- (1.) BOTH appeals are directed against the judgment and decree of September 3,1998 passed in a suit transferred from the Alipore court to this Court under Clause 13 of the letters Patent that later took on a counter-claim. The plaintiffs are in appeal against their claim for specific performance of an agreement to sell an immovable property being dismissed and the counter-claim for possession made by the eleventh respondent herein being allowed with a preliminary decree for mesne profits being made.
(2.) IN May, 1987 the plaintiffs and/or their predecessors-in-interest filed the suit before the Third Assistant district Judge at Alipore claiming the following:- " (a) Decree for specific performance of contract of sale by the defendants in favour of the plaintiffs. (b) Fixing a date for payment for balance consideration. (c) Decree directing the defendants to execute and register a proper conveyance of suit property described in the schedule annexed hereunder within a time to be fixed by the learned Court. (d) In default order for execution and registered (sic, registration) on a proper conveyance of suit property under provisions Order 21 Rule 34 of C. P. Code. (e) Possession of the suit property. (f) Injunction. (g) Costs of the suit, and (h) For such other relief or reliefs to which the plaintiffs may be entitled. "
(3.) THE schedule to the plaint identified in detail the land measuring 2 cottah, 9 chittak, 30 sq. ft. with a two-storeyed building at premises no. 92, Monoharpukur Road. The plaintiffs claim that a predecessor-in-interest of the defendants purchased the suit land from a person and constructed a two-storeyed building thereon which was let out to the father-in-law of the plaintiffs. According to the plaintiffs, in or about 1978 some of the defendants and/or their predecessor-in-interest agreed to sell the suit property at a consideration of Rs. 90,000/-and each of the heirs of the original owner agreed to execute separate deeds for such purpose. The plaint says that the ninth defendant executed an agreement for sale on august 22, 1978 in favour of the plaintiffs which was duly registered. The plaintiffs claim to have made part payments to the ninth defendant and to certain other defendants and/or their predecessors-in-interest who also executed similar agreements for sale of their undivided individual interests in the property. The plaint says that the husband of tenth defendant took all steps on behalf of the defendant Nos. 1 to 10 in respect of the transaction and the delay in execution of the conveyance was on account of pending applications for land ceiling and income-tax clearance. As to how the plaintiffs came to know that something was amiss and the immediate cause for the suit, the plaint says:- "18. That the plaintiffs were handed over a copy of plaint of a letters 6. 5. 1987 suit being Original suit No. 395 of 87 pending before the Hon'ble High Court at Calcutta by the learned Receiver appointed by the Hon'ble Mr. Justice Ajit Kr. Sengupta. It transpires from the said copy of plaint that the defendant Nos. 1 to 10 transferred their right title and interest in the suit property to the defendant No. 11 by a registered Deed of Conveyance dated September 6, 1986. ";