- (1.) THIS first appeal is at the instance of the plaintiffs in a suit for specific performance of contract and is directed against the judgment and decree dated July 27,2005 passed by the learned Civil Judge (Senior Division), 5th Court, Alipore, in Title Suit No. 56 of 2004 thereby dismissing the suit on the ground that the Civil Court has no jurisdiction to entertain the suit in view of the restriction imposed under section 134 (2) (d) of the West Bengal Co-operative Societies Act, 1983 as the same should be referred to the Registrar of the Co-operative Societies under section 95 (1) (d) of the Act for disposal.
(2.) BEING dissatisfied, the plaintiffs have come up with the present appeal.
(3.) THE appellants before us filed a suit for specific performance of contract against the respondents and the case made out by the plaintiffs-appellants may be summed up thus: (a) All that piece and parcel of 14 cottah of revenue-free land as mentioned in the schedule 'a' to the plaint is the subject-matter of the dispute and the plaintiff No. 1 was the owner of 4. 22 acres of land at Mouza-Chawk Garia under Khatian No. 117 Dag Nos. 104, 106 which she sold to the defendant Nos. 1 and 2 for valuable consideration by different kobalas in the year 1970. (b) Both the defendants purchased the land to construct 60 feet wide link road from the lands belonging to the co-operative with the main road and the 60 feet wide road had been constructed out of the said land. Only a small portion had been amalgamated with the lands of the co-operative with the main road. (c) By a registered agreement for sale dated 19th May, 1971 and registered on 20th May, 1971 by the defendants agreed to sale the suit property to the plaintiff No. 1 or her nominee for consideration of the sum of Rs. 21,000/- out of which the plaintiff No. l paid a sum of Rs. 20,900/- to the defendants by adjustment with the consideration money payable to the plaintiff No. l before the execution of the said agreement for sale. (d) The terms and considerations of the agreement was as follows: (i) The vendors should convey 14 cottah of developed land to the purchaser or her nominees and would keep reserved for transfer before the distribution of plots among the members within the area transferred by the vendor by deed of even date or its vicinity within the scheme of the township area free from all encumbrances. (ii) The above land of 14 cottahs should be conveyed to the purchaser or her nominees as soon as the plots within the township area should be ready for distribution among the members of the societies. (iii) The purchaser had made payment of the sum of Rs. 20,900/- to the vendors out of the total consideration of Rs. 21,000/- for 14 cottahs of land, which the vendors acknowledged. (iv) The price and the consideration had been settled and fixed at the rate of Rs. 1,500/- per cottah of developed land within the township area totalling a sum of Rs. 21,000/- in full and final settlement as per the valuation made or estimated at that moment but if the average cost of the developed lands exceeded the estimated cost of Rs. 1,500/- per cottah, the purchasers should be bound to pay the excess cost per cottah over the then valuation of rs. 1,500. /- per cottah. (v) The vendors should make out marketable title of the property or the demised land set out in annexed schedule before the execution of the conveyance and for such purpose, the purchaser or her nominee made inspection of deeds, documents or any such paper or papers in original for the purpose of investigation of title. (vi) Should the vendors fail to make out a marketable title and to observe and perform the terms and conditions and stipulations, the vendors should on demand refund to the purchasers the consideration money and should also pay to the purchasers her costs and incidental to the investigation of the title not exceeding Rs. 100/- only. (vii) If notwithstanding the vendors making out a marketable title and the purchasers offering conveyance as aforesaid for execution by the vendors and the vendors failed or neglected to execute and/or register the document and complete the same and to observe and perform the terms and conditions and stipulations therein contained, the purchasers should be entitled to specific performance of the agreement or to sue for damages and costs at her option that she would elect to do. (viii) By a letter dated 17th April, 1973 the defendant No. 2 requested the plaintiff No. 1 to make her choice as to the scheme, plots containing a total area of 14 cottah which the plaintiffs wanted to purchase. It was also stated that in default of such choice being made in time they would allot the plots having an area of 14 cottah of land according to their own choice. In reply, the plaintiff No. 1 by letter dated 19th April, 1973 informed the defendants that the plaintiff No. 1 wanted to purchase the suit plots as per the agreement and accordingly, the defendants delivered the possession of the suit plots to the plaintiffs and since then the plaintiffs had been in possession of the plots. (ix) As per clause 4 of the agreement, the consideration money had been fixed for Rs. 1,500/- per cottah of developed land within the township scheme of area but if the average cost of the developed land exceeded an estimated cost of Rs. 1,500/- per cottah, the plaintiffs should be bound to pay the excess costs as per cottah over the valuation of Rs. 1,500/ -. The defendants, however, informed the plaintiffs that considering the development costs the price of the suit land per cottah would be more than Rs. 1,500/ -. (x) Some years after the possession of the suit plots were given, the plaintiffs took a loan of Rs. 6,000/- from the defendant No. 2 and it was agreed that if the loan could not be repaid, the plots would be surrendered to the defendants; the plaintiffs, however, repaid the amount. (xi) In the year 1993, the defendants proposed to the plaintiff No. 1 to accept a permanent lease on the suit land instead of purchasing the suit land and in order to avoid unnecessary conflict, the plaintiff No. l without prejudice agreed to the proposal on certain terms and conditions, inter alia, that the plaintiffs would have the full right to give sub-lease or to assign, sale or mortgage the said leasehold property. Accordingly, a draft of the said lease-deed was also sent to the defendants, which was received by them on 24th february, 1993 and 25th May, 1993 respectively. In the said draft deed of lease of the plaintiff Nos. 2 to 5 were joined as lessees as nominees of the plaintiff No. 1, ultimately, if the said proposal was not confirmed by the plaintiffs. (xii) In view of the aforesaid circumstances the plaintiff No. l addressed a letter through her Advocate dated 28th April, 1995 to the defendants thereby asking them to complete the transaction either by a sale as per the agreement or by executing a permanent lease-deed in favour of the plaintiffs or her nominees but in spite of that the defendants paid no heed. Hence the suit. ;