JIWRAJ SOBHA CHAND Vs. MASTARAM AGARWALLA HISLEGAL HEIRS RAM PD AGARWALLA

JUDGEMENT

(1.) Heard Mr D.C. Mahanta, learned senior counsel assisted by Mr A.K. Goswami, learned counsel for the appellant. Also heard Mr A.R. Banerjee, learned sr. counsel assisted by Ms B. Choudhury representing the respondents.

(2.) This first appeal has been directed against the impugned judgment and order dated 27.3.87 passed by the learned District Judge, Dhubri in Title Suit No. 17/ 86 dismissing the suit of the plaintiff/ appellant filed under Section 10 of the Specific Relief Act, 1963 (for short, "the Act") for specific performance of an oral contract for sale of immovable property.

(3.) The facts, in a nutshell, leading to instituting the title suit in question may be noticed as under. It is alleged in the plaint that the defendants/respondents 1 and 2 entered into a verbal contract on 15.6.83 with the plaintiff/appellant, being a partnership firm, for the sale of the suit premises which was under the occupation of the appellant as tenants for a consideration of amount of Rs.80,000/-. As a sequel of such contract, the appellant paid Rs. 5,100/- as advance on that day itself to the respondent No. 1 and 2 who agreed to execute a formal sale deed after Dewali on receipt of the balance amount of consideration as fixed. The case of the plaintiff was that though it was ready to pay the balance amount, the respondent Nos. 1 and 2 did not come to execute the sale deed as promised. Therefore, the appellant had to sent a letter dated 29.11.83 under certificate of posting requesting the respondents to come to Dhubri and execute the sale deed. But on the other hand, the appellant came to know later on that the respondent Nos. 1 and 2 made a negotiation to sale the suit premises to defendant/respondent No. 6 during December, 1983 and in fact three sale deeds in the names of the respondent Nos. 3, 4 and 5 were prepared on 17.12.83 out of which one sale deed was got registered. Immediately the plaintiff/appellant laid objection before the Sub-Registrar who suspended the registration of the other two sale deeds. In the meantime the appellant filed a suit for declaration and injunction against the respondent Nos. 1 and 2 on 21.12.83 through T.S. No. 55/83 for restraining them from executing any sale deed to any one except the appellant and obtained an order of temporary injunction which however stood vacated and the respondent Nos. 3 and 4 got their sale deed duly registered by the respondent Nos, 1 and 2. During the pendency of title suit No. 55/83, the plaintiff/appellant field the instant suit i.e. T.S. No. 17/86 (earlier numbered as T.S. 5/84) on 30.1.84 on the same cause of action against the respondent Nos. 1 to 6. Thereafter the appellant withdrew the earlier Suit i.e. T.S. No. 55/84 but proceeded with the present case for specific performance of the contract.