OMPRAKASH NAGALIA Vs. BINOD KUMAR GOENKA

JUDGEMENT

(1.) The First Appeal arises out of the judgment dated 30-4-2003 and the decree dated 15-5-2003 passed in T.S. No. 262 of 1995 by the 2nd Additional Civil Judge (Sr. Div.), Cuttack dismissing the suit of the plaintiff-appellant.

(2.) Initially, the appellant and his father Gobardhan Das Nangalia were plaintiffs in the above noted suit, but Gobardhan Das Nangila having died during pendency of the suit, plaintiff No. 2 became the sole plaintiff and accordingly is now the sole appellant in this appeal.

(3.) The case of the plaintiffs was that the deceased defendant No. 1, Nanda Kishore Goenka had a row of five shop rooms standing over Schedule 'A' land and in one of the shop rooms, plaintiff No. 1 Gobardhan Das Nangalia, the deceased father of the appellant was a monthly tenant since 1945 paying rent to the landlord. When the matter stood thus, Nanda Kishore Goenka entered into an oral agreement with the appellant and his father on 3-11-1994 to sell those five shop rooms to them for a consideration of Rs. 3,50,000/- and accepted a part consideration of Rs. 5,000/- undertaking to obtain clearance from the Income Tax and Urban Land Ceiling Authorities and then to execute registered sale deed on receiving the balance consideration. It is alleged that the said defendant No. 1, Nanda Kishore Goenka neither obtained the promised clearance deed nor took any step to execute the registered sale deed and when the plaintiffs approached him in presence of the local gentries, he disclosed that he has received an offer of Rs. 3,75,000/- for the five shop rooms from defendant Nos. 2 to 4 and has accordingly applied for permission to sell the shop rooms to those persons. The plaintiffs thereafter offered Rs. 3,75,000/- and insisted that defendant No. 1 executed the sale deed in their favour by accepting the rest consideration of Rs. 3,70,000/-, but defendant No. 1 did not oblige and surreptitiously executed the sale deeds in favour of defendant Nos. 2 to 4. Plaintiffs, therefore, filed the suit praying for a decree for specific performance of contract against defendant No. 1, for a declaration that the sale deeds executed by defendant No. 1, in favour of defendant Nos. 2 to 4 are invalid and illegal and for injunction restraining the defendants no. 1 to 4 from interfering with the peaceful possession of the plaintiffs with respect to the shop room in their occupation as tenant. An alternative prayer was also made for a direction to defendant Nos. 2 to 4 not to evict the plaintiffs from the shop house without taking due resource to law.