ALIMON NESSA Vs. SUDHIR CHANDRA DEY

JUDGEMENT

(1.) :- This First Appeal by the defendants Nos. 3 to 7 is directed against the judgment and decree dt. 29th Jan., 1980 passed by the learned Assistant District Judge, Jorhat in T.S. No.51/76 decreeing the plaintiff's suit for specific performance of contract by the defendant/ respondent Shri Mirza Zamal Hussain. The defendant-appellant Nos.3 to 7 are the heirs and legal representatives of late Mohfil Hussain, the step brother of defendant respondent Shri Mirza Zamal Hussain. Defendant- respondent Smt. Aklima Khatun is the step-mother of Mirza Zamal Hussain.

(2.) Plaintiff-respondent instituted a Title Suit No.51/76 in the Court of learned Asstt. District Judge for specific performance of contract by the defendant-respondent, Mirza Zamal Hussain to sell the suit property comprising of land measuring 1K 2L with houses, latrine standing thereon, fully described in the Schedule 'A' to the plaint, in terms of written contract dated 23-4-76. Plaintiff's case was that defendant-respondent No.2, Mirza Zamal Hussain became the sole owner of the suit property by virtue of a gift deed executed by his mother late Saruaiti and that by a written agreement dt. 23-4-76 defendant respondent No.2, entered into a contract to sell the suit properties for a consideration of Rs. 30,501.00 and received a sum of Rupees 3001.00 as advance. In the written contract it was stipulated amongst other that plaintiff should pay the balance of the consideration money, Rs. 27,500.00 to the defendant-respondent No.2 within 26-6-76 in the Sub-Registrar Office, Jorhat and defendant-respondent No.2 would execute the registered sale deed selling the suit property to the plaintiff and would deliver khas vacant possession thereof, after evicting defendant-respondent No.3 therefrom in the meantime. Plaintiff's further case was that late Saruaiti was the sole owner of land measuring 2K 4L pertaining to dag No.4052/3803 of periodic patta No.223/426 of block No.1 of Jorhat town with standing structures thereon and that by registered deed of gift. dt. 18-3-67, the gifted half of the said property (namely suit property) to defendant-respondent No.2 and that the defendant appellants, by virtue of other deed of gift executed by late Saruaiti became the owner of other half of the said property.

(3.) Defendant-respondent No.2 not having performed his part of the contract of selling the suit property plaintiff filed the suit for decree of specific performance of contract of sale of the suit property to him by the defendant-respondent No.2 and delivery of vacant possession thereof. Plaintiff deposited the balance amount of consideration money Rs. 27,500.00 in the Court with notice to the defendant-respondent No.2. In the suit defendant respondent No.2 was impleaded as defendant No.1, defendant respondent No.3 as defendant No.2 and the appellant as defendant Nos.3 to 7.