JITENDRA KUMAR ROY AND ORS. Vs. BRAJABANDHU MISRA

JUDGEMENT

(1.) THIS is the Defendants' second appeal against the concurrent decisions of the District Judge of Cuttack and the Munsif of Cuttack decreeing the Respondent -Plaintiff's suit for specific performance of a contract for the sale of 20 cents of land situated in Rajabagicha within Cuttack Municipality.

(2.) THE admitted facts are as follows One Triguna Charan Roy was the previous owner of the aforesaid plot and he entered into a contract with the Plaintiff Brajabandhu Misra on 16 -2 -40 agreeing to sell the said plot to the latter for a consideration of Rs. 300/ -. Brajabandhu Misra gave him n advance of Rs. 35/ - and it was agreed that the said Triguna Charan Roy would take steps to execute the sale -deed within about 13 days. At that time the name of Triguna Charan Roy had not been mutated in the landlord's shiresta and he therefore wanted some time to arrange for the mutation before the execution of the sale -deed. Sometime later the said Triguna Charan Roy got his name mutated in the landlord's shiresta and delivered to the Plaintiff the mutation receipt and a blank stamp paper. But for some reason or other the execution of the sale -deed was postponed from time to time and then on 16 -2 -43 (on the very last day of the expiry of the period of limitation) the Plaintiff instituted the present suit for specific performance. On 2 -3 -43 the said Triguna Charan Roy sold the plot to the Secretary of the All Orissa Khandayat Association, Sri Kasinath Das, who was subsequently impleaded as Defendant No. 3. Triguna Charan Roy died subsequent to the commencement of the suit and his four sons were substituted in his place. His wife saralabala Roy was also impleaded as Defendant No. 2 because it appears that a few days prior to the institution of the said suit, Triguna Charan Roy had executed a benami deed of gift of the said land in her favour. In his subsequent sale -deed in favour of the Khandayat Association the said Triguna Charan Roy admitted that the deed of gift in favour of his wife was a benami document.

(3.) THE main defence in the suit was that sometime after the execution of the agreement the Plaintiff himself became luke -warm because a ditch had been dug in the plot by taking earth for construction of the Khandayat Boarding house in the plot lying adjacent west of it and that to consequence of the removal of that earth the Plaintiff wanted to reduce the price of the plot to Rs. 135/ -. But the said Triguna Charan Roy was not agreeable to the reduction of the price and thereupon the Plaintiff refused to purchase the same. This specific defence regarding the subsequent attempt by the Plaintiff to reduce the agreed sale price has been proved by D. W. 1 but it has not been accepted by both the courts and this finding on facts is binding on us.