Decided on February 06,2001

Md. Azizul Huq Appellant
Sree Purna Chandra Das Respondents


MAHMUDUL AMIN CHOUDHURY,J. - (1.) This appeal by leave is against judgment and decree passed by a Division Bench of the High Court Division in First Appeal No.166 of1995. The High Court Division by judgment dated 18th March, 1997 allowed the appeal and dismissed the suit.
(2.) The short fact leading to this petition is that defendant-appellant wanted to sent his son to middle east for earning his livelihood and as money was required for the purpose defendant No.1 Sree Purna Chandra Das executed an unregistered bainapatra on 24.11.1991 for selling 4.32 acres of land to the plaintiff at a consideration of Tk. 2,50,000/- on receiving earnest money of Tk. 50,000/-. Subsequently on 16.3.1993 defendant refused to register the sale deed in pursuance of the aforesaid 'bainapatra'.
(3.) The suit was contested by the defendant and his case is total denial of the execution of the 'bainapatra' and further case is that the signature appearing in the alleged 'bainapatra' is an act of forgery and the land included in the 'bainapatra' originally belonged to him and his brother Rajendra. This Rejendra died leaving behind his widow Dhairjay Bala and the defendant and Dhairjay Bala are now owners of the property. It is the further case of the defendant that when the defendant wanted to send his son to Middle East he approached the plaintiff and requested him to purchase 52 acre of land which he refused. Thereafter a 'bainapatra' was executed in favour of Abdur Rahman on 7.1.1993 for selling the land at a consideration of Tk. 65,000/- and Tk. 50,000/- was received as earnest money. Thereafter the trial court on consideration of the evidence on record both oral and documentary decreed the suit by judgment dated 30.3.1995. Then the defendant preferred aforesaid First Appeal No.166 of 1995 before the High Court Division and a Division Bench of the Division by judgment dated 18th March, 1997 allowed the appeal and set aside the judgment and decree passed by the trial court and dismissed the suit as aforesaid. Thereafter the plaintiff moved this Division and leave was granted on the following terms:- "Khandker Mohiuddin Ahmed, learned Advocate for the plaintiff-petitioners submits that the impugned judgment is bad on the face of it in that whereas the trial court judgment runs into 50 pages the judgment passed in appeal in not more than 7 pages which shows complete lack of application of mind to the evidence on record. Mr. Ahmed submits that the High Court Division decided the appeal only upon considering the evidence of D. W. 3 and no other evidence and materials on record. The miscarriage of justice is therefore apparent. Mr Ahmed submits that this is a fit case in which this Division should make an order of remand for deciding the appeal upon a proper consideration of all the evidence and materials on record." ;

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