Declaratory Suit in Bangladesh: Declaration of Title Under Section 42 of the Specific Relief Act

In this guide: When a declaratory suit is the right tool · What you must prove · The proviso: pray for further relief · Court fee and valuation · Limitation · How the suit runs

The short answer

Under section 42 of the Specific Relief Act 1877, a person entitled to a legal character or to a right in property may sue anyone who denies that right, and the court may declare the right. The court fee for a bare declaration is a fixed Tk 300; if you also seek a consequential relief such as recovery of possession, ad valorem fee is paid on that relief. The suit must be filed within six years of the denial under article 120 of the Limitation Act. The proviso to section 42 bars a bare declaration where further relief is available: a plaintiff out of possession who asks only for a declaration of title loses, so pray for possession as well (Kala Mia v Gopal Chandra Pal, 51 DLR 77).

When a declaratory suit is the right tool

• A relative or neighbour claims your land, or has recorded it in their name in the BS/BDS khatian.
• A deed, heba or power of attorney has been forged or obtained by fraud, and you want it declared void and not binding on you.
• You need a declaration that a sale deed executed by a co-sharer beyond his share does not affect your portion.
• A government record (khas khatian, vested property list) wrongly shows the land as not yours.

For a khatian error alone the Land Survey Tribunal may be the forum; for a dispute over title with someone, the civil court is.

What you must prove

Four things: that you have an existing legal right (title through deed, inheritance or long possession); that the defendant has denied it or your right is in question; that the denial was communicated so a cause of action arose; and that there is a live threat to your enjoyment. The declaration is discretionary, so the court also looks at delay and conduct. Bring the chain of title, up-to-date khatian and khajna receipts, the deed you attack (certified copy from the Sub-Registry) and witnesses to possession.

The proviso: pray for further relief

Section 42 says the court shall not make a declaration where the plaintiff, “being able to seek further relief than a mere declaration”, omits to do so. In practice: if you are out of possession, you must also pray for recovery of possession under section 8; if a deed stands against you, pray for cancellation or a declaration that it is void; if the defendant is interfering, add an injunction. Each added relief changes the court fee, but a bare declaration that is dismissed under the proviso costs far more.

Court fee and valuation

A suit for declaration alone carries a fixed court fee of Tk 300 under Schedule II of the Court-fees Act. Where a consequential relief is joined, ad valorem fee under Schedule I is paid on the value of that relief (for possession, the market value of the land; see our court fee calculator). The suit value also decides whether the Assistant Judge, Senior Assistant Judge or Joint District Judge hears it. Undervaluation leads to rejection of the plaint under Order VII rule 11 after time to correct.

Limitation

Article 120 gives six years from when the right to sue accrues, which is the first clear denial of your title, for example the defendant’s deed, mutation in their name or a notice. A suit to cancel an instrument runs three years from knowledge (art.91), so where both reliefs are joined the shorter clock can bite. Do not wait for the next survey; file when the denial is first known.

How the suit runs

Plaint with schedule of land, cause of action and valuation; court fee; summons; written statement; issues; evidence by affidavit and cross-examination; argument; judgment. A contested title suit in Dhaka commonly takes several years, so apply for a temporary injunction at the start to stop transfer or construction. Under section 43 the declaration binds only the parties and those claiming under them, so make everyone with a claim a party.