ABDUL KALAM SHEIKH AND ORS. Vs. NURUL ISLAM

JUDGEMENT

(1.) This Second Appeal has been preferred against the judgment dated 04.03.2004 passed by the learned District Judge, Goalpara in Title Appeal No. 02/2002 allowing the appeal of the respondent/plaintiff preferred against the judgment and decree dated 07.02.2001 passed by the learned Civil Judge (Senior Division), Goalpara in Title Suit No. 34/99(New). The factual matrix of the case may be noticed as follows. The plaintiff had entered into an agreement for sale i.e. "baina-nama" dated 18.04.1994 with the defendant No. 1 for purchase of a plot of land measuring 3 bigha 1 katha 5 lechas covered by dag No. 97 of Khatian No. 8, Touji No. 157, Circle Lakhipur in the district of Goalpara, more fully described in the schedule to the plaint. The defendant No. 1 was the owner of the said plot of land and, therefore, on the basis of the "baina-nama" dated 18.04.1994 the plaintiff had paid an amount of Rs. 500/- as the earnest money and thereafter in part performance of the contract the defendant No. 1 had delivered possession of the suit land to the plaintiff. As per the terms of the "baina-nama" it was agreed that the price of the land would be Rs. 13,301/- per bigha and that the plaintiff would be required to pay the second installment amounting to Rs. 15,000/- on 22.04.94 pursuant whereto the defendant No. 1 would initiate the necessary steps for execution of the sale deed after receipt of the balance amount of Rs. 27,000/- within a reasonable time after 22.4.94. According to the terms of the agreement the plaintiff had offered Rs. 15,000/- to the defendant No. 1 on 22.4.94 but the defendant No. 1 declined to accept the same and on the contrary asked the plaintiff to pay the entire balance amount at a time within a period of two months. The plaintiff agreed to the aforesaid demand made by the defendant No. 1 and promised that he would pay the entire balance amount within the period of two months as demanded by the defendant No. 1. However, the defendant Nos. 2 to 5 dispossessed the plaintiff from the suit land in the first week of June, 1994 and on the basis of enquiry made by him the plaintiff could come to know that the defendant No. 5 in collusion with the defendant No. 1 had got a registered sale deed executed by the defendant No. 1 on 27.05.94 transferring the suit land in favour of defendant Nos. 2, 3 and 4 who are the sons of the defendant No. 5. It is the case of the plaintiff that he has been ready and willing to perform his part of the contract but due to the aforesaid illegalities committed by the defendant No. 1 in collusion with the defendant No. 5 thereby fraudulently executing the registered deed of sale in favour of the defendant Nos. 2, 3 and 4 and the consequent dispossession, the plaintiff has been compelled to file the suit seeking specific performance of the "baina-nama" dated 18.4.94. In the suit filed by the plaintiff he has prayed for a relief in the form of a decree for specific performance of the contract by directing the defendant No. 1 to execute and register the sale deed in favour of the plaintiff pertaining to suit land upon accepting the balance amount out of the total amount of Rs. 42,800/- being the price of the land; on the failure of the defendant to execute the registered deed of sale, a deed be executed in accordance with the provisions of Order XXI Rule 34 of the CPC by the Court; for recovery of possession of the suit land and for other consequential relief.

(2.) Despite receipt of summons in connection with the aforementioned title suit the defendant No. 1 did not appear or contest the suit. The defendant Nos. 2 to 5 contested the suit filed by the plaintiff by presenting a joint written statement whereby they have denied that there was any cause of action for the suit or that there was any valid agreement for sale made on 18.04.94. The said contesting defendants also denied the fact that the plaintiff had ever paid Rs. 500/- as earnest money to the defendant No. 1 or that the plaintiff had ever been put in possession of the suit land. It is the case of the defendant Nos. 2 to 5 that the suit land was initially taken over by them in the year 1987 on the basis of an oral mortgage by paying a consideration amount of Rs. 3000/- per year to the defendant No. 1 and the said land has remained in their possession without any interruption since 1987 until the time the same was purchased by the registered deed of sale No. 957 of 1994 at a consideration amount of Rs. 30,000/-. It is the case of the contesting defendants that they are bonafide purchasers of the suit land without any notice of the agreement for sale dated 18.4.94 and as such their interest as purchaser, of the suit land would remain protected under Section 19(b) of the Specific Relief Act, 1963.

(3.) On the basis of the pleadings of the parties the learned trial Court had framed as many as 12 issues which are as follows:--