ABDUL KHALEQUE Vs. GOVERNMENT OF BANGLADESH

JUDGEMENT

(1.) This first appeal has been filed against the judgment and decree dated 17.06.2009 passed by the learned Joint District Judge, Second Court, Narayangonj in Title Suit No. 31 of 2009, rejecting the plaint.

(2.) The plaintiff-appellant on 25.01.2009 filed Civil Suit No. 31 of 2009 before the Joint District Judge, Second Court, Narayangonj for specific performance of contract. Plaintiff's case for the purpose of the disposal of this first appeal in short, is that the defendant No. 1 agreed to sell the suit land at a consideration of Tk. 11,02,000.00 in favour of the plaintiff and on receiving Tk. 10,92,000.00, executed a registered bainapatra on 13.03.2007 and the plaintiff on different occasion approached the defendant No. 1 and lastly on 01.01.2009 requested the defendant No. 1 to execute and register the kabala; but, the defendant No. 1 ultimately denied the same and accordingly, filed the suit. Defendant No. 1 contested the suit by filing written statement and contended inter alia that the defendant No. 1 being aged of 85 years and taking advantage of his ailment, the plaintiff created the bainapatra. The defendant No. 1 never received any amount from the plaintiff nor given possession of the suit land. After knowledge of the bainapatra, defendant No. 1 filed a criminal case being Petition Case No. 978 of 2007 under Section 341, 384, 506 and 109 of the Penal Code on 15.05.2007 against the plaintiff and in that criminal case on being negotiated by the local elderly persons, defendant No. 1 and plaintiff filed joint compromise petition and as per terms of the compromise the plaintiff undertook not to file any case pursuant to the bainapatra dated 13.03.2007 and also stated in the written statement that the present suit is barred by limitation.

(3.) The defendant No. 1 on 31.03.2009 filed an application under Order 7 Rule 11 (d) of the Code of the Civil Procedure for rejection of the plaint on the ground that the bainapatra was executed on 13.09.2007 and the suit was filed on 25.01.2009 and in view of Section 54A of the Transfer of Property Act, 1882 and in view of Article 113 of the Limitation Act, 1908, the present suit is hopelessly barred by limitation.