NRISINGHA CHARAN NANDY CHOUDHURY Vs. TRIGUNAND JHA KHOWARE

JUDGEMENT

(1.) This is an appeal by the plaintiff against the judgment and decree of the learned District Judge of Santal Parganas dated 24 August 1936 dismissing the appeal of the plaintiff against the judgment and decree of the learned Subordinate Judge dated 29 March 1932 by which the suit of the plaintiff was dismissed.

(2.) This suit was instituted for specific performance of contract to sell which was said to have been entered into by defendant 1 with the plaintiff on 22nd April 1928; the defendant second party to the action claimed title to the property in question by virtue of a sale deed executed in his favour by defendant 1 about two months after the contract relied upon by the plaintiff. The principal questions raised by the defence were whether the suit for specific performance of contract was maintainable in the Santal Parganas and secondly whether the defendant second party had notice of the contract of sale in favour of the plaintiff.

(3.) One of the issues in the case which has given rise to serious controversy was as to whether the suit had been purposely overvalued and it arose in this way The plaintiffs had valued the suit at Rs. 5100, namely Rs. 4400 as the value of the property and Rs. 700 as the approximate value of the mesne profits from the date of the contract till the date of delivery of possession assessed tentatively at Rs. 700. The learned Subordinate Judge, as already stated, dismissed the suit by his judgment dated 29 March 1932 and the decree which followed the judgment was prepared on 20 April following. Within 12 days thereof the appellant preferred an appeal to this Court which was numbered as First Appeal No. 94 of 1932. One of the grounds in she memorandum of appeal is ground No. 16 which challenged the finding of the trial Court that the plaintiff had calculated the mesne profits to which he was not entitled with the object of overvaluing the suit. This ground was necessary in view of the remarks and finding of the learned Subordinate Judge that the plaintiff had no cause of action with respect to the mesne profits pendente lite and because in his view the amount of mesne profits which could be validly claimed would be only Rs. 83, that is between the date of the contract and the date of the institution of the suit.