Tarun Kumar Gupta, J. - (1.) THIS second appeal is directed against judgment and decree dated 24.11.2003 and 01.12.2003 respectively passed by learned Judge Second Fast Track Court, Hooghly in Title Appeal No.97 of 2002 reversing the judgment and decree dated 20.02.2002 of Specific Performance Contract passed by learned Civil Judge (Junior Division), 2nd Court, Hooghly (Sadar) in Title Suit No.53 of 1998.
(2.) APPELLANT/plaintiffs case, in short, is that on 30.04.1999 he sold the suit land to the respondent /defendant on receipt of consideration of Rs.10,000/- through a registered document. On the same date there was an agreement of reconveyance wherein defendant agreed to reconvey the suit property to the plaintiff if same consideration amount of Rs.10,000/- is paid to the defendant within eight years therefrom. Said agreement was, however, unregistered. After said sale plaintiff handed over the suit property to the defendant. The plaintiff on several occasions and lastly on 30.12.1997 and again on 12.2.1998 requested defendant to execute the sale deed on receipt of Rs.10,000/- and plaintiff was also ready with the money all the time but defendant did not execute the reconveyance deed as per terms of said agreement. Plaintiff sent a specific notice dated 23.04.1998 asking defendant to come to the Serasta of Kanai Ghosh at Sadar on 08.05.1998 in between 10-11 A. M. along with Rs.10,000/- for execution of the reconveyance deed but defendant refused to accept said notice. Accordingly, plaintiff filed said suit for Specific Performance of Contract. Defendant contested said suit by filing written statement denying execution of any agreement of reconveyance on the date of execution of sale deed by the plaintiff. It was specific case of the defendant that at the time of execution of said sale deed by the plaintiff defendants signatures were obtained on some blank papers on the plea that those papers would be required for the purpose of taking copy etc. and that the defendant relied upon one of his relations i.e., Robin Bag who was present there and that those unwritten papers bearing signatures of defendant might have been converted into a valuable document namely alleged agreement of reconveyance. The defendant never executed any such deed of reconveyance. The defendant also denied other material allegations of the plaint.
(3.) ON the basis of the pleadings of the parties several issues were framed and learned Trial Court decreed the suit for Specific Performance Contract. However, learned Trial Court expunged the evidence of Tarapada Pal (P.W.3) who proved the deed of reconveyance alleged to be executed by the defendant on the ground that he was not tendered for cross-examination by the defendant. Against said judgment and decree of Specific Performance Contract defendant preferred an appeal in the First Appellate Court wherein the appeal was allowed reversing the judgment and decree of the Trial Court. Being aggrieved with said judgment of Lower Appellate Court this second appeal has been filed. At the time of admission of the second appeal the Division Bench framed following three substantial questions of law. (a) Whether the learned Court of Appeal below committed substantial error of law in reversing the judgment and decree passed by the Learned Trial Judge on sole ground that evidence of P.W.3 having been expunged, the appellant could not get relief by totally overlooking the fact that even the defendant admitted putting his signature on disputed deed. (b) Whether the learned Court of Appeal below committed substantial error of law in not setting aside the order No.58 dated 20.02.2002 passed by the learned Trial Judge in exercise of power conferred under Section 105 of Code of Civil Procedure. (c) Whether the learned Court of Appeal below committed substantial error of law in reversing the judgment and decree passed by the learned Trial Judge by not taking into consideration the fact that the defendant in spite of knowledge that he had put his signature on a blank paper did not challenge the said deed by filing separate suit or by filing counter claim in the proceeding. ;