PARBATI CHOUDHURY Vs. BHAGWANDAS GUPTA

JUDGEMENT

(1.) We have heard Mr. B.K. Goswami, the learned senior counsel for the appellants-defendants and Mr. C.K. Sarma Barua, the learned senior counsel for the respondent.

(2.) This appeal has been directed against the judgment and decree dated 25.9.98 passed by the learned Civil Judge (Senior Division) No. 1, Guwahati in Title Suit No. 183/1986 decreeing the same. The original defendant in the suit Nabalal Choudhury (since deceased) had filed the present appeal. During the pendency of the appeal before this Court the original defendant expired and was substituted by the present appellants being his heirs and legal representatives. The case of the respondent-plaintiff as narrated in the plaint, shortly put, is that the original defendant Nabalal Choudhury (since deceased) was the owner of a plot of land measuring 13 lechas covered by K.P.. Patta No. 91(old)/67(new), Dag No. 124 of village Sahar Guwahati under Mouza Guwahati and that he was the recorded pattadar of the same. The said land is the suit land. His further case is that on 6/8/1984 the original defendant approached him proposing to sell the said land alongwith the houses thereon and he (respondent-plaintiff) having agreed to the proposal, an agreement was executed between the parties on the same date i.e. 6/8/1984 pursuant whereto the original defendant received Rs.30,000.00 as advance. The consideration price of the land and houses was agreed to be Rs.2.10 lacs only. The respondent-plaintiff further averred that it was agreed that the balance consideration money of Rs. 1,80,000.00 would be paid within 2 years. On 25/5/1985, on the request of the original defendant, the respondent-plaintiff paid a further sum of Rs. 13,20,000.00 out of the balance consideration of money of Rs. 1,80,000.00 and the original defendant acknowledged the receipt thereof by making necessary endorsements on the back side of the agreement. The further case of the respondent-plaintiff is that thereafter between 15.7.85 and 28.5.86 he paid a furthar amount of Rs.25,000.00 on the request of the original defendant. According to the respondent-plaintiff, the payments were made as under : <FRM>JUDGEMENT_523_GAULT1_2002Html1.htm</FRM>

(3.) The respondent-plaintiff asserted mat on such payments being made he requested the original defendant on every occasion to either issue a money receipt or to acknowledge the receipt of the said payments by making endorsements on me back side of the agreement, but though the defendant assured to do so. he neither issued the money receipts nor made any endorsements on the back side of the agreement acknowledging payments of the above mentioned amounts. The respondent-plaintiff categorically stated in the plaint that he, however, recorded the payments of the above amounts in his books of accounts which were regularly maintained in the usual course of business. The respondent-plaintiff averred that till 28.5.86, the defendant had received Rs.75,000.00 out of the total consideration price and though he, the respondent-plaintiff, had always been ready and willing to pay the balance amount of Rs. 1,35,000.00 the defendant was neither ready to accept the same nor to execute and register the sale deed as agreed upon. The respondent-plaintiff alleged that the original defendant also, inspite of his assurances, did not take any step for applying and obtaining the necessary sale permission from the Deputy Commissioner, Kamrup at Guwahati which was necessary under the provisions of the Urban Land Ceiling Act, 1976 for transfer of the land/houses. The further case of the respondent-plaintiff is that situated thus, he got served a legal notice dated 31.7.86 on the defendant by registered post through his Advocate intimating inter-alia that he was ready and willing to pay the balance amount of Rs. 1,35,000.00 even before execution and registration of the sale deed. The respondent-plaintiff categorically stated in the plaint that he has always been ready and willing to pay the balance consideration money and perform his part of the contract, but the defendant had refused to accept the balance amount and instead, had been negoting with some other persons to sell the land and the houses inspite of the agreement between them. The respondent-plaintiff alleged that the defendant deliberately and intentionally did not perform his part of the contract and had been trying to sell the land and houses to some other persons illegally and fraudulently. The respondent-plaintiff, therefore, prayed for a decree inter-alia for specific performance of the contract, confirmation of his possession of the suit property and permanent injunction restraining the defendant, his agents etc. from disturbing the peaceful possession of the respondent-plaintiff. In the alternative, he prayed for a decree for compensation of Rs.2,10,000.00 in case the suit could not be decreed for specific performance.