- (1.) This is an appeal by the plaintiff Pratap Chandra Kayal whose suit against Kali Charan Acharya for damages caused by breach of a contract fails in both the Courts.
(2.) The contract dated April 23, 1937 (exhibit 1) was that Pratap would pay to Kalicharan Rs. 316/- by Chaitra's end of 1348 B.S. (1942) whereupon Kali Charan would reconvey moiety shares admeasuring 6.21 acres in certain plots of land. An 'ekrarnama' as that - such a familiar device - had to be resorted to, because Pratap had taken a loan of Rs. 300/- (as the averment in the plaint goes) from Kali Charan that very day, namely, on April 23, 1937 and executed a deed of sale (exhibit 2-a) in his favour for the same land reconveyance of which was secured by the 'ekrarnama'. Be that as it may, Pratap did tender the specified sum within the appointed time. But Kali Charan would not take it. That led to a suit for specific performance of the contract by Pratap against Kali Charan in 1945. It failed in the Court of first instance and the first Court of Appeal only to be decreed by this Court in second appeal on January 29, 1951. Exhibit A-1 is the certified copy of the Court's judgment. Pratap would not rest content with this success and all that followed: execution of a reconveyance on September 18, 1951 (exhibit 2) and getting into possession thereafter in 1358 B.S. (1951) of what was his: 6.21 acres of land. On January 27, 1954 he sued Kali Charan again - this time for damages the quantum of which was to be found out upon accounting on the basis of usufructs accrued to Kali Charan from 1349 B.S. (April 15 or so, 1942) to 1357 B.S. (April 14 or so, 1950).
(3.) The defence was a denial of the liability in fact and at law.;