Wazed Ali Sheikh V. Mst Hazera Khatun and Others 28 BLD(AD) 2008 215

Facts in Brief:

The Plaintiff instituted title suit in the court of assistant Judge, Khulna for a decree partition stating inter alia that the suit land of the said jote belonged to Ismail Sheikh ,Hashem Sheikh, Jobed Sheikh, Wakkhiluddin Sheikh, to the extent of one gonads share and also others person or their respective shares.

Issue

Whether the defendant is entitled to get remedy of section 43 of the TP Act ,1882.

Rule of Law

 Section 43 of the Transfer of Property Act. 1882. 

Application to the fact 

The defendants have  possession in 14 annas shares of the suit land and rest 2 annas is being by the plaintiff for more than 12 years . The suit land has not undergone partition by metes and bounds and that the co-sharers are possessing the suit land as their own arrangement and to the plaintiff is facing inconveniences and demanded partition from defendant the defendant but the defendant refused and as such failed as above. The defendant no. 8 and 9 neither written statement nor the evidence tried to invoke the aid of section 43 of the TP Act , 1882 on the strength of Exhibit of  Kha and Gha and Cha. The HCD held that Exhibit Cha a partition deed dated 29 march 1940 executed by Tamizuddin in favor of suit Jama in an unilateral document .

Decision

Tamijuddin executed the Partition deed executed Cha but the defendant could not produce any rent receipt showing payment of rent by Tamijuddin. And accordingly it was held  that exhibit Cha is a void document and no title passed in favor of Tamijuddin as such defendant no, 8 and 9 also on strength of exhibit Cha did not acquire any title from Tamijuddin on the strength of Unilateral kabuliyat . So he is not entitled to get remedy under section 43 of the Act..

Conclusion: 

In the light of the facts and circumstances of the case and  of  the discussion above the court could notpersuade themselves to differ with learned single judge of the High Court Division.

Case no. 12

ALI AKBAR  KHAN V GURUDAS MONDAL

19 BLD HCD 122

                  Petitioners                                                                                                 Opposite Parties

                  Ali Akbar  Khan                                                                                        Gurudas Mondal

Advocates appeared:

                   Mr Sk Razzaque                                                                                  Ali Mr Md Abdul Jabbar

 ……For the Petitioners                                                                        ….. For the Opposite Parties

Bench: Md Awlad Ali J.

Judgment On: 9th June 1998

Facts in Brief: 

The petitioner brought title suit in the 2nd Court Of Munsif at Khulna for Declaration of Title to the suit land. the suit was subsequently transferred to the court of Assistant Judge. The Suit Land originally belonged to Shukchand Mondal who had the state in SA Khatian. Then Shukchand Mondal died leaving 5 Sons. the Two Sons transferred the land by registered Kabala and one of them transferred some parts of the land to the Plaintiff to possess.

Thus the Plaintiff acquired right, interest, and possession in the land and mutate in the Revenue Record and has been enjoying the land on payment of rent to the Government at last, according to the Plaintiff, the Kabala is a product of fraud and it was made without any consideration.

The Learned Assistant Judge upon assessment of the evidence decreed the suit. on appeal preferred to the defendant, the decree of the court was set aside. The rule was passed to revise the Judgment And Decree.

Issues:

      1) Whether the petitioner is to get remedy from the suit upon the assessment of the materials on                  record.

        2) Whether the plaintiff is a bona fide purchaser for value without knowledge of the Transfer by Kabala.

Rule of Law:

Section 43 of the Transfer Of Property Act 1882

 Section 42 of The Specific Relief Act & Section 115 of the Evidence Act.

Cases referred 

         1. Radhasyam Cope V Akterunnessa Begum 6 DLR 181

         2. Tayeb Ali V Abdul Khaleque 43 DLR AD 47

         3. Noor Mohammad Khan V Government 42 DLR 434

Application to the fact

The decree of the Court was set aside under s-42 of the Specific Relief Act which says that the plaintiff being in possession seeking for declaration need not seed any further relief as contemplated under the provision to section 42 of the act.

The suit is maintainable that the plaintiff purchased the suit land in good faith, bona fide and he is possessing the land since purchase. it was found that plaintiff is in joint possession of the land of the Khatian, still the Plainfiff is entitled to declaration of his title to the extent of his share and the suit for pure declaration is maintainable in the case of Noor Mohammad Khan V Government.

It was contended that the transfer made by the defendants became valid under the principle of being the Estoppels as contained in section 43 of the Transfer Of Property Act and also in view of the provision of section 115 of the Evidence Act. in the written statements the defendant has not pleaded that the transferors in the deed made erroneous representation at the time of conveying the land.

In Radhasyam Cope V Akterunnessa Begum Section 115 of the Evidence Act has been spelt with the Doctrine Of Estoppel which says that there must be a representation by a person or his authorized agent to another in any form a declaration act or omission.

 In another case Tayeb Ali V Abdul Khaleque,it was held that the suit land having not been specific and demarcated by boundary, the plaintiff is not entitled to any relief in the form of declaration.

Decision:

As the Learned Subordinate Judge has committed error of law occasioning failure of justice the judgment and decree passed by the Learned Subordinate judge is set aside. The suit is decreed in favor of the plaintiff.

Conclusion:

A party's declaration, act or omission must be clear definite, unambiguous and unequivocal. The real state of things was known to both the parties of the kabala, So there is no scope of the operation under the Transfer Of Property Act.