IMPORTANT POINT
When in an agreement for sale the area of land is not clear and possession of land is not given to the vendee, vendor should not be directed to execute the sale deed. Refund of the earnest money with interest will meet the ends of justice.

JUDGMENT

Prafulla C. Pant, J.

Leave granted.

2. This appeal is directed against judgment and order dated 01.08.2013, passed by High Court of judicature at Calcutta in Second Appeal No. 430 of 2004, whereby said court has modified the decree passed by Additional District Judge 3rd, Howrah in Title Appeal No. 139 of 2002.

3. We have heard learned counsel for the parties and perused the papers on record.

4. Brief facts of the case are that plaintiff/respondent filed Title Suit No. 4 of 1993 for specific performance of agreement, possession and injunction before Civil Court at Howrah, in respect of ‘Danga’ land measuring 8 cottahs 14 chittacks 24 sq. ft., recorded as 16 shatak in R.S. Dag No. 271 Khatian No.74, and in recent settlement record the same has been recorded in Dag No. 273, Khatian No. 602 within Mouza-Pakuria, P.S. Domjur, District Howrah. As per the agreement dated 04.02.1992, defendant (Mishrilal Mondal) agreed to sell the land at the rate of Rs.15,000/-per cottah in favour of plaintiff (Ganesh Chandra Naskar), and received Rs.60,000/-as earnest money, and rest of the consideration was agreed to be paid at the time of the execution of sale deed. It was also stipulated in the agreement that, if entire area comes out as 10 cottah, the lump sum consideration would be Rs.1,50,000/-. According to plaintiff, measurements were made on 07.03.1992, by surveyors in the presence of parties, and it was found that the area of land was 8 cottah 14 chitaks 24 sq.ft., as such amount of consideration was Rs.1,33,125/-, i.e., at the rate of Rs.15,000/-per cottah. It is pleaded in the suit that plaintiff was/is always ready and willing to pay balance amount of Rs.73,125/-to get the sale deed executed, but the defendant declined to execute the same. On this, the plaintiff gave notice to the defendant to execute the sale deed but he questioned the correctness of the measurements, and offered to pay back Rs.60,000/-accepted by him as earnest money. Consequently, the suit for specific performance, possession and injunction was filed by the plaintiff.

5. The original defendant contested the suit and filed his written statement. It appears that during the pendency of suit due to the death of the original defendant his heirs were substituted. The case of the appellants as contained in amended written statement is that Mishrilal Mondal had undivided share in the property and he was owner in respect of only 16 ½ shataks of the land out of 33 shataks of Dag no. 271.

6. The trial court framed issues, and after recording evidence of the parties disposed of the suit directing the defendant to refund the earnest money of Rs. 60,000/-to the plaintiff. Said judgment and decree dated 29.06.2002, passed by the Civil Judge (senior division), 3rd Court, Howrah, was challenged by the plaintiff who filed Title Appeal No. 139 of 2002. The same, after hearing the parties, was allowed, and it was directed by the first appellate court that the defendants shall execute sale deed after accepting balance amount of Rs.73,125/- from the plaintiff.

7. The judgment and decree dated 22.12.2003, passed in Title Appeal No. 139 of 2002 was challenged by the defendants in Second Appeal no. 430 of 2004, and the High Court passed impugned judgment, modifying the decree passed by the first appellate court. It is directed by the High Court that the decree of specific performance of contract shall stand affirmed in respect of the agreement dated 04.02.1992, but not on the basis of measurements taken by PW-2. The High Court remanded the matter to first appellate court, with further direction that the defendant shall be allowed to apply for appointment of a Commissioner for doing the survey of the land to be transferred. It is also clarified by the High Court that if no such application is moved the suit shall stand decreed, as per the measurements made by PW-2. Unsatisfied with the modified decree, passed by High Court, the defendants are before us, in this appeal, through specia