ABDUL KADER Vs. A. K. NOOR MOHAM­MAD

JUDGEMENT

(1.) This appeal arises from First Appeal No. 32 of 1974 passed by the High Court Division on 11 August, 1982. Appellants instituted Title Suit No. 36 of 1975 in the 4th Court of Subordinate Judge, Dhaka and was renumbered as Title Suit No. 1 of 1978 after being transferred to 5th Court of the Subordinate Judge, Dhaka. Appellants prayed for declaration of their title and possession to the suit properties and also for declaration that the compromise decree obtained in Title Suit No. 107 of 1966 in the 4th court of Subordinate Judge, Dhaka on 20 August, 1966 was fraudulent, void and not binding upon them. Prayer for permanent injunction restraining the defendants from dispossessing the appellants from the suit premises was also made. Facts stated in the plaint are that the suit premises belonged to one Noor Mohammad Bepari who gave permission to the plaintiff appellants to enter into and live in the suit premises. While in possession the plaintiff-appellants entered into an agreement with the owner is the Bepari for selling title suit premises to them at a price of Tk. 20,000/-. On 20 September, 1950 a bainapatra was executed and on the same day 30 amount of Tk. 18,000/- was paid to Noor Mohammad Bepari as earnest money. The owner was to execute the sale deed within 3 months from the date of agreement. Plaintiff-appellants came to know that suit property was requisitioned by the Government of East Pakistan as it then was but it could not lake possession of the suit premises by evicting the plaintiff appellants there from. Noor Mohammad Bepari did not, however perform his part of the contract in spite of tender of the balance consideration money and requests of the plaintiff appellants. No suit for specific performance within time could, therefore, be filed due to the dilatory tactics of the owner to perform his part of the contract Plaintiff-appellants' possession extended over a period of more than 12 years. In 1973 defendant No. 6, the Government of Bangladesh issued a notice upon the plaintiff-appellants to vacate the premises who instituted Title Suit No. 47 of 1973 in the 1st Court of Munsif, Dhaka for permanent injunction restraining the Government from interfering with the peaceful possession of the plaintiffs. On 27th February, 1975 they, however, withdrew the suit and filed the present suit.

(2.) Their further case was that defendant Nos. 1 and 2 tiled Title Suit No. 107 of 1966 in the 4th court of Subordinate Judge, Dhaka against one Syed Abdul Latif defendant No. 12 and another and obtained a compromise decree in collusion with each other on 22 August, 1966. The predecessor of defendant Nos. 3,5 filed Title Suit No. 90 of 1967 in the same court for cancellation of the compromise decree but the plaint was rejected for non-payment of court fee. Defendant No. 1 filed Title Suit No. 56 of 1967 in the said court against the Government but withdrew the same. The predecessor of defendant Nos. 3,5 also filed title Suit No. 105 of 1974 in the same court for cancellation of the compromise decree dated 23.8.66 but the same abated. The cause of action of the suit arose on 1st March, 1973 when the plaintiff-appellants received a notice of eviction from defendant No. 6 and also on October 31, 1974 when defendant No 3 threatened them with dispossession. By filing three different written statements, three sets of defendants, namely, defendant No. 1, defendants Nos. 3-5 and defendant No. 6 contested the suit. The case of defendant No. 1 was that Noor Mohammad Bepari settled the suit property to Syed Abdul Latif, defendant No. 12 who, in 1951, settled it with him and his sister, defendant No. 2 by executing an unregistered amalnama on receiving a selami of Tk. 40,000/-. On the basis of compromise decree obtained by him in Title Suit No. 107 of 1966 defendant No. 1 got his name mutated in the S. A. record. The predecessor of defendant Nos. 3-5 filed Title Suit No. 19 of 1967 for canceling the compromise decree, but the suit was dismissed. Plaintiff No 2 and two others filed Title Suit No. 82 of 1968 against defendant Nos-1 and 2 predecessors of defendant Nos. 3-5 and defendant No 6 but the same was dismissed for default, the predecessor of defendant Nos. 3-5 filed Title Suit No. 307 of 1970 which was also dismissed for default. Plaintiffs filed Suit No. 47 of 1937 in the 1st court of Munsif Dhaka against the defendants but ultimately withdrew the same. The plaintiffs also filed Title Suit No. 622 of 1973 against the same but this suit was also withdrawn. The predecessor of defendant Nos. 3-5 filed Title Suit No 104 of 1974 for cancellation of the compromise decree dated August 23, 1966 but it abated. Miscellaneous case filed for setting aside the order of abatement was also dismissed. The present suit has been filed by the plaintiff appellants in collusion with defendant Nos. 3-5. The case of defendant Nos. 3-5 is that Noor Mohammad Bepari transferred the suit premises in favor of Nazrul Islam and Aminul Islam, defendant Nos. 10 and 11, who transferred their interest in the suit property to them on 27 October 1974 by executing a kabala. Defendant No. 6, the Government of Bangladesh, contends that the suit premises was requisitioned on 23.7.47 by the then Government of Bengal and the same was allotted to Class IV employees of P.W.D who were in possession On receiving a notice of eviction plaintiff-appellants who were in unauthorized occupation of a portion of the house instituted Title Suit No. 47 of 1973 which they subsequently withdrew. The suit premises has been recorded in the name of defendant Nos. 1 and 2, in the record of the Deputy Commissioner, Dhaka. Defendant Nos. 10 and 11 challenged the compromise decree in Title Suit No. 105 of 1974 but the same abated. Plaintiff-appellants were in unauthorized occupation of the suit premises and are, therefore, liable to be evicted under section 12A of the Emergency Requisition of Property Act. On March 14, 1978 the suit was dismissed by the learned Subordinate Judge, Dhaka. Plaintiff-appellants preferred First Appeal No. 32 of 1978 before the High Court Division. Cross-objections were filed by defendant no. 1 and defendant Nos. 3-5. On 11 August, 1982 the High Court Division dismissed the appeal and affirmed the judgment and decree of the trial court "with modification to the effect that the findings of the court below so far as the claim of the defendant No 1 and defendants Nos. 3-5 are concerned will be of no legal effect are set aside".

(3.) Being aggrieved plaintiff-appellants moved this Court and obtain leave to consider whether the learned judges of the High Court Division had incorrectly applied the law of part performance as contained in section 53A of the Transfer of Property Act.