High Court Division · Civil Appellate Jurisdiction
Sufia Khatun v Mohammad Mostafa Kamal and others
First Appeal 400/2015 · Appeal dismissed · Decided 21 April 2026
The plaintiff sued in the court of the Joint District Judge, Khulna for a declaration that an ex parte decree for specific performance obtained against her by defendant Nos. 1-3 in Title Suit No. 15 of 2003 was collusive, fraudulent and not binding. She claimed that the registered agreement for sale of 19.01.2000 was only security for a bank loan taken by her husband, that no money passed and that she was never served with summons. The defendants said they paid the full consideration, that summons was served on her daughter and that they obtained a sale deed through the court in execution. The trial court dismissed the suit. The High Court Division heard the respondents and dismissed the appeal. It held that the deed was an out-and-out agreement for sale, not a mortgage, whose terms could not be varied by oral evidence under section 92 of the Evidence Act, that service was proved, and that a simple declaratory suit was not maintainable while the defendants were in possession.
- Whether oral evidence could show that a registered deed of agreement for sale was executed only as security for a loan.
- Whether the plaintiff proved that the ex parte decree for specific performance against her was obtained by fraud without service of summons.
- Whether a suit for simple declaration is maintainable without consequential relief where the defendants are admittedly in possession.
- Under section 92 of the Evidence Act, the written terms of a contract cannot be altered or varied by oral evidence, and oral evidence is inadmissible to vary the contents of a registered agreement for sale.
- A registered deed that is on its face an out-and-out agreement for sale is not shown to be a mortgage or security for a loan by the executant's oral claim.
- The process server's evidence that the plaintiff's daughter received the summons supported the finding that summons in the earlier suit was duly served, and fraud in obtaining the ex parte decree was not proved.
- Where the defendants are admittedly in possession, a simple suit for declaration is not maintainable without seeking consequential relief, and the suit was liable to be dismissed on that count alone.
- Findings of the trial court based on oral and documentary evidence called for no interference in appeal.
Accordingly, under Section 92 of the Evidence Act, the contents of the agreement for sale cannot be altered or varied by oral evidence.
