RANJIT ROY Vs. PURNENDU ROY
HIGH COURT OF GAUHATI
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Mir Alfaz Ali, J. -
(1.) This second appeal is directed against the judgment and decree dated 23.04.2008 passed by Civil Judge No.1, Cachar, Silchar in Title Appeal No.13/2007, whereby learned First Appellate Court upheld the judgment and decree passed by Munsiff No.2, Cachar in Title Suit No.109/2003 in favour of the respondents.
(2.) The respondent herein as plaintiff, (herein after referred to as plaintiff) instituted the Title Suit No.109/2003 for specific performance of contract and other reliefs. The case of the plaintiff was that the defendant/appellant (herein after referred to as defendant) entered into an agreement with the plaintiff to purchase a plot of land measuring 2 katha at a consideration of Rs.22,000/- and pursuant to such agreement for sale, the defendant accepted Rs.20,000/- as advance and executed a "binama" (a written agreement) for sale on 14.02.2002. It was stipulated in the said agreement that the defendant shall obtain NOC from the Deputy Commissioner within 2 years and shall execute the sale deed in favour of the plaintiff upon receiving the balance amount of Rs.2,000/-. After execution of the agreement for sale and acceptance of advance money, the defendant did not obtain the NOC/permission from the District Authority and was reluctant to execute the sale deed. The plaintiff/respondent finding no other way, issued notice on 06.09.2001, 02.10.2002 and 05.08.2003 asking the defendant to execute the sale deed, but the defendant did not execute the sale deed, though the plaintiff/respondent was always ready and willing to pay the balance amount and to perform his part of the contract. As the defendant failed to execute the sale deed as per the stipulation, the suit was instituted for the relief of specific performance of contract for execution of the sale deed, possession of the land and other reliefs.
(3.) The defendant contested the suit by filing written statement denying all the averments made in the plaint. Besides raising formal pleas like lack of cause of action, bar of limitation, non joinder and mis joinder of parties etc, specific case of the defendant was that he never executed the alleged deed of agreement for sale, nor accepted any advance money. It was further stated that there was business relationship between the parties and because of such business relationship, the defendant put his signature on some blank papers at the request of the plaintiff on good faith. The plaintiff with the intention to grab the landed property of the defendant committed fraud upon the defendant. On the basis of the above pleadings of the parties, learned trial Court (Munsiff No.2, Cachar) framed the following issues:
1. Is there any cause of action for the suit?
2. Whether the suit is bad for non-joinder and mis-joinder of necessary parties?
3. Whether plaintiff obtained any Binama vide which defendant agreed to convey the suit land in favour of the plaintiff and whether the plaintiff paid any consideration money to the defendant?
4. Whether plaintiff is entitled to any decree and/or relief as prayed for?;
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