A contract for sale of land can be specifically enforced against the vendor even if the vendor had no title or imperfect title to the land at the time of the agreement, unless the contract is hit by the doctrine of frustration by any subsequent event or development.

1. THIS second appeal Is directed against the judgment and decree passed by the learned additional District Judge, Barasat, 24-Parganas, in Title Appeal No. 1053 of 1974 confirming the judgment and decree passed by the learned Munsif, 3rd court, basirhat, in Title Suit No. 208 of 1960.

2. PLAINTIFF filed the suit for specific performance of the contract for sale of the suit land. Plaintiff's case In brief was that the land in khatian no. 117 of mouza Farastpur measuring 1. 69 acres in two plots belonged to Rakibuddin and Naimuddin in equal sharers. Naimuddin contracted with the plaintiff to sell. 86 acre of land out of 1.69 acres of land for Rs. 4000/- and accordingly a deed of agreement for sale of the land was executed on 19-5-68 and Rs. 3000/- as earnest money was paid by the plaintiff toward the consideration of Rs. 4000/- on that date. It was also alleged that within Chaitra of 1376 B. S. the plaintiff could get the sale deed executed on payment of the balance consideration money of Rs. 1000/ -. Plaintiff offered the balance of the consideration money but the defendants who were the heirs of Naimuddin since deceased refused to execute and register the sale deed in favour of the plaintiff. Hence this suit. Only the defendant no. 5 filed the written statement and contested the suit. It was contended inter alia that Naimuddin did not execute any agreement for sale in favour of the plaintiff on receipt of any earnest money towards the consideration and that Naimuddin had no saleable interest in the land at the time when the alleged agreement for sale was executed. It was further contended that Naimuddin and his brother Rakibuddin surrendered their tenancy right in the land to the landlords end thereafter this defendant no. 5 along with his two other brothers took fresh settlement of the land. The plaintiff was therefore not entitled to any relief in this suit.

3. THE learned Munsif on die consideration of the evidence found that Naimuddin executed the deed of agreement for sale of the suit land in favour of the plaintiff on receipt of Rs. 3000/- towards the consideration of Rs. 4000/- and as per the agreement, although plaintiff was willing to perform his part of the contract by offering the balance of the consideration money, the defendants who were the heirs of Naimuddin refused to accept the balance of the consideration money and execute the sale deed. The learned Munsif found also that naimuddin had saleable interest in the land when the deed of agreement for sale was executed. Accordingly, the learned Munsif decreed the suit. On appeal, the learned additional District Judge confirmed the judgment and decree of the learned Munsif subject to the observation that the independent title of the defendants if any to the suit property pursuant to the alleged surrender of the tenancy by Naimuddin and his brother, being not within the scope of the suit for a decree for specific performance of the contract, will not be affected by the decree in this suit.

4. THE defendant no. 5 being aggrieved by the judgment and decree of the court below, has preferred this second appeal on the ground that the court below has committed mistake in law in confirming the judgment and decree of the learned munsif. Mr. M. N. Ghosh with Mr. D. Bhattacharyya appearing for the appellant has submitted that it is true that there are concurrent findings of facts of both the courts below as to the execution of the deed of agreement for sale (Ex. 4) by Naimuddin in favour of the plaintiff in respect of the suit land on receipt of Rs. 3000/- towards the consideration of Rs. 4000/- and as to plaintiff's willingness to perform his part of the contract by offering the balance of Rs. 1000/- and defendant's refusal to execute the sale deed and that the said concurrent findings of facts can not be interfered with in this second appeal, but the agreement for sale itself being hit by the doctrine of frustration was not enforceable, as according to the defendants