USHA ROY Vs. PINKU ROY

JUDGEMENT

(1.) By this application filed under Art. 227 of the Constitution of India, the supervisory jurisdiction of this Court is sought to be invoked in challenging an order dtd. 7/2/2015 passed in Petition No. 8299/2013 and Petition No. 8298/2013 arising in Title Suit No. 26/2007 by the learned Court of the Munsiff No. 1, Kamrup (M). By the aforesaid order, the application filed by the present petitioner, as plaintiff under Order XXII Rule 3 and 9(2) of the Code of Civil Procedure, 1908 (hereinafter the CPC) with another petition filed under Sec. 5 of the Limitation Act, 1963 for condonation of delay have been dismissed.

(2.) To examine the validity and legality of the impugned order dtd. 7/2/2015, it would be convenient to place on record the brief facts of the case.

(3.) The projected case of the petitioner is that the petitioner, as plaintiff had instituted a Title Suit being T.S. No. 52/2003 in the Court of the learned Civil Judge (Sr. Division) No. 2, Kamrup (later on transferred to the learned Court of the Munsiff No. 1, Kamrup and renumbered as Title Suit No. 26/2007) against present respondent No. 1, late Pranab Choudhury, the predecessor of the respondent Nos. 2 to 5 and the respondent No. 6 as defendants. The suit was filed for specific performance of contract. The plaintiff had alleged that the respondent No. 1, who was the owner of the plot of land measuring 10 laches covered by dag No. 1616 (old)/1505 (new) of patta No. 1391 (old)/269 (new) had entered into an agreement dtd. 19/3/2002 with the petitioner for selling out his share over the said land. The land had devolved upon the respondent Nos. 1 and 6 upon the death of the original owner who was their father and at the time of entering into the agreement, the respondent No. 1 had projected that the respondent No. 6 had no objection to the subject of the agreement. However, after execution of the said agreement and after receipt of a substantial sum from the petitioner, the respondent No. 1 violated the terms of the agreement by proposing to sell the land to some other persons. Under such circumstances, the petitioner, as plaintiff had instituted the suit. During the pendency, the predecessors of the respondent Nos. 2 to 5 namely, late Pranab Choudhury (since deceased) was impleaded as the defendant No. 2 and accordingly, the proforma respondent No. 6 was renumbered as the proforma defendant No. 3. The Suit had proceeded ex-parte against the respondent/defendant No. 1 however, the predecessor of the respondent Nos. 2 to 5 in his written statement had stated that he had entered into an agreement for sell of the suit land and executed by the respondent Nos. 1 and 6 in his favour in the Office of the Sub-Registrar, Guwahati on 27/8/2002 and accordingly denied the execution of the agreement in question dtd. 19/3/2002. The respondent No. 6 in her written statement had stated that the original owner was her father Sunil Kumar Roy upon whose death, the land devolved upon the respondent Nos. 1 to 6. In the last part of the December, 2000 a family arrangement was made and the land in question came to the share of the respondent No. 6 and therefore the respondent No. 1 was divested of any powers or authority to sell or transfer the suit property.