RAHIMA AKHTER Vs. ASIM KUMAR BOSE

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment and order of the High Court Division in F. A. No. 42 of 1981.

(2.) The predecessor of the appellants filed Title Suit No. 31 of 1977 in the 5th Court of Subordinate Judge, Dhaka for specific performance of contract stating, inter alia, that there was an agreement between S.M. Ismail on the one hand and Hemnalini Basu (the predecessor of respondents 1 and 2) on the other hand. The Bainapatra is dated 13.4.63. The stipulation was that the property will be sold to S.M. Ismail at a consideration of Tk. 35, 0007 Hemnalini received Tk. 27,400/- as advance and executed a bainapatra and delivered possession of the property. It was stipulated that Hemnalini would execute a registered deed of sale within 4 years and give the possession of the rest of the property at that time. Hemnalini died on 12.6.64 leaving respondent Asim Kumar Basu as her heir. The plaintiffs case was that he approached Hemnalini during her life time for execution of the deed and after her death the plaintiff approached respondent No.1 but his request was not complied with. Thereafter the Defence of Pakistan Rules, 1965 was promulgated and the property had been vested to the Custodian of the Enemy Property. The plaintiff impleaded in this suit the Asstt Custodian of Enemy Property as defendant No. 2 and S.M. Ismail filed the suit on 8.1.70 being T.S. No. 2 of 1970 and the Assistant Custodian filed written statement on 29.4.70 and another additional written statement was filed on 10.7.72. Asim, respondent No. 1 also filed a written statement on 14.9.72.

(3.) The defence case was that there was no contract for sale between Hemnalini and S.M. Ismail and no bainapatra was executed by her and the Bainapatra was forged and fraudulent nor Ismail was given possession of the suit property though he trespassed in the suit property in August, 19-70. The suit property became enemy property and the Custodian had leased out to several persons on monthly rent and they were in possession.