KAUSHIK TALUKDAR Vs. SUDHIR CHANDRA DAS

JUDGEMENT

(1.) THESE two second appeals arise out of an analogous judgment and decree dated 15 th September, 1998 passed by learned Additional District Judge, 5 th Court, Alipore in Title Appeal No.72 of 1997 and Title Appeal No.71 of 1997 affirming analogous judgment and decree dated 28 th February, 1997 passed by learned Assistant District Judge, First Court, at Alipore in Title Suit No.157 of 1984 and Title Suit No.52 of 1994.

(2.) THE respondent Sudhir Chandra Das filed one suit being Title Suit No.157 of 1984 alleging that he entered with an agreement dated 17 th of March, 1984 with the original appellant defendant Kalyan Kumar Talukdar for purchase of the suit property at a total consideration of Rs.42,000.00 out of which he paid Rs.15,000.00 to Kalyan Kumar Talukdar as earnest money and came into possession of the suit property on the strength of said unregistered agreement. Though there was a clause in the agreement that the transaction was to be completed by 31 st of October, 1984 but time was not the essence of the contract. However, Sudhir was all along ready and willing to perform his part of contract and sent a lawyer 's letter dated 25 th of October, 1984 asking Kalyan to execute the kobala. Sudhir received on 29 th October, 1984 a letter dated 25 th of October, 1984 from Kalyan asking him to complete the transaction within the time frame. On the same date (29.10.1984) Sudhir sent a letter to Kalyan enclosing a copy of sale deed and a copy of bank draft towards the payment of the balance consideration of Rs.27,000.00 to Kalyan asking him to complete the transaction within the time frame. Kalyan sent a letter dated 5 th of November, 1984 to Sudhir extending time till 15 of November, 1984 but the contents of the letter were vague and misleading. Sudhir requested Kalyan to be present at the registration office on 31.10.1984 for completion of transaction and sent one Sukumar Banik to Kalyan in the morning of the day but Kalyan misbehaved with him resulting filing of one G. D. being G. D. Entry No.2020 dated 31.10.1984. Accordingly, the suit for specific performance of contract was filed.

(3.) SUDHIR filed a written statement in said suit denying the allegations of possessing the property as a licensee requiring payment of licence fee and reiterated his case as made out in his plaint of Title Suit No.157 of 1984. Learned Trial Court tried both the suits analogously and allowed respondent Sudhir 's suit praying for specific performance of contract thereby dismissing Kalyan 's suit for recovery of possession by a common judgment dated 28 th February, 1987. The defendant Kalyan filed two appeals being Title Appeal No.72 of 1997 and Title Appeal No.71 of 1997 against two decrees which were dismissed by learned Lower Appellate Court by the analogous judgment and decree date 15 th September, 1998. Hence these two second appeals were filed by the original appellant / defendant Kalyan.