SHIB KUMAR BANERJEE Vs. RASUL BUX

JUDGEMENT

(1.) This is a suit for specific performance of an agreement for sale of two items of immovable properties, both situate at Baranagar, outside the jurisdiction of this Court. One of the two properties, being premises Nos. 14, 15, 15/1, 15/2 & 15/A Nainan Musalmanpara Lane consist of a very substantial building on land measuring 13 cottas 4 chs., the other being premises No. 78 Nainan Musalmanpara Lane, consisting of 7 cottas of open land with practically no structure. It is pleaded in the plaint that the agreement was arrived at on 21-3-1950 at Calcutta, within the jurisdiction of this court and the entire consideration money of Rs. 20,000/- was paid in cash. It was agreed that the defendant would execute a proper sale deed within a year. This agreement and the payment of consideration are evidenced by a receipt. It appears from the said reciept that the defendant also agreed to give full possession within the same period of one year. A copy of the receipt is annexed to the plaint. It is alleged that the defendant has failed and neglected to execute the conveyance, though called upon. The decree claimed is a decree for specific performance of the agreement of sale simpliciter and an order on the defendant to execute a conveyance. Delivery of possession is not claimed. There is an alternate claim for a refund of the consideration money with interest at the rate of 6 per cent. per annum and damages assessed at Rs. 3,000/-.

(2.) In the written statement filed the claim is disputed. The agreement for sate is denied. It is denied that the title deeds were made over to the plaintiff pursuant to the agreement for sale, as alleged in the plaint. So also the payment of consideration money is totally denied. It is alleged that the title deeds were made over by the defendant to one J.N. Sinha for safe custody during the period of communal tension in February, 1950. when the defendant fled from Baranagar to Barrackpore. The receipt is alleged to be a forged and/or manufactured document. The jurisdiction of this court to entertain the suit has been denied and it is prayed that leave under Clause 12 of the Letters Patent, if granted, should be revoked.

(3.) On the pleadings, the following issues were settled :