Arun Kumar Mitra, J. - (1.) This second appeal has been preferred by the defendants Nos. 2 and 3 of Title Suit No. 124 of 1972 challenging the judgment and decree dated 21.02.1976 passed by the learned Additional District Judge, Second Court, Hooghly in Title Appeal No. 119 of 1975 affirming the judgment and decree dated 31.03.1975 passed by the learned Munsif, Second Court, Chandernagore in Title Suit No. 124 of 1972.
(2.) The case as has been made out by the plaintiff in the plaint is inter alia as follows:- The suit property originally belonged to defendant No. 1 Saraswati Ojha. The defendant No. 4 Sunil Kumar Ojha is her husband. The defendant No. 1 Saraswati Ojha through her husband and one Gour Chandra Dhanki made negotiation and a talk of sale took place and the plaintiff Md. Israfil expressed his desire to purchase the suit property. The price was settled at Rs. 4000/- The defendant Nos. 1 and 4 accordingly informed the plaintiff to visit Calcutta (where they lived) on 11 th Jaistha, 1377 B. S. for execution and registration of the sale deed. Accordingly the plaintiff went to Calcutta with money on the said date but the deed could not be executed or registered on that date as defendant No. 1 was ill. The plaintiff however handed over the consideration money in presence of the witnesses as the defendant Nos. 1 and 4 repeatedly insisted on payment of the consideration money. The defandant No. 1, however, promised to execute and register the sale deed by visiting Haripal within 4/5 days. The defendant Nos. 1 and 4 that means Saraswati and her husband, however, permitted the plaintiff to possess the land from that very date. The plaintiff accordingly started possessing that land from that date and he is still in possession. On return back from Calcutta, the plaintiff as per instruction from the defendant Nos. 1 and 4 get a draft deed of sale prepared. On 16 Jaistha the plaintiff waited at Haripal Registry office for their arrival, but defendant No. 2 Saraswati Ojha did not turn up and instead of defendant No. 1 her husband Sunil Kumar Ojha the defendant No. 4 came and informed that the defendant No. 1 had become very much ill and was not in a position to come. Defendant No. 4 that is Sunil Kumar Ojha, however, took the draft deed with him and told the plaintiff that he would got the same executed and registered on commission. Thereafter the plaintiff approached several times for execution and registration of the deed. But they delayed the matter and told the plaintiff not to worry as possession had already been delivered. The plaintiff in fact continued to possess the land undisturbed. The defendant No. 3 Abdul Majid threatened to take possession and revealed that a deed in respect of the suit property would be registered by Saraswati Ojha in his favour very soon. Immediately the plaintiff went to the Hooghly Registry Office and submitted objection. The plaintiff also went to Calcutta and asked the defendant Nos. 1 and 4 for clarifications when they denied to have executed any deed in favour of Abdul Majid, the plaintiff then took back the draft from them and after coming back sent a registered notice to the defendant Nos. 1 and 4 asking them to execute and register the deed. [There the deed.] Thereafter, the plaintiff was left with no option but to file this suit when the defendant No. 1 refused to execute the deed. The defendants Nos. 1 and 4 submitted a joint written statement after entering appearance, but, they did not contest the suit at the time of trial. They denied to have made any verbal contract with the plaintiff for sale of the land and also denied the receipt of Rs. 4000.00 by them. In the written statement they also denied that the plaintiff never approached them for that purpose at Calcutta or they had promised to execute and register a deed in his favour on commission or in Haripal Registry Office. They also alleged that the present suit had been filed by the plaintiff with entirely false allegations with a view to grabing their land.
(3.) The defendants Nos. 2 and 3 actually contested the suit and they denied the plaintiffs alleged contract for sale with defendant No. 1 Saraswati Ojha and payment of Rs. 4000.00 for that purpose. The defendant Nos. 2 and 3 stand that it was they who purchased the property from Saraswati Ojha at Rs. 4000.00 and a deed was executed in their favour though the said deed has not yet been registered. As the defendant No. 1 did not register the deed, they had filed case before the registry office which is pending. They also stated that it was at the instigation and non-collaboration of the defendant No. 1, the present suit has been filed by the plaintiff.;