[43 DLR (HCD) 7 (1991)] [Bangladesh leaf Tobacco Company Ltd. vs. Md. Abdul Mannan and others ]

Suit Title:  Bangladesh leaf Tobacco Company Ltd. vs. Md. Abdul Mannan and others [43 DLR (HCD) 7 (1991)]

Judge: Mohammad Ismail Uddin Sarker.

Under Section: 52 of the Transfer of Property Act, 1882

Transfer of property pending suit relating thereto: During the pendency in any Court 8[ in Bangladesh], of any suit or proceeding which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.

Explanation.-For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.

Under Section: 96 of the Code of Civil Procedure, 1908

Power to state case for opinion of Court: Where any persons agree in writing to state a case for the opinion of the Court, then the Court shall try and determine the same in the manner prescribed.

Short description of the suit: The plaintiff opposite parties instituted title suit No 465 of 1978 in the court of the Fist Munsif, Dhaka for declaration of title to the suit land and for recovery of khas possession by evicting the defendants there from on the allegations, inter alia, that the suit plot No 118 along with plot Nos, 116 and 117 of mouja kakrail originally belonged the predecessor-in-interest of defendant Nos 1-11, that plaintiff NO 1 was inducted as a tenant in the hut standing on CS plot No 117 and he adversely possessed plot No 118 for more then 12 years and thereby acquired a good title by adverse possession therein; then defendant Nos 12 and 13 on the basis of some false documents obtained an ex-parte decree against the defendant Nos 1-11 without imp leading the plaintiffs.

The suit was decreed ex-parte on 30.09.87 thereafter the present petitioner filed an appeal on 14.03.88 against the ex-parte decree before the learned District Judge, Dhaka being title appeal No 23 of 1988 seeking leave of the court to file the appeal on the allegation that the petitioner purchased the suit land from defendant Nos 12 and 13 by two kabalas dated 19.11.84 and 30.09.84 without any knowledge about the pendency of the suit. the learned district Judge, however by the impugned order date 2.4.88 rejected the prayer for leave to file the appeal on the ground that the appellant petitioner purchased the suit and during the pendency of the  suit without any permission of the court and as such the transaction was barred by section 52 of the Transfer of property Act. Hence this revisional application by the appellant petitioner.

Principle of the suit: - Lis pendens- Question of bar of appeal – The doctrine of Lis pendens does not make alienations made during pendency of a suit void but only that such alienation will not affect the rights of others parties to the suit. It means that the purchaser pendente lite is bound by the result of the litigation. In the instant case, the petitioner having alleged that he had purchased the suit land and the decree passed in the suit adversely affected his interest the District Judge has committed an error of law in not according permission to the petitioner to file the appeal.