LAL MIAH (HAJEE) Vs. NURUL AMIN

JUDGEMENT

(1.) This is a defendant's appeal, defendant No. 2 by leave against' the judgment and decree dated August 21, 1996 of a Division Bench office High Court Division in First Appeal No. 82 of 1987 allowing the appeal upon reversing the judgment and decree dated February 25, 1987 of the Court of Subordinate" Judge (now Joint District Judge), Narayanganj passed in Title Suit No.72 of 1992 dismissing the same. The suit was filed for specific performance of the contract for sale of land for further relief by way of declaration that the sale deeds by the defendant No. 1 in favour of the defendant No. 2 are fraudulent, void, and collusive and not binding upon the plaintiffs.

(2.) Plaintiff-respondent Nos. 1 and 2 and the predecessor of the plaintiff-respondent Nos. 3-7 filed the suit stating, inter alia, that the defendant No. 1 (herein respondent No. 8) was the owner of the property described in schedules A, B, and C to the plaint, He entered into an agreement with the plaintiffs on January 22, 1981 to sell the said property for a total consideration of taka 1,00,000. In terms of the contract each of the purchasers has paid Taka 5,000 as earnest money and the defendant No 1 upon receiving the said earnest money executed bainapatra with the stipulation that, he would execute the deed of sale within 6 months from the date of agreement but the defendant No. 1 did not execute and register the kabala in spite of tender of the balance consideration money. The plaintiff subsequently, came to know that the defendant No. 1 had executed and registered two sale deeds dated September 3, 1981 and September 4, 1981 purporting to transfer the self-same property in favour of the defendant No. 2 who had full knowledge of the agreement with the plaintiffs and that the transfer was collusively made beyond the knowledge of the plaintiffs. In the plaint it was further, stated that, Khurshed Ali Master, father of the 1st and 2nd plaintiffs was the monthly tenant under the defendant No. 1 in respect of two suit shop rooms of the eastern part of the tin shed and the third plaintiff was the tenant in respect of the other suit shop room on the western part.

(3.) The defendant No. 1 contested the suit denying the contention of the plaintiffs as to execution of the bainapatra by him and alleging that he instituted SCC Suit No. 88 of 1980 for the ejectment of Khurshed Ali Master as he became defaulter in the payment of rents, that during the pendency of the SCC suit there was a 'salish' in August, 1981 where Khurshed Ali Master agreed to enhance the rent, that one or two days thereafter Khurshed Ali came to him with one blank stamp and some blank cartridge papers and stated that his son previously purchased the stamp paper and in good faith he (defendant No. 1) put his signature in the blank papers for drawing up a monthly tenancy deed, that subsequently the compromise was not materialised and then he sold the suit property to the defendant No. 2 (appellant) and that the bainapatra was created by using the blank papers signed previously by him.