C C DEY Vs. PURANMULL GOENKA

JUDGEMENT

(1.) -This appeal by a set of 33 defendants, Dr. C.C. Dey arraigned as appellant No.1, having died during the pendency of the suit itself, is against the Judgment and Decree dated 13th October, 1998 passed by the learned 6th court of Assistant District Judge, Alipore in Title Suit No. 12 of 1986. The appellants Nos 2 to 33 in this appeal were the substituted defendants under Order 22 Rule 10 CPC, as would appear hereinbelow as we unfold the factual matrix of the case.

(2.) The plaintiff, the sole respondent in this appeal filed the suit in the court below in respect of a piece of land measuring 10 bighas 4 cottahs and 7 chittacks and 37 Sft. situated at No.115 Raja Ram Mohan Lane, P.S. Behala. The Plaintiff's case was that on 13.12.1982 an agreement was executed between him and the sole defendant in the Suit Dr. C.C. Dey whereby the defendant agreed to sell the property to the plaintiff on a consideration of Rs. 6.00 lacs. The plaintiffs paid to the defendant pursuant to the aforesaid agreement an amount of Rs. 25,000/- initially by way of Cheque and subsequently another amount of Rs. 10,000/- again by Cheque, both these Cheques having been encashed by the defendant. The defendant thus received Rs. 35,000/- as advance from the plaintiff but since he did not execute the Sale Deed despite stipulation in the Agreement dated 13/12/82, the Plaintiff had no option but to file the Suit. The sole defendant Dr. C.C. Dey contested the Suit. He inter alia pleaded that even though he had the intention to enter into an agreement with the Plaintiff but the plaintiff practised fraud upon the defendant. The defendant relied upon one S.N. Banerjee, an Advocate who acted as his middleman and that because of the fraud practised by the plaintiff the aforesaid agreement dated 13.12.82 was got executed fraudulently. The defendant also pleaded some supervening and intervening circumstances, including the trespassing of the land by some outsiders. He also averred in the written statement that he had sold the suit property to several persons during the pendency of the Suit on "as is where is basis".

(3.) Based upon the pleadings of the parties, the trial court vide Order dated 5-06-86 framed the following six issues for trial: