SIDDHESWAR PRASAD SINGH Vs. BHABA SUNDARI PRAMANICK SHA

JUDGEMENT

(1.) This appeal is at the instance of the plaintiff, Siddheswar Prasad Singh and it arises out of the judgment and decree dated 31st of July, 1971 passed by the Additional District Judge, First Court, Alipore in Title Appeals Nos. 727 and 735 of 1970 (heard analogously and disposed by the same judgment) reversing the judgment and decree dated April 27, 1970 passed by the Subordinate Judge, 5th Court, Alipore in Title Suit No. 62 of 1966.

(2.) The plaintiff appellant brought an action against the defendant No. 1, Bhaba Sundari Pramanick Sha and defendant No. 2. Bamadhar Sha Kalwar for specific performance of the contract of sale of the suit property comprising of 8 cottahs of land with pucca structures and khola tile sheds executed by the defendant No. 1 in favour of the plaintiff on 1st of Ashar, 1373 B. S. corresponding to June 16, 1966 stipulating to sell the said property for the consideration of Rs. 7,000 free from alt suits or Rs. 6,000 with all encumbrances within Sravana, 1373 B. S. and received an earnest money of Rs. 4,000. There was also prayer for an injunction against the defendants Nos. 1 and 2 from interfering with any right of the plaintiff as well as restraining the defendant No. 2 from entering into the land and collecting rent from the tenants in the suit premises. It has been stated that suit property was let out to 3 tenants i. e. Satyanarayan Singh. Bachaia Keroin and Raj-kishore Singh and defendant No. 1 who Is admittedly the owner of the said property had litigations with her tenants. The defendant No. 1 and her husband so proposed to sell the suit property for a consideration of Rs. 10,000 only in view of the pending suits and also in view of the property being entirely in possession of the tenants. The plaintiff offered to purchase the same at Rs. 6,000 only with all the encumbrances and litigations. The plaintiff further offered to pay Rs. 7,000 only provided the defendant No. 1 would make the property free from all suits. Ultimately defendant No. 1 in consultation with her husband accepted the offer of the plaintiff and an agreement for sale was executed by the defendant No. 1 in favour of the plaintiff on 1st of Ashar, 1373 B. S. corresponding to June 16, 1966 agreeing to sell the suit property at Rs. 7,000 only free from all suits or at Rs. (5,000 with all encumbrances within Sravana. 1373 B. S. and received Rs. 4,000 as earnest money from the plaintiff for which a receipt was granted by her to the plaintiff. The plaintiff requested the defendant No. 1 and her husband to take steps for removal of the tenants. But the defendant No. 1 failed to take any steps and as such the plaintiff agreeing to purchase the suit property within the stipulated time with all encumbrances on Ashar 15, 1373 B. S., asked the defendant to hand over the title deeds to him. The defendant No. 2 on coming to know about the agreement tempted the defendant No. 1 to sell the suit property for higher price and defendant No. 1 and her husband demanded Rs 10,000 from the plaintiff but the plaintiff refused to accede to their said demand. Thereafter the defendant No. 2 approached the plaintiff to purchase the agreement and the receipt offering to pay a sum of Rs. 3,000 in the middle of Ashar, 1373 B. S. but the plaintiff refused. The plaintiff thereafter asked the defendant No. 1 to execute the sale deed on receiving the balance of consideration money of Rs. 2,000 The plaintiff along with one Kanta Prasad and another person, it was stated, went to Hooghly but could not trace out the defendant No. 1. On 27th of Sravana, 1373 B. S. the husband of defendant No. 1 disclosed to the plaintiff that the suit property had been sold away to some other person as the plaintiff was not willing to pay Rs. 10,000. The plaintiff thereafter searched the registration office and came to know that the defendant No. 1 sold the suit property to defendant No. 2. Hence, this action has been brought. This was numbered as Title Suit No. 62 of 1966.

(3.) The defence of the defendant No. 2 hi his written statement was that he never tempted the defendant No. 1 by offering higher value for sale of the suit property to him nor he ever approached the plaintiff for purchasing the alleged agreement for Rs. 8,000 in the middle of Ashar or at any time. There was no agreement by the defendant No. 1 to sell the suit property to the plaintiff and even if there was any such agreement the defendant No. 2 being a bona fide purchaser for value without notice of the alleged agreement was not bound by the same.