PANCHANAN MONDAL Vs. TARAPADA MONDAL

JUDGEMENT

(1.) This is a second appeal on behalf of the defendant No. 3. The plaintiff instituted a suit for specific performance of the contract. The contract is because of the unfortunate incidence of partition of Bengal. Defendants 1 and 2, Respondents 2 and 3 had properties in Indian Union and the plaintiff had properties in Pakistan. There was some arrangement between the parties by which the plaintiff, who had his properties in Pakistan, but migrated to West Bengal, would leave those properties to the defendants 2 and 3, who are Mohammedans, but have properties in Indian Union, and agreed to transfer those properties to the plaintiff. The defendants 2 and 3 have never entered appearance. It also appears that the defendants 2 and 3 later on made another similar arrangement but Oral with defendant No. 1, the appellant. The result is that defendants 2 and 3 made arrangement both with the plaintiff and with the defendant No. 1 and are probably enjoying the properties of both in exchange of their properties in Indian Union. The defendants had properties in Nadia and the question is now whether the plaintiff or the defendant No. 1 is entitled to it.

(2.) The question that was agitated in the Courts below was whether the written agreement, which the plaintiff has proved, is a genuine document or not and both the Courts have held that it is a genuine document.

(3.) Mr. Syamacharan Mitter on behalf of the defendant No. 3 attacks the judgment not on that ground, because this is a question of fact, which cannot be challenged here. What Mr. Mitter says Is that the transaction was in the nature of exchange and not sale. The consideration is transfer of Indian properties for Pakistan properties. The Court has no jurisdiction over the Pakistan properties. Therefore, no deed of exchange can be executed.