BHAGABAN BHUNIYA Vs. SM. SARALA BALA DHAR

JUDGEMENT

(1.) This appeal at the instance of the plaintiff arises out of a suit for specific performance of contract. It appears that the plaintiff sold the disputed land as described in the schedule A to the plaint to the defendant by a registered kobala dated 14. 1. 63 (Ext. 6A) with a separate deed of agreement of re-conveyance executed and registered on the same day (Ext. 5). After such sale, the defendant no. 1 filed an application under section 24 of the West Bengal Non-agricultural Tenancy Act, 1949 claiming preemption of such transferred land, it was filed on 19.2 63 and was allowed on 30.4.64. During the pendency of such proceeding, the defendant no. 2 executed a deed of re-conveyance dated 8.10.63 vide Ext. 6A in favour of the plaintiff. His defence in the preemption proceeding was that the sale to the defendant no. 2 was a benami one and that the deed of re-conveyance was without consideration and it was only executed in support of the benami character of the transaction. The trial court negatived such defence and allowed the preemption to the defendant no. 1. An appeal was taken as against such order of the trial court but without success (Ext. 7-7A).

(2.) After the appeal was dismissed on 1.12.64, the plaintiff filed the present suit for specific performance of contract against the defendant pre-emptor alleging that the pre-emptor was bound by the agreement for re-conveyance of the disputed land and that as such, the plaintiff H was entitled to have a decree for specific performance of contract against her. It was contested by the defendant on the ground that she had no knowledge of the contract and that in any event, the contract was no longer in existence having been discharged by the execution of the deed of re-conveyance by the defendant no. 2 in favour of the plaintiff. The trial court allowed the plaintiffs claim for specific performance of contract and, accordingly, decreed the suit.

(3.) As against such judgment and decree of the trial court, the defendant no. 1 preferred an appeal, the learned Additional District Judge allowed it on a finding that since the defendant no. 2 had executed a deed of re-conveyance on 8.10.63 in favour of the plaintiff, nothing remained of the contract and that as such, the plaintiff was not entitled to a decree for the said contract. The suit was dismissed by the learned 8 lower appellate court. As against the judgment and decree of the lower appellate court, the plaintiff preferred this appeal.