KOHINOOR CHOWDHURY Vs. SREE KAMADA RANJAN BHATTACHARJA

JUDGEMENT

(1.) This petition for leave to appeal is directed against the judgment and order dated 24.9.2007 of the High Court Division passed in Civil Revision No. 4160 of 1999 affirming judgment and order dated 22.7.1999 passed by the learned Assistant Judge, Sreemongal, Moulvibazar in Title Suit No.79 of 1998 rejecting the petitioner's application under Order 7 Rule 11 of the Code of Civil Procedure praying for rejection of plaint.

(2.) The respondent No.1, as plaintiff, instituted the above Title Suit No.79 of 1998 for specific performance of contract by way of re-conveying by the defendants the suit land in his favour on the averments that he was owner of the suit land by way of jote right and while in possession and enjoyment of the suit land he proposed to sell the same and the defendant No.1 agreed to purchase the same at a consideration of Tk. 5991/- and then the plaintiff executed a sale deed on 20.2.1974 and on the same date the defendant No.1 also executed an agreement of re-conveyance the suit land in favour of the plaintiff and accordingly the plaintiff delivered possession of the suit land in favour of the defendant No.1 but he, in violation of the terms and condition of the agreement of reconveyance, transferred the suit land in favour of the defendant Nos.2 and 3 by a registered kabalas dated 19.1.1979 and 30.6.1979; that the plaintiff on 30.10.1979 asked defendant No.1 along with defendant Nos. 2 and 3 for execution of deed of re-conveyance according to terms of the agreement of re-conveyance but the said defendants refused and that thereafter the plaintiff, upon the advice of his learned advocate Mr. Biroja Mohan Das of Sylhet, filed Title Suit No.103 of 1980 in the Court of First Munsif, Moulvibazar for khas possession of the suit land treating the deed of sale and re-conveyance as usufractuary mortgage and the suit, on transfer, was renumbered as Title Suit No.171 of 1983 of the Court of the Sreemangal Upazila and, after hearing, the suit was decreed. The defendant Nos.2 and 3 then preferred Title Appeal No.02 of 1984 which, after hearing, were dismissed. The defendant Nos. 2 and 3 then moved the High Court Division and obtained Rule in Civil Revision No.217 of 1988 which, on transfer was renumbered as Civil Revision No.1318 of 1999 and after hearing the High Court Division upon setting aside both the judgment and decrees of the Courts below sent back the suit to the trial court on remand for fresh trial; thereafter after fresh hearing by judgment and decree dated 11.5.1993 the above suit was again decreed and thereafter the defendant Nos. 2 and 3 filed Title Appeal No.42 of 1983 in the Court of District Judge, Moulvibazar who, after hearing, by judgment and decree dated 28.10.1993 allowed the appeal against which the plaintiff moved the High Court Division and obtained Rule in Civil Revision No.582 of 1994 and after hearing, the High Court Division discharged the Rule against which the plaintiff filed Civil Petition No. 867 of 1997 before the Appellate Division of Supreme Court and the Appellate Division, after hearing, by judgment and order dated 25.3.1981 dismissed the same; the learned Advocate Mr. Biroja Mohan Das gave wrong advice for filing a suit for khas possession and he ought to have advised the plaintiff to file the suit for specific performance of contract; that the time spent for prosecution of earlier suit should be excluded under section 14 of the Limitation Act. The defendant No.2 filed an application for rejection of the plaint under order 7 Rule-11(d) of the Code of Civil Procedure for rejection of the plaintiffs on the averments that the cause of action arose on 30.10.1079 when the defendant No.1 refused to execute the deed of re-conveyance and admittedly the suit was barred by limitation and the plea of conconation condonation of delay on application of section 14 of the limitation Act was not available to the plaintiff.

(3.) The learned Assistant Judge, Sreemongal, upon hearing the parties, rejected aforesaid the application. Then the defendant petitioner then moved the High Court Division and obtained Rule in Civil Revision No.4160 of 1999 and after hearing, the High Court Division discharged the Rule.