TARUN KUMAR GUPTA,J. - (1.) THESE two second appeals arise out of an analogous judgment and decree dated 15 th September, 1998 passed by learned Additional District Judge, 5 th Court, Alipore in Title Appeal No.72 of 1997 and Title Appeal No.71 of 1997 affirming analogous judgment and decree dated 28 th February, 1997 passed by learned Assistant District Judge, First Court, at Alipore in Title Suit No.157 of 1984 and Title Suit No.52 of 1994.
(2.) THE respondent Sudhir Chandra Das filed one suit being Title Suit No.157 of 1984 alleging that he entered with an agreement dated 17 th of March, 1984 with the original appellant defendant Kalyan Kumar Talukdar for purchase of the suit property at a total consideration of Rs.42,000.00 out of which he paid Rs.15,000.00 to Kalyan Kumar Talukdar as earnest money and came into possession of the suit property on the strength of said unregistered agreement. Though there was a clause in the agreement that the transaction was to be completed by 31 st of October, 1984 but time was not the essence of the contract. However, Sudhir was all along ready and willing to perform his part of contract and sent a lawyer 's letter dated 25 th of October, 1984 asking Kalyan to execute the kobala. Sudhir received on 29 th October, 1984 a letter dated 25 th of October, 1984 from Kalyan asking him to complete the transaction within the time frame. On the same date (29.10.1984) Sudhir sent a letter to Kalyan enclosing a copy of sale deed and a copy of bank draft towards the payment of the balance consideration of Rs.27,000.00 to Kalyan asking him to complete the transaction within the time frame. Kalyan sent a letter dated 5 th of November, 1984 to Sudhir extending time till 15 of November, 1984 but the contents of the letter were vague and misleading. Sudhir requested Kalyan to be present at the registration office on 31.10.1984 for completion of transaction and sent one Sukumar Banik to Kalyan in the morning of the day but Kalyan misbehaved with him resulting filing of one G. D. being G. D. Entry No.2020 dated 31.10.1984. Accordingly, the suit for specific performance of contract was filed. The original appellant as defendant filed a written statement denying material allegations of the plaint and contending inter alia that as per agreement dated 17.03.1984 the transaction was required to be completed by 31 st of October, 1984 and that it was specifically made therein that one day 's delay would be fatal and that time was the essence of the contract. It is further alleged that Sudhir 's letters dated 25.10.1984 and 29.10.1984 were received by him only on 05.11.1984 and that he replied to Sudhir by allowing him to take steps for completion of the contract by 15 th of November, 1984 but Sudhir without taking any step for completion of the contract during said extended time filed the suit on 13.11.1984 on false grounds. After several years Kalyan filed an additional written statement alleging that Sudhir was put into possession of the property as a licensee at a licence fee of Rs.700.00 per month till purchase of the property within stipulated time but Sudhir never paid said licence fee. It was further alleged that before making agreement with Sudhir he entered into an agreement for sale of the suit property to one Tapas Ghosh for Rs.52,000.00 but Tapas Ghosh was compelled to cancel said agreement under compelling circumstances and that one local person named Samir Sen compelled him to make said agreement of selling out the suit property to Sudhir at a low price of Rs.42,000.00 and that Sudhir gave Rs.5,000.00 to Samir Sen on that score. The original appellant Kalyan later on filed a suit being Title Suit No.52 of 1994 alleging that at the time of handing over possession to Sudhir there was a verbal contract that upto 31.10.1984, i.e. upto the date of purchase pursuant to the agreement which was executed earlier, Sudhir should go on paying Rs.7,00.00 per month to him as licence fee but as Sudhir failed to pay the same Sudhir was liable to be evicted therefrom being a person in possession of the property illegally even after revocation of his licence.
(3.) SUDHIR filed a written statement in said suit denying the allegations of possessing the property as a licensee requiring payment of licence fee and reiterated his case as made out in his plaint of Title Suit No.157 of 1984. Learned Trial Court tried both the suits analogously and allowed respondent Sudhir 's suit praying for specific performance of contract thereby dismissing Kalyan 's suit for recovery of possession by a common judgment dated 28 th February, 1987. The defendant Kalyan filed two appeals being Title Appeal No.72 of 1997 and Title Appeal No.71 of 1997 against two decrees which were dismissed by learned Lower Appellate Court by the analogous judgment and decree date 15 th September, 1998. Hence these two second appeals were filed by the original appellant / defendant Kalyan.;