÇf¢š  Na  13.02.2006  Cw

a¡¢l­M ®l¢S¢øÊL«a ¢hœ²u Q¥¢š² e¡j¡ (h¡ue¡) c¢mm ew 2312, 2313, 2314 k¡q¡ 1ew ¢hh¡c£ c¡a¡ Hhw h¡c£NZ fË¢qa¡ ¢qp¡­h 3ew ¢hh¡c£l cç­l pÇf¡¢ca ¢hœ²u Q¥¢š²e¡j¡ (h¡ue¡ e¡j¡) c¢mm

L¡kÑL¡l£ Ll¡l ¢e¢jÑ­š 1ew ¢hh¡c£l ¢hl¦­Ü h¡c£N­Zl f­r Q¥¢š²fËh­ml ¢X¢œ² ¢c­a;

  1.        e¡¢mn£ ag¢pm h¢ZÑa pÇf¢š 1ew ¢hh¡c£ 4-

5ew ¢hh¡c£N­Zl cçl La«ÑL Ae¡f¢šA NËqe f§hÑL 3ew ¢hh¡c£l

­ll j¡dÉ­j h¡c£N­Zl hl¡h­l ®l¢S¢øÊL«a p¡g Lhm¡ c¢mm

pÇf¡c­el SeÉ 1ew ¢hh¡c£l fË¢a H B­cna¡aÁL ¢e­cÑn

j§m ¢Xœ²£ ¢c­a;

  1.             ¢hS· Bc¡m­al ¢e­cÑ¢na pj­ul j­

1ew ¢hh¡c£ h¡c£N­Zl hl¡h­l ®l¢S¢øÊL«a p¡g LÅm¡ c¢mm pÇf¡ace L¢lu¡ ¢c­a hÉbÑ qC­m ¢h‘ Bc¡m­al j¡d¡­j h¡c£NZ hl¡h­l

e¡¢mn£ ag¢pm h¢ZÑa pÇf¢šl ®l¢S¢øÊL«a p¡g Lhm¡  c¢mm

3ew ¢hh¡c£l ­ll j¡dÉ­j ®l¢S¢øÊ L¢lu¡ ­cJu¡l  ¢e¢j­š fË­k¡|Se£u B­cn ¢e­cÑn pq hÉhØq¡ NËqe L¢l­a;

  1.     1ew ¢hh¡c£  La«ÑL S¡m  S¡¢mu¡¢afªZÑ B­h  fËa¡le¡l

j¡dÉ­j ab¡L¢bD ag¢pm h¢ZÑa Na 18.05.2011Cw a¡¢l­Ml

3ew ¢hh¡c£l cç­l ®l¢S¢øÊÊÊL«a ¢XLÓ¡­lne Ah ®qh¡ h¡ ®qh¡ ¢houL

®O¡oZ¡fœ c¢mm ew 6288 k¡q¡ 2ew ¢qhh¡c£ NÊ¢qa¡ ¢qp¡­h pÇf¡¢ca L¡NS£ c¢mm¢V h¡c£N­Zl Efl h¡dÉLl eu ab¡ Eš² c¢mm¢V lc ,

l¢qa J h¡¢Dm j­jÑ ®O¡oe¡ pq 3ew ¢hh¡c£l cç­l l¢ra h¡m¡j

h¢q­a h¡¢am j­jÑ ¢m¢fhÜ Ll¡l ¢e¢jÑ­š B­cn¡aÁL ¢e­cÑn j§mL ®O¡oZ¡l ¢e¢j­š ¢Xœ²£ ¢c­a;

  1.               ®j¡LŸj¡u pj¤cu hÉu h¡c£N­Zl

Ae¤L¥­m ¢hh¡c£N­Zl fË¢aL¥­m ¢Xœ²£ ¢c­a;

  1.   h¡c£NZ BCe J CL¥C¢V j~­a AeÉ¡eÉ ®k pLm fË¢aL¡l

pq B­cn J ¢e­cÑn f¡C­a qLc¡l a­ B­cn

J ¢e­cÑn ¢c­a ¢h‘ Bc¡m­al j¢SÑ qu z 

The case of the plaintiffs-respondents as described in the plaint in

precise is that, the defendant no. 1 got the suit land by a registered lease

deed  dated  29.06.1987  by  the  defendant  no.  5,  Rajdhani  Unnyan

Kartipakka (precisely, RAJUK) and accordingly the defendant no. 1

mutated her name at RAJUK and in order to build a 4-storey building

over the suit land he took loan from defendant no. 4 House Building

Finance Corporation (briefly HBFC) amounting to taka 20,00,000/- by

mortgaging the said leasehold land in its favour on 01.02.1996 but with

the said loan, since she failed to complete the building she then offered

to sale the flats to have erected on the suit land as mentioned in the

‘schedule’ to repay the loan and complete construction of the building.

The plaintiff no. 1 then agreed to purchase a flat measuring 823.16

square feet located in the western side of third floor and the value of that

flat was fixed at taka 6,75, 000/- out of which the plaintiff no. 1 paid an

amount to taka 3,00,000/- and a registered deed of agreement for sale

(Bainapotra) was made on 13.02.2006. In the same way the plaintiff no. 2 also agreed to purchase a flat measuring 823.16 square feet located in the eastern side of third floor of the apartment and a bainanama was also registered on the same date dated 13.02.2006 fixing the consideration at taka 675,000/-out of which she (the plaintiff no. 2) also paid an amount of taka 3,00,000/- when the plaintiff no. 3 agreed to purchase a flat measuring 826.16 square feet located in the western side of 4th floor of the apartment fixing its value at taka 6,75,000/- out of which she also paid taka 3,00000/- and got a bainapatra registered on 13.02.2006. The defendant no. 1 handed over possession of all those three flats to the plaintiff nos. 1-3 when the defendant no. 1 undertook that, after repaying loan to defendant no. 4 and upon receiving ‘sale  permission’ from defendant no. 5 she will register respective sale deeds in favour of the plaintiffs. After that, the defendant no. 1 on various occasions took take 17,95,000/-  from  the  plaintiffs  which  is  beyond  the  terms  of  the Bainpatra.  In  such  a  situation,  the  plaintiffs by  their  letter  dated 24.03.2006  asked  the  defendant  no.  1  to  register  sale  deed  but  the defendant no. 1 did not pay any heed to that request rather defendant no. 2 informed the plaintiffs that she (the defendant no. 1) was no more any owner of the flats rather he, the defendant no. 2. At this, the plaintiffs upon search, came to know that, the defendant no. 1 registered a deed of heba in favour of the defendant no. 2 vide registered deed on 18.05.2011 and upon obtaining the certified copy of the same on 09.06.2014 filed the suit.

Conversely, the defendant nos. 1 and 2 contested the suit by filing a joint written statement denying all the material averment so made in the plaint contending inter alia that, after obtaining the suit property from Rajuk by registered dead of lease on 04.05.2011 she (defendant no. 1) applied to RAJUK for permission to execute a deed of heba in order to transfer 2 flats at first and third floor, two flats at second floor and one flat at ground floor and proportionate 0519.75 decimals of land in favour of defendant no. 2 and upon taking permission from Rajuk dated 05.05.2011, she (defendant no. 1) then registered a deed of heba on 18.05.2011   to  the  defendant  no.  2  who  then  mutated  his  name  in RAJUK.  It  has  further  been  stated  that,  though  in  the  Bainapotra executed  in  favour  of  the  plaintiffs  it  has  been  stipulated  that,  the plaintiffs will repay taka 11,25,000/- to defendant no. 4 that is, the loan taken by the defendant no. 1 and they will pay the balance amount at the time of registering the sale deed but it has not been complied with by the plaintiffs. It has further been asserted that, since the plaintiffs did not pay the  balance  amount  by  13.03.2006  the  deadline  so  stipulated  in  the Bainapatra  so  after  expiry  of  the  said  time  frame,  the  Bainapatra became inoperative and as the suit has not filed within one year of the date of expiry of the Bainapatra,  the suit is liable to be dismissed.

In order to dispose of the suit, the learned judge of the trial court framed as many as 5 different issues and the plaintiffs examined two witnesses  and  produced  several  documents  which  were  marked  as exhibit nos. 1-14. On the other hand, the defendant adduced 1 witness that is, defendant no. 2 and also produced several documents which were also marked as ‘ka-yeo’ series. The learned judge of the trial court after considering the materials and evidence on record eventually disposed of four issues out of the five issues against the plaintiffs and dismissed the suit. However, in disposing of issue no. 5, the learned judge of the trial court found that, defendants are liable to pay the suit value amounting to taka 1,40,00,000/- in favour of the plaintiffs as of compensation.

It  is  at  that  stage,  the  defendant  nos.  1  and  2  as  appellants preferred  this  appeal.  It  is  worthwhile  to  mention  here  that,  during pendency of the appeal the appellant no. 2 (mother of the appellant no. 1,-defendant no. 2) died leaving behind her only son that is, appellant no. 1 which has been noted vide order dated 05.03.2024.

Mr. Sikder Mahmudur Razi along with Mr. Md. Zahirul Islam, the learned  counsels  appearing  for  the  appellants  upon  taking  us  to  the impugned judgment and decree and all the documents appeared in the paper book, at the very outset submits that, though the learned judge of the trial court disposed of 4 issues out of 5 issues against the plaintiffs yet the plaintiffs did not prefer any appeal leaving no scope to adjudicate those issues in the appeal afresh but while disposing of issue no. 5, the learned judge of the trial court directed the defendant to pay an amount of taka 1,40,00,000/- to the plaintiffs very unlawfully finding that since the plaintiffs has shown the valuation of the suit at taka 1,40,00,000/- and the defendants did not raise any objection with that  regard, the plaintiffs are entitled to the said amount from the defendants which bears no legal basis.

The learned counsel in this regard next submits that, since in the plaint the plaintiffs are totally silent with regard to the compensation nor in the prayer any specific claim was made so in absence of any assertion in regard to compensation there has been no reason to find that the defendants are liable to pay the suit value as compensation. The learned counsel by referring to the provision of section 19 of the Specific Relief Act also contends that, though the court has got the authority to give compensation provided the contract is broken by the defendant but in the instant case the plaintiffs have failed to prove that the defendants have ever broken the contract that entitled the plaintiffs to get compensation rather it has been found from the Bainapatra that, in spite of getting 3 months time, the plaintiffs had failed to get sale deeds registered by the defendant no. 1 and therefore it is the plaintiffs for whose failure the sale deed could not be registered. The learned counsel by taking us to the additional grounds submits that, since there has been no assertion in the plaint as well as in the prayer in the plaint claiming any compensation so in absence of that, the plaintiffs are not entitled to any compensation from  the  defendants  but  that  very  vital  aspect  has  clearly  been sidetracked  by  the  learned  judge  of  the  trial  court  while  ordering compensation against the defendants.

With  those  submissions,  the  learned  counsel  finally  prays  for allowing the appeal by striking out the compensation so directed in the impugned judgment.

Be that as it may, we have considered the submission so placed by the  learned  counsel  for  the  defendants-appellants  and  perused  the impugned judgment and decree. Since with regard to validity of the impugned judgment dismissing the suit in disposing of issue nos. 1-4 the plaintiffs did not prefer appeal so there is no reason to dwell on those issues leaving our discussion and observation keeping ourselves within the ambit of the propriety of the compensation so have been ordered by the learned judge of the trial court while disposing of issue no. 5. On going through the impugned judgment, we find that, at the fag end of the judgment wile disposing of issue no. 5, the learned judge out of the blue found that the defendant no. 1 is liable to pay the suit value a taka 1,40,00,000/- to the plaintiffs as of compensation asserting that, since the defendant did not raise any objection with regard to the valuation of the suit. But the said reasoning is found to be totally absurd in absence of any assertion either in the plaint or in the evidence deposed by the plaintiff’s witness. Moreover, though in paragraph no. 14 to the plaint, the plaintiffs gave statement with regard to valuation of the suit but there has been no break down there with regard to the suit value at taka 1,40,00,000/-. Rather on that valuation, the plaintiffs paid highest court fee  at  taka  46,000/-  so  under  what  basis  alleged  suit  value  can  be realized  from  the  defendants  as  compensation  is  absolutely incomprehensible to us which rather suffers from any legal basis.

Regard being had to the above facts and circumstances we don’t find  any  iota  of  substance  in  imposing  that  compensation  upon  the defendants as of valuation of the suit which is liable to be set aside. Accordingly, the compensation at taka 1,40,00000/-so assessed by the trial court is hereby struck down.

Insofar as regards to the rule which stemmed from an application for injunction so initiated by the plaintiffs-opposite parties we are of the considered view that, the defendants in their written statement and the deposition  have  asserted  that,  soon  after  executing  and  registering respective bainapotra the possession of the same was handed over to the plaintiffs and they have been in possession in their respective flats. On that very understanding, the plaintiffs of the suit herein opposite parties filed application for injunction upon which this court while issuing rule passed an order of status quo. Though the defendants-appellants filed an application for vacating the order of status quo but since they admitted the possession of the plaintiffs in the flats, the learned counsel for the appellants now find its difficult to refute the said assertion on possession. We also at one with the said assertion so made by the learned counsel for the defendants-appellants that, the plaintiffs have been in possession over the disputed flats. So to sustain the possession of the plaintiffs- opposite parties this court has rightly passed an order of status quo while issuing rule. However, if the defendants-appellants feel aggrieved with regard to possession they could invariably invoke the legal recourse to restore the possession in their favour but right at this moment we don’t find any illegality or impropriety in issuing rule as well as passing ad- interim order of status quo.

In the result, the appeal is allowed however without any order as to  costs  and  the  compensation  so  have  been  imposed  at  taka 1,40,00,000/- vide impugned judgment and decree by the trial court upon the defendants-appellants stands struck down.

However, the connected rule being Civil Rule No. 336(F) of 2020 is hereby made absolute. 

However, in view of making the rule absolute it will not have any affect in the merit of legal proceedings if initiated by the defendants- respondents.

Let a copy of this judgment and order along with the lower court records be transmitted to the court concerned forthwith.         

Md. Bashir Ullah, J.  

 I agree.

Kawsar/A.B.O.