GANGA GOVINDA MOOKHERJEE Vs. AMAR CHANDRA SAHA

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 29.3.74 and 2 4.1974 respectively passed by the learned Additional Subordinate Judge, Tripura at Agartala in Title Suit No 22 of 1973. On 3.4.1970, the appellant-defendant executed an agreement (Exhibit 1) in favour of the respondent-plaintiff by which the appellant agreed to sell a part of his homestead situated at Banamalipur for a sum of Rs. 15,000.00 to the respondent and also accepted a sum of Rs. 500.00 as earnest money. It was further agreed that necessary deed would be executed in the first part of the following month on receipt of the balance amount of consideration. It is alleged that plaintiff-respondent was ready and willing to perform his part of the agreement and as the appellant did not perform his part, on 17.4.70, the respondent issued a registered notice through his Advocate. As the appellant did not execute the sale deed after taking the balance of the consideration money, the present suit was filed praying for In a decree for specific performance of the said" agreement and also for possession.

(2.) Prior to the filing of the present suit, the brother of the appellant filed a suit against both the appellant and respondent and the said suit was registered as Title Suit No. 10 of 1970. The suit was decreed against both the appellant and respondent and an injunction was issued restraining the appellant from allowing respondent to enter the suit property and respondent was also restrained from interfering and disturbing the possession of the plaintiff of that suit, Sri Amarendra Mukherjee. Amarendra Mukherjee is the brother of the present appellant. The said suit was filed in respect of the joint dwelling house belonging to the un-divided family of the said Amarendra Mukherjee, his brother, the present appellant and their aunt From the judgment of the said suit (Exhibit A). it transpires that the present appellant was unwilling to sell his share of the undivided property to his brother, the plaintiff of that suit, Amarendra Mukherjee or to his aunt Smt. Nihar Kana Debi, pro-defendant No. 3 of the said suit and instead was trying to sell the property to a outsider viz. the present respondent and hence the suit was filed.

(3.) Present suit was contested by the appellant who denied the allegations that the respondent offered the balance' consideration money though he admitted the receipt of the registered notice. The appellant also stated that he was willing to perform his part of agreement, but he could not do so in view of the perpetual injunction granted in the above Title Suit No. 10 of 1970.