IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Moinul Islam Chowdhury

CIVIL REVISION NO. 283 OF 1989

IN THE MATTER OF:

An  application  under  section  115(1) of  the Code of Civil Procedure. (Against Decree)

-And-

IN THE MATTER OF:

Abul  Kashem  Mollah  (died  leaving  behind his legal heirs:…..) and others

--- Defendant-Respondent-Petitioners. -Versus-

Moslem  Ali  Khan  (O.  P.  Nos.  1  and  2. Moslem Ali Khan and Abdul Hamid Dhali both  died  leaving  behind  their  legal heirs:……) and others

--- Plaintiff-Appellant-Opposite Parties. Mr. Sk. Reajul Hoque with

Mrs. Shishir Kona, Advocates

--- For the Defendant-Respondent-Petitioners. Mr. Nakib Saiful Islam with

Mr. Pannu Khan, Advocates

---For the Plaintiff-Appellant-Opposite Parties.

Heard on: 21.05.2023, 23.05.2023, 08.06.2023, 09.07.2023, 10.07.2023 and 18.07.2023.

Judgment on: 08.08.2023.

At  the  instance  of  the  present  defendant-respondent- petitioners, Abul Kashem (now deceased and substituted) and others, this Rule was issued upon a revisional application filed under section 115(1) of the Code of Civil Procedure calling upon

the opposite party Nos. 1 and 2 to show cause as to why the judgment and decree dated 20.10.2016 passed by the learned Joint District Judge, Court No. 1, Shariatpur in the Title Appeal No. 199 of 1987 allowing the appeal and that of the further proceedings of the Title Execution Case No. 02 of 2017 pending before the court of the learned Assistant Judge, Sadar, Shariatpur should not be set aside.

The relevant facts for disposal of this Rule, inter-alia, are that the present opposite party Nos. 1 and 2 as the plaintiffs filed the Title Suit No. 946 of 1979 in the court of the learned Munsif, Shariatpur on 21.09.1979 against the opposite party Nos. 03-10 for Specific Performance of Contract concerning a total land measuring 5.43 acres described in the schedule of the plaint. The said  suit  was  eventually  transferred  to  the  learned  court  of Munsif (now Assistant Judge), Madaripur Sadar, Madaripur and renumbered  as  the  Title  Suit  No.  163  of  1985.  The  plaint contains that Birendra Kishore, Dhirendra Kishore, Sunil Kumar, Makhan Lal, Mahendra Kumar and Sree Sree Radha Gobinda Thakur  Jee  represented  by  the  said  measurement  of  land  as Shebayet Indra Bhusan and who himself entered into the above- mentioned  suit  property  at  a  cost  of  Tk.  2,000/-.  They

accordingly executed a Bainapatra on 18.04.1969 AD on receipt Tk.  1,800/-  out  of  total  Tk.  2,000/-  as  advanced  money  and delivered possession of the suit property to the plaintiffs. The said Bainapatra contains that the executents of Bainapatra would execute a registered sale deed upon collecting the income tax clearance and also permission from the Board of Revenue and the Executants who kept the remaining amount of money on the date of the registration of the deed. The plaint further contains that the plaintiffs were living in the property but allowed one of the executants, namely, Makhon Lal to live in the suit land. The executants could not have a registered sale deed and during the Liberation War, they went to India. However, the plaintiffs lastly offered the value of consideration money to them in the month of Bo¡t 1386 h¡wm¡ for registering a sale deed. After the filing of the said case Birendra, Dhirendra and Sunil Kumar died and their only heir defendant No. 1, Mohandra Lal Saha. Indra Bhushan Saha and his heirs were impleaded as the defendants. The present plaintiff-opposite party Nos. 1-6 were not served the required notices to the defendant Nos. 2-6 and did not receive the notices.

However, the defendant No. 1 and the added defendant Nos.  8-10  contested  the  suit  by  filing  a  written  statement contending,  inter  alia,  that  the  alleged  Bainapatra  dated 18.04.1969  AD  was  forged  and  fraudulent  as  none  of  the executants were present to execute the said Bainapatra for selling the  suit  property.  It  is  further  contended  that  none  of  the executants received any advanced money of Tk. 1,800-/ and did not  hand  over  the  possession  of  the  suit  land.  The  present petitioners further contended that the alleged executants left the country without making any arrangement for the management of their land and their shares therein. Defendant No. 1, Makhon Lal never acted as Shebayet of the Deity because the last Shebayet was Indra Bhushan before he left the country to save his life. One  of  the  executants  Mohendra  died  leaving  behind  the defendant Nos. 2, 3, 5 and 6 as heirs heirs and they were living in the Kathpatti area at Daptar Road in Barishal Town and also at Kulpotti  area  of  Shahartali  under  Madaripur  Upazilla, Madaripur. The said defendant Nos. 2, 3, 5 and 6 engaged the petitioner  No.  1  as  Borgadar  (hN¡Ñc¡l)  for  cultivation. Subsequently, they desired to sell the property measuring 1.91 acres of land which is part of the suit land and they sold the same at Tk. 15,000-/ which was registered on 30.11.1979 AD.

The  plaint  further  contains  that  the  said  Birendra, Dhirendra, Sunil and Indra Bhushan left the country for India, thus, the suit land was declared as enemy property and later vested by the Government as vested property and non-resident property.  The  present  plaintiff-opposite  parties  made  an application on 29.06.1976 to obtain a lease of the said land. There was a process by the Authority of the Government for leasing the property.

The defendant-opposite party No. 7 the Government filed a separate written statement. The above custodian of vested non- residence property has filed a separate written statement but they could not substantiate the vested property. However, the present defendant-petitioners also made an application for obtaining a lease from the Government and Custodian of enemy property in the year 1976.

The above case was heard by the learned Assistant Judge, Shariatpur Sadar, Shariatpur who obtained evidence from both by  the  way  of  depositions  and  documents  and  after  the conclusion of the hearing came to a decision and dismissed the suit.  Being  aggrieved  the  present  plaintiff-opposite  parties preferred the Title Appeal No. 199 of 1987 in the court of the learned District Judge, Shariatpur which was subsequently heard by  the  then  learned  Subordinate  Judge,  Shariatpur  who  after hearing the parties allowed the appeal and thereby reversed the judgment of the learned trial court. Being aggrieved the present defendant-petitioners  filed  this  revisional  application  under section 115(1) of the Code of Civil Procedure challenging the legality  and  propriety  of  the  impugned  judgment  and  decree passed by the learned appellate court below and this Rule was issued thereupon.

Mr. Sk. Reajul Hoque, the learned Advocate, appearing along with the learned Advocate Mrs. Shishir Kona, submits that the learned appellate court below committed an error of law by reversing  the  judgment  and  decree  of  the  learned  trial  court without  considering  that  the  suit  was  seriously  barred  by limitation as the Bainapatra which was allegedly executed on 18.04.1969 but the suit was filed on 20.09.1979 which is more than 9 years from the alleged deed of Baina under Article 113 of the Limitation Act, as such, the suit was not maintainable and the learned appellate court below avoided the material issue involved in the suit, as such, committed an error of law occasioning failure of justice by reversing the judgment and decree of the learned trial court for Specific Performance of Contract, thus, the Rule should be made absolute.

The learned Advocate further submits that there are some serious defects of parties but the learned appellate court below committed an error of law that there was no defect as Radha Gobind Thakur Jee was impleaded as defendant 2, as such, there is no defect of party in the suit. But the appellate court below erred in law without considering Exhibits- ‘3(2)’, ‘3(6)’ and ‘C’ wherein it is clear that part of the schedule- 3 property i.e. R. S. Plot No. 350 under R. S. Khatian No. 715 was owned by Indra Bhusan as his personal property and in the year 1962-1963 at the time of S. A. Operation i.e. S. A. Plot No. 350 under S. A. Khatian No. 637. The sons of Indra Bhusan, namely, Ashim and Joti inherited the property and they were not made a party in the suit by the plaintiffs, thus, the suit is barred by a defect of parties. It is apparent from Exhibits- ‘3(6)’ and ‘C’ i.e. S. A. Khatian No. 637 that the part of the schedule- 3 property was inherited by the Asim and Joti during the S. A. operation, thus, it is not at all possible to execute the alleged Bainanama by the Indro Bhusan on 18.04.1969, as such, it is clear that the alleged Bainanama is a

false and fabricated documents and the appellate court below erred in law in failure for considering the same.

The  learned  Advocate  also  submits  that  the  learned appellate court below committed an error of law and failed to apply his judicial mind for considering Exhibit- ‘I’ the alleged Bainapatra  without  any  direct  and  clear  finding  as  to  the genuineness of the said document which was unregistered and the  possession  was  never  handed  over,  rather,  they  left  the country  for  India  without  making  any  arrangement  of  their properties even by the alleged Bainapatra in favour of the present plaintiff-opposite parties, thus, the learned appellate court below misread  and  failed  to  consider  the  evidence  adduced  and produced by the parties, as such, the Rule is, therefore, should be made absolute.

The  present  Rule  has  been  opposed  by  the  present plaintiff-opposite parties.

Mr. Nakib Saiful Islam, the learned Advocate, appearing along with the learned Advocate Mr. Pannu Khan on behalf of the present plaintiff-opposite parties, submits  that  the learned trial court committed an error of law by finding that the suit was barred by the defect of parties as the Sebaiyet Indro Bhushan was not  made  a  part,  whereas,  the  learned  appellate  court  below reversed the judgment and decree of the learned trial court and thereby committed no error of law as the suit was not barred by defects  of  parties  as  all  concerned  relevant  parteies  were impleaded  in  the  suit,  as  such,  the  learned  trial  court  has committed an error of law, as such, the present Rule is liable to be discharged.

The  learned  Advocate  also  submits  that  the  learned appellate court below properly considered the plaint filed by the plaintiffs within the limitation period but the learned trial court committed an error of law by finding that the suit was barred by limitation, thus, the Rule would not be sustainable under the provision of law, as such, the Rule is liable to be discharged.

The learned Advocate further submits that the Bainapatra dated  18.04.1969  was  lawfully  executed  by  the  relevant executants of the parties, as such, no question of entering the property into the enemy property or vested property and the same was not the Government under the custodian of enemy property. As  per  the  provision  of  the  Disturbed  Person  Rehabilitation Ordinance, 1964 which required to obtain or transfer of land of the Hindu Community.

Considering the above submissions made by the learned Advocates  appearing  for  the  respective  parties  and  also considering the revisional application filed under section 115(1) of the Code of Civil Procedure along with the annexures therein, in particular, the impugned judgment and decree passed by the learned  courts  below  and  also  perusing  the  huge  volume  of documents submitted  by  the  respective  parties  in  the  learned courts  below  which  have  been  included  in  the  lower  courts records,  it  appears  to  me  that  the  present  plaintiff-opposite parties have filed the suit praying for Specific Performance of Contract  along  with  a  prayer  for  possession  of  the  suit  land described in the plaint. The plaintiffs claimed that a Bainanama was  executed  by  the  executants  in  order  to  transfer  the  suit property  total  measuring  5.43  acres  in  favour  of  the  present plaintiff-opposite parties which have been exhibited as Exhibit- ‘I’ by the plaintiffs.

I have carefully examined the validity of this Bainanama which was executed on 18.04.1969 AD (5C ®~hn¡M 1376 ¢hHp). I have carefully examined the said Bainanama as Exhibit- ‘I’ which is an unregistered Bainanama. Under the provision of law, an unregistered Bainanama for executing a sale deed in relation

to the transfer of any land cannot be a valid document to transfer any  property.  Moreover,  Article  113  of  the  Limitation  Act validity of a Bainapatra for Specific Performance of a Contract is 3 (three) years but the date would be computed from the date of refusal to execute a deed if no date is fixed performing remains part of the contract. Under Article 113 of the Limitation Act in a contract of sale when transfers the full consideration of money and got possession of the suit property by a person is entitled to section 53A of the Transfer of Property Act. Article 113 of the Limitation Act was no application to subject a claim to transfer. In such a way the contract for selling of land is necessary for transferring  of  registered  Bainanama.  In  the  instant  case,  the Bainanama  claimed  to  have  been  executed  by  the  claimed owners of the suit land in the year 1969 was neither a registered document nor the possession of the suit land handed over to the Baina receivers, even though, the Bainanama was executed by the  present  plaintiff-opposite  parties  and  claimed  that  the executants of the Bainanama were under an obligation to obtain a sale certificate and other required documents to implement the said contract of Bainanama. Under the provision of the Disturbed Person Rehabilitation Ordinance 1964 which was operating law at the relevant time. The vendor could not obtain such required legal documents in order to transfer the land validly in favour of the plaintiff-opposite parties. It further appears that the plaintiffs did not claim by filing any suit within 3 (three) years from the Bainanama. Rather, they waited to get the executants’ documents for a long period of time. However, the plaintiffs claimed that before filing the suit on several times demanding to execution of the sale deed from the executants according to the Bainapatra which was refused for the delay and the executants of Bainapatra left for different places due to fear of living in Bangladesh in the Liberation War period and because of that period for filing the suit. I could not find any believable evidence in the lower court records as to the said refusal by the executants of the execution of the deed.

In this regard, I have carefully examined the findings of the learned courts below regarding the limitation period for filing the suit because if the limitation period to have the claim of the plaintiffs must also file that is the settled principle of law. In this regard, the learned trial court found the aforesaid matter with the following findings:

…“The  alleged  Bainapatra  is  shown  to  have been executed on 18.04.69 & the instant suit was filed in 1979 i.e. long after 10 years. Plff has but pleaded that the deed could not executed because the income tax clearance certificate & permission of the Board of Revenue  were  required  to  transfer  property  of  the Hindu  Community  as  per  the  provision  of  the Disturbed Person Rehabilitation Ordinance 1964. But the effect of this ordinance continued till 1967 & it had no  applicability  at  the  time  of  the  execution  of Bainapatra in 1969. Moreover, in their plaint plff could not make out any specific clear date as well as the case of the last  denial  to execute a deed by the alleged executers. So, the case on the basis of Bainapatra dt. 18.04.69  filed  in  1979  is  clearly  barred  by limitation.”…

Regarding the limitation period the learned appellate court below failed to controvert the findings of the learned trial court, even though, it appears that the Bainanama was executed on 18.04.1969 and the suit was filed in the year 1979 which is deferred approximately 10 years beyond the limitation period for filing a suit and even the claims a date for executing to registrar the deed for refusal in order to show the provision of Article 113 of the Limitation Act.

The learned appellate court below came to a conclusion as to the impleaded persons in the title suit by finding that the suit was properly filed against all the concerned parties, in particular, the  learned  appellate  court  below  considered  that  Sree  Sree Radha Gobinda Thakur Jee has been impleaded, as such, there was  no  necessity  of  Shebayet  Indro  Bhushan.  The  learned appellate  court  below  came  to  a  conclusion  in  the  following matter:

…“Moreover, the plffs instituted the suit under chapter  11  of  the  Specific  Relief  Act  and  U/S  9 chapter-  1  of  the  said  Act.  But  the  ld.  trial  court without discussing the form and manner under which the suit has been instituted, blindly decided that the suit is not maintainable for defect of the party. In fact, there is no defect of a party in the suit. The plffs have instituted the suit for the specific performance of a contract and also for recovery of Khas possession from a portion of the suit land. The plff paid ad-valurem court fees. I do find no defect in the suit and in the manner in which it has been filed.”…

Whereas, the learned trial court came to a conclusion that the suit was not maintainable for a defect of parties and found the following terms:

…“The suit is bad for defect of the party since Indo  Bhusan  Sabayet  of  deity  Radha  Bigraha  Jee Thakur  is  alleged  to  have  executed  bainapatra  on behalf of deity has not been made a party. So, the suit is not maintainable.”…

The above two paragraphs are important for the legal point which the learned appellate court below committed an error and failed to apply his judicial mind to allow the appeal and thereby reversing  the  judgment  and  decree  passed  by  the  learned Assistant Judge of Sadar Court, Madaripur who dismissed the suit to above 2 grounds principally.

Now, I am inclined to take into notice of the role of the Government and the Custodian of enemy-vested property within the principle of law. I am surprised to see that the learned courts below considered the above role of the Government who could not make any substantial submission in the court, Even though, they  have  submitted  a  written  statement  without  any  point. However, both the courts below took into consideration that from the date of consideration of the Bainanama up to the filing of the present  suit  law  regarding  the  property  owned  by  the  Hindu Community has changed by enacting new provisions of law on different  circumstances.  In  this  regard,  the  learned  appellate court below holds the role in the following terms:

…“Rather  the  yearly  lease  has  been  crying contending the suit land as vested property. The raiyats and tenants are entitled to hold over. But in the case of the law of enemy property, the licensee is not entitled to hold. The periodic lease is not liable to be renewed. To lease out a property lies within the discretion of the authority.

The lessee only claimed that the suit land is V.P. A lessee holding a lease under V.P. is not a necessary party in a suit for the establishment of title i.e. when the  lessor  the  enemy  property  authorities  are contesting the suit it is not necessary that the lessee in any way a necessary party in the suit.”…

On the other hand, the learned trial court came to a lawful conclusion that the executants of the said alleged Bainanama had left Bangladesh and come back with a free and fair life and their properties were enlisted as a vested property. In this regard, the learned trial court held that:

…“Accordingly,  on  12.07.76  the  officer  in charge  of  Enemy  Property  (L  &  B)  vide  his  order passed in lease case No. XII(E)201 of 1975-76 has ordered the subordinate authority to give a lease of the 1.26 acres of land out of the schedule to the present plff.  Moslem  Khan  &  A.  Hamid  Dhali  on  the realization of rent of Tk. 125/- per year with arrears from the year 1379 B.S. from which plffs were found to be in possession. The certified copy of lease case No. XII(E)201/75/76 has been filed by deft & made exhibit.”…

From the above conflicting decision of 2 courts regarding the enemy/ vested property and the suit was filed during the limitation period of the said provisions of law regarding the suit property measuring a total 5.43 acres of land.

I have carefully noticed that the suit was filed under the provisions of the Specific Relief Act under section 12 of the Specific Relief Act. Section 12 makes a contract enforceable once  the  contract  may  be  specifically  enforced.  In  the explanation of the said provision of law:

…“Explanation- Unless and until the contrary is proved, the Court shall presume that the breach of a contract  to  transfer  immovable  property  cannot  be adequately  relieved  by  compensation  in  money  and that  the  breach  of  a  contract  to  transfer  moveable property can be thus relieved.”…

The above explanations of the said law require that the relief under the above provisions would not be adequate if other relief is not sought for. Section 9 of the Specific Relief Act provides a relief cannot be given without any enforcement by the legal authority. In the instant case, the claim of the plaintiff- opposite parties for recovery of Khas possession proves that the plaintiffs  were  not  functioning  by  virtue  of  the  claiming Bainapatra. Most importantly a claim cannot remain to be valid beyond the limitation period by filing a case thereof.

In  view  of  the  above  discussions  and  findings  of  the learned  courts  below,  I  am  of  the  opinion  that  the  learned appellate court below committed an error of law by allowing the appeal and thereby  reversing the  judgment and decree which lawfully and rightly passed by the learned Assistant Judge of Sadar Court,  Madaripur  who  dismissed the  case  filed  by  the plaintiff-opposite parties.

Accordingly, I find merit in the Rule.

In the result, the Rule is hereby made absolute.

The judgment and decree dated 03.12.88 passed by the learned Subordinate Judge, Shariatpur in the Title Appeal No. 199 of 1987 is hereby set aside.

The judgment and decree dated 24.05.1987 passed by the learned Assistant Judge of Sadar Court, Madaripur in the Title Suit No. 163 of 1985 is hereby upheld.

The  interim  order  passed  by  this  court  at  the  time  of issuance of this Rule staying the operation of the judgment and decree  dated  20.10.2016  passed  by  the  learned  Joint  District Judge, Court No. 1, Shariatpur in the Title Appeal No. 199 of 1987 and that of the further proceeding of Title Execution Case No. 02 of 2017 for a period of 6 (six) months and subsequently the same was extended from time to time and lastly the same was extended  till  disposal  of  the  Rule  are  hereby  recalled  and vacated.

The concerned section of this court is hereby directed to send down the lower courts records along with a copy of this judgment and order to the learned courts below immediately.