BISWAJIT BASU,J. - (1.) This appeal is at the instance of the defendant Nos.2 and 3 in a suit for specific performance of an agreement for sale of immovable property and is directed against the judgment and decree dated January 31, 2000 passed by the learned Civil Judge (Senior Division), 1st Court at Howrah in Title Suit No. 34 of 1994.
(2.) The case of the plaintiff in the plaint is that the suit property originally belonged to one Fularani Dutta. While in possession, she transferred the property by virtue of a deed of settlement dated November 21, 1984 in favour of the defendant Nos.1, 2 and 3 and they became the absolute owners of the suit property. The plaintiff agreed to purchase the suit property at a valuable consideration of Rs. 1,00,000/- (rupees one lakh) only being the highest prevailing market price. On May 09, 1991, there was an agreement for sale between the plaintiff and the defendant no. 1 and the father of the defendant nos. 2 and 3. The plaintiff paid the sum of Rs. 10,000/- (rupees ten thousand) only as earnest money out of the total consideration of Rs. 1,00,000/- (rupees one lakh) only to purchase the suit property. In terms of the said agreement, the defendants were to handover all the relevant papers and documents relating to the title of the property to the plaintiff but the defendants supplied only Xerox copies of the deed of settlement dated November 21, 1984. The defendants did not take any step for measuring and demarcating the suit property although the plaintiff took all possible steps to conclude the contract. On enquiry, the plaintiff came to know that defendants were attempting to sell the suit property to third parties at a higher price. On October 20, 1993 the plaintiff sent a letter through her authorised Agent Shri Ganesh Chandra Das, Advocate under Registered post with Acknowledgement Due requesting the defendants to execute and register the Deed of Conveyance in respect of the suit property in favour of the plaintiff on acceptance of the balance consideration money after measuring and demarcating the same. On November 18, 1993 the defendant No.1 replied the same through his Advocate Shri Monojit Bhattacharjee admitting the oral agreement for sale in respect of the suit property by and between the parties and on acceptance of the earnest money to the tune of Rs. 10,000/- (rupees ten thousand) only but took the plea that on May 9, 1991 the plaintiff obtained the agreement for sale under the influence of the husband of the plaintiff and refused to execute the Registered Deed of Conveyance with the willingness to refund the earnest money. The further case of the plaintiff is that she was and is always ready and willing to perform the part of her contract and to purchase the suit property by means of a Registered Deed of Conveyance provided the same is appeared to be free from all encumbrances.
(3.) The defendant Nos.1, 2 and 3 filed a written statement. The case of the said defendants in the said written statement as recorded by the Learned Trial Judge in the judgment under challenge needs to be highlighted and is reproduced hereunder. The suit is maintainable in its present form and prayer of the plaintiff has no cause of action for the suit or right to sue and the suit is barred by limitation. The father of the defendant had no authority to enter into any agreement or to sign or accept any payment on behalf of the defendant Nos. 2 and 3. The oral agreement entered into was never such as has been sought to be agreed at the alleged agreement for sale. The oral agreement was made earlier to May 09, 1991 in respect of the landed property and with the furniture etc. The plaintiff never acted in terms of the agreement for sale and never arranged for measurement nor any step was taken to make searches. No requisition for such document was also made. The plaintiff and her husband insisted on delivery of the possession of the property after removal of the care taker there, which was possible for the defendants. The defendant Nos.2 and 3 were interested in sale of the property. The husband of the plaintiff gave an understanding that it would be possible for them to get rid of the caretaker if some papers in writing were given to them and on good faith the defendant No.1 and his father signed some papers as per dictation of the husband of the plaintiff without going through the contents of the alleged agreement for sale. The defendant Nos.2 and 3 never had any knowledge about the written agreement for sale after the oral agreement. The defendant lastly submitted that the instant suit was filed at the instance of the husband of the plaintiff and is collusive and should be dismissed with costs.;