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					                 Judicial Administration Training Institute
                                15, College Road, Dhaka.

                         Oral Presentation on Civil matters.
    th
 76 Judicial Administration Training Course for the District & Sessions Judges and
                          Metropolitan Sessions Judge.


1. The plaintiff filed the partition suit claiming that he became owner of …… decimals of
land by purchase from the heirs of the original owner ‘M’ who left behind two sons ‘A’
and ‘B’ and one daughter ‘C’. The plaintiff claims that after his purchase, he entered into
possession of some land which is less than his purchased share. So, he requested the
defendants to effect partition but they did not agree. Hence this suit.

Some of the defendants contested the suit claming that ‘M’ gave the share of his daughter
at the time of her marriage and after death of ‘M’, neither she nor her heirs ever claimed
any share in the suit property. They also claimed that heirs and successors of ‘A’ and ‘B’
have been possessing their respective shares by constructing building thereon.

After hearing, the suit was decreed in the preliminary form and an advocate
commissioner was appointed to effect partition who submitted his report in which it was
mentioned that the co-sharers have been possessing their respective shares amicably from
a long time. But before the decree was made final, an appeal was filed by the defendants
taking the ground that the lower court committed an illegality in passing a preliminary
decree in respect of a property which the co-sharers have been possessing amicably from
a long time.

The appeal was heard and allowed by the learned District Judge. Relying on the report of
the advocate commissioner, it was observed that the plaintiff by filing the suit attempted
to disturb the long possession of the different co-sharers who have been possessing
amicably. The learned District Judge then dismissed the suit with reference to the
provisions Order 41 rule 33 of the C.P.C. observing that a court has an inherent power to
refuse to divide a property by metes and bounds as the relief for partition is an equitable
relief.

Question: Is the decision of the learned District Judge correct. Whether your answer is
yes or no, give reasons.

2. A case for pre-emption was filed by a co-sharer after about two years from the date of
transfer. The purchaser/O.P. contested the case mainly on the grounds that the case was
barred by time and bad for defect of parties. On consideration of the evidence on record,
the learned Assistant Judge found that the case was filed within time from the date of
knowledge of the transfer and that the case was not bad for defect of parties. So, the case
was allowed. Then the purchaser/O.P. filed an appeal.
It was argued in the appeal that the petitioner was all through aware of the transfer but
remained silent, as the price of the land has now increased, the case has been filed with a
view to make illegal gain.


The learned District Judge, after hearing the parties, sent back the case on remand with a
direction upon the trial court to frame an issue on the point of acquiescence and waiver
and to decide that issue after giving opportunity to the parties to adduce evidence on that
point.


Question: Whether the learned District Judge was correct in sending back the case on
remand.


3. The plaintiff filed the suit for declaration that Memo dated .......... issued by the
defendant No. 1 cancelling license for exhibition of cinema in ............. hall is illegal,
without jurisdiction and not binding upon him. After about five months, one ‘M’ filed an
application for adding him defendant in the suit claiming that he is the owner of the
premises of the cinema hall and the plaintiff is monthly tenant under him but he defaulted
payment of rent for more than one year. ‘M’ was added as defendant and thereafter he
filed an application for temporary injunction, for restraining the plaintiff from exhibiting
cinema in the said cinema hall. The learned Assistant Judge passed an order for issuing a
notice directing the plaintiff to show cause within seven days as to why he will not be
restrained from exhibiting cinema in the suit Hall till hearing of the application for
temporary injunction. At the same time, an ad-interim injunction restraining the plaintiff
from exhibiting cinema was also issued.

The plaintiff challenged the order by filing an appeal. In this appeal it was argued on
behalf of the respondent (added defendant) that the appeal was not maintainable because
the plaintiff should have moved the learned Assistant Judge under provision of sub-
rule(3) of rule 5A of order 39 of the Code of Civil Procedure and as the plaintiff did not
move the court of Assistant Judge for the relief, the appeal cannot be maintained by him.

Question: What is your opinion about the maintainability of the appeal.

4. In a partition suit, defendant No. 12 filed an application to allow him to demolish a
dilapidated building standing on a part of plot No. ....... municipal holding No. ....... , to
build a multistoried building over there. The lower court passed order for maintaining
status quo. The defendant No. 12 filed an appeal against the order and in the appeal
ground taken was that due to status quo order, he could not demolish the dilapidated
building and start multistoried building though he obtained approved plan of RAJUK and
as such he sustained loss because he already purchased building materials of considerable
amount.

 At the time of hearing arguments the learned advocate for the appellant has argued that
as an admitted co-sharer of a property located within municipal area, the appellant cannot
be restrained from starting construction in his share by passing an order of status quo
which amounts to an order of interim injunction. On the other hand, on behalf of the
respondents/plaintiffs it has been argued that the appellant wants to construct a
multistoried building in a portion of the ejmali land which is in excess of his due share
and as such if he constructs a multistoried building in that land, serious complications
will arise. In this appeal on behalf of the appellant, the case reported in 6 BLD (HC) 326,
43 DLR (HC) 226 and 3 BLC (AD) 78 were cited.

On consideration of the decisions cited, the Appellate Court allowed the appeal and
allowed his prayer to demolish the dilapidated building and to start construction as per
approved plan of the RAJUK at his own risk.

Question: Whether the Appellate Court was correct in allowing the appeal and passing
the order for demolishing the construction as prayed for by the appellant.

5. ‘A’ filed a suit for specific performance of contract alleging that ‘B’ entered into a
contract with him for sale of the suit land and after receiving advance of Tk. ............
executed a bainapatra on ...... and ultimately refused to execute and register a sale deed in
his favour. ‘B’ contested the suit mainly contending that the baniapatra was false and he
never entered into any contract with ‘A’ nor received any amount from him as advance.

The plaintiff led oral evidence and proved the contract and payment of advance. The
defendant though denied execution of the bainapatra did not take any steps for examining
the signature in the bainapatra by a handwriting expert. The court did not itself also
compare the signatures. However, the suit was decreed.

Then an appeal was filed by the defendant taking the main ground that without
ascertaining the genuineness of the signature in the bainapatra, the court should not have
decreed the suit.

It was argued on behalf of the appellant that the suit should be sent back to the trial court
on remand for ascertaining the genuineness of the signature either by comparing the
signatures by the court itself or through expert examination.

Question: In view of such argument, if the appeal is before you, shall you send back the
suit on remand or shall you decide the appeal on merit? Give reasons.

6. An application for obtaining opinion of the hand-writing expert as to the identity of the
disputed signatures was filed after the suit is fixed for hearing. The application was
opposed on the ground that the application was filed only to cause delay. It was also
argued that the Court itself was competent to compare the signature in exercise of the
power given u/s 73 of the Evidence Act. The other side argued that the court should
exercise such power very cautiously because such course is hazardous.
The learned Assistant Judge rejected the application on the grounds that the court was
competent to compare the signatures and that the application was filed only to delay the
hearing. Then a revision was filed taking the ground that comparison by court is a
hazardous course.


Question: What will be your decision?

7. Divisional Forest Officer filed the suit for a declaration that an exparte decree obtained
in title suit No. 318 of 1982 is forged, fabricated, collusive and not binding upon the
plaintiff. The case of the plaintiff is that the defendants earlier filed a title suit for
declaration of their title to the suit land but that suit was dismissed on contest. Those
defendants subsequently with a view to grab the suit land, created a forged deed and got
collusive exparte decree in the above title suit. Further case of the plaintiff is that the suit
land was included as a reserve forest by gazette notifications dated ….. of …… .

The defendant contested the suit stating that the suit land originally belonged to land lord
‘K’ Estate and defendant No. 1 ‘M’ took settlement from that Estate and paid rent.
Further case of the defendant is that when the suit land was wrongly recorded in the S.A.
khatian in the name of the Government, he filed the title suit No. 318 of 1982 and
obtained an exparte decree. The defendant also claims that the present suit is not
maintainable as the plaintiff did not pray for declaration of title nor made a prayer for
recovery of khas possession. It is also mentioned in the W.S. that the suit as filed by the
Divisional Forest Officer is not maintainable because it was not filed by the Government
of Bangladesh.

In this suit the plaintiff proved that there was no existence of T.S. No. 318 of 1982 by
filing the suit register of that year of the relevant court. The plaintiff also filed the gazette
notifications.

The trial Court, on the basis of the evidence on record, found that the suit property was
made reserve forest by the gazette notifications dated ………. but the court dismissed the
suit on the ground that the suit was not maintainable as there was no prayer for
declaration of title and recovery of khas possession. The court also held that the suit filed
by the Divisional Forest Officer was not maintainable and it should have been filed by
the Government of Bangladesh.

The plaintiff filed an appeal taking the main ground that the learned Assistant Judge
committed an illegality in dismissing the suit on the ground that the suit was not
maintainable as there was no prayer for declaration of title and recovery of khas
possession and that the suit was filed by the Divisional Forest Officer and not by the
government of Bangladesh.

Question: What will be your decision in this appeal? Give reasons.
8. An unregistered deed was admitted into evidence and marked exhibit. At the appellate
stage, the question of admissibility of the deed was challenged mainly on the ground of
insufficiency of stamp. It is admitted fact hat the deed was not duly stamped and no
penalty was paid.

Question: What will be your view on the above question: Give reason.

9. ‘A’ filed a pre-emption case. The case was allowed exparte. Thereafter ‘A’ transferred
the case land to ‘B’ and after this transfer the original purchaser/O.P filed a misc. case
under order 9 rule 13 of the Code of Civil Procedure for setting aside the exparte order
passed in the pre-emption case and for restoration of the same case. This case was
allowed and the original pre-emption case was restored.


It has been argued on behalf of the purchaser/O.P that the pre-emption case shall be
dismissed because the subsequent purchaser is not co-sharer in the case holding.


On the other hand, it was argued that though the subsequent purchaser was not a co-
sharer in the case holding, he stepped into the shoes of the original pre-emptor and as
such the pre-emption case shall be allowed.


The learned Assistant Judge, by accepting the argument of the subsequent purchaser,
allowed the pre-emption case. Then an appeal was preferred taking the main ground that
allowing of the pre-emption case was against the provisions of section 96 of the S. A. and
T. Act which allows pre-emption only in favour of a co-sharer, not in favour of a stranger
purchaser.

Question: What will be your decision in this appeal? Give reasons.

10. The petitioner filed a case for pre-emption u/s 96 of S.A. and T Act in respect of a
land which was purchased by the O.P. No. 1, a stranger for Tk. 1,95,000/-. The petitioner
deposited the amount adding 25% on that amount. The purchaser /O.P. appeared and filed
an application stating that actually he purchased the case land for Tk. 2,95,000/- but the
amount was shown to be TK. 1,95, 000/- in the sale deed. He prayed for fixing a date for
hearing on this application.

The learned Assistant Judge rejected the application on the ground that in a pre-emption
case, there was no scope of determining the question as to what actual consideration
passed at the time of selling the case land to a stranger purchaser.

The purchaser /O.P. No. 1 then filed an appeal against this order taking the ground that
determination of the actual consideration amount was necessary for determination of the
pecuniary jurisdiction of the court.
Question: What will be your decision in this appeal?

11. The plaintiff filed a suit for declaration that the decree passed in Title Suit No. ... ...
was obtained by suppression of summons upon him. The earlier suit was filed by the
defendants No. ...... as plaintiff and it was a suit for partition. In that earlier suit the
present plaintiff was a defendant. The earlier suit was decreed in preliminary form and
was awaiting for making the decree final and an advocate commissioner was appointed
for allotment of saham to the parties as per preliminary decree. The plaintiff of the
present suit filed an application for stay of further proceeding of the earlier suit. The
defendant No. 1 opposed the prayer on the ground that the decree of the earlier suit
having not been made final, the present plaintiff could easily file an application for
allotment of saham in respect of his share in that suit.


The learned Assistant Judge allowed the prayer and stayed the further proceeding of the
earlier suit.


Then a revision was filed taking the same ground as was taken in the lower court.


Question: What will be your decision in this revision? Give reasons.


12. The plaintiffs filed a suit for declaration of title and recovery of khas possession. The
defendants contested the suit mainly on the ground that it is hit by the principle of res
judicata. Their case is that they earlier filed a money suit against the present plaintiffs for
recovery of price of borga crops when they failed to deliver borga crops to them and in
that suit, the present plaintiffs were found to be borgadars of the present defendants and
on such findings that suit was decreed.


It was argued on behalf of the plaintiffs that the earlier suit was a money suit and in that
suit, question of title was not decided and as such the principle of res judicata is not
applicable.


On the other hand, it was argued on behalf of the defendants that when the plaintiffs were
found borgadars of the present defendants, in the earlier suit, the present suit shall be
barred by res judicata.


The learned Assistant rejected the application accepting the argument on behalf of the
plaintiffs.
Then a revision was filed taking the ground that the learned Assistant Judge committed
an illegality in rejecting the application because the question of title was also decided in
the earlier suit.


Question: What will be your decision in this revision? Give reasons.


13. The plaintiff instituted the suit under section 9 of S.R. Act for restoration of
possession of the suit property which is a shop. Her case is that the defendant No. 2 being
the tenant paid her rent upto November, 1981 on 1.12.1981. She served notice upon
defendant No. 2 asking him to hand over vacant possession of the shop to her as she
required it for her own use. After receiving the notice, the defendant No. 2 collusively
inducted defendant No. 1 into the possession of the shop in violation of the terms and
conditions of the agreement. The said transfer of possession being illegal, unauthorized
and amounting to dispossession, the plaintiff filed the suit for restoration of possession
within time. Defendant No. 1 contested the suit denying plaintiff’s right and title and
claiming that after knowing about the illegal entry in the records in the name of the
plaintiff in respect of the suit land, he filed T.S. No. 13 of 1986 which is pending. It was
contended on behalf of the defendant No. 1 that the suit was not maintainable as serious
question of determination of title was involved.


The learned Assistant Judge dismissed the suit accepting the arguments advanced on
behalf of the defendant No. 1.


Question: If an appeal is filed, what will be your decision on the question of
maintainability?

14. One ‘A’ claimed that ‘B’ owner of a Tea Estate entered into a contract with him for
sale of the Tea Estate for Taka One lac and on receipt of the entire amount delivered the
Tea Estate to ‘A’. ‘A’ renamed the Tea Estate, possessed it and transferred to ‘D’. ‘D’
also possessed and then sold to the plaintiff. During this period, ‘B’ did not execute any
kabala in favour of A or D or the plaintiff. So, the plaintiff filed a suit for specific
performance of contract.


The defendant contested the suit contending inter alia that the plaintiff has no cause of
action to file the suit, that he acquired no interest by right of purchase from ‘D’ as vendor
of ‘D’ i.e., ‘A’ himself acquired no interest on the basis of the alleged agreement for sale.


At the time of hearing arguments, the learned advocate for the plaintiff has submitted that
possession was delivered to ‘A’ on receipt of the entire consideration money and ‘A’
possessed it after re-naming the Tea Estate sold it to D and D also possessed and the
plaintiff has also been possessing the same Estate after his purchase from D. So, the
plaintiff is entitled to get a decree for specific performance of contract. The agreement
between ‘A’ and ‘B’ possession of ‘A’, ‘D’ and the plaintiff has been proved.

The learned Assistant Judge dismissed the suit on the ground that no suit for specific
performance was maintainable.

Question: If an appeal is filed, what will be your decision on the question of
maintainability? Give reasons.

15. The plaintiff filed a suit for a decree for specific performance of contract. The
contract was with one ‘A’ who died before execution of the sale deed. ‘A’ left behind 3
sons and one of the sons, D1 accepted an amount of TK. 1,000.00 from the plaintiff.
When the sons refused to execute sale deed in favour of the plaintiff, he filed the suit.
The three sons, after death of their father sold the land covered by the bainapatra to D4-6
and as such they were also impleaded as defendants.


D4-6 contested the suit contending that they were not aware of the contract between the
plaintiff and ‘A’ and the suit cannot be maintained against them as they were not parties
to the agreement in respect of which the suit has been filed.


On consideration of the evidence, the learned Assistant Judge found that D4-6 were
aware of the agreement. He decreed the suit with a direction to all the defendants i.e., 1-6
to execute sale deed in favour of the plaintiff within 60 days.


The D4-6 preferred an appeal mainly taking the ground that they were not parties to the
contract and as such the lower court committed an illegality in directing them to execute
sale deed in favour of the plaintiff.


Question: Do you think that the direction given by the learned Assistant Judge is correct?


16. The plaintiffs claimed that their predecessor-in-interest ‘M’ took settlement of the suit
land from D1 and after constructing structures had been in possession. ‘M’ sold the suit
land to ‘F’ and ‘F’ died leaving behind the plaintiffs. The plaintiffs also claimed that the
suit land was recorded in R.S khatian in the name of ‘M’.


The D1 appeared and contested the suit by filing w/s denying the case of the plaintiff. He
denied that the suit land was settled to ‘M’ but admitted that R.S. Khatian was wrongly
prepared in the name of ‘M’. This defendant further claimed that status of ‘M’ was not
mentioned in the khatian and ‘M’ never paid any rent on the basis of that Khatian. D1
further claimed that ‘M’ illegally entered into possession.
The plaintiffs did not file any papers in support of the settlement taken by ‘M’ or
payment of rent by ‘M’ but the plaintiff s proved their long possession


The learned Assistant Judge decreed the suit taking into the consideration the long
possession of the plaintiffs and R.S. record in the name of ‘M’.


Questions:
   1. Do you think that the plaintiffs acquired any title on the basis of long possession?
   2. Whether the plaintiffs can claim title on the basis of R.S. khaitan in which the suit
      land was recorded in the name of ‘M.

17. The plaintiff filed the suit for permanent injunction against the defendants claiming
title and possession on the basis of purchase from the heirs of original owners.
Defendants contested the suit claiming that they have been possessing the same on the
basis of a decree for specific performance of contract. On consideration of the evidence,
the possession of the plaintiff was proved. However, on the question of title, evidence
was not satisfactory. It was argued on behalf of the defendants that when the evidence on
behalf of the plaintiff regarding his title is not satisfactory, a simple suit for permanent
injunction cannot be maintained and the suit is liable to be dismissed. The suit was
decreed considering the fact that the plaintiff proved his possession. The defendants filed
an appeal taking the main ground that a simple suit for permanent injunction cannot be
maintained, the plaintiff should have come with a suit for declaration of title.


Question: What will be your decision in this appeal?

18. A filed an application u/s 96 of S.A and T Act for pre-emption. ‘B’ filed an
application under sub-section (6) of section 96 within two months from the date of
service of notice upon him. At the time of trial it was found on consideration of the
evidence on record that the application for preemption was not filed within two months
from the date of knowledge of the transfer and as such the learned Assistant Judge
disallowed the misc. case on the ground that it was barred by time and at the same time
also rejected the application of B.


Question: Whether the learned Assistant Judge was correct in rejecting the application of
the co-petitioner B.

19. The petitioner filed the case for pre-emption claiming himself to be a co-sharer by
inheritance. After appearing in case, the purchaser O.P. filed an application under Order 7
rule 11 of the C.P.C. for rejecting of the application u/s 96 of the S.A. and T Act on the
ground that the petitioner has no cause of action because the Jama was separated before
the impugned transfer and that the case land has already been reconveyed to the original
owner.


Questions:
(i) Whether application filed u/s 7 rule 11 of C.P.C can be allowed.
(ii) Whether the questions as to whether the petitioner ceased to be a co-sharer due to
separation of the jama before the impugned transaction took place can be decided at that
stage.

20. ‘A’ filed a suit as a constituted attorney of ‘B’. ‘B’ deposed as P.W.1 and stated that
he executed the power of attorney appointing ‘A’ as his attorney to file and conduct the
suit on his behalf. He did not say anything else regarding the plaint case.

The learned advocate for the defendants then wanted to cross-examine the P.W.1. The
learned Judge did not allow the learned advocate to cross-examine the P.W.1 on the
grounds: (i) that the defendant did not challenge the genuineness of the power of attorney
in the written statement and (ii) that the P.W.1 did not say anything regarding the plaint
case in his examination-in-chief.

The defendants then filed a revision under section 115(2) of C.P.C.

Question: Whether the order refusing the learned advocate for the defendant to cross-
examine the P.W.1 was proper or not. Give reasons.

21. The son of a paradnashin lady used to look after the properties of his mother. One day
he took her signatures in some blank stamp papers by representing to his mother that
those would be required for management of the property. Subsequently, the son ’M’
created a deed transferring her entire properties in his favour and then he sold the same
properties to ‘A’. Thereafter, ‘R’, sister of ‘M’ filed a suit challenging the validity of the
deed obtained by her brother ‘M’ by false representation from her mother and also of the
sale deed executed by ‘M’ in favour ‘A’.


It was proved that actually ‘M’ got the deed from his mother, a paradanashin lady by
false representation and she executed the deed without understanding the implication of
the deed. But the subsequent purchaser contested the suit on the ground that he was a
bonafide purchaser for valuable consideration and his title cannot be affected.


Question: Whether the right of the subsequent purchaser shall be affected if it is found
that the deed obtained by ‘M’ was not valid