KUNJA BEHARI GHOSE Vs. LALIT MOHUN SINGH ROY

JUDGEMENT

(1.) This is an appeal from the judgment of the learned Additional District Judge of 24- Pergannas, by which he allowed the appeal to him and dismissed the plaintiff s suit.

(2.) It was a claim for the return of Rs. 1,000, which had been paid by the plaintiff to the defendant in pursuance of a contract for a lease which was to be granted by the defendant to the plaintiff The material part of the contract runs as follows: It was in respect of 103 bighas of land, and the defendant agreed to execute a maurasi mokarari lease on the annual rent of Rs. 200; and the premium was to be Rs. 1,200 and the terms were these: "I execute this agreement oil receipt of Rs. 1,000 as earnest money on account of salami from you today and promise that on reoeipt of the remaining Rs. 260 from you within the month of Chaitra of the current year, I shall execute and register a maurasi mokarari patni patta in your favour at the said rent and for the said salami.... Be it stated that if for any special reason the said maurasi patni patta is not executed, I shall repay the earnest money which I have taken from you to- day land my heirs and representatives shall be bound by the terms of this deed of agreement.

(3.) Now, it appears that the defendant had purchased the property from one Chaitan Ghose, and at the time the agreement was made the defendant had deposited with the plaintiff the title-deed in respect of the property. It further appears that Chaitan Ghose had mortgaged 63 out of the 103 bighas to the father of Panchanan and Mahadeb Singh Roy in the year 1311 by means of what is called a usufructuary mortgage. That was for a specific term of years and was to expire, according to the terms of the mortgage, in Baisakh of 1320. At the same time the mortgagee had granted a lease to Chaitan Ghose of these 63 bighas, which was for a specified term and was to continue up to and including the whole of the year 1319. Consequently the position was this: The mortgage was to come to an end at the end of Chaitra 1319 and the lease was to come to an end at the end of Chaitra 1319, that is to say, the lease of Chaitan Ghose, by the mortgagee, and the contract between the plaintiff and the defendant was to be completed within Chaitra 1319. The lease was not completed as was provided by the contract between the plaintiff and the defendant and this suit has been brought for the return of Rs. 1,000 which was paid as premium under the contract.