MAQBUL AHAMMED Vs. MIRJA MO. JAFAR & ANR.

JUDGEMENT

(1.) This appeal is at the instance of the defendant/appellant in a suit for declaration and injunction and is directed against the judgement and decree dated 21" February, 1990 passed by the learned Additional District Judge, Eight Court, Alipore, in Title Appeal No. 358 of 1988 thereby reversing the judgement and decree dated. 13th April, 1988 passed by the learned Munsif, Fifth Court, Alipore in Title Suit No. 579 of 1980. The plaintiff/respondent brought the Title Suit before the trial Court claiming himself as owner of the suit property, which is a tank. Admittedly, the plaintiff/respondent entered into an agreement for sale with defendant/ respondent No. 1 on 19th July, 1979 at a total consideration of Rs. 32,000/ - and after accepting a sum of Rs. 5,000/ - as earnest money.

(2.) The further case of the plaintiff/respondent before the Trial Court is that if the title of the property contracted to be sold is not approved by the defendant/appellant, then, the plaintiff/respondent will refund the earnest money and the defendant/appellant will not be bound to purchase the same and it was further agreed that the defendant/appellant with the permission of the plaintiff/respondent shall be entitled to fill up the property under the agreement which is a tank, by cinder at his own cost and plaintiff/respondent shall not be responsible for any such expenses incurred by the defendant/appellant.

(3.) It has also been stated by the plaintiff/respondent that the parties in the said agreement for sale agreed that in order to complete the transaction as per the agreement, the plaintiff/respondent shall handover the prescribed form to the defendant No. 1 for his signature and for swearing of affidavit as required under the Urban Land Ceiling (Regulations) Act. It is the specific case of the plaintiff/respondent before the Trial Court that as per the terms of the agreement, he handed over the prescribed form to the defendant/appellant and requested him to complete the necessary formalities. But, it is alleged that the defendant/appellant neither returned the said form nor sworn any affidavit as required under the provisions of Urban Land Ceiling (Regulations) Act. It is also the case of the plaintiff/respondent that the defendant/appellant No. 1 without performing his part under the contract started filling up the tank by placing rubbish, refuse etc. The plaintiff/respondent did not raise any protest in the expectation of the completion of the transaction. It has further been alleged that the defendant/appellant made false plea regarding defect of title in the property to be conveyed by the plaintiff/ respondent and started making correspondences without fulfilling the terms of the contract as per the agreement. It has been specifically alleged by the plaintiff/respondent that the defendant/appellant has failed to perform his part of the contract within the stipulated period or within reasonable time by tendering the balance amount of the consideration money as per terms of the contract; and as such the contract should be declared as cancelled and the earnest money received by the plaintiff/ respondent should be declared to have been forfeited.