(1.) IT arises out of a judgement and decree dated 28th February, 1994 passed by learned Additional District Judge, 11th Court, Alipore in Title Appeal No.409 of 1992 reversing the judgment and decree dated 31st July, 1992 passed by learned Assistant District Judge, First Court, Alipore in Title Suit No.47 of 1985. The appellants filed said Title Suit against Yasin Ali Molla (original respondent No.1, since deceased, and is presently represented by his heirs) and Abdul Kalam Molla praying for a decree for Specific Performance of Contract. It was alleged that those defendants being owners of the suit property executed a 'Bainanama' dated 05.01.1985 to sell the suit property measuring more or less 5 cottahs of land with a structure thereupon at the rate of Rs.6,000.00 per cottah and that Rs.10,000.00 was received by them as advance. It was further case that there was a term for executing the kobala on receipt of balance consideration money within three months from the date of said agreement. On measurement the land came to be 5 cottahs 12 chittaks and the price of the land and structure was 36,000.00. The plaintiffs approached the defendants on 04.02.1985 for execution of the sale deed on receiving balance consideration money of Rs.26,000.00 and as per assurance of the defendants plaintiffs purchased the stamp paper etc. The defendants failed to execute the document by coming to the registry office. The plaintiffs sent a notice by an advocate but without any result. During pendency of the suit the defendants illegally demolished the structure standing on the suit property. Accordingly the plaintiffs prayed for a decree of Specific Performance of Contract.
(2.) THE defendants filed a written statement denying material allegations of the plaint and contending inter alia that the defendants took a loan of Rs.10,000.00 from the plaintiffs by executing said document which was nothing but a document of loan transaction and that the plaintiffs by applying fraud obtained the sale deed. It was further case that the suit was bad for non-joinder of necessary parties as defendants' brothers and mother were co-sharers of said property. In earlier occasion also the defendants' father obtained loan from plaintiffs' father by executing ostensible sale deed. The plaintiffs are not entitled to get a decree for Specific Performance of Contract.
(3.) MR . Jaharlal De, learned counsel for the plaintiffs / appellants, submits that the plaintiffs proved by cogent evidence that the defendants executed the 'Bainanama' dated 05.01.1985 in presence of a witness on receipt of an advance of Rs.10,000.00 and that in spite of 'Tagid' by the plaintiffs and lawyer's notice the defendant did not execute the sale deed though plaintiffs were all along ready to perform their part of contract. According to De, learned Trial Court on the basis of evidence on record came to definite findings that the agreement of sale dated 05.01.1985 was not a loan transaction as alleged by the defendants and that it was an agreement for sale and that plaintiffs were all along ready and willing to perform their part of contract and that the defendants failed to establish that alleged interest of co-sharers were subsisting on the suit property at the time of execution of said 'Bainanama' and that plaintiffs were entitled to get a decree of Specific Performance of Contract. According to Mr. De, learned Lower Appellate Court set aside the well-reasoned judgment in a most cryptic manner by observing that it was not a fit case for exercising judicial discretion under Section 20 of the Specific Relief Act, 1963 though he did not consider the reasons given by the learned Trial Court for allowing the decree. According to Mr. De, the impugned judgment of the Lower Appellate Court is practically no judgment in the eye of the law and is liable to be set aside. In support of his contention he refers the case laws reported in AIR 1995 Supreme Court 1607 (S. V. R. Mudaliar and others vs. Mrs. Rajabu F. Buhari and others), (2011) 3 SCC 545 (Parimal vs. Veena alias Bharti).