KAUSHIK BOSE Vs. KAMAL KUMAR GHOSH

JUDGEMENT

(1.) The present appeal from the appellate decree is directed against the judgment dated 27/4/2001 and the decree thereof passed by the Additional District Judge, Alipore in the district of 24-Parganas (S) in T.A. No. 281 of 2000, through which the learned Judge set aside the judgment and decree passed by the Civil Judge, (Senior Division), Sealdah in T.S. No. 84 of 1997 and decreed the suit directing the defendants to execute and register a proper deed of conveyance in respect of 'A' schedule property of the plaintiff favour of the plaintiff.

(2.) The plaintiff/respondent brought the suit praying for a decree for specific performance directing defendant Nos. 1 to 3 to execute and register sale deed in favour of the plaintiff in respect of the 13 schedule property on accepting the sum and also for some other consequential reliefs including a declaration regarding the 'A' schedule property. As the matter stands now, subject matter of the dispute here is the 'B' schedule property that is to say a space measuring about 150 Sq. ft. more or less in the extreme back side of the common meter board space under the common stair case of the main 4 storied building on the extreme north-western corner of the intervening common entrance passage for egress and ingress into the said common stair case of the main building and the ground floor space of the entire main building lying on 10, Kabi Sukanta Sarani, Calcutta-700 085, Narkendanga. It is the case of the plaintiff that during the construction of 'A' schedule property, the defendant No. 1 in his own capacity and on behalf of defendant Nos. 2 and 3 received part payment of Rs. 25,000, Rs. 10,000.00 and also Rs. 10,000.00 on different dates in the months of Dec., 1996 and Jan., 1997 to sell the 'B' schedule property at the rate of Rs. 350.00 per Sq. ft. It was further alleged that plaintiff after having taken full consent and permission of defendant Nos. 2 and 3 made the aforesaid part payments to defendant No. 1, who after the demise of his father used to look after the property that is to say premises No. 10, Kabi Sukanta Sarani, Calcutta-85. It was further case of the plaintiff that the defendant Nos. 1 to 3 had undertaken to execute a registered sale deed in the name of the plaintiff by taking the balance consideration amount of Rs. 7,500.00. The plaintiff got the draft of the sale deed in respect of "13' schedule property prepared and then he made over the draft sale deed to defendants Nos. 1 to 3 but they refused to take the said draft sale deed, in spite of repeated request on the part of the plaintiff. It was further case that the plaintiff was ready and willing to pay to defendant Nos. 1 to 3, the balance consideration of Rs. 7,500.00, but due to refusal on the part of the defendants to execute the sale deed the plaintiff was constrained to file the suit.

(3.) Defendant Nos. 1 to 3 who are the appellants here, contested the suit by filing a joint written statement wherein they denied all the material allegations including the part payment by the plaintiff and the acceptance of the same by the defendant No. 1 on behalf of defendant nos. 2 and 3 or any agreement to sell of the 'B' schedule property, Their specific case was when his father died, the defendant No. 1 was only aged about 22 Years and at that time the plaintiff relied on him for his own gain. The plaintiff compelled him to put his signature on a paper when the defendant No. 1 received only Rs. 5,000.00 It was contended that the defendant Nos. 2 and 3 were kept in dark about this transaction and the defendant No. 1 never received Rs. 25,000.00 on 4.12.96 but received only Rs. 5,000.00.