RAJKISHOR MOHANTY Vs. BANABEHARI PATNAIK

JUDGEMENT

(1.) THIS appeal arises out of a suit for specific performance of a contract to sell a plot of homestead land bearing plot No. 1051 within Jemmabandi 98 of Cuttack Khasamahal. Four annas share in the suit plot belonged to Raikriahna Mohanty, deft. 2 & the rest belonged to applt. 1, Rajakishor Mohanty. Deft. 2 also owned in his own right the adjoining plot of land bearing No. 1052 within Jammabandi 9T. Deft. 2 wanted to sell plot No. 1052 applied to the Khasamahal authorities for permission to sell. Among the objectors were deft. 1 (Dr. Banabehari Patnaik), pltf. 2 (Sachidananda Mohanty) son of pltf. 1 & some other persons. The Khasamahal enquiry was posted to 6 -4 -1941 when deft. 2 filed Ex. 5, which is a petn. of compromise alleged to have been arrived at between the parties. The main clauses of this compromise are that pltf. 2, Sachidananda should withdraw his objection to the sale of plot No. 1052 & allow deft. 1 to purchase it from deft. 2 and that deft. 2 should sell to Sachidananda (pltf. 2) his four annas share in plot NO. 1052. It is said that deft. 2 went back upon this compromise & sold plot no 1051 to deft, l on 27 -6 -41 for a sum of Rs. 600. The pltfs. sued for specific performance of the agreement for sale made by deft. 2 in favour of pltf. 2.

(2.) THE learned Munsif who tried the suit decreed the suit in pltfs ' favour and held that the deft, l was not a bona fide purchaser for value. On appaal to the Ct. of the Dist. J. by deft. 1 the judgment of the learned Munsif was reversed on the ground that there was no completed contrast on 5 -4 -1941 which could be specifically enforced & that it was void for uncertainty as there was no stipulation about the price to be paid. Specific performance of the contract was, therefore, refused.

(3.) THE pltfs ' case is that the preliminary negotiations for a compromise were started on the 27th or 28th March 1941 at the house of Sri Bichitrananda Mohanty, viz., D.W. 3 who is the father -in -law of deft. 2 & that the price was settled at that time Pltf. 2 who was then at Jaipur was intimated of the agreement & was asked to confirm the same. Pltf. 2 it is said came to Cuttack on the 5th April & confirmed the same. The pltf. relied upon the evidence of P. W. 5, a clerk of Sri Bichitrananda Mphanty. The appellate Ct. rejected this witness's evidenca on the ground that the evidence did not disclose that he was an eye -witness to the discussion said to have taken place on 27th & 28th of March. The witness clearly stated that the compromise petn. was drafted 7 or 8 days after the compromise talk took place & that he was present when Ex. 6 was drafted, From this statement made in cross examination the learned Dist. J. inferred that the witness was not present at the compromise talk which took place 7 or 8 days before the petn. was actually drafted & observed :