MD. SUMAN MIA Vs. FALANI BEGUM

JUDGEMENT

(1.) This petition for Leave to Appeal at the instance of the petitioners is directed against the judgment and order dated 23.11.2005 passed by the High Court Division in Civil Revision No.1481 of 2001 discharging the Rule arising from judgment and decree dated 28.01.2001 passed by the learned Additional District Judge, 2nd Court, Narayanganj, in Title Appeal No.24 of 1996 allowing the appeal reversing those dated 25.01.1984 passed by the learned Assistant Judge, 2nd Court, Narayanganj in Title Suit No.210 of 1980 decreeing the suit on contest.

(2.) The facts leading to the case are that the petitioner-predecessor-in-interest as the plaintiff filed a Title Suit No.210 of 1980 for specific performance of contract in the 2nd Court of Senior Assistant Judge, Narayanganj stating, inter alia, that the suit property originally belongs to principle defendant No.1 who entered into a contract to sell the same to the plaintiff on 15th Falgoon 1384 B.S. at a consideration of TK.5,000.00 only and the defendant No.1 also received TK.2000.00 as bainapatra on that day out of the consideration amount in presence of Magrab Ali who was an intimate friend of the plaintiff and also negotiated and settled the price of the suit land and the plaintiff in good faith did not demand the receipt of the payment. Defendant No.1, Falani Begum was the full sister of aforesaid Magrab Ali who assured and promised the execution and registration of the saf-kabala, in favour of the plaintiff Defendant No.1 handed over the possession of suit land to the plaintiff who filled up earth and constructed a house in the suit land. The plaintiff has been in possession in the suit land. He offered balance amount of TK.3000.00 but the principal defendant No.1 did not receive the same and on some flimsy grounds had been deferring the execution and registration of the kabala. Hence the suit.

(3.) The defendant No.1 contested the suit denying the material allegation made in the plaint contending, inter-alia, that the suit is not maintainable and that the suit is false. The defendants' case, in short, is that defendant No.1 became owner and possessor of 8 (eight) decimals of the suit plot by inheritance and was in possession of northern most portion of suit property and her full sister Fulmala got the adjacent southern portion covering an area of 8 decimals of land sold to the plaintiff and Okiluddin on 08.07.1978 and delivered possession to the plaintiff and his co-purchaser. The plaintiff and Okiluddin erecting house had been residing there. There was no contract for sale with the plaintiff and defendant No.1 sold the suit land to defendant Nos.2 and 3 on receipt of the consideration of TK.25, 000.00 by kabala on 21.05.1979 and delivered possession to them. The defendant Nos.2 and 3 have been in possession in the suit land. The defendant No.1 never entered into any contract for sale with the plaintiff and the suit was thus liable to be dismissed.