RADHA KAMAL Vs. PURI MUNICIPALITY
HIGH COURT OF ORISSA
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Panigrahi, C.J. -
(1.) This is a second appeal by the unsuccessful plaintiff who has lost his suit for specific performance in both the Courts below.
(2.) The facts leading up to this litigation are briefly these. On 10-7-23 defendant No. 1, namely, the Municipality of Puri, granted a lease of 500 acres of land on the Beach Road to one Chandramoni Devi, the period for which the lease was to run being stipulated as twenty years. The lessee-assigned her leasehold interest by four different sale-deeds, to four different persons including the plaintiff, and his brother, Dr. Radha Kumud Mukherjee. Under these assignments the plaintiff and his brother, each acquired 120 acres of the entire lease-hold by virtue of two sale- deeds dated 26-5-1925. The other vendees from Chandramoni Devi were one Promode Sundari and one Amiya Nath Mukherjee. By an identure made on the 10th January 1944, defendant No. 1 granted a lease of the plot purchased by the plaintiff from Chandramoni Devi, to defendant No. 2, and by a subsequent sale-deed dated 9-6-1944 the second defendant conveyed the very same property to defendant No. 3. The case for the plaintiff is that he is entitled to a renewal of the lease granted to Chandramoni Devi his vendor in respect of the plot purchased by him from her and on the same terms and conditions as were contained in the original lease. The main contest put forward on behalf of the municipality is that there was a breach of one of the terms of the lease by the plaintiff and that, accordingly, he was not entitled to exercise the option of having the lease renewed as provided for therein. The municipality therefore contends that it was entitled to regard the original lease as having been cancelled and grant the plot in question to defendant No. '2. The plea of defendant No. 3 is that she was a bona fide purchaser of the plot for value without notice of the prior contract in favour of the plaintiff by the Municipality, and that therefore the plaintiff should not be allowed specific performance of the lease as against her.
(3.) Some of the terms of the lease granted to Chandramoni Devi which have a bearing on the decision of the dispute between the parties are given below:
" Clause (3): That you shall not by any means or in any way whatsoever transfer your holding or any portion thereof to any other person, without previously obtaining the written permission of the Chairman to do so and paying a transfer fee equal to 121/2 per cent, of the consideration money, provided that no such fee shall be less than one rupee. Clause (4): That you shall enjoy the fruits of all the trees on your holding but shall not cut down or in any way injure such trees without the permission of the Chairman. Clause (8): That the house that you shall erect shall be at least 10 feet away from the edge of the road and shall be constructed on a plan to be previously approved by the Chairman. Clause (13): That the lease may be cancelled by the Chairman if the building is not completed within 12 months of the date on which it was executed or within such further time as the Chairman may allow. On such cancellation the Chairman may, by notice in writing, require the lessee to remove within a reasonable time any plot (sic) which may have been commenced and not completed, or the materials which may have been collected on the land, and if he fails to comply with such notice the Chairman may, after giving further notice in writing specifying the time, cause such removal to be effected and recover the costs from him. Clause (17): That on the expiry of the term of this lease you shall, if you have duly observed all the conditions thereof, be entitled to its renewal, on such terms as may be agreed upon, the rent being liable to enhancement on such renewal. Clause (20): That in the event of the infringement of any of the above conditions the lease shall, ipso facto, terminate at once and you shall quit the holding as soon as you are required in writing by the Chairman to do so.";
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