SUDHANSHU MOHAN KOLEY Vs. MATHURA MOHAN ADAK

JUDGEMENT

(1.) This Second Appeal is at the instance of the Defendant No. 1. Atul Chandra Adak (since deceased) and Mathura Mohan Adak instituted T.S. No. 45 of 1959 against the present Appellant and Anil Chandra Sahana, the Respondent No. 2, inter alia, for specific performance of an agreement to execute a sale -deed in favour of the Plaintiff No. 2 in respect of Dag Nos. 848 and 840, mouza Muidipur, measuring 1 -7 decimals and for khas possession of the said property.

(2.) The Plaintiffs Nos. 1 and 2 were respectively father and son. The Defendant No. 1 was described as sister's son of the Defendant No. 2. The Defendant No. 2 allegedly purchased the land described in the ka schedule from Golab Sundari Dasi (since deceased) The Defendant No. 2 allegedly gave out that he had purchased the said property with the money of the Defendant No. 1 and he was his benamdar. The Defendant No. 2 was the son -in -law of the Plaintiff No. 1 The Plaintiff No. 1 had auction -purchased certain portion of land appertaining to khatian Nos. 594 and 597 of mourn Muidipur and had become a co -sharer of the Defendant No. 1 and others. The Plaintiff No. 1 had instituted T.S. No. 49 of 1955 in the Subordinate Judge's Court against the Defendant No. 1 and others for partition of his share by metes and bounds. The said case remained pending for a long time and subsequently on transfer was renumbered as T.S. No. 26 of 1958. November 14, 1958, was ultimately fixed for hearing of the said suit. The Plaintiff No. 2 had been looking after the said case on behalf of his father, the Plaintiff No. 1. Through the intervention of iKarunamoy Sahana and the Defendant No. 2 on November 12,1958, there was an agreement/settlement and/or compromise between the Plaintiff No. 2 and the Defendant No. 1. According to the Plaintiff, it was agreed that the Plaintiff No. 1 would give up all his claim in respect of the lands which were the subject matter of the said partition suit as most of the said lands formed part of the Defendant No. 1's bastu and the surrounding area and as a consideration of the same the Defendant No. 1 without payment of price should execute and register necessary kobala in respect of the shit property in favour of the Plaintiff No. 2. Accordingly, the Plaintiff No. 2 and the Defendant No. 1 had come to Burdwan on November 13,1958, for filing a solenama in the said partition suit and had disclosed the same to their common relation Bishnupada Sahana. The said Bishnupada Sahana, who was related to both the parties, did not agree to act as a lawyer for either of them. He was fully aware of the terms of compromise between the parties and in his presence and with his assistance the solenama in the partition suit was drafted. As the property which was the subject matter of the present suit was not included in the previous partition suit, the Defendant No. 1 did not agree to mention the said property in the solenama. Bishnupada Sahana and his elder brother were aware of the agreement to convey the suit property and as they had assured the Plaintiffs that there would be no difficulty in execution of a kobala in future, the Plaintiff No. 2 did not insist upon execution of the kobala in his favour filing of the solenama. The Plaintiff thereafter had requested the Defendant No. 1 to execute and register necessary kobala. But the Defendant No. 1 fraudulently and dishonestly declined to do so. The Plaintiffs alleged that, if the parties had not entered into the said agreement for conveying the suit property to the Plaintiff No. 2, the Plaintiffs would not have agreed to compromise the partition suit.

(3.) The Defendant No. 1 Sudhangshu Mohan Koley, the present Appellant, in his written statement denied that there was any agreement between the parties for executing the kobala as alleged by the, Plaintiffs at all. According to the Defendant No. 1, except what were written in the solenama, there was no other agreement or term between the parties. The Defendant No. 1 not only denied the factum of the agreement but also averred that the alleged agreement was without any consideration and the same was void and inoperative.