BUSHARA COMPLEX LTD V. SYEDA SABERA KHATUN and Ors 12 BLT AD 2004,52 & 56 of the Transfer of Property Act 1882

Facts in Brief

When the plaintiff allotted a disputed land of land No 3/1, Block-A, Lalmatia Housing Estate to respondent's predecessor Abdul Hashem Khan. The lands of Abul Bazlur Rahman were requisitioned in a case for the purpose of developing Lalmatia Hosing Estate. Then the Appellant made a prayer for allotment of some of land Abul Hashem Khan paid the entire consideration but possession of the disputed land was not given to him as the land was in physical possession of Appellant Bazlur Rahman.

Then the appellant filed the suit challenging allotment of the said plot in favour of Abu Hashem Khan. That suit was decreed by Munsif, 1st Court, Dhaka. There after the Government filed appeal against the said judgment and decree which was passed by Subordinate Judge, 1st Court, Dhaka.

Issues

Whether there exists any other pending Civil Suit with regard to the suit land.

Whether there was  pending any appeal and possession of the suit plot for the development of        the property or not.

Rule of Law

Sections 52 & 56 of the Transfer of Property Act 1882 read with 56 of the Contract Act 1872.

Cases referred

Faiyaz Hussain Khan V. Munsi Prag Narainn 34 IND APP 102.

Hochenaddi Shaikh V. Esmail Sikdar 9 DLR 294

 Monomohan Ray V. Commissioners 7 DLR 535

Application to the fact

 The orders and actions were barred by the Doctrine of Lis pendence under section 52 of the Transfer Of Property Act 1882. According to the Section 52 -

During the pendency in any court... the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding to affect the rights of any other party.

However, the Government assured the appellant that his prayer for allotment of the disputed land to him would be considered if he withdrew the suit and then the appellant withdrew the suit, but the Government did not comply with its promise, but the Pendente Lite neither party to the litigation can alienate the property in dispute so as to effect the main proposition of his opponent in the case of Faiyaz Hussain Khan V. Munsi Prag Narainn.  

It was contented that Bushra Complex Ltd being bonafide purchaser for value from Bazlur Rahman and there being no suit or pending appeal at the relevant time. It took possession of the suit plot and invested large amount money for development and improvement of the property. It was held in the case of Monomohan Ray V. Commissioners that

A transfer Pendente Lite affecting the rights of the other parties to the suit is barred by section 52 of The Transfer Of Property Act 1882 with some limitations.

The Doctrine of Frustration as defined in 56 of The contract Act 1872 was not accepted for the unilateral termination claim of appellant hit by the Doctrine Of Lispendence under 52 of the Transfer Of Property Act, 1882. It was submitted that there was no civil suit pending with regard to the land which cannot alter the rights of parties in the suit, Hochenaddi Shaikh V. Esmail Sikdar.

Decision

In considering the determination of the right of the parties, the Appellant Bazlur Rahman transferred the disputed land to appellant Bushra Complex when there was no civil suit pending. Therefore the HCD committed an error in holding the Doctrine Of Lispenence. So the appeals are allowed without any order as to costs and the judgment and order passed by the HCD is set aside.

Conclusion

While a suit is pending in any court on a property , the transfer of the same to any third party is prohibited under the doctrine of Lis Pendens.