Khatibunnahar and others V. Syed Hafizullah and Others 15BLD HCD 565

Fact in brief:

The Plaintiff appellant petitioner is that Syed habibullah(now deed) proposed to sell the suit property for TK 2500 to Abdur Razzak, the predecessor in interest of the petitioners and executed a deed of agreement dated 2-7-65and received TK 500 in cash. It was stipulated that he would remove the thatched hut from the contracted land registered the sale deed within 3 months on receipt of the balance consideration of TK 2000. Thereafter the said vendor did not register the sale deed nor handed over the possession of the suit land as agreed upon.

Issue: 

Whether the petitioner is entitled to the possession of suit land. 

Rule of Law: 

Section 43 of Transfer of Property Act, 1882.

 Section 18(a) of Specific Relief Act.

 Section 91 and 92 of evidence Act, 1872.

Application of the case: 

 The suit land has been mortgaged and the said document executed for mortgaged by receiving TK3000 from the plaintiff. The Suit Land was Khas Land of the Government and defendant did not get settlement of the said land at the time of execution of bainapatra. So the question of sale did not arise at all. Latter on 9-4-1968 the defendant got settlement. The trial court on consideration of the materials on Record dismissed the suit and same also done by appellant authority. Latter HCD held that section 43 of the transfer of Property Act can apply here also can apply section 18(a) of the specific Relief Act.

The defendant was in possession of the suit land at the time of execution of the agreement for sale dated 2-6-65. So at the relevant time at least the defendant had some interest in the property by way of possessory right and according to his own admission he acquired a perfect title of the suit land 1965. So the defense of the defendant cannot be granted.

In the instant case it appears from the judgment that they have lost sight of section 18(a) of specific Relief Act. 

Judgment: 

The decision of the lower court by the learned subordinate judge and munsif are hereby set aside and the defendant is directed to register the necessary sale deed in favor of the plaintiffs within 2 months.

Conclusion: 

 Where a party enters into a contract without at the time having the power of performance and subsequently acquires the power, he becomes bound to make good the contract he had entered into.