NAGARBASHI BANIK Vs. MEGHNATH MAISHAN

JUDGEMENT

(1.) This appeal is from a decision of the District Judge of Tipperah confirming a decision of the Munsif, 3 Court, Brahmanberia, and arises out of a suit for specific performance of a contract for the sale of some land within the town of Brahmanberia together with two?huts standing thereon. The plaintiff's case was that defendants 1 and 2, to whom the land and house in question belonged, entered into a contract with him to sell them to him for a sum of Rs. 525, that he paid Rs. 125 as earnest money, that the defendants executed a baynapatra in his favour on 22nd Agrahayan 1322 B. S., and that subsequently they sold the land and houses to defendant 3, who in his turn transferred them to defendant 4.

(2.) It appears that at the trial the baynapatra, not having been registered, was not admitted in evidence by the Munsif as creating a charge upon property following the decision of the Judicial Committee of the Privy Council in the case of Dayal Singh V/s. Indar Singh A.I.R. 1926 P.C. 94, and thereafter the suit proceeded on the footing that it was for the refund of the earnest money, and issues were framed accordingly. In the result the Munsif found that the plaintiff was entitled to a refund of the earnest money and a decree was given accordingly. The plaintiff then preferred an appeal to the District Court, and the learned District Judge, while expressing some doubt as to the view of the law taken in the trial Court with regard to the baynapatra and the necessity for its registration, held that the granting of specific relief was a matter for the discretion of the Court. He considered therefore that it was not necessary to remand the case and dismissed the appeal.

(3.) The plaintiff has now preferred this second appeal, and it has been urged on his behalf that, having regard to the finding arrived at by the learned District Judge to the effect that Act 2 of 1927 was applicable to the case, the learned Judge erred in law in not remanding the case for the trial of the other material issues.