APTABADDIN MONDAL Vs. MD BELAYET ALI

JUDGEMENT

(1.) THIS second appeal Is directed against the judgment and decree passed by the learned additional District Judge, Barasat, 24-Parganas, in Title Appeal No. 1053 of 1974 confirming the judgment and decree passed by the learned Munsif, 3rd court, basirhat, in Title Suit No. 208 of 1960.

(2.) PLAINTIFF filed the suit for specific performance of the contract for sale of the suit land. Plaintiff's case In brief was that the land in khatian no. 117 of mouza Farastpur measuring 1. 69 acres in two plots belonged to Rakibuddin and Naimuddin in equal sharers. Naimuddin contracted with the plaintiff to sell. 86 acre of land out of 1. 69 acres of land for Rs. 4000/- and accordingly a deed of agreement for sale of the land was executed on 19-5-68 and Rs. 3000/- as earnest money was paid by the plaintiff toward the consideration of Rs. 4000/- on that date. It was also alleged that within Chaitra of 1376 B. S. the plaintiff could get the sale deed executed on payment of the balance consideration money of Rs. 1000/ -. Plaintiff offered the balance of the consideration money but the defendants who were the heirs of Naimuddin since deceased refused to execute and register the sale deed in favour of the plaintiff. Hence this suit.

(3.) ONLY the defendant no. 5 filed the written statement and contested the suit. It was contended inter alia that Naimuddin did not execute any agreement for sale in favour of the plaintiff on receipt of any earnest money towards the consideration and that Naimuddin had no saleable interest in the land at the time when the alleged agreement for sale was executed. It was further contended that Naimuddin and his brother Rakibuddin surrendered their tenancy right in the land to the landlords end thereafter this defendant no. 5 along with his two other brothers took fresh settlement of the land. The plaintiff was therefore not entitled to any relief in this suit.