In the Supreme Court of Bangladesh High Court Division

(Civil Revisional Jurisdiction)

Present:

Mr. Justice Muhammad Abdul Hafiz

Civil Revision No. 769 of 2017

Khondoker Mozammel and others Plaintiffs-Respondents-Petitioners

-Versus-

Imdadul Haque Badsha and others Defendants-Appellants-Opposite parties

Mr. Shasti Sarker, Advocate

for the Plaintiffs-Respondents-Petitioners

Mr. Md. Hamidur Rahman, Advocate for the Defendants-Appellants-Opposite Parties

Judgment on 26.7.2022

This Rule was issued calling upon the opposite party Nos. 1- 5 to show cause as to why the impugned Judgment and Decree dated 31.10.2016 passed by the learned Joint District Judge, 2nd Court, Kushtia in Title Appeal No. 16 of 2014 allowing the appeal and thereby reversing the Judgment and Decree dated 27.1.2014 passed by the learned Assistant Judge, Kumarkhali, Kushtia in Title Suit No. 108 of 2002 decreeing the suit should not be set aside and/ or such other or further order or orders passed as to this Court may seem fit and proper.

The petitioner Nos. 1-3 as plaintiffs instituted Title Suit No. 108 of 2002 in the Court of learned Assistant Judge, Kumarkhali,

Kushtia for specific performance of contract for getting a registered sale deed.

The plaintiff’s case, in short, is that the land measuring .21 acres of land in Plot No. 84 along with others in total 1.00 acres under S.A. Khatian No. 680 corresponding to R.S. Khatian No. 173, Mouza Chariakole, Police Station- Kumarkhali belongs to the defendant No. 1 and his brother Osman Biswas. Each of them had .1050 acres of land out of .21 acres from Plot No. 917. Osman

1 1 Biswas sold .102 acres of land from Plot No. 849 and .102 acres

of land from Plot No. 917 in total .21 acres of land to the plaintiffs and their brother Khandoker Musa on 20.11.1983 by registered kabala deed No. 4963. The plaintiffs have been possessing the land by erecting dwelling house and planting trees. The defendant No. 1 being possessed in respect of 11 Annas share then the defendant No. 1 claimed money for measuring .1050 acres of land. To avoid complicity in further the plaintiffs made a contract with the defendant No. 1 on 02.9.1987 to purchase the suit land at Taka 7,000/-. Taka 4,000/- was paid to the defendant No. 1 on the same day. The defendant No. 1 executed the Binanama deed willingly. Subsequently the plaintiffs paid 2500/- Taka to the defendant No. 1 in presence of the witnesses. The defendant No. 1 refused to register the deed on 01.5.2002. Hence the plaintiffs constrained to file the suit.

The defendant No. 1 contested the suit by filing a written statement denying all the material allegations made in the plaint that the suit is not maintainable; the defendant No. 1 did not sell the disputed land or did not execute any Bainama deed in favour of the plaintiffs. The defendant No. 1 took cash money as loan due to his own necessity from the plaintiffs and he put the scheduled land as security, as the plaintiffs desire. Subsequently, the defendant No.1 repaid the money to the plaintiffs in presence of the local elite persons but the plaintiffs did not return the Bainama deed as the Bainama deed was not available at that time. The plaintiffs have filed this suit only for harassing the defendant No.1. The defendant No.1 prays for dismissal of the suit.

The learned Assistant Judge, Kumarkhali, Kushtia decreed the suit vide Judgment and Decree dated 27.1.2014. Against the Judgment and Decree the defendant No.1 as appellant preferred Title Appeal No. 16 of 2014 before the learned District Judge, Kushtia which was transferred to the learned Joint District Judge, 2nd Court, Kushtia who allowed the appeal and thus the plaintiffs- respondents as petitioners moved this application under section 115(1) of the Code of Civil Procedure before this Court and obtained this Rule.

Mr. Shasti Sarker, learned Advocate for the plaintiffs- respondents-petitioners, submits that the Appellate Court below has failed to consider the mandatory