NALINI NATH MITRA Vs. BEPIN BEHARI DAS

JUDGEMENT

(1.) This appeal arises out of a suit for specific performance of an agreement for execution of a Dar Mourashi pattah by the defendants in favour of the plaintiff.

(2.) This litigation lay in its embryo in a deed of agreement alleged to have been executed by one Sailendra Nath Mitra, predecesor-in-interest of the defendants, in favour of plaintiff Bepin Behari Das as early as 7-3-1921. Admittedly, the plaintiff took settlement of 10 bighas of land in village Konnagar in Hooghly District from Sailendra Nath Mitra for a term of 25 years at an annual rent of Rs. 300/- for the first 12 years and thereafter at Rs. 450 /- per annum for the next 13 years. The relevant pattah and kabuliyat were executed by the two parties on 6-8-1918 (21st Sravan 1325 B.S.). The term of the lease wag to expire with the end of the Bengali year 1348. The suit land is used for the purpose of manufacture of bricks and tiles and it is admitted that the plaintiff's predecessors had been in possession of the same at least from 1289 B. 3. The plaintiff alleged in his plaint that during the subsistence of the lease Sailendra Nath Mitra executed an agreement in favour of Bepin Behari Das agreeing1 that either Bepin or his suc-cessor-in-interest will be entitled to take a permanent lease of the demised land on payment of Rs. 5,000/- at least as selami and an annual rent of Rs. 500/- if he made such an offer either within the period of the lease or immediately after the expiry of the period. The plaintiff's case in the plaint was that Sailendra Nath Mitra died early in 1348 B. S. and before the expiry of that year he approached defendant 1, Nalini Nath Mitra, who acted as Karta of the joint i'amiiy constituted by the defendants who aie the heirs of Sailendra Nath Mitra and offered to take permanent lease of the demised land after some reduction of the selami and the rent because of the reduction of the area of the holding from 10 bighas to 6 bighas. The plaintiff further alleged in his plaint that after some negotiations the parties came to a settlement and Nalini Nath Mitra agreed in the first week of Aswin 1349 B. S. that permanent lease of the disputed land would be given on payment of a selami of RS. 4,250/- and at an annual rental of Rs. 470/-. The plaintiff further averred that in pursuance of this agreement he deposited Rs. 2,500/- with the defendants towards the selami and also paid the rent for 1349 B. S. at Rs. 450/- which amount had been fixed by the parties as rent for 1349 B. S. The time for executing the lease was fixed at one year from the date of the agreement but the defendants later on resiled from the contract and did not execute the necessary lease although requested in that behalf on several occasions by the plaintiff. Hence the present suit was instituted by the plaintiff.

(3.) The suit was contested in the Court below by the defendants. Their defence in substance was that they were not aware that Sailendra Nath Mitra had executed any agreement in favour of the plaintiff as alleged by the latter. It was further their case that after the expiry of the term of the lease the plaintiff approached defendant 1 and proposed to take Dar Mokarari settlement of the disputed land from him. This was not acceded to by defendant 1 and the plaintiff finally agreed to take settlement of the disputed land on payment of a selami of Rs. 5,000/- and at a rent of Rs. 700/- per year for a period of nine years. In pursuance of this agreement the plaintiff paid Rs. 2,5007- by instalments on account of selami, but as the balance of the amount was not paid in spite of repeated demands the contract stood cancelled.