- (1.) This Court has heard the learned Advocates for the respective parties and has considered the materials on record. The facts of the case, very briefly, are as follows:
(2.) The plaintiff/respondent filed a suit being Title Suit No. 04 of 1993 against the predecessors -in -interest of the present appellants praying, inter alia, for a decree for specific performance of contract for sale of the property described in 'A' schedule to the plaint. The plaintiff, alternatively, prayed that if the Court finds a decree for specific performance of contract for sale cannot be granted by the Court to the plaintiff then a decree for refund of the earnest money with damages in terms of Schedule 'B' to the plaint should be granted in favour of the plaintiff. The plaintiff's case was that the original defendant entered into an agreement for sale with the plaintiff for sale of the 16 sataks of land in question in terms of an agreement for sale dated 04.02.1992. The said agreement for sale has been marked as exhibit -1 in the suit. According to the plaintiff, even though in the agreement for sale it was mentioned 16 sataks of land, it was also stipulated in the said agreement that if on the actual measurement it is found that the land in question is less than 16 sataks, then in that event the said land would be sold at the rate of Rs.15,000/ - per cottah. Since the said 16 sataks is roughly equivalent to 10 cottahs the total price that was fixed for the said purchase was Rs. 1,50,000/ -. Out of such consideration money the defendant had accepted Rs.60,000/ - and the balance Rs.90,000/ - was required to be paid by the plaintiff in terms of the said agreement. According to the plaintiff the measurement was done and it was found to be 8 cottahs 14 chittaks 24 square ft. of danga land. The plaintiff, accordingly, prayed for a decree of specific performance on the basis of such measurement as the defendant was trying to avoid the agreement. The defendant contested the said suit by filing a written statement and it appears that such written statement was also amended subsequently; a plea was taken that the subject matter of the agreement for sale was an unpartitioned property and the area of land purchased by the original defendant was 16 and 1/2 sataks and thus it appears that a dispute was raised with regard to the measurement of the land. The said suit was placed before the learned Civil Judge (Senior Division), 3rd Court, Howrah and the learned Trial Court by judgement and decree dated 29th June, 2002 decreed the said suit in part by directing that the plaintiff does get a decree for refund of the earnest money of Rs. 60,000/ - from the defendant and direction was given to the defendant to deposit such money in Court as stipulated in the said decree. The plaintiff was aggrieved by the said judgement and decree of the learned Trial Court and, consequently, filed Title Appeal No. 139 of 2002 which was placed before the learned 3rd Court of Additional District Judge, Howrah and the learned First Appellate Court by judgement and decree dated 22nd December, 2003 allowed the said Title Appeal by granting a decree to the effect that the plaintiff is entitled to get a decree for specific performance of contract for sale and the plaintiff was directed to deposit the balance consideration money before the learned Court concerned within the stipulated period of time and the defendants (on the death of the original defendant, the present defendants/appellants were substituted) were directed to execute a sale deed in favour of the plaintiff within a stipulated period of time.
(3.) It may be noted here that the learned Trial Court was of the view that the condition number 3 in the said agreement dated 04.02.1992 gave an unfair advantage to the plaintiff over the defendant and thus the Court, according to the learned Trial Court, can refuse to grant a decree for specific performance of contract. The learned Trial Court was of the view that reliance cannot be placed on measurements done by the surveyor at the instance of the plaintiff as according to the learned Trial Court the basis of the measurement done by the surveyor is not clear and it cannot be said from the documents adduced in evidence that the defendant had participated in such measurement -work. It appears from a perusal of the judgement of the learned Trial Court that the learned Trial Court was not satisfied with the measurement done by the surveyor at the instance of the plaintiff and the marking made by the surveyor did not appear to be a correct one. The learned Trial Court found that in the plan, which was sought to be brought on record, there is no signature of any of the parties. The learned Trial Court found that in the exhibit -12, which is included in an exercise book, also no signature of the parties appear and thus the learned Trial Court came to the conclusion that it cannot be proved that both the parties had participated at the time of survey work. The learned Trial Court came to the conclusion that the conduct of the plaintiff is not satisfactory and the plaintiff is guilty of laches and since the said condition no. 3 of the said agreement for sale gives the plaintiff an unfair advantage over the defendant, no decree for specific performance can be granted in favour of the plaintiff.;