MD. ZAKIR ALI KHAN Vs. MD. MASKANDAR ALI

JUDGEMENT

(1.) BY this second appeal the defendant has challenged appellate judgment and decree dated 27.03.2002 passed by the learned Civil Judge (Sr. Divn.) No.1, Silchar, in T.A. 05/2001, reversing the judgment of the learned Trial Court and decreeing the suit of the plaintiff for specific performance of contract.

(2.) THE respondent, as plaintiff, instituted title suit being No. 50/1993 in the court of learned Sadar Munsiff No.1, Cachar, Silchar stating that the predecessor of the defendants Late Siddique Ali Khan during his life time entered into a contract with the plaintiff on 29.06.1988 for sale of the suit land at a consideration amount of Rs.10,000/ - (Rupees ten thousand) and received a sum of Rs. 8,000/ - (Rupees eight thousand) from the plaintiff. The said deed was duly registered. It was stipulated in the deed for agreement for sale that upon receipt of the rest amount of Rs. 2,000/ - (Rupees two thousand) within 23 (twenty three) months from the date of execution thereof necessary no objection certificate would be obtained from the appropriate authorities and sale deed would be executed and registered. When the proceeding for obtaining NOC was going on, Siddique Ali Khan died on 28.06.1991 leaving behind the defendants of the suit as his legal heirs but they failed to honour the agreement executed by their predecessor despite repeated request of the plaintiff. Under such circumstances, the plaintiff instituted the suit praying for Specific Performance of Contract with respect to the suit land on realization of Rs. 2,000/ - (Rupees two thousand) from him. On being summoned, the defendants appeared but did not file written statement denying the claim of the plaintiff. However, in paragraph 5 thereof a vague statement was made saying that a title suit being No. 51/1993 had already been filed by the defendants in the court of learned Assistant District Judge No.1, Cachar, Silchar, praying for declaration of the aforesaid agreement for sale as fraudulent and also for ejectment of the plaintiff from the suit land. The defendants also made a prayer that T.S. 50/1993 be stayed under Section 10 of the Code of Civil Procedure in view of pendency of T.S. 51/1993. The learned Trial court did not stay the suit and proceeded with the same.

(3.) I have heard Ms. B Sarma, learned counsel for the appellant and Mr. B Acharya for the sole respondent.