DILIP KUMAR SARKAR Vs. SK. ABDUL MALEQUE

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated January 31, 1987, passed by Sri M.M. Sen, Assistant District Judge, First Court at Alipore, in Title Suit No. 7 of 1981 whereby the learned Judge decreed the Plaintiffs suit in part on contest with cost against the Defendants Nos. 1 to 4 and 6. The suit was decreed for recovery of the sum of Rs. 22,030 from the said Defendants and the prayer for a decree for specific performance of the contract for sale was refused.

(2.) The Plaintiff filed Title Suit No. 7 of 1981 for specific performance of the contract for sale dated August 15, 1978 against the Defendants, alternatively for refund of advance and realization of compensation on enforcement of charge valued at Rs. 68,000 only. The Plaintiff's case is that the Defendants offered to sell and the Plaintiff agreed to purchase 2 -75 29/80 acres of raiyati land in Mouza Undayrajpur, Barasat P.S., Dist. 24 Parganas, as fully described in the schedule of the plaint, for a consideration of Rs. 66,800 only. Pursuant to the said agreement a baina -patra was executed on August 25, 1978, by the Defendants Nos. 1 to 4 and 6 on receipt of Rs. 20,000 only as earnest money and part payment of consideration. The said Defendants acted also on behalf of the Defendant No. 5 in this regard and undertook to make her join in the deed or deeds. The terms of the agreement for sale have been fully described in para. 2 of the plaint. It is stated therein inter alia that the Plaintiff or his heirs would pay the balance consideration of Rs. 46,800 within February 13, 1979, and the Defendants or their heirs shall be bound to execute a registered sale deed of the said property in favour of the Plaintiff or his nominee. The Defendants have made the agreement for sale of the property free from all encumbrances and if on search by the Plaintiff any defect in title was found then the Defendants and their heirs would refund to the Plaintiff or his heirs the earnest money of Rs. 2.0,000 and all expenses. It is further averred that Defendant No. 1 had represented that he would seek permission from the competent authority under Urban (Ceiling and Regulation) Act, 1976, for selling the suit property in due time. Pursuant to the agreement, the Defendants received various amounts on different dates from the Plaintiff totaling Rs. 17,000 up to March 2, 1980. The Plaintiff pressed for the execution and registration of the sale deed but the Defendants tried to evade the matter. The Plaintiff then got the information that the Defendants or some of them were trying to sell some portion of the said property agreed to be sold to the Plaintiff. So he was obliged to publish in newspaper the fact of the said agreement made by the Defendants to sell the property to the Plaintiff, with a note of caution to all persons intending to purchase. The Plaintiff also served pleader's notice on the Defendant requesting them to complete the transaction and to execute the deed of sale but the Defendants were not coming forward to execute the same. Hence he filed the suit praying for a decree for specific performance of the contract for sale dated August 15, 1978, directing the Defendants to convey the property in suit to the Plaintiff and register the document on receipt of the balance of consideration and for delivery of the possession of the suit property, alternatively, for a decree for the recovery of the sum of Rs. 37,000 and a further sum of Rs. 5,000 as damages on enforcement of a charge on the property under Sec. 55(a)(b) of the Transfer of Property Act plus interest and cost.

(3.) The Defendants Nos. 1 to 4 and 6 resisted the claim of Plaintiff by filing a joint written statement denying all the material allegations of the Plaintiff. In short, the defense case is that the Plaintiff and his wife are the owners of the brick business known as 'Rock Field (India)'. Defendant No. 1 came to know that there was a vacancy in this business and he approached the Plaintiff for a post. The Plaintiff represented that employment would be given provided the said Defendant gave security of the landed property as he was to deal with cash. The said Defendant No. 1 agreed to the proposal and accordingly he handed over the title deed and other papers to the Plaintiff and there was a talk for security deed for the service. Being persuaded by the assurance of the Plaintiff, the Defendants Nos. 2 to 4 and 6 along with Defendant No. 1 executed a document believing the same to be a security deed. The Plaintiff in collusion with the deed writer, attesting witness and other person or persons had manufactured the agreement. The Defendants never agreed to sell the suit property at Rs. 66,800 and they never took any earnest money. According to the answering Defendants the deed is forged, fictitious, void and collusive and no consideration passed. After execution of the said deed, Defendant No. 1 was employed in the service of the Brick Field of the Plaintiff. After few months, the Plaintiff employed his nephew Shyamal Sarkar and dismissed the Defendant No. 1 from service. Thereafter, the Defendant No. 1 on his behalf and on behalf of other Defendants approached the Plaintiff to return the said security deed and other relevant papers which were handed over to him earlier. Dispute arose between the parties over that issue and so, it is averred, the suit was filed by the Plaintiff for wrongful gains.