IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Moinul Islam Chowdhury

CIVIL REVISION NO. 3503 OF 2019

IN THE MATTER OF:

An application under section 115(1) of the Code of Civil Procedure.

(Against Decree)

-And-

IN THE MATTER OF:

Md. Ali Akbor

--- Plaintiff-Respondent-Petitioner. -Versus-

Moulovi Ali Ahammed being dead his legal heirs: 1-5 and another

---Defendant-Appellant-Opposite Parties.

Mr. Md. Oziullah, Senior Advocate with

Mr. Md. Saifur Rahman, Advocate

--- For the Plaintiff-Respondent-Petitioner. Mr. Md. Shahadat Tanveer Amin, Advocate

---For the Defendant-Appellant-OP Nos. 1-6.

Heard on: 24.08.2023, 27.08.2023, 09.10.2023 and 16.10.2023.

Judgment on: 31.10.2023.

At the instance of the present plaintiff-respondent- petitioner, Md. Ali Akbor, this Rule was issued upon a revisional application filed under section 115(1) of the Code of Civil Procedure calling upon the opposite parties to show cause as to why the impugned judgment and decree dated 21.05.2019 passed by the learned District Judge, Chandpur in the Title/Civil Appeal

No. 49 of 2001 allowing the appeal thereby reversing those dated 08.04.2001 passed by the learned Assistant Judge, Kachua, Chandpur in the Title Suit No. 79 of 1998 should not be set aside.

The relevant facts for disposal of this Rule, inter-alia, are that the present petitioner as the plaintiff filed the Other Class Suit No. 79 of 1998 for the specific performance of a contract in the court of the learned Assistant Judge, Kachua, Chandpur praying for that a contract dated 26.06.1993 to be performed by the present defendant of his part. The plaint contains that plaintiff and defendant No. 1 (now deceased) and his legal heirs were substituted to contest the Rule. The further facts are that the plaintiff and the defendant (now deceased) were full brothers and both of them inherited the property of their father including the present suit lands. The defendant was looking after the property owned by the petitioner as a borgadar (hN¡Ñc¡l). While the defendant wished to sell the entire scheduled property the plaintiff intended to buy the land by fixing the money at Tk. 30,000-/ (Taka Thirty Thousand). For which the defendant (now deceased) received money at Tk. 4,000-/ + 3,000-/ = 7,000-/ (Taka Seven Thousand) and the defendant gave a money receipt for Tk. 7,000-/ (Taka Seven Thousand) to the plaintiff. Thereafter, the plaintiff on 14.04.1995 and 13.04.1996 also paid Tk. 10,000-/ + 10,000-/ = 20,000/- (Taka Twenty Thousand) to the defendant No. 1 and fixed the date on 1m¡ ®~SÉùÉ for registration and rest Tk. 3,000/- (Taka Three Thousand) will be given on the same day but defendant No. 1 denied the execution of registration then the plaintiff instituted the suit for legal remedy.

On the other hand, defendant No. 1 also purchased some land from his sister Nurjahan Begum by way of executing a Bainanama (h¡ue¡e¡j¡) and pursuant to the said Bainanam (h¡ue¡e¡j¡) the plaintiff registered his portion of land as well as the portion of the defendant by ignoring the right of the defendant. Regarding the said purchased property there was a dispute and the Other Class Suit No. 71 of 1997 was filed by the plaintiff and an appeal is pending now. The defendant further contended that there was no Bainanama executed on 26.06.11993 by him for selling the suit property measuring 36 decimals and the possession was never handed over to the plaintiff but the plaintiff by practicing fraud created the so-called Bainanama as there was no valid contract between the parties, as such, there was no contract and on the basis of which there was no performance from the said Bainanama by the defendant.

Upon receipt of the said suit the learned Assistant Judge, Kachua, Chandpur heard the parties and examined the documents and oral evidence decreed the suit on 08.04.2001. Being ag