KRISHNA DEY Vs. SARITA DOKANIA

JUDGEMENT

(1.) IN both the first appeals the defendants-appellants have challenged the judgment and decree dated 29.11.2007 passed by Sri Keshav Murti Tiwary, Sub Judge Vth, Purnea in Title Suit Nos. 426 of 1999 and 427 of 1999.

(2.) IT may be mentioned here that the above two suits were filed by the plaintiffs-respondents against the original defendant-appellant Ashish Kumar Dey for specific performance of contract. During the pendency of these appeals the defendant-appellant died and the legal representatives have been substituted. In both the first appeals same set of facts are there, the defendant is same, the points raised in both the appeals are same and the evidences adduced in both the suits are of similar nature, judgments and decrees were passed on the same date by the same Sub-Judge and, therefore, with the consent of the parties both the appeals are heard together as the learned counsels are also same for both the parties and both the appeals are being disposed of by this common judgment. The only difference is regarding area of the land and date of execution of the agreement to sell and the last date for execution of the sale deed. The rest facts appear to be same.

(3.) THE further defence is that when his co-sharers came to know about the agreement to sell the suit land they opposed and showed their resentment by sending registered notice through their advocate on 23.8.1999 objecting the contract to sell. THE copy of the notice was also sent by registered post to the plaintiffs. In absence of partition the contract for sale cannot be specifically enforced. THE defendant on receipt of the registered notice from his co-sharers approached the plaintiffs and requested them to receive back the earnest money but they refused and they send the pleaders notice dated 4.9.1999. THE defendant sent a reply through his advocate on 20.9.1999 mentioning therein the entire circumstances and the difficulty he was facing and the objection which the co-sharers are raising and requested in writing to take back the earnest money but the plaintiffs without appreciating the difficulty and without taking into consideration the hardship filed the suit. According to the defendant he is living alone on the first floor and the entire ground floor is under occupation of tenants who utilized compound area of holding. THE wife of the defendant resides in Kolkata at her mothers place who was undergoing prolong illness and treatment. THE only son of the defendant is a doctor. Since the wife was not feeling convenient, she suggested the defendant to sell the suit property and purchase a flat in Kolkata and to shift there. THErefore, the defendant agreed to sell but his son also on coming to know this fact revolted against the proposed sell on the ground that he will start a nursing home in the suit premises and further the mother-in-law of the defendant also died and, therefore, the defendant gave up the idea of purchasing a flat at Kolkata. THE further defence is that the suit land was Raiyati land of Prafful Kumar Sen. He settled the suit land to Vinod Bihari Mazumdar and Smt. Shantimay Devi as under Raiyati as such the settlee acquired under Raiyati right. THEy sold their interest to Uma Rani Devi by registered sale deed dated 25.10.1943 and, therefore, Uma Rani Devi also got only under Raiyati interest which is not transferable. THE suit land is within the campus of the house and the house stand on half portion and the entire land is within one campus.