DR. MOHAMMAD HOSSAIN Vs. ABDUL MALEK KHAN

JUDGEMENT

(1.) The defendants are the appellants. The facts in dispute are not much and they may be set out in a few words. The plaintiff and the two defendant-appellants earlier brought a suit for specific performance of contract against Kamal Rani Devi and got a decree in that suit and it was put in to execution. In the earlier suit and in the present it is not disputed, that the consideration money was Tk. 30,000/- and it was paid on two occasions by instalment of TK. 15,000/- and on the earlier occasion Tk. 15,000/- was paid through defendant 1. The three persons, the plaintiff and the two defendants got a joint decree on a single contract which was silent as to the shares of the vendors. Neither in the contract nor in the decree is there any mention of the proportion of the sum paid by the vendors. It is to be observed that all the three vendors are in possession of the property on the basis of a contract on which the decree for specific performance has been obtained. Disputes arose between the plaintiff and the defendants as to extent of shares. Plaintiff claimed 1/3rd share which was denied by the defendants, and this denial impelled the plaintiff to institute the present suit which was contested mostly on two grounds. First, as to the quantum of share of the plaintiff, whether it was 1/3rd or 1/6th; and, secondly, the suit for partition by the plaintiff was incompetent. The trial Court negatived the first part of the claim of the plaintiff, holding that his contribution was to the extent of 1/6th and on the second question, the contention of the defendants on the competency of the suit was overruled. He, therefore, decreed the suit in preliminary form. On appeal by the plaintiff the learned Judges of the High Court allowed the appeal and raised tae share of the plaintiff to 1/3rd. Leave was granted on the two questions on which the suit was mainly contested.

(2.) Mr. Pal the learned Counsel for the appellants contends that the learned Judges of the High Court were in error in finding 1/3rd share for the plaintiff by applying the rule of equal proportion containing in second paragraph of section 45 of the Transfer of Property Act. It is true that the learned Judges of the High Court applied the rule, but in so applying they have fully considered the evidence called by both sides and have found that the plaintiff's two witnesses, plaintiff himself and P.W. 2 Abdul Latif Sheikh have asserted that the plaintiff paid a sum of Tk. 10,000/- on two occasions, and thereafter the learned Judges have discussed all the six defence, witnesses and on a balance of evidence, came to the conclusion that the defendants had not been able to prove payment of only Tk. 5000/- by the plaintiff of-the consideration money. In coming to this conclusion the learned Judges have also referred to the pleadings of the parties. So apart from the application of the rule contained in section 45 of the Transfer of Property Act the learned Judges have found on fact, that the plaintiff has proved payment of Tk. 10,000/- whereas defendants have failed to prove their case of payment of Tk. 5000/- only. In this state of evidence and on discussion of the evidence by the learned Judges, we do not find any scope for this Division to interfere with this finding.

(3.) We now come to the second question which though apparently attractive does not seem to have much substance. It is with regard to the competency of the partition suit filed by the plaintiff-respondent. Mr. Pal's argument will be looked into presently. Before that, let us take the question on the facts as they stand. The plaintiff and the defendant are the three vendees on a contract and the defendant are the three single vendees on a single contract and they have paid Tk, 30,000/- towards the consideration money and obtained a decree for specific performance of contract from the Court and the decree is under execution though not executed. The parties in terms of the contract were and are in possession of the property. It is therefore to be seen that what is the right acquired by the plaintiff and the defendants in the earlier decree for specific performance which has not been fully executed. It is true that if the decree for specific performance would have been executed in full, the Kabala would have been in favour of the decree-holders and they would have become the title holders of the land which was agreed to be conveyed under the contract and affirmed by the decree.