DINESH CHANDRA GUHA Vs. SATCHIDANANDA MUKHERJI

JUDGEMENT

(1.) PLAINTIFF is the appellant against a confirming judgment in a suit for specific performance of contract for sale. Originally, plaintiff prayed for specific performance of contract in respect of the properties described in Schedules A and b of the plaint, both of which are situate in Puri town. In the trial court, the claim, so far it related to the A schedule property, was given up, and the plaintiff confirmed his claim to the B schedule. Necessarily the subject-matter of this appeal relates to the B schedule property only.

(2.) THE case of the plaintiff, in brief is as follows: The disputed properties originally belonged to Umananda, Rhagendranath and others. In a partition suit of 1923, the a schedule land fell to the share of Khagendranath and his two brothers and the B schedule to Umananda. Thereafter, Umananda mortgaged the B schedule property to Nagendranath Mukherji, father of defendant Nos. 1 to 3. On 11-1-1935. Umananda sold a portion of the said land to one Kamalabala Dasi who in her turn sold the same to the original defendant No. 4 who died during the pendency of the appeal in the lower appellate court and was substituted by his legal representatives. The mortgagee filed Mortgage Suit No. 8 of 1940 on the file of the subordinate Judge, Burdwan and obtained a preliminary decree which was made final. In execution of the said decree in Ex. Case No. 27 of 1949, the property was sold and purchased by the mortgagee-decree-holders on 7-5-1951 and 8-5-1951. Plaintiff-appellant, it is stated, was interested in bidding at the auction sale, but was dissuaded by defendant Nos. 1 to 3 from doing so on their assurance that they would sell the property to him. Accordingly, defendant Nos. 1 to 3 entered into an agreement with the plaintiff to sell the property for a consideration of Rs. 1,000/ -. Out of the consideration, they received an advance of Rs. 800/- and promised to execute the sale deed on payment of the balance. As defendant Nos. 1 to 3 did not execute the sale deed even after tender of the balance consideration, the plaintiff filed T. S. No. 58 of 1957 in the court of the Munsif Puri for obtaining specific performance of the contract. On 10-3-1958, parties agreed to compromise the suit and entered into the agreement marked Ex. 3 which was executed by defendant No. 1 for self and as power-of-attorney holder of defendants Nos. 2 and 3. Under the terms of the compromise, it was agreed that the defendants will not proceed with the suit for partition of the properties which they had purchased in Ex. Case No. 27 of 1949 and the plaintiff would not proceed with the suit for specific performance which was pending in the court of the munsif, Puri. Defendants Nos. 1 to 3 further agreed to sell the suit property for a consideration of Rs. 1,500/- to the plaintiff, adjust the amount of Rs. 800/-which they had received on 11-3-1954 and on plaintiff paying the balance of Rs. 700/- to defendant No. 1 or their advocate by 2-1-1959, they would execute and register the sale deed by coming to Puri at the plaintiff's cost which was assessed at Rs. 30/ -. After this compromise containing the terms of the contract, defendant Nos. 1 to 3 did not turn up at Puri for recording the compromise till 8-1-1960, on which date, the compromise was recorded and the suit for specific performance was dismissed. It is alleged that both before and after 8-1-1960, plaintiff tendered the balance amount of Rs. 700/- to defendant No. 1 and called upon the defendants to execute and register the sale deed. Defendant No. 1 on some pretext or other avoided to comply and commenced negotiations with defendant No. 4 for sale of the B Schedule land. It is also stated that defendant No. 4 was looking after the limitation in T. S. No. 58 of 1957 and was fully aware of the contract. On these allegations, plaintiff sought specific performance against defendant Nos. 1 to 3 and also against defendant No. 4, in case it is found that he has taken a sale deed from the former.

(3.) DEFENDANT Nos. 1 to 3 in their written statement admit execution of the agreement (Ex. 3 ). In accordance with those terms, it is alleged that they withdrew the partition suit that was pending at Burdwan and ultimately the suit for specific performance which was pending in the Munsif's court was also dismissed. They, however, aver that the plaintiff never offered or tendered the balance consideration of Rs. 700/- in accordance with the terms of the contract contained in Ex. 3 on or before 1-1-1959, and as such he cannot claim specific performance or refund of Rs. 800/- which he had paid in 1954. According to them, defendant no. 4 had purchased the B Schedule land from Kamalabala Dasi on her representation that defendant Nos. 1 to 3 had no subsisting interest in the land as she happened to be the lessee under the Puri Municipality. Nevertheless, with a view to avoid any future trouble, defendant No. 4 wanted to purchase whatever rights defendant Nos. 1 to 3 possessed in the said property, and accordingly, they sold the B Schedule property to him under a registered sale deed dated 15-4-1960 for a consideration of Rs. 1,500/ -. The plaintiff is not entitled to enforce specific performance against defendant No. 4 who was a bona fide purchaser for value without any notice or knowledge of the suit contract. Defendant No. 4 in his written statement states that he had previously purchased some properties including the B Schedule property from. Kamalabala Dasi. To avoid any possible future trouble, he purchased the said property from defendant Nos. 1 to 3 for a consideration of Rs. 1,500/- on 14-5-1960. He being a bona fide purchaser for value without notice of any previous contract between the plaintiff and defendant nos. 1 to 3, relief for specific performance cannot be granted against him.