PANCHANANDA KUNDU Vs. RAJANI KANTA PAL

JUDGEMENT

(1.) This is an appeal from a decision of the Subordinate Judge, First Court, Dacca, reversing a decision of the Munsif at Munshiganj. The matter out of which this appeal has arisen was a suit for specific performance of a contract for the sale of certain land said to have been made by defendant 1 on behalf of himself and his two minor brothers. The land in question was a feel in Mouza Deoshair. The plaintiff's case was that in the latter part of Magh 1332 B. S. defendant 1 entered into a verbal contract with him for the sale of the land in question at the price of Rs. 1,850 and that the defendant by way of earnest took back from him a bond for Rs. 96 which had been executed by defendant l's father in favour of the plaintiff. The plaintiff further said that afterwards defendant 1 took back three other bonds which had then recently been executed for an aggregate sum of Rs. 200 on the understanding that the debt of Rs. 200 for which they were security would be credited towards the consideration for the conveyance of the land in suit. The plaintiff further said that subsequently defendant 1 took from him a sum of Rs. 50 in cash also on account of the purchase price and agreed to execute a deed of sale on behalf of himself and his minor brothers upon getting permission on that behalf from the District Judge. Subsequently defendant 1 was induced to execute and indeed in fact executed a bayanapatra for the sale of the same land to defendants 2 and 3. The plaintiff did not seek to enforce the contract as against the minor brothers of defendant 1 but brought the present suit for the enforcement of the contract as against defendant 1 only in respect of his one-third share of the land in question and he made an alternative claim that in case the contract could not be enforced a decree should be made for the return of the consideration money which he had already paid on account of the price.

(2.) The suit was contested by all the defendants and they denied both the making of the contract of sale and the payment of any consideration money on account of it. Defendants 2 and 3. put forward as their case that defendant 1 had entered into a contract for sale of the land in question with them for the price of Rs. 3,000 out of which they had deposited Rs. 500 on account of the price. Defendants 2 and 3 also denied that they had any notice or knowledge of any prior contract between defendant 1 and the plaintiff. The learned Munsif after a consideration of the evidence found that there was no concluded agreement between defendant 1 and the plaintiff for the sale of the land in question and also found as a fact that the plaintiff did not return any bonds to that defendant and he came to the conclusion that the case set up by the plaintiff was a false case which he was unable to prove. When the matter came before the Subordinate Judge of Dacca on appeal however he after a very careful review of the evidence, came to the conclusion that there had been a concluded agreement between the plaintiff and defendant 1 which was capable of enforcement at law and also found that there was evidence on the record that defendants 2 and 3 had notice of the prior contract mad (c) between the, plaintiff and defendant 1. In the course of his judgment the learned Subordinate Judge says: I am unable to agree with the learned Munsif that the contract between the plaintiff and defendant 1 was not a concluded agreement which was capable of specific performance. On the contrary I think that there was sufficient and reliable evidence before him for taking the opposite view that the contract was a concluded agreement which was capable of enforcement.

(3.) He then proceeded to deal with the question of the remedy to which the plaintiff was entitled and gave the plaintiff a decree upon the footing that the plaintiff was entitled to get from defendant 1 a conveyance of the latter's l/3 share in the land in question upon paying to defendant 1 the sum of Rs. 266-10-8 which represented the sum which, together with the amount which the plaintiff had already paid to or had been allowed by defendant I towards the amount of the price, would come to Rs. 616-10-8, that is to say l/3 of the total purchase price of Rs. 1,850. The learned Subordinate Judge made an order that the plaintiff should within one month from the date of the judgment deposit in Court the sum of Rs. 266-10-8 to the credit of defendant 1, whereupon defendant 1 should within two months execute and register a conveyance in respect of his l/3 share of the land in suit in favour of the plaintiff and that on the defendant's default to execute and register the kobala the same shall be executed and registered by the Court on his behalf.