MEHAR KHATUN Vs. SARAT KUMAR KANUNGOE

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment and order of the High Court Division in Second Appeal No. 201 of 1982.

(2.) Defendant is the appellant. Plaintiff respondent filed the suit being O. Suit No. 93 of 1964 in the Court of Munsif, Chittagong for ejectment of the defendant M. A. Sattar (predecessor of the appellant). His case was that the defendant was a friend of his and on his request the plaintiff gave the defendant and his family temporary accommodation in his premises in 1956 on clear understanding that they would vacate the same on securing alternative accommodation. The defendant was making delay in finding alternative accommodation and when the plaintiff told him to vacate the defendant gave out that he has already purchased a plot of land and would leave that the suit premises after construction of his house; even after construction of the house the defendant let it out to other which made the plaintiff suspicious. So he pressed the defendant to vacate when the defendant said that he would be vacating on securing an alternative accommodation; the defendant did not do so, therefore, finally plaintiff served a registered notice on 6.4.64 asking the defendant to vacate the suit premises within 7 days, whereupon the defendant instead of vacating the house replied he was occupying the house on a contract for sale and hence the suit for ejectment.

(3.) The defendant Sled written statement and his case was that he approached the plaintiff for finding any suitable house for purchase when the plaintiff offered the suit house at a price of Tk. 1000/-; that the price has to be paid in installment of Tk. 5000/-; that on 14.8.56 the plaintiff accepted Tk. 1000/- as earnest money; that the plaintiff told the defendant to keep the transaction secret as his aunt Nalins kusim was his co-sharer in the suit house; that the plaintiff had assured to execute the kabala after obtaining a Nadabi from his aunt; that the defendant paid Tk. 7100/- in all upto February, 1963 and was willing to pay the balance and that he was in possession in part performance of the contract. On this averment the suit was contested.