- (1.) THIS Court has heard the learned Advocate for the plaintiffs/appellants. The plaintiffs/appellants filed a suit for specific performance of contract. The plaintiffs? case in short was that the defendant/respondent and one Hariram Agarwalla were the joint owners of the suit property each having moiety share in the same. Plaintiffs? further case was that one Basdeo Jhunjhunwalla was the thika tenant and owner of the structures in the suit property and from Basdeo Jhunjhunwalla the original plaintiff purchased the thika tenancy right and also the said structures on 4.3.1975 and the original plaintiff intended to purchase
(2.) MOKARARI Mourasi interest from the defendant and the proforma- defendant in the suit. The defendant/respondent being one of the superior landlords, on his own behalf and on behalf of the proforma?defendant, entered into an agreement for sale of their MOKARARI Mourasi interest with the original plaintiff on 8.3.1975 at a certain consideration and deed of agreement was executed to that effect. The defendant/respondent received a certain sum of money from the original plaintiff on the date of the agreement. The plaintiffs? further case was that the defendant/respondent failed to deliver the title deeds to the plaintiff in terms of the agreement and subsequently the proforma-defendant filed a suit being T.S. No.10 of 1975 against the defendant/respondent on the ground that the defendant/respondent had no authority to enter into an agreement on behalf of the proforma-defendant (Hariram Agarwalla) but the said suit was disposed of in terms of compromise wherein Hariram Agarwalla agreed to sell his half share to the plaintiff. The plaintiff sent a notice for completion of the transaction but the defendant/respondent did not comply with such request and thus the suit was filed by the original plaintiff. The suit was contested by the defendant/respondent by filing a written statement denying the material allegations made in the plaint but admitted that the plaintiff paid a certain sum of money as earnest money. It was further alleged by the defendant/respondent that the Mokarari Mourasi interest of the land has vested in the State free from all encumbrances and as such the cause of action has abated. The said suit came up for hearing before the learned Trial Court and the learned Trial Court by judgment and decree dated 21st May, 1983 decreed the said suit in part to the effect that the plaintiff got a decree for Rs. 5,550.50 P and interest at the rate of Rs. 6 per cent per annum from the date of execution of the deed, that is, 8.3.1975 till the amount is paid. It appears that the name of the proforma-defendant No.2 was struck off the records and at the time of hearing of the suit the plaintiff wanted to enforce the agreement of specific performance against the defendant/respondent alone. The learned Trial Court found that the defendant/respondent had admitted the agreement for sale dated 8.3.1975 and the fact that he received Rs. 11,101 as earnest money. It was further found by the learned Trial Court that Ext. 4 is the registered sale deed executed by the heirs of Hariram Agarwalla in favour of the plaintiff in respect of his half share and Ext. 6 is the certified copy of the registered sale deed by which the plaintiff purchased the thika tenancy right of Basdeo Jhunjhunwalla and Ext. 5 is the registered deed of gift executed by Lakshminarayan Birhiwalla in favour of his sons. The learned Trial Court found that the plaintiffs are, admittedly, the thika tenants in respect of half of the suit property under the defendant/respondent. The learned Trial Court came to the conclusion that in view of Section 4 and Section 5 of the Calcutta Thika Tenancy (Acquisition and Regulations) Act, 1981 the landlord?s interest in the land has vested in the State free from all encumbrances with effect from 2nd November, 1981 and as such the defendant/respondent was no longer the owner of the suit land and, thus, he is not entitled to execute any deed of sale in favour of the plaintiff. The learned Trial Court found that since the defendant has admitted that he took Rs. 11,101/- as earnest money for the entire property half of the said amount was given to the proforma-defendant (Hariram Agarwalla) that plaintiff is entitled to get back Rs. 5,550.50p and interest at the rate of 6 per cent per annum from the date of the execution of the agreement till the payment is made.
(3.) CHALLENGING the aforesaid judgment and decree passed by the learned Trial Court the plaintiff filed title appeal No. 194 of 1983 and the defendant/respondent filed title appeal No. 217 of 1983. Both the aforesaid title appeals came up for hearing before the learned Third Court of the Additional District Judge, Howrah who by judgment and decree dated 24th March, 1987 allowed the title appeal No. 194 of 1983 in part by holding that the plaintiffs? prayer for specific performance of contract against the defendant/respondent fails but the plaintiffs? prayer for recovery of the entire earnest money of Rs. 11,101/- is allowed and the defendant/respondent will pay the aforesaid sum to the plaintiffs within three months from the date of the decree failing which the plaintiff will be entitled to execute the decree. The learned Lower Appellate Court dismissed the title appeal No. 217 of 1983 filed by the defendant/respondent. The plaintiffs/appellants have filed the present second appeal challenging the impugned judgment and decree passed by the learned Lower Appellate Court in T.A. 194 of 1983. The learned Lower Appellate Court held that the impugned judgment will govern both the title appeals. The learned Lower Appellate Court found that during the pendency of the suit the said Act of 1981 came into force and the interest of the landlords vested in the State free from all encumbrances and the thika tenant became tenant directly under the State. The learned Lower Appellate Court found that on the date of execution of the agreement for sale the landlord had a good title to the property but owing to the fact that the said Act of 1981 subsequently came into force the landlord cannot deliver any title to the plaintiffs and it is a case where Section 17 of the Specific Relief Act applies mutatis and mutandis.;