BENODE BEHARI DAS GUPTA Vs. BENOY BHUSAN CHOUDHURY

JUDGEMENT

(1.) THIS Letters Patent Appeal arises out of a suit instituted by Benode Behari Das Gupta against Benoy Bhusan Choudhury for specific enforcement of an agreement for reconveyance of the house in dispute by the latter to him. The suit was decreed by the Munsiff and an appeal filed by the defendant against the Munsiff's decree having proved abortive in the Court of Subordinate Judge, he filed second appeal in this Court. That appeal was allowed by a learned Judge of this Court on 6th February, 1969 with the consequence that the suit of the plaintiff was dismissed.

(2.) ACCORDING to plaint allegations the plaintiff sold the house in dispute to the defendant for a sum of Rs. 400/ - per registered deed dated 26 -6 -1957. On the same date the defendant executed another registered deed in favour of the plaintiff undertaking to retransfer the house to the latter on payment of Rupees 400/ - to him at any time within a period of five years. It was the plaintiff who remained in possession of the house and he rented out the same to Unnayan Sangha Club. That Sangha terminated the lease and delivered possession of the house to the plaintiff on 2 -6 -1962. The plaintiff approached the defendant repeatedly for retransfer for the house to him on receipt of Rs. 400/ -. but the defendant put him off. Ultimately the plaintiff sent a registered notice on 11 -6 -1962 to the defendant requesting him to appear at the Sub -registry office, Hailakandi, on 26 -6 -1962 for execution of a deed of reconveyance on receipt of Rs. 400/ -. However, the defendant failed to reach Hailakandi on the date mentioned and so the plaintiff had to return from that station disconsolate. The plaintiff having lost hope that the defendant would honour his commitment within the period of 5 years, he filed the suit on 26th June, 1962, the last day of that period, in the Court of the Munsiff, Hailakandi. claiming specific enforcement of the agreement of reconveyance.

(3.) THE trial Court settled the following three issues between the parties: -