Bhaskar Bhattacharya, J. - (1.) This first appeal is at the instance of the plaintiff in a suit for specific performance of contract and other consequential relief and is directed against the judgment and decree dated January 29, 2000 passed by the learned Civil Judge, Senior Division, 9th Court, Alipur, District South 24-Parganas in Title Suit No. 70 of 1997 thereby passing a part decree in favour of the plaintiff.
(2.) In the said suit, the basic prayer of the appellant before the Court was to pass a decree for specific performance of contract and in the said suit, several other relief were claimed. The entire prayer portion of the plaint is quoted below: 'a) A decree for specific performance of contract directing the first defendant and the second defendant to execute and register the conveyance for sale in favour of the plaintiff for transferring of the undivided 1/8 of the land as described in schedule "A" hereto and the flat being number 3 as described in schedule "B" hereto together with proportionate 1/8 right and enjoyment of the said the building known and described as "Rajani Apartment" situated in premises No. 196A, Sarat Bose Road, Calcutta - 700029 within P.S. Lake. b) A decree of declaration that the provision and/or clause as mentioned in schedule "B" to the said agreement dated 6th April, 1992 restricting the plaintiffs proportionate right to the roof and terrace of the said building is invalid, illegal and inoperative and is liable to be struck down and/or rectified by deletion. c) In the event, the defendants and/or order any of them fail and/or neglect and/or refuse to execute and register the conveyance, to get the same executed and registered in favour of the plaintiff through the process of Court. d) A decree for permanent injunction restraining the defendants and each of them and/or their servants and/or agent and agents/or representative from transferring and alienating and/or dealing with the undivided l/8th share of the roof of the said the building to any other person than the plaintiff. e) A decree for perpetual injunction restraining the defendants and each of them and or servants and/or agents and/or representatives and/or assigns from transferring and/or conveying undivided 1/8th share of the land comprising of the said premises No. 196A, Sarat Bose Road, Calcutta - 700029 in favour of any personnel other than the plaintiff. f) A decree for Perpetual injunction restraining the defendants and each of them and/or their servants and/or agents and/or assigns and/ or representatives from disturbing in, interfering with and obstructing to the plaintiffs peaceful enjoyment, possession and occupation of the said flat as described in schedule "B" of the agreement or any portion as well as right of access to the roof and terrace of the said building. g) A decree for Mandatory Injunction directing the defendant Nos. 1 and 2 to remove the collapsible gate installed and/or fixed on the landing of the stair case on the fourth floor of the said premises No. 196A, Sarat Bose Road, Calcutta-700029. h) Receiver, i) Attachment, j) Cost of the suit. k) Such further or other relief or reliefs as the plaintiff is entitled in law and equity.'
(3.) The case made out by the plaintiff/appellant may be summarised thus: a) On April 6,1992, one Smt. Jyotirmoyee Devi, since deceased, the mother of the defendant No. 1 being the sole and absolute owner in respect of premises No. 196A, Sarat Bose Road, Calcutta - 29 together with structure agreed to sell and the plaintiff agreed to purchase all that undivided l/8th share of the land comprising in the said premises with all the right and enjoyment attached thereto at the consideration mentioned in the said agreement. The detailed description of the said land is given in the schedule given in 'A'. By the said agreement, the second defendant duly agreed in writing to construct a flat for the plaintiff on the basis of the said l/8th share of land and measuring 1148 square feet on the second floor of the proposed new four-storied building bearing No. 3 comprising of three bed rooms, one kitchen, two bathrooms and privy, one dining and one living, one drawing, one verandah fully described in schedule "B" at a consideration mentioned in the said agreement to be paid by the plaintiff. The said agreement dated April 6,1992 was signed and executed by the second defendant by describing himself as developer/contractor and the first defendant was described as confirming party and the constituted attorney of her mother, Smt. Jyotirmoyee Devi. b) By the said agreement, the undivided 1/8* share in the land was agreed to be sold at the price of Rs. 1,46,000/- and the second defendant agreed to construct the aforesaid flat at the price of Rs. 6,29,000/- payable by instalments as provided in the said agreement. In the said agreement, the plaintiff was described as the purchaser, the second defendant was described as the developer and the mother of the first defendant was mentioned as the vendor. c) By the said agreement, the parties decided to abide by the following terms and conditions: I) The developer and the purchasers agreed that the developer would sell the undivided l/8th share of the land in favour of the purchaser at the price of Rs. 1.46,000/- and the purchaser agreed to purchase the same at the said price. For the above purpose, the purchaser paid the said sum of Es. 1,46,000/- at the time of execution of the agreement and the vendor had no objection in the said arrangement. II) The vendor should take necessary permission and clearance under section 230(1) of the Income-tax Act, 1961 or any other clearance, which would be required for the said purpose. III) The vendor should also take necessary permission from the competent authority under the Urban Land (Ceiling and Regulation) Act, 1976, if necessary. IV) The vendor should execute the deed of conveyance directed in favour of the purchaser or his nominee. V) The developer had agreed to construct the flat at the instance of the purchaser subject to the condition that he agreed with the said contractor to have the absolute right to make variation or modification in the plan, design and specifications of the proposed building as may by deemed necessary without, however, deducting the area/structure as may be required b$ the Calcutta Municipal Corporation or any other competent authority. VI) The developer undertook to complete the construction within February, 1993 in general and definitely, within May, 1993. VII) The developer undertook to hand over possession of the said flat with the sanctioned car parking space within two days after the receipt of the entire payment from the purchaser or after the completion of the said project whichever was later. d) Subsequently, on July 31, 1992, another agreement was entered into between the plaintiff and the second defendant by which the consideration amount which was written in the parent agreement was reduced to Rs. 4,84,000/- instead of Rs. 6,29,000/- which was initially agreed by the parties. e) According to the plaintiff, in the agreement dated April 6, 1992, in the schedule "B", it was wrongly and illegally mentioned that the plaintiff would get access only to the enclosed part reserved for the lift room and the water tank and that no access to the other part of the terrace as mentioned in schedule "B" would be available to the plaintiff. The plaintiff claimed that such embargo mentioned in schedule "B" did not create any right or obligation in favour of any person and the defendants had no right to take away from the plaintiff his right to the access to the terrace although the undivided share in the land of the premises had been sought to be conveyed by the proposed agreement. f) The plaintiff paid the entire amount agreed between the parties to the predecessor-in-interest of the first defendant and the second defendant in compliance of the terms mentioned in the modified agreement dated July 31, 1992. g) After the compilation of the construction, the possession of the flat was delivered to the plaintiff on September 7, 1992 and since then the plaintiff had been in peaceful and exclusive possession of the flat together with a motor garage in the ground floor. h) The plaintiff at all material times since the date of obtaining possession had been paying the proportionate rates and taxes payable to the Calcutta Municipal Corporation by handing over the same to the second defendant. Therefore, in part performance of the said agreement, the plaintiff had paid the entire amount and further was put into possession of the portion agreed to be sold. i) Thereafter, the plaintiff called upon the defendants to execute and register the necessary deed after obtaining clearance under the provision of the Income-tax Act. Ultimately, the predecessor-in-interest of the first defendant and the second defendant duly executed a deed of conveyance more or less in terms of the said agreement on October 10, 1992 but in spite of execution of the said deed of conveyance, the defendants did not take any step for presentation of the said deed before the registering authority for registration of the same. j) After the death of the mother of the first defendant, the plaintiff repeatedly asked the defendants to execute a fresh deed of sale in favour of the plaintiff and to register the same but they refused to execute such deed. Over and above, by the last sentence of schedule "B" of the agreement, the defendant sought to take away, the plaintiffs right of having proportionate right of the roof and such agreement was in conflict with and repugnant to the provisions of the Transfer of Property Act as well as the Calcutta Municipal Corporation Building Rules. The defendants by taking advantage of the said clause are restraining the plaintiff from exercising the right of the roof as per law and have fixed and installed a collapsible gate on the landing of the staircase for the purpose of preventing the plaintiff from entering into the roof.;