Bhaskar Bhattacharya, J. - (1.) This first appeal is at the instance of added defendants and is directed against judgment and decree dated 30th May, 2003 passed by the learned Civil Judge, Senior Division, 6th Court, Alipore in Title Suit No. 12 of 1986 thereby passing a decree in a suit for Specific Performance Contract.
(2.) The respondent No. 1 herein filed the aforesaid suit being Title Suit No. 60 of 1984 for Specific Performance of agreement for sale dated 13th day of October, 1982 and the case made out by the respondent No.1 may be summed up thus: (a) The original defendant, since deceased, represented to the plaintiff that he was the absolute owner of the suit property and on the basis of such representation the plaintiff agreed to purchase the suit property by a written agreement dated 13th October, 1982 at a price of Rs. 6,00,000/-. The suit property consists of 10 bighas, 4 cottahs and 7 chittaks and 37 sq.ft. of land with building and structure belonging to original defendant. (b) Pursuant to the said agreement, the plaintiff paid Rs. 25,000/- to the defendant at the time of execution of the agreement and thereafter he further made over a cheque of Rs. 10,000/- to the defendant on 17th February, 1984 which was duly acknowledged by the defendant. (c) The original defendant not only represented to the plaintiff that he was the absolute owner of the suit property but also that he was in exclusive khas prossession of the same and the same was free from encumbrances and he would give vacant possession of the entire property including structures and sheds standing thereon within a period of one month after the defendant had made out a marketable title to the said property and obtained necessary clearance certificate for permission under section 230A of the Income-tax Act and Urban Land Ceiling Act respectively. It was further agreed that defendant would not in the meantime create any fresh tenancy or induct any other person in any part of the suit property. (d) The defendant failed and neglected to make over to the plaintiff and/or his learned advocate the documents of title relating to the said property in terms of the said agreement and the plaintiff on being requested to make a further payment of Rs. 10,000/-, paid such amount on the assurance and promise of the defendant that he would hand over to the plaintiff all documents of title relating to the said property to enable the plaintiff to complete his investigation to the title of the property. The defendant, however, failed to fulfil his part of the obligations and delayed the investigation of title by plaintiff by not giving documents relating to title in spite of request. The defendant also failed and neglected to obtain Income-tax Clearance Certificate and permission under Urban Land Ceiling Act in terms of the said agreement ignoring the request of the plaintiff for obtaining such permission. (e) The plaintiff, however, started causing enquiry in respect to the title of the property through his advocate and in so doing, the plaintiff was surprised to receive a letter from the defendant dated 17lh August, 1983 informing that the property was subject-matter of pending litigation and that some families have trespassed into the said property and so the property should be subject to further litigation and that the defendant was not in a position to give vacant possession of the property to the plaintiff and as such, he wanted the plaintiff to have the agreement rescinded and his earnest money would be refunded with interest. (f) The plaintiff by his advocate's letter dated 23rd August, 1983 replied to the said letter of defendant dated 17th August, 1983 containing untrue allegations and categorically asserted that the plaintiff was always ready and willing to perform his part of the agreement dated 13th October, 1982 and demanded the following information and documents : (i) Order of Court with respect to eviction of trespassers, if any, occupying the property; (ii) Income-tax Clearance Certificate under section 230A of the Income-tax Act; (iii) Clearance Certificate under section 27 of the Urban Land Ceiling and Regulation Act, 1976. (g) The plaintiff assured the defendant that on production of the aforesaid documents the plaintiff would complete the purchase upon payment of the balance price and that without those documents it was not at all possible to complete the registration of the deed. (h) The defendant, however, failed and neglected to comply with the said lawful requisitions made by the plaintiff. Subsequently, by letter dated 6th September, 1983 through a learned advocate the defendant illegally terminated the agreement dated 13th October, 1982 alleging that the plaintiff had intentionally kept the matter hanging. (i) The plaintiff by his letter dated September 8, 1983, personally requested the defendant to complete the sale in terms of agreement dated October 13, 1982 and not to try to repudiate the said agreement illegally by pointing out that without production of clearance certificate by Income- tax Authority or permission under section 27 of the Urban Land Ceiling Act it was not possible for the defendant to complete the sale of the property. (j) The plaintiff again by his advocate's letter dated 28th February, 1984 informed the defendant that he was ready and willing to complete the purchase of the said property and sent the defendant draft conveyance for the approval and to return the same so that the sale might be completed on production of necessary certificate and permission from Income-tax and Urban Land Ceiling authorities and giving vacant possession of the property to the plaintiff. (k) The defendant, however, failed and neglected to comply with the reasonable demand of the plaintiff and by his letter dated 19th March, 1984 had wrongfully alleged that the said agreement dated 13th October, 1982 was cancelled and terminated and he was under no obligation to honour the said agreement. (l) The plaintiff was always ready and willing to perform his part of agreement. Although the defendant represented to the plaintiff that he was the full owner and was in exclusive and khas possession of the property and he expressly agreed to sell the property to the plaintiff free from encumbrances and to put the plaintiff in vacant and peaceful possession of the property before completing the sale of the same, at a later stage, on being asked by the plaintiff to complete the said transaction upon delivery of vacant possession of the property, he disclosed that the property was in occupation of the trespassers and suits for eviction of the trespassers were pending. Hence the suit.
(3.) The original defendant, since deceased, entered appearance in the suit and filed written statement and the defence of the original defendant may be summed up thus: (1) The defendant never disclosed to the plaintiff that he was the owner with possession and he had the intention to enter into an agreement for sale in "as is where is basis" and the plaintiff persuaded the defendant fraudulently to sign and execute and register a deed of agreement for sale not in accordance with the terms of the agreement that was agreed. (2) The defendant, being a busy medical practitioner, relied upon one S.N. Banerjee who happened to be an advocate and told the defendant that the deed had been written according to the terms settled. The defendant being a septuagenarian and hard of hearing and being a busy medical practitioner could get hardly any little time to go through the document thoroughly and he relied upon Sri S.N. Banerjee and accordingly signed the same. (3) Rs. 25,000/- was received on the date of agreement for sale and no cheque of Rs. 10,000/- was made over to him or that he ever requested to make further payment since it became apparent to the defendant that agreement was not executed in terms of agreed talk and the defendant did not encash the cheque. (4) The defendant never represented to the plaintiff that he was absolute owner of the property with khas possession as on the date of alleged agreement, the defendant had no possession and could not even thereafter recover possession from the trespassers sitting over the suit property in execution proceedings pending in the 7* Court of Subordinate Judge at Alipore. It was impossible to make a marketable title to the property free from all encumbrances and as such, question of giving vacant possession after one month of making marketable title and other obligation as alleged did not arise. The defendant did not create any tenancy over the suit property till the agreement for sale dated 13th October, 1982 was rescinded. (5) The defendant never requested the plaintiff to make further payment of Rs. 10,000/-. The defendant candidly expressed that he was not in possession of the property and litigations for recovery of possession were pending and the plaintiff made an enquiry into the matter and got an agreement of sale signed, executed and registered fraudulently in collusion with Sri S. N. Banerjee containing wrong statement that the defendant was in khas possession of the property knowing fully well that those are wrong. (6) The plaintiff was never ready and willing to perform his part of contract and he kept silence for a long time without correspondence. The agreement having already been cancelled, no question of passing or claiming a decree of Specific Performance of Contract arose.;