SM PARUL BALA GHOSH Vs. SAROJ KUMAR GOSWAMI

JUDGEMENT

(1.) This appeal is by the plaintiff. The plaintiff instituted the suit out of which this appeal arises, for specific performance of a contract of sale of the disputed land or, in the alternative, for a refund of the sum paid by the plaintiff to defendant 1.

(2.) The plaintiff's case, briefly stated, was that defendant 1 entered into a contract to sell the disputed land towards the end of Jaisth 1345 B.S. the agreed price being Rs. 199 which was to be paid by the middle of Sraban 1345. The plaintiff paid Rs. 3 as cost of stamp and a sum of Rs. 55 towards the price on 26-3-1345. Defendant 1 executed a deed of sale on 6 Sraban 1345, the date and the nature of the rayati contracted to be sold being left blank. The title deeds were made over to the plaintiff who paid, at the time, a further sum of Rs. 95; a sum of Rs. 49 remained due. Out of this a sum of Rs. 5 was paid during Durgapuja and Rs. 26 during the X mas vacation in Pous 1345. The remaining sum of Rs. 18 was paid during the Id holidays in 1345 B.S. when defendant 1 made over two dakhilas Ex. 4, 4a. Though the entire consideration was paid as above, defendant sold the land to defendants 2-3 who had knowledge of the contract to sell with the plaintiff; hence the suit.

(3.) The case of defendant 1 is that there was a contract of sale but the consideration was Hs. 299 viz., Rs. 199 payable to defendant 1 and Rs. 100 as rent and landlord's fee to be paid to the landlord out of which Rs. 50 only was paid on 29 Asarh 1845, the balance was agreed to be paid within 5 or 6 Sraban 1345; in default the sum of Rs. 50 was to be forfeited. The defendant executed the kobala with the blanks as aforesaid and made over the title deeds on that date, but as the plaintiff did not pay the balance of the agreed price on that date, the Hanks were not filled up and the contract fell through and thereafter defendant 1 sold the disputed land to defendants 2-3.