FAZALADDIN MANDAL Vs. PANCHANAN DAS

JUDGEMENT

(1.) This appeal is against the judgment of Guha J. dismissing in second appeal the plaintiff's suit for specific 'performance. On 26-5-1943, the plaintiff Fazaladdin Mandal and his two brothers gave maurashi lease of .57 acre of land to Panchanan Das, the defendant, on receipt of a selami of Rs. 50/-, the rent reserved being Rs. 3/- per year. The three lessors executed a potta 'in favour of Panchanan while Panchanan in his turn executed on the same day a kabuliat in favour of the three lessors. Both these documents were registered on that very day. The appellant brought this suit on the allegation that simultaneously with the lease there was an agreement between him (Fazaladdin) and Panchanan that if within six years from that date, namely, 26-5-1943, Fazaladdin paid Rs. 50/- to Panchanan, Panchanan would convey the leasehold interest acquired by him' in favour of Fazaladdin; but that in spite of repeated requests to pirn thereafter to convey the leasehold On accepting from him the sum of Rs. 50/-, Panchanan did not accept the money and did not execute the conveyance. The plaintiff asks for a decree for specific performance of contract to execute the conveyance.

(2.) The defence was twofold. First, it was pleaded that there was no such agreement at all and secondly that the alleged contract was "without consideration., illegal and not enforceable in law.'

(3.) The learned Munsif, who tried the suit, believed the story of oral agreement as alleged by the plaintiff and also the plaintiff's case that he offered Es. 50/- to the defendant and that the defendant refused to accept it. He held also that there was nothing to show that the ekrarnama, that is, the written document. Ex. 1, in his written statement and that it was therefore valid and binding. On these findings, he gave the plaintiff a decree for specific performance. The defendant appealed. The main point urged in appeal appears to have been that there was no agreement as alleged. It was pointed out that the defendant had not challenged the genuineness of the document, Ex. 1, his written statement and that it was therefore not open to him to question the genuineness of the document at the' trial. It was argued that as the trial court had relied on the existence of the written ekrarnama in believing the story of the oral agreement, the finding was erroneous. A prayer was made that the case should be remanded to the trial court so that the defendant may have an opportunity of examining an expert about the signature and thumb impression appearing on the document, Ex. 1, The learned Subordinate Judge on consideration of the evidence came to the conclusion that the document, Ex. 1, was genuine. He rejected the prayer for remand of the suit for examination of a handwriting expert. He rejected the further contention that was raised before him that the document, Ex. 1, required registration. On these findings, he dismissed the appeal.