SRI NANDAKISHORE BIRAHIWALLA Vs. KUSHIRAM AGARWALLA

JUDGEMENT

(1.) THIS Court has heard the learned Advocate for the plaintiffs/appellants. The plaintiffs/appellants filed a suit for specific performance of contract. The plaintiffs? case in short was that the defendant/respondent and one Hariram Agarwalla were the joint owners of the suit property each having moiety share in the same. Plaintiffs? further case was that one Basdeo Jhunjhunwalla was the thika tenant and owner of the structures in the suit property and from Basdeo Jhunjhunwalla the original plaintiff purchased the thika tenancy right and also the said structures on 4.3.1975 and the original plaintiff intended to purchase

(2.) MOKARARI Mourasi interest from the defendant and the proforma- defendant in the suit. The defendant/respondent being one of the superior landlords, on his own behalf and on behalf of the proforma?defendant, entered into an agreement for sale of their MOKARARI Mourasi interest with the original plaintiff on 8.3.1975 at a certain consideration and deed of agreement was executed to that effect. The defendant/respondent received a certain sum of money from the original plaintiff on the date of the agreement. The plaintiffs? further case was that the defendant/respondent failed to deliver the title deeds to the plaintiff in terms of the agreement and subsequently the proforma-defendant filed a suit being T.S. No.10 of 1975 against the defendant/respondent on the ground that the defendant/respondent had no authority to enter into an agreement on behalf of the proforma-defendant (Hariram Agarwalla) but the said suit was disposed of in terms of compromise wherein Hariram Agarwalla agreed to sell his half share to the plaintiff. The plaintiff sent a notice for completion of the transaction but the defendant/respondent did not comply with such request and thus the suit was filed by the original plaintiff.

(3.) CHALLENGING the aforesaid judgment and decree passed by the learned Trial Court the plaintiff filed title appeal No. 194 of 1983 and the defendant/respondent filed title appeal No. 217 of 1983. Both the aforesaid title appeals came up for hearing before the learned Third Court of the Additional District Judge, Howrah who by judgment and decree dated 24th March, 1987 allowed the title appeal No. 194 of 1983 in part by holding that the plaintiffs? prayer for specific performance of contract against the defendant/respondent fails but the plaintiffs? prayer for recovery of the entire earnest money of Rs. 11,101/- is allowed and the defendant/respondent will pay the aforesaid sum to the plaintiffs within three months from the date of the decree failing which the plaintiff will be entitled to execute the decree. The learned Lower Appellate Court dismissed the title appeal No. 217 of 1983 filed by the defendant/respondent. The plaintiffs/appellants have filed the present second appeal challenging the impugned judgment and decree passed by the learned Lower Appellate Court in T.A. 194 of 1983. The learned Lower Appellate Court held that the impugned judgment will govern both the title appeals.