Ashis Kumar Chakraborty, J. - (1.) This second appeal, at the instance of the defendants in a suit for specific performance is against the judgment and decree passed by the learned first appellate Court, affirming the judgment and decree for specific performance passed by the learned trial Judge in favour of the respondent.
(2.) The relevant facts giving rise to the present appeal are stated herein below. One Rama Prasad Ghosh, since deceased was the owner of various plots of land being Plot Nos. 222, 291, 438, 486, 490, 505, 526, 122, 130, 36, 38, 112, 367 of Khatian No. 69 Akri and Plot No. 357 of Khatian No. 27 Akri at Mouza- Mamudpur in the district of Murshidabad (hereinafter referred to as the said properties ). In the year 1953, the said Rama Prasad died intestate, leaving behind his wife and three sons namely, Kesab, Jitendra and Nipendra. Since the said Rama Prasad Ghosh died before coming into force of the Hindu Succession Act, 1956 his said properties devolved upon his said three sons, each having one-third share therein.
(3.) In July 1988 Nipendra, the respondent in this appeal filed a suit, being Suit No. 132 of 1998 (subsequently renumbered as O.S. No. 42 of 1989) before the learned Civil Judge (Senior Division), Kandi, Murshidabad against his elder brother Jitendra, the appellant no. 1, claiming a decree for specific performance of an oral agreement for transfer of the entire one-third share of Jitendra in the said properties in his favour. The case set out in the plaint showed that according to the respondent, in the year 1985 an oral agreement was entered into between himself and appellant no. 1 whereby the latter agreed to transfer his entire one-third share in the said properties to him for Rs. 17,000/-. The respondent claimed that in terms of the said agreement for sale, on April 6, 1985 he paid Rs. 4,000/- to the appellant no. 1 as advance and thereafter by two instalments he paid a further sum of Rs. 6,000/- to the appellant. The respondent further alleged that, on June 21, 1988 when he offered the balance consideration of Rs. 7,000/- to the appellant no. 1 and called upon him to execute the necessary conveyance in his favour, the appellant no. 1 refused to accept the balance consideration and to execute the deed of conveyance in his favour.;