TRAILAKYANATH MAITY Vs. PROVABATI SANTRA

JUDGEMENT

(1.) These two appeals arise cm! of a common judgment and decree of the trial Court passed in two suits namely T. S. 44 of 1960 re-numbered as T. S. 21 of 1963 in the additional Court of Subordinate Judge, Contai 'instituted by respondent Nos. 1 and 2 as plaintiffs and another suit being T. S. 48 of 1962 in the same Court instituted by the present appellants (hereinafter referred to as the first suit and second suit), briefly, in the following circumstances. In the first suit the plaintiff-respondents prayed for declaration of their title and recovery of possession on subsequent amendment of the plaint and for injunction and other necessary reliefs regarding certain lands which they purchased from one Abinash Chandra Maity respondent No. 3 in the present appeal. Their case, briefly, was that respondent No. 3 entered into an agreement for sale of certain immovable properties with appellant No. 2 on receiving a sum of Rs. 400/- by way of earnest money and putting him into possession. But as he failed to pay the balance of consideration money within 15th Magh 1366 B. S. the agreement for sale stood cancelled. The respondent No. 3 thereafter took possession of the property and sold some of the properties described in Ka schedule of the plaint to respondent No. 1, Provabati, by a registered conveyance dated May 30, 1960 and Kha schedule property by another registered deed of conveyance dated June 4, 1960 to Tamini respondent No. 2, her daughter, and put them in possession of another property. The present appellants in collusion with each other thereafter subsequently forcibly dispossessed them.

(2.) This suit was contested jointly by the present appellants and in their written statement apart from the general denial of material allegations the specific case that was set up in substance was that the agreement for sale dated 27th May, 1959 was still then subsisting and valid and in spite of their being ready and willing to perform their part of the contract at all material times Abinash wrongfully refused to execute and register a conveyance on accepting the balance of the consideration money. In the circumstances, they were entitled to specifically enforce the agreement and the plaintiffs could not have acquired any title or possession of the suit property. Their further case was that Trailakyanath appellant No. 1 obtained the above agreement for sale in the 'benami' of Jogesh and he had been all along and was still then in possession of the disputed property.

(3.) The present appellant filed second suit on 9th July, 1962, praying for specific performance of the above agreement for sale on repetition practically of the pleadings set up as defence in the first suit. This suit was contested by both the respondents Nos. 1 and 2 and their defence was virtually the representation of their case made in the plaint of the first suit.