ANJALI DAS Vs. BIDYUT SARKAR

JUDGEMENT

(1.) These two appeals arise out of the same judgment and decree passed by the Subordinate Judge, 2nd Court. Alipore in T. S. No. 246/81 and T. S. No. 123/84 tried analogously by the learned trial Judge under the order of the High Court. Calcutta. The facts of these two suits may be briefly stated as follows : -

(2.) One Bidyut Sarkar has filed the T.S. No. 246/81 before the learned trial Judge alleging that he is the owner of the flat in suit. He agreed to sell the same to one Smt. Anjali Das. the defendant in February, 1980 for a consideration of Rs. 48.800/- subject to the permission being granted by Vidyasagar Samabaya Abasan Samity Limited a registered Co-operative Society under which the plaintiff was holding the Oat in suit. In spite of his sincere attempts, both the plaintiff and the defendant failed to obtain necessary permission from the said Samity. As such, the Agreement dated 7-4-80 was cancelled Meanwhile, the defendant was allowed by the plaintiff to stay in the suit flat as licensee. The Samity objected to such illegal occupation of the defendant and asked the plaintiff to get it vacated by the defendant, The plaintiff then asked the defendant to quit and vacate the same. The plaintiff has, therefore, filed this suit for recovery of possession of the flat in suit from the defendant and for damages and compensation for use and occupation of the flat. The defendant, Anjali Das contested the suit contending inter alia, that the defendant entered into agreement for sale with the plaintiff to purchase the flat in question for Rs. 1,10,000/- and at the suggestion of the plaintiffs father the agreement as well as the Deed of Conveyance was agreed to show the consideration money to be Rs. 48,800/-, that the defendant agreed to the said suggestion on condition that she would be in possession of the suit flat immediately on payment of Rs. 61,203/- by way of earnest money, that the defendant paid the said amount to the plaintiff and the plaintiff delivered possession of the flat in suit to the defendant on 7-4-80. The defendant was entitled to get the specific performance of the agreement for sale and she not being a licensee is not liable to be evicted from the suit flat.

(3.) During the pendency of the above suit Anjali Das, the defendant in the above Title Suit has filed Title Suit No. 123 of 1984 the suit for for specific performance of contract against Bidyut Sarkar alleging that she was all along ready and willing to perform her part of contract but the defendant failed and neglected do so, that the demand notice was issued to the defendant to get the Sale Deed executed and registered and as the defendant did not execute and register the sale-deed in spite of such notice, the plaintiff has filed the suit for specific performance of contract.