Omar Ali Sheikh vs Shamsul Mridha and others 55 DLR ( HCD )565

Facts in Brief:

 The petitioner receiving TK 30000 as earnest money came to an oral agreement with the plaintiffs and delivered possession of the suit land .After taking delivery of possession the plaintiff constructed a dwelling homestead and planted fruit bearing trees in the same . The plaintiff requested the defendant petitioner to execute and register the sale deed but he made pretext. Lastly in the middle of December 1994 the petitioner refused to execute and register the sale deed. So the plaintiff institutes the instant suit.

Issues: 

1) Whether the petitioner is entitled to remedy under this Act.

2) Whether section 43 of the Transfer of Property Act,1882 applies or not.

Rule of Laws

 1) Section 43 of the Transfer of propert6y Act 1882

 2) Section 115 of CPC,1908

 3) Section 81 of SAT Act, 1950

Application of the case:

At the time of making the agreement the defendant had no saleable interest in the land but it appears from the Ext ka the Kabuliyat as produced by the defendant petitioner that there was a condition that after expiry of 15 years the title of the suit land should be vested with petitioner free from encumbrances. As per provision of section 81 of SAT Act, 1950 after expiry the said period the petitioner title in the suit land become absolute. The lease deed was executed 18-11-1978 and 15 years expired 28-11-1993. That is after 29-11-1993 the defendant petitioner acquired the absolute ownership in the land under dispute .But the instant suit was barred by limitation.

 But the plaintiff institute the instant suit in the middle of December 1994, the petitioner denied to execute and filed the suit on 26-1-1995. The limitation of the instant suit will run from the date of such refusal. So the instant suit was not barred by limitation.

Judgment:

The court declared that where a person having partial interest in certain property can transfer a larger interest and subsequently acquire that interest. In that case section 43 of TP Act applies and transferee is entitled to get interest so acquired.

Conclusion:

In this case as the plaintiff got possession in pursuance of the agreement for sale. So contract of sale has been partly performed and transferor has put the transferee in possession of part performance of contract, the latter can enforce the right.