SMT. NIRMALA BALA DASI Vs. SUDARSAN JANA

JUDGEMENT

(1.) THIS appeal is by the defendants in a suit for specific performance of contract, alternatively for injunction.

(2.) THE case of the plaintiff/respondent, in short, is as follows : Abhoy Pada Jana was the owner of a holding comprising an area of 62 acre and recorded in district settlement Khatian No. 212 of Mouza Agunshi Bhunera. Abhoy Pada died leaving behind six sons, namely, Rameswar, Prankrishna, Harekrishna, Bharat, Kedar and Akhil as his heirs. Rameswar inherited 08 acre of the said property and made a gift of the same in favour of his second wife Nirmala Bala Jana (defendant No. 1) by a registered deed dated March 31, 1946. Nirmala Bala Jana instituted Title Suit No. 215 of 1961 in the Court of the Munsiff, Uluberia against Sudarshan Jana (the plaintiff), the pro forma defendant Nos. 3 and 4 and one Basudev Jana in respect of the said land and structures thereon. The suit was ultimately compromised between the parties and it was stipulated in the solenama that if the defendant No. 1 intended to sell the aforesaid property or any part thereof in future she would first offer it at the prevailing market price to the other parties to the said solenama. In violation of the above express term of the solenama, the defendant No. 1 sold the said property, described in schedule 'Ka' of the plaint, to Judhistir (the defendant No. 2) on March 31, 1967 without first offering it to the plaintiff and the other parties to the solenama. On such averments the plaintiff prayed for specific performance of the contract.

(3.) THE defendants Nos. 1 and 2 contested the suit by filing a joint written statement wherein they denied the material allegations in the plaint. Their specific case is that the defendant No. 2 purchased the suit property from the defendant No. 1 for a consideration of Rs. 3,500/ - by a registered Kobala dated March 31, 1967 and that before selling the property to the defendant No. 2, the defendant No. 1 had offered it to the plaintiff at the prevailing market price but the latter refused to purchase and that the defendant No. 2 was a bona fide purchaser of the property without notice of the earlier suit and the solenama allegedly filed in that suit.