MD. ABUL HOSSAIN Vs. ABDUL HAMID MANDAL

JUDGEMENT

(1.) This Appeal, by leave, is directed against the impugned judgment and order dated 28.06.1999 passed by a Single Bench of the High Court Division in Civil Revision No. 3737 of 1995 making the Rule absolute setting aside the judgment and decree dated 23.05.1995 passed by the Subordinate Judge, 2nd Court of Zilla Rajbari in Title Appeal No. 57 of 1993 reversing those of the Assistant Judge, Pangsa, Rajbari, dated 28.04.1993 in Title Suit No. 44 of 1985 dismissing the same.

(2.) The leave petitioner filed the Title Suit No. 44 of 1985 before the Assistant Judge, Pangsa, Rajbari, seeking for a decree of specific performance of contract for sale of the land measuring,an area of 1.22 acres stating, inter alia, that the respondent (defendant No. 1) proposed to sell the land described in the schedule of the plaint for a consideration of Tk. 3,000.00 and thereupon executed a kabala in fabour of the petitioner on receiving the entire consideration money but the defendant-respondent No. 1 on different pretexts delayed the registration of the kabala and finally on 30.07.1975 refused to register the same. Hence the suit was filed.

(3.) The defendant-respondent contested the suit by filing written statement denying all the averments made in the plaint stating, inter alia, that the suit is not maintainable. It is barred by limitation and also barred by the principles of estoppel, waiver and acquiescence. His specific case, in short, is that on account of urgent necessity (of) money, the defendant approached the plaintiff for loan of an amount of Tk. 3,000.00 in the month of Jaishstha, 1379 B.S. and the plaintiff agreed to give him loan on condition that the defendant would make over possession and give the title deeds of the suit land to him as security of loan. Accordingly an amount of Tk. 3,000.00 was received by the defendant in the month of Jaishstha, 1379 B.S. after making over possession of the suit land. There was no contract with the plaintiff that the defendant would sell the suit land as stated in the plaint. The defendant never received consideration as the price of the land nor the defendant executed any kabala deed in favour of the plaintiff on receipt of such consideration but the kabala deed as filed by the plaintiff is forged. There being no contract of sale between the plaintiff and defendant No. 1, question of specific performance dose not arises at all. In such circumstances the suit is liable to be dismissed.