MOHAMMAD ABDUL QUADIR Vs. SHAIRA BANO

JUDGEMENT

(1.) The defendant no.1 has filed this First Appeal against the judgment and decree dated 23.11.1995 passed by Satyendra Prasad Singh, the learned Sub-Judge-lll, Katihar in title suit nos. 27 of 1989/7 of 1992 decreeing the plaintiff-respondent's suit for specific performance of contract dated 8.12.1980.

(2.) The plaintiffs,filed the aforesaid title suit no. 27 of 1989 praying for specific performance of contract on the grounds that the suit land bearing R.S. khata no. 151, plot nos. 213, 214 and 217 measuring 10 bighas of Mauja-Durgapur, District-Katihar more fully described in Schedule-A is recorded in the name of Abdul Quadir. The father of the plaintiff was recorded as Sikmidar. The said plot numbers correspond to M.S. Plot Nos. 1629, 1630, 1631, 1637, 1638, 1640, 1641, 1717, 1718, 1795, 1827, 1828, 1829, 1833, 1834, 1835, 1836 and 12408 measuring more or less 12 bighas of land. The defendant no.1 out of the said lands, agreed to sell 10 bighas of land to the plaintiff for a consideration of Rs. 94,951/-. It was agreed between the parties that title suit no. 1 of 1979 filed by Samsul Haque against the defendant no.1 with respect to the suit land, if will be disposed of in favour of the defendant no.1 within three years, the sale deed will be executed and registered within one month thereafter on payment of balance consideration amount of Rs. 84,951 as Rs. 10,000 was paid at the time of agreement. The said title suit no. 1 of 1979 was dismissed by 1st Additional Sub-Judge, Katihar. Then the plaintiff approached the defendant on several dates and offered the balance consideration amount of Rs. 84,951 but he evaded to receive and execute sale. deed. On 29.6.1988, Advocate notice was served on defendant no. 1. The defendant replied that he had never received Rs. 10,000/- as advance money and that the plaintiff never offered the balance consideration amount. The title suit no. 1 of 1979 was dismissed for default and the plaintiff of that suit has filed Misc. Case No, 1 of 1988 for restoration of title suit no. 1 of 1979 which is still pending. Since there was agreement between the parties that if the title suit no. 1 of 1979 will be decided within three years in favour of the defendant no. 1, the defendant will execute, and register the sale deed but when it was not decided within the said period, the said agreement become void agreement and unenforceable. It may be mentioned here that although written statement was filed by the defendant no. ,1, he did not contest.

(3.) The defendant no.14 filed written statement and contested the suit. She is subsequent purchasers from defendant no. 1. According to her also, the agreement dated 8.12.1980 is barred under Sections 29 and 35 of the Indian Contract Act and as the agreement is contingent contract, it cannot be enforced in law. The suit is based on contingent contract i.e. on the happening within unspecified time such as decree of title suit no. 1 of 1979 in favour of defendant no. 1. The defendant no. 1 had agreed to execute the sale deed if within three years title suit no. 1 of 1979 would be disposed of in his favour. When the said event did not take place within three years, the contract become void under Section 35 of the Contract Act. Besides taking various other pleas,. she alleged that in September 1992, she purchased 3 kathas out of R.S. Plot No. 217 and 1 katha out of R.S. Plot No. 218 from defendant no.1 in September 1992 pursuant to the Jarbayanama in her favour on 4.3.1992 executed by defendant no.1. After construction of a building she is residing in the said house. She had no knowledge about previous contract.