RAMACHANDRA BHAKTA Vs. KRUSHNA CHANDRA BHAKTA

JUDGEMENT

(1.) This Second Appeal is directed against the reversing judgment of the learned Second Addtional District Judge, Cuttack allowing the defendants' appeal against the order of the learned Subordinate Judge, Athagarh.

(2.) THE plaintiff's case, in short, was that the suit property -Bari land of A. 0.01 decs, in plot No. 1690/2639 under Khata No. 273 by a deed of family arrangement, Ext. 1 dated 10.3.1956 was executed by the plaintiff and his father on one side and defendant No. 1 on the other incorporating a pre -emptory clause that if any of the aforesaid parties wants to sell the land allotted to his share, then the other party, if prepared to purchase the said property, the demised land cannot be sold to any third party. However, if the party is unable or not interested in purchasing the land on the market value, then it can be sold to any third party. It was alleged that defendant No. 1 violating the aforesaid stipulation in the deed, alienated the suit property to defendant No. 2 Krushna Chandra Bhokta by registered sale deed, Ext. A dated 11.1.1980 for a consideration of Rs. 500/ -. The plaintiff, therefore, brought a suit for declaration that the sale deed, Ext. A is illegal and void and for a direction to the defendant No. 1 Nidhi Bhokta to execute the sale deed in respect of the suit property in favour of the plaintiff, failing which the Court may execute the suit sale deed and for permanent injunction. The defendant No. 1 however, took the plea that he has offered to sell the suit property to the plaintiff, but since the plaintiff declined to purchase, he had sold the same to defendant No. 2 under Ext. A and as such, there has been no breach of contract in terms of Ext. 1 by defendant No. 1.

(3.) ON appeal, being filed by the defendants, the Second Additional District Judge, Cuttack by his order dated 11.9.1985 in Title Appeal No. 64 of 1983 remanded the case to the trial Court after framing an additional issue for determination. The following issue was framed : 'Had the defendant No. 2 any notice of the contract entered into between the plaintiff and defendant No. 1 prior to his purchase ?' The learned Subordinate Judge in his judgment dated 24.12.1985 on the aforesaid issue found that defendant No. 2 had notice of the contract entered into between the plaintiff and defendant No. 1 prior to his purchase. Defendant No. 2 filed Civil Revision No. 262 of 1983 in this Court challenging the admissibility of the agreement. Ext. 1, but however, this Court by order dated 8.4.1983 dismised the Civil Revision with an observation that 'if the Stamp Duty and penalty are not paid by the plaintiff, it shall be open to the defendants to move the Court for exclusion of Ext. 1. The Stamp Duty and penalty levied on Ext. -l were paid by the plaintiff. The appeal was finally heard and by judgment dated 20.10.1986, the judgment decree of the trial Court was reversed mainly on the ground that in view of Section 10 of the Transfer of Property Act, the agreement Ext -1 to the extent it contemplates absolute restriction imposed on alienation of the property, is void.