- (1.)This Second Appeal is directed against the judgment and decree dated 11-6-1980 passed by the learned Additional District Judge, 11 th Court at Alipore in Title Appeal No. 769 of 1979 reversing the judgment and decree dated 29-5-1979 passed by the learned Munsiff, 6th Court at Alipore in Title Suit No. 397 of 1973.
(2.)The plaintiffs-respondents Debilal Shaw and four others filed a Suit on 27-1 - 1973 against Ram Adhar Dube and Smt. Sahida Khatoon Bibi praying for specific performance of a contract of sale dated 27th June 1972. The plaint case in brief is that the defendant No. 1 Ram Adhar Dube was the absolute owner of a Bastu measuring 2 1/2 decimals appertaining to Plot No. 393 Khatlna No. 310 of Mouza Jaichandipur P.S. Budge Budge, District 24 Pgs. (South) along with the structure standing thereon fully described in the schedule to the plaint, that the defendant No. 1 agreed to sell the suit property to the plaintiffs and the plaintiffs agreed to purchase the same at a fixed price of Rs. 5000/- and on the basis of such agreement, a registered deed of agreement was executed by the defendant No. 1 on 27-6- 1972 after taking an advance of Rs. 1000/- from the plaintiffs. The defendant No. 1 also put the plaintiff in possession of a portion of the suit land on the date of execution of the deed of agreement for sale on 27-6-1972. Since the defendant No. 1 failed to supply the documents of title within the stipulated time in spite of repeated demands by the plaintiffs, the defendant No. 1 sent a letter dated 10th March 1973 to the plaintiff informing that the time mentioned in the agreement was the essence of contract and that he rescinded the said contract. However, three days' time was given to complete the transaction on payment of the balance consideration amount. The plaintiffs sent reply to the said letter on 15-3-1973 intimating that the defendant failed to produce the document of title in spite of demand made by the plaintiffs. Moreover, the plaintiffs came to know from the defendant No. 2, Sahida Khatoon Bibi as well as on search being made in Court that Title Suit No. 283 of 1972 between Sahida Khatoon Bibi and the defendant No. 1 in the 6th Court of Munsiff at Alipore was pending. As the title of the defendant No. 1 in the suit property was not clear, the plaintiffs could not purchase the same. Thereafter, the plaintiffs wrote a letter to the defendant No. 1 in his village address at Bihar for completing the transaction. The defendant No. 1, in reply, expressed his desire to execute and register the Sale Deed in favour of the plaintiffs within a short period. On or about 8-8-1973, the defendant No. 1 approached the plaintiffs with the original title deed of the suit property and disclosed his intention to complete the transaction in terms of the agreement on taking the balance of the consideration money. It was also disclosed that the suit filed by Sahida Khatoon Bibi was dismissed for default. The plaintiffs accordingly purchased stamp paper on 9-8-1973 and got the Sale Deed written in the office of the Sub- Registrar at Budge Budge. But as there was delay in writing the Sale Deed and also completing other formalities, the deed could not be registered on that date for which the plaintiffs and the defendant No. 1 returned with the understanding that the same would be registered on 13-9-1973, the Monday next. But the defendant did not turn up as assured nor he executed and registered the Sale Deed. Accordingly the plaintiff was constrained to file the suit praying for specific performance of the contract. It is also alleged that the defendant No. 1 in collusion and conspiracy with the defendant No. 2, has transferred the suit property in the name of the defendant No. 2, Sahida Khatoon Bibi who purchased the same with full knowledge of the contract between the plaintiff and the defendant No.1. Accordingly, the plaintiffs are entitled to get a decree for specific performance of contract against the defendant No. 2 also.
(3.)In spite of service of notice, the defendant No. 1 did not appear in the suit. However, the defendant No. 2 contested the suit after filing a Written Statement on 19-11-1974 denying the material allegations made in the plaint and it is specifically stated that the defendant No. 2 was not aware of any contract between the plaintiffs and the defendant No. 1 as regards sale of the suit property and even if there is any such contract, the plaintiffs rescinded the said contract for which it is not legally enforceable. It is also contended that the defendant No. 2 is in possession of the suit land as a tenant under the defendant No. 1 and the plaintiffs have been in possession of a vacant piece of land as licensee under the defendant No. 1. It is also alleged that the defendant No. 2 is a bona fide purchaser for value without any knowledge about the contract between the plaintiffs and the defendant No. 1. Accordingly, a prayer has been made for dismissal of the suit.