GOLAB RAY Vs. MURALIDHAR MODI

JUDGEMENT

(1.) THIS is an appeal by defendants 1 and 2 against the judgment of the Second additional Subordinate Judge, Cuttack, decreeing the plaintiff's suit for specific performance.

(2.) THE property involved in this litigation consists of valuable house property in the heart of Cuttack town which originally belonged to defendant No. 1 Shri Nikunja kishore Das. The plaintiff alleged that on 14-8-1957 defendant No. 1 entered into a binding contract with him to sell the property for Rs. 38,000/- but as the Khasmahal is the landlord of the site, it was further agreed between the parties that a deed of contract would also be executed and duly registered, by defendant No. 1 with a view to facilitate the obtaining of permission from the Khasmahal for the transfer of the property in favour of the plaintiff.

(3.) BUT according to the plaintiff the agreement, between the parties that a deed of contract would be executed later on did not in any way defraet from the finality of the contract entered into between the parties on 14-8-1957. In pursuance of the contract, stamp paper for Rs. 1. 8. 0, was purchased and the help of the Advocate for defendant No. 1 named Sri S. N. Dasgupta, P. W. 4 was taken, and a deed of agreement was formally scribed on 15-8-1957 on the stamp paper, after preparing 2 draft deeds (Exts 9 and 10 ). Defendant No. 1 then took the stamped deed of agreement and also received a sum of Rs. 100. 00 from the plaintiff saying that he would obtain the written consent of his divided brothers (defdts. 4 and 5) to the sale of the property. Subsequently defendant No. 1 was said to have resiled from the contract and to have entered into a binding agreement with the defendants 2. and 3 for the sale of the same property to them for Rs. 40,000/ -. This contract between defendant I on the one hand and the defendants 2 and 3 was finalised on 22-8-57 and registered on 23-8-1957 and a sum of Rs. 10,000/- was also paid to defendant No. I in the presence of the Sub-Registrar. On coming to know about this the plaintiff sent a telegram to defendants 2 and 3 (Ex. 18) on 22-8-57 intimating to them about the prior contract. The latter, on receipt of the same sent a counter telegram (Ex. 2/3) denying knowledge of the existence of a prior contract with the plaintiff. The plaintiff also gave a lawyer's notice to defendant no. 1 on 23-8-1957 calling' upon him to fulfil his part of the contract, but his efforts were of no avail.