SUKUMAR SAMANTA Vs. SIBDAS ROY

JUDGEMENT

(1.) THIS first appeal is at the instance of the defendants nos. 3 and 4, the subsequent purchasers, in a suit for specific performance of contract and alternatively, for a decree for pre-emption and is directed against the judgement and decree dated August 26, 1997 passed by the learned Civil Judge, Senior division, Second Court, Howrah, in Title Suit No. 173 of 1992, thereby passing not only a decree for specific performance of contract but also a decree for preemption by exercising power under Section 8 of the West Bengal Land Reforms Act.

(2.) THE plaintiffs/respondents filed the abovementioned suit being Title Suit no. 173 of 1992 against their adjoining neighbours, the defendants nos. 1 and 2, for specific performance of an alleged oral agreement of sale of the suit property, which is a part of a house as described in the schedule of the plaint, on the allegation that the defendant no. 2, on his own behalf and on behalf of his brother, the defendant no. 1, orally agreed to sell the suit property at the price of rs. 95,000/- after accepting a sum of Rs. 200/- as earnest money with the stipulation that a written agreement for sale would be subsequently prepared. According to the plaintiffs, for the preparation of such agreement for sale, the parties jointly approached one Mr Subrata Banerjee, a lawyer of the Howrah judges' Court, who prepared a draft agreement. The defendant no. 2, according to the plaintiffs, even corrected the said draft agreement but for the reason best known to him, transferred the suit property along with the other part of the building to the defendant nos. 3 and 4, who had full knowledge of the earlier agreement for sale between the plaintiffs and the defendant nos. 1 and 2. The plaintiffs, thus, prayed for specific performance of the oral agreement of sale and alternatively, for a decree of pre-emption on the ground of adjoining ownership in exercise of their purported right under Section 8 of the West Bengal Land Reforms Act.

(3.) THE suit was contested by the defendant no. 2 (the defendant no. 1 died during the pendency of the suit) and the defendant nos. 3 and 4 separately by filing two sets of written statements thereby denying the material allegations made in the plaint. According to the defendant no. 2 there was no agreement whatsoever between the parties for sale of the property and no earnest money was taken by the defendant no. 2. The defendant nos. 3 and 4 took the plea of bona fide purchase without prior notice of any agreement between the plaintiffs and the defendant nos. 1 and 2.