LAWS(BANG)-2006-4-12

JOYNAB BEGUM Vs. SHAHEB ALI AKUNJI

Decided On April 26, 2006
Joynab Begum Appellant
V/S
Shaheb Ali Akunji Respondents

JUDGEMENT

(1.) This appeal, by leave, is directed against the judgment and order dated 9-8-2000 of the High Court Division passed in Civil Revision No. 3175 of 1993 making absolute the Rule obtained against the judgment and decree dated 21-8-1993 of the learned Additional District Judge, Bagerhat passed in Title Appeal No. 207 of 1989 affirming those of dated 28-7-1987 of the learned Subordinate Judge (now Joint District Judge), Bagerhat passed in Title Suit No. 94 of 1982 decreeing the suit.

(2.) Late Kawsar Ali Shaikh, the predecessor in interest of the appellants, filed the above Title Suit No. 94 of 1982 for specific performance of contract on the averments that late Noor Ali Akunji, the defendant No. 1 in the above suit and the predecessors in interest of the respondent Nos. 5 to 12, was the owner in possession of the suit land measuring 3.93 acres and he on 29-11-1976 entered into an agreement with the plaintiff for sale of the suit land at a consideration of Taka 30,000 and on receipt of Taka 25,000 as advance he made over the possession of the suit land to the plaintiff and in the said agreement it was stipulated that the defendant No. 1 shall get back the possession of suit land in case of his refund of the advance amount of Taka 25,000 within the month of Chaitra 1386 BS and in default, the defendant No. 1 shall execute and register sale deed within the month of Baisakh 1387 BS in favour of the plaintiff on receipt of balance amount Taka 5,000; the defendant No. 1 having failed to refund Taka 25,000 within Chaitra 1386 BS, the plaintiff on tendering the balance consideration money requested the defendant No. 1 several times to execute and register the sale deed but the defendant No. 1 deferred the same on this or that plea and on 30-4-1982, corresponding to 16 Baisakh 1389 BS, he finally refused to execute and register the sale deed.

(3.) The added defendant Nos. 3 and 4, the respondent Nos. 1 and 2 herein, contested the suit by filing a joint written statement contending that they purchased the suit land from the defendant No. 1 by several sale deeds and the defendant No. 1 then handed over the possession of the suit land to them and thereafter they sold some land therefrom to the defendant Nos. 8, 11, 12, 15, 16 and 17 by sale deeds dated 18-8-1981 and delivered possession of the sold lands to them and that the defendant Nos. 3 and 4 and their transferees are bona fide purchasers for value without notice of alleged agreement for sale dated 29-11-76 and the above defendants are in actual and physical possession of the suit land since their purchase and the alleged agreement for sale is antedated, fabricated, collusive and fraudulent and the plaintiff did not also pay Taka 25,000 and/or tendered Taka 5,000 to the defendant No. 1 and the defendant No. 1 also did not make over possession of the suit land to the plaintiff.