IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(Civil Appellate Jurisdiction)

First Appeal No. 464 of 2000 In the matter of:

Md. Eskandar Ali Moral, son of late Md. Danesh Moral and others.

… Appellants

-Versus-

Monjur Hossain Shikdar, son of Moslem Ali Shikdar, village- Madhab Kati, Police Station- Kachua, District- Bagerhat and others.

…Respondents.

Mr. Pronay Kanti Roy, Advocate

…For the appellants

Mr. Md. Abdul Hai Sarker, Advocate

…For the respondent no. 1

Heard on 09.05.2024 and 23.05.2024. Judgment on 23.05.2024.

Present:

Mr. Justice Md. Mozibur Rahman Miah

And

Mr. Justice Md. Bashir Ullah

Md. Mozibur Rahman Miah, J.

At the instance of defendants, this appeal is directed against the judgment and decree dated 23.01.2000 passed by the learned the then Subordinate Judge (now Joint District Judge), 2nd Court, Bagerhat in Title Suit No. 45 of 1996 decreeing the suit.

The short facts leading to preferring this appeal are:

The present respondent no. 1 as plaintiff filed a suit being Title Suit

No. 45 of 1996 in the court of the then Subordinate Judge, 2nd Court,

Bagerhat for specific performance of contract for the suit land measuring

an area of 226 decimals seeking following reliefs:

“(L) h¡c£ j§m ¢hh¡c£l ¢hl¦−Ü ¢h−l¡d£u S¢jl Q¥¢š² fË h−ml ¢X¢œ² f¡ez

13. k¡ha£u ®j¡LŸj¡ MlQ¡l ¢X¢œ² f¡ez
14. ¢fÔ¢Xw peÉ¡u J AhØq¡e¤p¡−l h¡c£ Bl ®k ®L¡e fË ¢aL¡l f¡C−a f¡−le a¡q¡l ¢X¢œ² quz”

The present respondent nos. 2-7 as defendant nos. 3-8 contested the

suit by filing a joint written statement denying all the material statement

made in the plaint and prayed for dismissing the suit.

The case of the plaintiff-respondent no. 1 is brief in that, while the

defendant no. 1 had been enjoying title and possession of the suit land

offered to sale the same fixing the value at taka 1,35,000/- on 27.02.1995.

Since there had been scarcity in getting required stamp paper a sale deed

was thus executed on cartridge paper (−X¢j). On that very date, the

defendant no. 1 received entire amount and promised that within 15 days

he would register the sale deed upon collecting the stamp paper from the

treasury. Ultimately, he failed to do so rather he on 11.10.1996 refused to

register the sale deed and hence, the suit.

On the contrary, the petitioners as defendant nos. 3-8 contested the

suit by filing a joint written statement contending that, the defendant no. 1

as per bainapatra he executed on 19.02.1992 to sale 19.17 acres of land

including the suit land at a consideration of taka 6,94,900/-. Afterwards, the

defendant no. 1 registered three sale deeds in their favour on 17.04.1995 where the plaintiff stood as one of the attesting witnesses and the suit is thus liable to be dismissed.

The learned Judge of the trial court on examining the pleadings then framed 6 different issues when the plaintiff and the said defendants examined five witnesses each in support of their respective cases. Aside for that, the plaintiff produced documents which were marked as exhibit nos. ‘1’ and ‘2’ while the defendant’s documents were marked as exhibit nos. ‘ka’-‘gha’.

The learned Judge of the trial court after conclusion of trial by his judgment and decree dated 25.01.2000 decreed the suit against the defendant nos. 3-8 on contest.

Being aggrieved by and dissatisfied with the said judgment and decree, the defendants preferred this appeal.

Mr. Pronay Kanti Roy, the learned counsel appearing for the appellants upon taking us to the impugned judgment and decree and those of the evidence so adduced by the P.W-1 to P.W-5 and the exhibited documents being exhibit nos. 1-1(ka) at the very outset submits that, since there has been no existence of any contract so the suit for specific performance of contract itself is not maintainable in view of section 22 of the Specific Relief Act.

The learned counsel further contends that, though the plaintiff claimed to h