ALI MISTRI Vs. KAYEM ALI SHEIKH

JUDGEMENT

(1.) This appeal arises out of a suit for specific performance of a contract of resale of land. The plaintiffs who claim to be assignees from the original vendor (who was the intended vendee in the agreement for re-sale) and who succeeded before the trial Court are the appellants before me and their grievance is that their suit has been wrnngly dismissed by the lower appellee Court.

(2.) The relevant facts, leading up to the present litigation, are not now in dispute and they may he shortly stated as follows :

(3.) Pro forma defendant No, 3 Pear Ali Khan was the original owner of the suit properties. In December, 1941, he sold the said properties to defendant 1 Sabjan Mandal for Rs. 250/- by a kobala, dated the 1st of that month, and registered on the 9th. On this last-mentioned date (9th), there was a simultaneous Ekrarnama or agreement for re-sale, Ex. 7, executed and registered by the vendee, Sabjan Mandal, in favour of the original vendor Pear Ali Khan, the relevant stipulation being that if Pear Ali returned or paid back to Sabjan the said sum or consideration money of Rs. 250/- in the month of Chaitra of any year within 1354 B. S. Sabjan, (defendant 1), would be bound to re-convey the suit properties to him (Pear Ali). On 16-2-1944, Pear Ali instituted a suit (Title Suit No. 45 of 1944) against Subjan Mandal and the prasent defendant 2 Kayam Ali Sheikh, in whose favour Sabjan had executed a kobala in respect of the present suit properties on 22-12-1943. That suit was decreed by the trial Court on 8-3-1945, but, on appeal by the defendant Sabjan, it was dismissed on the ground that there was no valid and effective tender of the consideration money in terms of the agreement for re-sale (Ex. 7). This was on 11-12-1945, but, in the meantime, on the strength of the decree of the trial Court in his favour, Pear Ali had sold the suit properties to the present plaintiffs Saved Mistri and Mt. Momena Bibi by two Kobalas, dated 14-3-1945, for a total sum of Rs. 400/-, out of which he deposited the sum of Rs. 250/- in favour of Sabjan Mondal in the Title Suit, referred to above, for getting the re-conveyance in terms of the decree of the trial Court. On dismissal of the suit at the appellate stage, the said deposit was withdrawn by Pear Ali and, thereafter, the plaintiffs made a fresh tender of the said amount (Rs. 250) to the defendants (1. & 2) in Chaitra 1353 B. S. and asked for a reconveyance under the Ekrarnama, Ex. 7, and this having been refused, the present suit was brought on 12-4-1947.