SMT. SUMATI BALA MAJUMDER AND OTHERS Vs. NARENDRA KUMAR DAS

JUDGEMENT

(1.) THIS is a second appeal by the plaintiffs against the decree of the learned District Judge, Tripura, dated 16 -1 -1967 passed in Title Appeal No. 33 of 1964 whereby he dismissed the plaintiffs' suit for specific performance of a contract for sale of a plot of land measuring 5 kanis, as described in the schedule to the plaint, hereafter called the suit land.

(2.) THE plaintiffs' case was that the defendant Shri Harendra Kumar Das entered into a contract with late Amulya Kumar Majumder - husband of plaintiff No. 1 and father of the other plaintiffs, on 18 -4 -1960 A. D. to sell the suit land for Rs. 15,900/ - by executing a registered deed of agreement (Ext. P -1) on receipt of Rs. 1,000/ - as advance with the stipulation that he would execute the sale deed on receipt of the balance of the consideration money on or before the 30th day of Chaitra, 1367 B. S. After this agreement Amulya Kumar Majumder died in the month of Sravan. During his lifetime Amulva Kumar Majumder himself and after his death the plaintiff No. 1 requested the defendant to execute the sale deed on receipt of the balance of the consideration money but the defendant did not pay any heed. The plaintiffs averred that they were and they are still willing to perform their Part of the contract. As the defendant avoided execution of the sale deed in spite of repeated requests the plaintiffs filed the suit for a decree for specific performance of the contract and in the alternative for refund of the advance money, against the defendant.

(3.) THE plaintiffs examined 4 witnesses including the scribe and one attesting witness of the bainapatra Ext. P -1. in support of their case. The defendant also examined 4 witnesses to prove that he had taken a loan of Rs. 1.000/ - from late Amulya Kumar Maiumder and that he paid Rs. 662 -8 annas to said Amulya Kumar Maiumder on 18 -4 -1960 and executed a promissory note Ext. D -1 for the balance of Rs. 400/ - and subsequently paid this balance as well to plaintiff No. 1 and got back the promissory note. He also proved a similar registered bainapatra Ext. D -5 executed by him in favour of Amulya Kumar Maiumder on 27 -8 -1959 under similar circumstances in respect of the same land which he subsequently got back from Amulya Kumar Majumder, after clearing the loan.