ASADUZZAMAN Vs. BANGLADESH

JUDGEMENT

(1.) This appeal arises from the judgment of the High Court Division in Civil Revision No. 336 of 1978 passed on March 20, 1983.

(2.) Plaintiff who is the appellant instituted Title Suit No. 101 of 1973 in the 4th Court of Subordinate Judge, Dhaka for specific performance of contract. His case is that he entered into an agreement on October 14, 1971 with Abdus Sattar Solaiman, who is the sole owner of the disputed property to sell it to him at a consideration of Tk. 1,00,000/-. On payment of Tk. 75,000/- as advance, possession of the premises was given to the appellant. It was agreed that the seller would execute and register a deed of sale within one year on receipt of the balance of the consideration. On his failure to execute and register the said deed as agreed upon between them the appellant filed the suit for enforcement of the contract.

(3.) Respondent was impleaded as defendant No. 2 as required by the provisions of President's Order No. 142 of 1972. In his written statement filed on March 19, 1975 Abdus Sattar Solaiman was admitted as owner of the disputed property but the agreement for sale was challenged as being false and fabricated. Further, the disputed property being an abandoned property, an order of allotment was made in respect of the first floor of the premises. The allotment was made in favour of one Dr. Giasuddin Ahmed on December 13, 1973. By their Memo No. 2p-4-240/73 dated 12.5.75 the Government cancelled the order of allotment on the representation by the appellant that he was in possession of the disputed property in pursuance of the agreement for sale as mentioned above. Possession of the property was never taken over by the Government. After the promulgation of Martial Law Regulation No. VII of 1977 the learned Subordinate Judge passed the order of abatement of the suit suo motu on November 24, 1977. An application for review of this order filed by the appellant was rejected on February 14, 1978. Against these orders the appellant moved the High Court Division which by its afore-mentioned order in the civil revision case upheld the order of abatement passed by the learned Subordinate Judge. On November 18, 1982, the appellant obtained leave of this Court to consider whether the order of abatement was rightly recorded in the absence of an assertion by the Government that it has taken possession of the property in question.