SK KHADIMUL HAQUE Vs. MARAI DUBEY

JUDGEMENT

(1.) This appeal arises out of a suit for specific performance of an oral contract dated the 7th August, 1954 said to have been arrived at between the plaintiff on one side and defendant No. 1 on the other for the sale of an immovable property, namely, the land having an area of 1 bigha 8 kathas 12 dhurs which admittedly then belonged to defendant No. 1. It appears that long before the 7th August, 1954 that property had already been given in Ijara to the plaintiff and one Bhikhari Dubey under a registered document for a sum of "Rs. 2,000/- by defendant No. 1. Thereafter, on the 9th August, 1954, defendant No. 1 executed two deeds of sale (Exts. A and A/1), the former in favour of defendants 5 to 7 and the latter in favour of defendants 2 to 4, each for a sum of Rs. 2,000/- in respect of practically half and half of the property in dispute. The case of the plff. is that these two sale deeds are not binding on him and that under the oral contract dated the 7th August, 1954, defendant No. 1 was bound to execute the deed of sale in respect of the property in favour of the plaintiff for a sum of Rs. 3,600/- as agreed upon thereunder. According to the plaintiff, the stipulation under the contract was that out of Rs. 3,600/-, Rs. 2,000/- was to be paid towards the ijara money under the ijara deed executed in his favour by defendant No. 1 and that Rs. 1,500/- was to be paid in cash on the date of the contract for sale and the balance of Rs. 100/-was to be paid on the day of the execution of the document which was undertaken to be executed by Aswin 1362 Fasli and hence the suit for the specific performance of the contract dated the 7th August, 1954 and in the alternative for recovery of Rs. 1500/- paid by the plaintiff to defendant Xo. 1 as claimed by him on the 7th August, 1954.

(2.) In defence, the contract for sale was challenged by all the contesting defendants, namely, defendants 2 to 7; but defendants 2 to 4 admitted in their written statements that there was a debt payable by defendant No. 1 to the plaintiff under bahi khata, and that was to the tune of Rs. 1500/-. Further, they also admitted that in the deed of sale dated the 9th August, 1954 which is Ext. A/1 on the record a sum of Rs. 1500/-, out of its total consideration of Rs. 2,000/- was left with them for the payment of that amount towards the satisfaction of the debt of the plaintiff in respect of the aforesaid sum of Rs. 1500/-. The main defence however of all the contesting defendants, namely, defendants 2 to 7, in respect of the claim about it consisted of the fact that the sum of Rs. 1500/- left with defendants 2 to 4 under the deed of sale (Ext. A/1) was already paid by them to the plaintiff. Therefore, the common plea raised on behalf of all the defendants was that the plaintiff was not entitled either to the specific performance of the contract or to the recovery of Rs. 15007- as claimed by him.

(3.) Both the courts below have concurrently found that the story about the contract for sale, as claimed by the plaintiff, is not true, and this finding has not been challenged before me. But they have further found that the plea of payment in regard to Rs. 1500/-, as set up by defendants 2 to 7, has not been established. Accordingly, a decree for a sum of Rs. 1500/- along with certain interest by way of damages has been decreed by both the courts below. Defendants 2 to 7, therefore, have now come up in second appeal to this Court.