Shamsul Kabir VS Anwarul hasan 66 DLR(AD)(2014)

Facts of the Case :

Suit No 81/2006
Plaintiffs : Defendants
Heirs of Deceased Vs 1. MA Hasem
2. Shamsul Kabir Humayun Reza (Gulsan)
3. Shamsul Kabir Humaun Reza (Mirpur)
4. MNH Bulu
5. 5-8 Rajuk
9.Eastern house building ltd
Nature of suits:Title suit
Suit no:51/2004
Plintiff: Defendants
MA Hasem vs Shamsul kabir Humayun Reza (Mirpur)
Aktaruzzaman LTD
Chairman Rajuk
DC Dhaka
Nature : Specific Performance of Contract
 Suit No. 176/2004
Nature : Title Suit :
Plaintiff : Defendant :
Shamsul Kabir Humayun Reza (Gulsan) Rajuk and Others

Issues of the Case :

1. Whether the suit is maintainable
2. Whether the suit is barred by limitation
3. Whether the bainapatra of 29-12-2002 Was executed by the actual allottee
4. Between Shamsul Kabir Humayun Reza of 157 Bara Maghbazar and Shamsul
Kabir Humayun Reza of Mirpur Who was the actual allottee of the suil plot
5. Whether the plaintiff is entitled to get decree according to the plaint
 Relevant sections discussed in this case
1. Sec : 151 of CPC Saving of inherent powers of court
2. Sec : 33 of Evidence Act, 1872,
3. Sec : 12 of Specific Relief 1877
4. Order 1 Rule : 10(2) of CPC 1908
5. Sec : 101 of Evidence Act, 1872,

Relevant sections not discussed in this case

1. Sec : 165 of Evidence Act, 1872,
2. Sec : 90 of Evidence Act, 1872,
3. Sec : 92 of Evidence Act, 1872,
4. Sec : 42 of Specific Relief 1877
5. Sec : 39 of Specific Relief 1877
Sec : 28 of Specific Relief 1877
Sec : 35 (A) of CPC 1908
Sec : 114 (f) of Evidence Act 1872
Sec : 115 of Evidence Act 1872
Sec : 7 of TP Act 1882

Observation by Appellate Division

Suit No 51/2004 :
The execution of bainapatra was suspicious and no money
was transacted
Shamsul Kabir Humayun Reza of mirpur and Engineer Md.
Shamsul Kabir Humayun Reza of 157 Bara Moghbazar were
not the same person
Md. Hashem, to escape and justify his earlier false
activities admitted “with a device that defendant No’s
1 (a) to 1(e) are the legal heirs of defendant No 1 i.e
Shamsul Kabir Humayun Reza of Mirpur

Suit No 176/2004
 The suit plot was alloted to engineer Shamsul
Kabir Humayun Reza, Ho was the Exceutive
Engireer of C& B. The plaintiff was a diploma
engineer and it is not believeble that he could join
a big department like C& B as an Assistant
Engineer in 1950/1952 and then promoted as
Excutive engineer in 1956/57
No application was filed to RAJUK by plaintiff
(SKHR-Gulshan) on 18-02-2004 for permission to
sell the suit plot to MNH BULU

The plaintiff (SKHR-gulshan) did not produce any

copy of his applieation hield to RAJUK for sale
permission of the suit Plot

Suit : No 81/2006
The plaintiff proved conclusively that the suit plot
was allotted to Shamsul Kabir Humayun Reza of 157,
Bara Moghbazar and he constructed building therein
on obtaining loan by mortgaging the same with
House building finance corporation and had been in
possession by letting out the same to various tenants
as apparent vide exhibit -18 series. Eefendant No 3
(SKHR-gulshan) was not the owner of the suit plot )

 RS record was recorded in the name of plaintiff’s

father
# Decision of AD :
In view of the findings given by the HCD on the
issues involved in the suits concurring with those of
the trial court as discussed hereinabove, we maintain
the direction given by the learned presiding judge to
the effect “g am directing register of this court to
initiate a case as per sectian 476 of PC against the
fictious SKHR and MD Hashem for using false
document before courts.
 We find no merits in the petitions
According the petitions are dismissed