- (1.)This application has been taken out in the aforesaid partition suit after the same being disposed of by passing a decree and order on the basis of the terms and settlement dated 11th October, 1993. The reliefs claimed herein are for setting aside of order and decree passed by the Hon'ble Mr. Justice BabulalJain (as His Lordship then was) and for granting leave to the petitioner to file appropriate application for setting aside of the deed of conveyance dated 12th October, 1993 in respect of the premises No. 17, Loudon Street, Calcutta in appropriate form. The fact of the case in the petition runs as follows :- The said premises No. 17 Loudon Street, Calcutta - 700 017 (hereinafter referred to as the said premises) in which the defendant/ petitioner was a monthly tenant in respect of the ground floor, as well as the first floor thereof, was owned absolutely by one Smt. Pritilata Kanjilal since deceased. Before her death she made and published her last will and testament bequeathing amongst others, her right, title and interest in respect of the aforesaid premises in favour of one Smt. Lina Mukherjee. The said Smt. Lina Mukherjee applied for grant of probate of the said will and the same was contested by one Sankar Kanjilal. The said testamentary suit, in which probate of the will of the said testatrix was asked for, was disposed of on term of settlement. By the agreement dated 18th July, 1986 the said Smt. Lina Mukherjee and Sankar Kanjilal agreed to sell the said premises at a total consideration of Rs. 20 lacs. In terms of the said agreement a sum of Rs. 2 lacs was paid as and by way of earnest money and part payment at the instance of the petitioner. The said Sankar Kanjilal was also paid a sum of Rs. 8 lacs by the petitioner for relinquishing his claim in respect of the said premises in terms of compromise with Lina Mukherjee In connection with probate proceedings. The petitioner having had no sufficient means and fund to develop and promote the said property asked the aforesaid plaintiff Raj Kumar Rawala to join with him for developing and promoting the premises after demolishing the structure. The said development project was assessed at Rs. 50 lacs. Thereafter, a deed of conveyance was executed by said Smt. Lina Mukherjee in favour of both the plaintiff and defendant in the suit, thus, the property was sold to them jointly. It is said that the petitioner/defendant had paid the balance consideration money of Rs. 18 lacs to the said Lina Mukherjee and the plaintiff did not contribute a single paise towards the said consideration. Thus, the plaintiff's name was mentioned in the conveyance without any payment of consideration, therefore, the plaintiff did not acquire any right, title and interest in the suit property on the strength of the said deed of conveyance. The plaintiff in breach of the agreement failed and neglected to take any step for demolishing the building for promoting and developing thereof. Instead of discharging his obligation in terms of the development agreement the plaintiff had filed a partition suit in or about 1991. In the plaint the plaintiff falsely stated his right of 15th/16th share in the said premises, and wrongly contended that the petitioner/defendant had 1/16th share.
(2.)On receipt of the writ of summons the defendant/petitioner filed written statement and stated all the aforesaid facts. The plaintiff also made an application for interlocutory relief of the aforesaid suit for appointment of Receiver and injunction. The said application for interlocutory relief came to be heard before the Hon'ble Mr. Justice Babulal Jain as "New Motion" on 5th May, 1993 and an order of injunction was passed restraining both the parties from creating any tenancy or-inducting any party or for parting with possession of any portion of the said premises. Both the parties were restrained from altering status quo as on that date in respect of the occupants or tenants in any manner whatsoever.
(3.)On 9th October, 1993 the petitioner was called by the plaintiff through the messenger to meet the plaintiff at his office at 75C Park Street, Calcutta. There the petitioner was compelled to sign an agreement alleged to be the terms of settlement under threat and coercion without giving any opportunity being aware of the contents of several documents. On the very next date the said terms of settlement which was got to be signed under the circumstances as stated above, was filed in Court and on the basis of said terms of settlement a decree was passed in the preliminary form. The said terms of settlement was not a document of outcome of free will or volition of the petitioner. On the next date, namely, 12th October, 1993 the petitioner was again compelled to attend the office of the plaintiff and'to sign the deed under threat and coercion. At that time the petitioner was surrounded by the plaintiff and his associates and the petitioner was taken to the Registrar of Assurances where the said conveyance was registered. He was not aware of the contents of the said conveyance either at the time of registration thereof. After the same was done the petitioner was paid a sum of Rs. 1 lac 90 thousand at the office of the plaintiff. It was represented that the amount of Rs. 1 lac 90 thousand was the price of the petitioner's share of the said property. At the time of payment the petitioner was informed that he had executed a registered deed of sale of his alleged 1/16" share in the suit property.
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