SAMIR KUMAR DUTTA Vs. SUNIL KUMAR DUTTA

JUDGEMENT

(1.) This appeal is directed against judgment and decree dated 3rd April, 2004 passed by learned Additional District Judge, Fast Track Court, Kandi, Murshidabad in Title Appeal No. 15 of 2000 reversing the judgment and decree dated 30th April, 1999 passed by learned Civil Judge (Senior Division), Kandi, Murshidabad in O.S. No. 44 of 1994. Respondent Nos. 1-3 namely Sunil Kumar Dutta, Dilip Kumar Dutta and Joydev Kumar Dutta filed said Title Suit against Kiriti Bhusan Dutta (defendant No. 1), Iti Dutta (defendant No. 2) and Prabir Kumar Dutta (proforma defendant No. 3) for specific performance of contract. Plaintiffs alleged that plaintiffs, defendant No. 1, Proforma defendant No. 3 and defendant No. 2's husband Samir Kumar Dutta were brothers and used to reside in joint mess and property. Suit plot Nos. 214, 215 and 216 being amalgamated plots of land were purchased by the brothers through different kobalas in the name of defendant No. 1 Kiriti Bhusan Dutta and defendant No. 2 Iti Dutta. Suit plot No. 214 was purchased in the name of defendant No. 1 Kiriti Bhusan Dutta and suit plot Nos. 215 and 216 were purchased in the name of defendant No. 2 Iti Dutta. In view of some disputes and differences between the parties Iti Dutta filed a partition suit being Title Suit No. 93 of 1991 against defendant No. 1 Kiriti Bhusan Dutta in the Court of Assistant District Judge, Kandi and the suit was disposed of on compromise. According to terms of said solenama decree present plaintiffs and proforma defendant No. 3 had 2/3rd share in those properties and Rs. 23,000/- was fixed for that share. It was further held that present plaintiffs and proforma defendant No. 3 would pay Rs. 23,000/- and interest to the defendant No. 1 Kiriti Bhusan Dutta and defendant No. 2 Iti Dutta and who in turn would execute and register the necessary sale deed in favour of the plaintiffs and proforma defendant No. 3. The plaintiffs were all along ready to pay said amount together with interest for execution of the sale deed by defendant Nos. 1 and 2. They accordingly sent advocate's notice dated 9th of March, 1994 to defendant Nos. 1 and 2 requesting them to execute and register sale deeds on receipt of necessary money. They received said notice on 10th of March, 1994. Defendant No. 1 accepted a sum of Rs. 11693/- out of Rs. 15,590/ - against a receipt and was agreeable to execute the sale deed in favour of the plaintiffs. However, defendant No. 2 in spite of receipt of said notice refused to execute any sale deed on receipt of money. Hence was the suit.

(2.) Defendant No. 1 Kiriti Bhusan Dutta (respondent No. 4 in this appeal) filed a written statement alleging that plaintiffs had no locus standi to file the suit and that he was the absolute owner of suit plot No. 214. However, he admitted about filing of said partition suit being No. 93 of 1991 by defendant No. 2 Iti Dutta (on her death her heirs are appellants in this second appeal) and passing of a compromise decree and expressed his willingness to comply the terms and conditions of said solenama.

(3.) Defendant No. 2 Iti Dutta filed a written statement alleging inter alia that terms and conditions of said compromise petition filed in partition suit No. 93 of 1991 were neither legal nor enforceable and that the suit was not maintainable as per provisions of Specific Relief Act and Contract Act. It was her further case that the plaintiffs being not parties to the compromise petition were not entitled to file the suit and that no money was also tendered in terms of said compromise petition. The suit was liable to be dismissed.