JUDGMENT :

Partha Sarathi Chatterjee, J.

1. Legality and propriety of the judgment and decree dated 17.5.2018 passed by the learned Civil Judge, Senior Division, Malda in O.C. 205 of 2008, whereby the suit for specific performance of contract filed by the plaintiff/respondent herein was decreed, has been called in question in this instant appeal.

2. Facts projected in the plaint, in brief, are as follows :

i) That the suit property originally belonged to defendant no.1 who had purchased the same by virtue of registered deeds being nos. 8158, 8159, 8160, 8161, 14729, 14730 and 14732 registered on 24.5.1984 and 15.10.1984;

(ii) That the defendant no.1 proposed to sale out the suit property and the plaintiff agreed to purchase the same on a highest market value of Rs.23,40,001/-;

(iii) That defendant no.1 accepted Rs.1,51,001/- by cheque from the plaintiff and executed on agreement for sale on 4.3.2008 and the same agreement for sale being no. 1728 was duly registered in the office of Malda Sadar Sub Registrar on 5.3.2008;

(iv) That since there was a mistake in recording the name of the plaintiff in the agreement for sale, one deed of declaration being no. 18 of 2008 was also made incorporating correct name of the plaintiff;

(v) That on the same day, the plaintiff by issuing one cheque being no. 195775 drawn on SBI, Malda Branch in name of defendant no.2, son of defendant no.1, gave Rs.7,60,000/- and Rs.40,000/- in cash to defendant no.2 towards consideration money of the suit property;

(vi) That in the agreement, it was stipulated that on or before 30.5.2008 rest amount of consideration money being Rs.13,89,000/- shall be paid by the plaintiff and defendant no.1 would execute and register the deed of sale;

(vii) That on 23.5.2008, plaintiff made a contact with the defendant no.1 and then defendant no.1 asked him to come at the office of Registrar concerned with rest amount of consideration money on 28.5.2008 and accordingly as per such instruction, plaintiff went to the office of Registrar concerned with rest amount of consideration money and remained present therein till 3 p.m. but defendant no.1 did not come to perform her part of contract;

(viii) That on the next day i.e. on 29.5.2008, plaintiff sent one legal notice through his learned advocate, Mr. Partho Roy requesting the defendant no.1 to execute and register the deed on 16.6.2008 and on that date also, defendant did not come to the office of Registrar concerned to execute and register the deed;

(ix) The plaintiff has averred that he was ready and willing to perform his part of the contract but defendant no.1 was reluctant to perform her part of the contract. Hence, the suit.

3. Records postulate that both the defendants contested the suit by filing written statement wherein both of them admitted that defendant no.1 entered into an agreement for sale with the plaintiff to sale out the suit property at a highest market value of Rs.23,40,001/- and as an advance, defendant no.1 accepted Rs.1,51,001/- but plaintiff never paid Rs.7,60,000/- by cheque and Rs.40,000/- in cash to defendant no.2. It was specifically pleaded therein that since one good relationship was developed in between the plaintiff and the defendants, the plaintiff by issuing that cheque of Rs.7,60,000/- asked defendant no.2 to withdraw the money from the bank since there was huge crowd in the queue and accordingly, defendant no.2 withdrew the money and handed over to the plaintiff and that the plaintiff had never given liquid cash of Rs.40,000/- to defendant no.2. It was claimed by the defendants that plaintiff never came to defendant no.1 to get the deed of sale executed and registered by her within 30.5.2008 and lastly, prayer was made for dismissal of the suit.

4. Records further speak that to substantiate his claim, plaintiff adduced oral accounts of himself, of one Gopal Bhagat, Ranjan Poddar, Deb Ranjan Prasad and Jagabandhu Mandal, who were examined as PW-1 to PW-5 respectively.

5. Plaintiff tendered the original r