IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CIVIL APPELLATE JURISDICTION)

Present:

Mr. Justice Md. Badruzzaman.

And

Mr. Justice Sashanka Shekhar Sarkar

FIRST APPEAL NO. 706 OF 2019 Al Mamun Mirza and another

...Appellants. -Versus-

Haji Md. Akkash Ali and another.

....Respondents.

Mr. Shishir Kanti Mazumder, Advocate

… For the appellants

Mr. Abdul Alim Mia, Advocate with

Mr. Md. Forhad Mahmud Ullah, Advocate

… For respondent Nos. 1 and 2

Heard on: 15.07.2024, 28.07.2024, 29.07.2024. Judgment on: 01.08.2024.

Md. Badruzzaman, J:

This appeal is directed against judgment and decree dated 28.10.2019 (decree signed on 03.11.2019) passed by 2nd Court of learned Joint District Judge, Narayangonj in Title Suit No. 522 of 2018 rejecting the plaint under Order VII rule 11(d) of the Code of Civil Procedure.

Facts, necessary to dispose of this appeal, are that the appellants as plaintiffs filed Title Suit No. 522 of 2018 before 2nd Court of Joint District Judge, Narayangonj for a decree of declarations that defendant No.1 was bound to execute and register sale deed of Ka schedule suit land in terms of registered deed of agreement No. 4499 dated 7.5.2015 and that Kha schedule suit deed in respect of Ka

schedule suit land was collusive, forged, illegal, without consideration and not binding upon the plaintiffs stating, inter alia, that .1875 acre land was owned and possessed by defendant No. 1, who on 7.5.2015 entered into a registered deed of agreement for sale of .08 acre land including .0525 acre suit land (‘Ka’ schedule of the plaint) with the plaintiffs and Mr. Sohel Mahmud (brother of plaintiff No.1) at a consideration of Taka 72,00,000.00 (Taka Seventy Two Lac) only and at the time of execution and registration of the deed of agreement, he received Taka 20,00,000.00 (Taka Twenty Lac) only as earnest money and handed over possession thereof to them from adjacent to the Southern side of the suit plot and thereafter, on different dates defendant No. 1 received total Tk. 28,00,000.00 (Taka Twenty Eight Lac) only from the plaintiffs and Md. Sohel Mahmud. Defendant No. 1 sold 0.0534 acre non-suited land in favour of plaintiff No. 1 vide registered sale deed No. 12693 dated 23.12.2015 and the plaintiffs by developing the suit land including .0534 acre purchased land constructed shops therein by erecting boundary wall and have been possessing the same within the knowledge of the defendants. Thereafter, the plaintiffs approached defendant No. 1 to execute and register relevant sale deed in terms of the agreement in presence of local elites, who promised to do so within 6 (six) months. But thereafter, he collusively sold the suit land in favour of defendant No. 2 by registered sale deed No. 8671 dated 29.07.2018 and as such, the plaintiffs have been compelled to institute the suit.

Defendant-respondent Nos. 1-2 appeared in the suit and filed joint written statement denying the material averments of the plaint, contending, inter alia, that being owner in possession of total .1875 acre land including the suit land, defendant No. 1 executed and registered deed of agreement in favour of the plaintiffs and Md. Sohel Mahmud on 07.05.2015 being No. 4499 for sale of .08 acre land and in terms of the bainapatra, defendant No. 1, transferred 0.0534 acre land by registered sale deed No. 12693 dated 23.12.2015 in favour of plaintiff No. 1 and 0.02