Bangladesh University of Professionals
TERM PAPER
Bengal Bricks Industries Ltd vs Md Ishaque Chowdhury, 58 DLR (2006) 62
Course Name: Law of Transfer of Property & Registration
Course Code: Law-2405
Submitted To
Md. Abu Sayeed
Adjunct Faculty
Department of Law
Faculty of Security & Strategic Studies (FSSS)
Bangladesh University of Professionals (BUP)
Submitted By
Md. Sabbir Hossain Masum
Id No. 18421062
4th Semester
Department of Law
FSSS, BUP
S u b m i tt e d O n : 9 t h N o v e m b e r , 2 0 1 9
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Term Paper On
In the Supreme Court of Bangladesh
High Court Division
(Civil Appellate Jurisdiction)
Presented To: Syed AB Mahmudul Huq J
Md. Abdur Rashid J
Appellant: Bengal Bricks Industries Ltd
Respondents: Al-haj Md Ishaque Chowdhury and Ors
58 DLR (2006) 62
TH Khan with Sk. Zulqur Bulbul Chowdhury and Rezina Chowdhury,
Advocates—For the Appellant.
Khandker Mahbubuddin Ahmed with Azim Khair and Faisal Mahmud
Faijee, Advocates—For the Respondents.
Decided On: July 19, 2004
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Table of Contents
Serial No Topic Name Page No
1 Fact of the case 04
2 Issue of the case 05
3 Argument of the 06
Prosecution
4 Argument of the 07
Defendant
5 Judgment 08
6 Evaluation 09
Fact of the case
Defendant No. 2, partnership firm obtained lease of entire suit property as described in the
schedule to the plaint for 99 years on 7-8-63 from the Public Works Department of the erstwhile
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East Pakistan Government. While said firm was thus in owner in possession a suit being Other
Suit No. 228 of 1981 was filed in the Third Court of Subordinate Judge for partition of said
property amongst the partners. The suit ended in compromise. Defendant Nos. 3 to 5 got
schedule property partitioned amongst them by a deed of partition being No. 2008 dated 1-11-84.
Defendant No. 5 Anwara Begum got the property of schedule 1(Ka) and defendant No. 3 and 4
schedule 1( Kha) property, Defendant Nos. 3 and 4. Taherul Anowar, and Nilufar Anowar got
their names mutated in respect of schedule-1 (Kha) property and possessed by raising boundary
wall surrounding said property and payment of rents.
Defendant Nos. 3 and 4 entered into an agreement to sell the property to the plaintiff at a
consideration of Taka 10,00,000 and on receipt of Taka 9,70,000 on 8-9-86 executed an
agreement.
On 25-7-90 said defendants gave a power of attorney to Shamsul Huq to execute and register
necessary sale deed transferring said schedule- 1(Kha) property to the plaintiff and accordingly,
Shamsul Huq transferred the suit land by a registered deed being No. 196 dated 13-1-91. The
plaintiff got his name mutated in respect of said schedule-(Kha) property and possessed on
payment of rents under the mutated khatian.
In December, 1996 the plaintiff received a notice from Double Mooring Police Station and on
inquiry came to know that defendant No.1 company obtained aforesaid ex-parte decree dated 30-
7-95 in Other Suit No. 151 of 1992. The plaintiff had no knowledge about the suit nor did said
defendant No.1 make him party in the suit.
The decree was therefore, collusive, fraudulent and obtained behind the back of the plaintiff.
Hence the suit for declaration of title and confirmation of possession.
Issue of the case
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Was the suit barred by limitation?
Was the suit barred by principles of lis pendens under section 52 of Transfer of Property
Act?
Was the suit barred by section 42 of the Specific Relief Act?
Was the suit bad for defect of parties?
Whether the plaintiff was entitled to the relief as prayed for?
What relief the plaintiff was entitled to?
Related Laws
Section 52 of the Transfer of Property Act, 1882; Section 52 prohibits transfer of the property
or otherwise dealing with such property by any party to a suit or proceeding during the pendency
of the proceeding which is not collusive so as to affect the rights of any other party thereto. Such
prohibition is absolute only subject to leave of the Court. A transferee pendente lite would
therefore, be bound by the proceedings of the suit and the decree passed therein and shall take his
transfer subject to the result of the suit.
Section 62 of the Contract Act, 1872 which says about, “Effect of novation, rescission and
alteration of contract” If the parties to a contract agree to substitute a new contract for it, or to
rescind or alter it, the original contract need not be performed.
Section 15 of the Specific Relief Act, 1877 which says about, “Specific performance of part of
contract where part unperformed is large” Where a party to a contract is unable to perform the
whole of his part of it, and the part which must be left unperformed forms a considerable portion
of the whole, or does not admit compensation in money, he is not entitled to obtain a decree for
specific performance. But the Court may, at the suit of the other party, direct the party in default
to perform specifically so much of his part of the contract as he can perform, provided that the
plaintiff relinquishes all claim to further performance, and all right to compensation either for the
deficiency, or for the loss or damage sustained by him through the default of the defendant.
Argument of the Prosecution
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Argument of the Defendant
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Judgment of the case
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Evaluation