MD. SUNAJUL ALI Vs. MD. SAFIQUR UDDIN

JUDGEMENT

(1.) This Second Appeal has been preferred by the defendant against the concurrent findings of the learned courts below in regard to a suit praying for decree of Specific Performance of Contract.

(2.) Plaintiffs 1 and 2 are the husband and wife. They filed Title Suit No.39 of 1996 before the learned Civil Judge, Senior Division No.2 in Cachar at Silchar stating that despite having an agreement been inked by the defendant with plaintiffs on 12.2.93 for purchasing a plot of land measuring 4 Kathas 11 Lechas 8 Gondas from him for a total consideration amount of Rs.30,000/- and the defendant having first received an advance sum of Rs.10,000/- and thereafter a sum of Rs.17,3000/- on 20.5.1993 by issuing a money receipt, hence leaving a balance of Rs. 2,700/- the defendant is yet to execute the sale deed and, worse, playing truant with them. Hence, the plaintiffs had to institute the suit for specific performance of the contract. Vide clause Gha in the prayer of the plaint, the plaintiffs made an alternative prayer: refund of the sum of Rs.27,300/- along with compensation to the tune of 1/4th of the said sum, if for any reason the plaintiffs had been found to be not entitled a decree for specific performance of the contract.

(3.) After being summoned, the defendant appeared before the learned court below and denied the averments made in the plaint on the point of quantum of the consideration amount as well as the execution of the written agreement. According to the defendant, in good faith he put his signature on a plain paper, which was subsequently converted into a written agreement by the plaintiffs, to suit them. The defendant also pleaded that there was an oral agreement for sale of 6 Kathas 1 Chatak of land for a total consideration of Rs.28,000/- per Katha, thus he was entitled to a total sum of Rs.1,69,750/-. So, after receipt of a sum of Rs.27,300/- in all, the defendant was entitled to a further sum of Rs. 1,42,450/- being the balance consideration amount. The defendant also stated that he obtained permission from the jurisdictional Deputy Commissioner for executing the sale deed and the same was brought to the notice of the plaintiffs but the latter did not turn up to get the sale deed executed and as such the plaintiffs were not entitled to get a decree. On such rival contentions the learned trial Court framed as many as seven issues and the same are as follows: