P. B. MUKHARJI, J.

( 1 ) THIS is a suit by the plaintiffs for specific performance of an agreement for sale dated 12th March 1946 is respect of premises No. 21, Madan Gopal Lane, Calcutta, and for compensation for the delay in executing the conveyance and for turning out the trespassers. The agreement is in writing signed by Rai Chand Bural, Kissen Chand Bural and Bissen Chand Bural. They are the vendors and plaintiff Rai Bahadur Soshi Bhusan Dey is the purchaser. The agreement provides that the vendors shall sell the said premises to the Rai Bahadur free from all encumbrances at a price of Rs. 45,000 and that the vendors shall within 15 days deliver all documents of title and shall at their expense make out a marketable title and cause the property to be freed from all encumbrances. The agreement also provides that the conveyance is to be executed in favour of Rai Bahadur or his nominee or nominees. The sum of Rs. 1,000 was paid as earnest money and in part-payment of the purchase price on the execution of the agreement.

( 2 ) THE plaintiffs in their plaint referred to a deed of trust dated 15th March 1939 alleged to have been executed by defendant Rai Chand Bural whereby he appointed Kissen Chand Bural and Bissen Chand Bural the other two defendants as the trustees and conveyed this property to Each trustees upon trust, Rai Chand Bural was the absolute owner of the premises. The deed of trust was declared void and inoperative and not binding on the defendant Raichand Bural by decree made in suit No. 986 of 1946 of this Court made on 19th December 1946. It is alleged in the plaint that in those circumstances Rai Chand Bural is the owner of the premises and defendants 2 and 3 Kissen Chand Bural and Bissen Chand Bural are joined only as pro forma defendants and no relief is claimed against such pro forma defendants. Plaintiffs 2 and 3 are the relations and nominees of plaintiff 1 Rai Bahadur Soshi Bhusan Dey. The title was approved and the draft conveyance was also approved subject to the objections of the Attorney of Rai Chand Bural as pleaded in para. 5 of the plaint.

( 3 ) THE defendants' attorney cancelled the agreement for sale on 14th May 1947 and forfeited the earnest money. The plaintiffs contend that such cancellation and forfeiture are unjustified and unlawful.

( 4 ) THE central dispute in this suit relates to the question of vacant possession. In the plaint it is alleged that one Karim Bux Mullick is a tenant of the said premises under the defendant Rai Chand Bural and that the defendant Rai Chand Bural received rents up to July 1946 from such tenant. That tenant died some time ago and that tenant's nephew one Sadek Ali Mullick was alleged to be in occupation as a tenant of the said premises but no counterfoil of any rent bills have been produced in spite of demands. There was another person by the came of Dunia Lal Das who also, it is alleged in the plaint, was in wrongful occupation of the said premises. The plaintiffs' grievance is that the defendants should have turned out these trespassers from the said premises and given over vacant possession to the plaintiffs and that the delay in completion of the sale was due to the fault of the defendants.

( 5 ) A joint written statement has been filed by the defendants where it is admitted that Rai Chand Bural was and is the owner of the premises No. 21, Madan Gopal Lane Calcutta. It is denied the title was duly approved or that the only objection was as alleged in para. 5 of the plaint and that the plaintiffs wrongfully refused to complete the transaction. The defendants further contend that the demand of the plaintiffs for ejectment of the trespassers and for delivery of vacant possession was wrongful and unjustified. It is also denied that the plain-tiffs were ready and willing to perform the said contract. The written statement also admits that Dunia Lal Das has been in wrongful possession of a portion of the said premises as trespasser. The defendants justify ca

Click Here to Read the rest of this document