JUDGMENT :

Soumen Sen, J.

1. The appeal is arising out of a judgment and decree dated 19th October, 2006 passed by the learned Civil Judge (Sr. Div.), Jalpaiguri in a suit for specific performance filed by Falakata Industries Pvt. Ltd., (in short, “Falakata”).

2. Briefly stated, the plaintiff filed a suit for specific performance of a contract on the basis of Terms of a compromise forming a schedule to a compromise petition alleged to have been entered into in a previously instituted suit filed by Lakshmi Narayan Dhar, since deceased, against Falakata being O.C. Suit no.90 of 1997.

3. Falakata alleged that Lakshmi Narayan Dhar, (in short “Lakshmi Narayan”) filed a suit being O.C Suit No.90 of 1997 in the month of May, 1997 before the learned Civil Judge (Jr. Div.), Jalpaiguri against Ajit Kumar Agarwal &Ors. inter alia, praying for a decree for recovery of Khas possession against the defendants by demolishing their illegal structures from the suit land with other consequential reliefs. The plaintiff was the defendant no.3 in the said suit.

4. In the suit Falakata has alleged that on 28th May, 1997, on the basis of the terms of compromise as mentioned above, Falakata had paid to Lakshmi Narayan a sum of Rs.3,60,000/-towards consideration.

5. The plaintiff alleged that the joint compromise petition containing the said agreement was duly executed by and between the parties. The plaintiff alleged that the defendant no.1 after receiving the said consideration assured to execute a registered power of attorney in favour of the advocate on record of the plaintiff, as due to his prolonged illness, he was unable to move out of station. However, the said transaction could not be completed within the agreed time and the time to complete the said transaction was mutually extended from time to time and finally on or about 25th August, 2004 Lakshmi Narayan informed the plaintiff that he was unable to execute the deed of conveyance in respect of the suit property unless the plaintiff paid a further sum of Rs.3 lacs. The plaintiff having performed his part of the obligation, and still being ready and willing to perform the essential terms of the said agreement and having regard to the fact that the defendant had denied execution of the sale agreement despite having received the consideration amount, the suit for specific performance was filed.

6. Lakshmi Narayan died during the pendency of the suit.

7. The present appellants are the widow and younger son of Lakshmi Narayan.

8. Lakshmi Narayan the original defendant, however, filed his written statement in which he specifically denied the filing of any suit or any alleged compromise petition or an agreement for sale of the suit property forming part of the compromise petition. It is alleged that the compromise petition containing the terms of settlement is a fabricated document. Lakshmi Narayan further alleged that the compromise petition could not have been signed at Dinhata by him as he never used to reside at Dinhata nor had he engaged Mr. Tapan Sarkar on his behalf to file the suit or prepare any compromise petition or any terms of settlement in the non-existent suit. It is alleged that Mr. Ajit Kumar Agarwal (hereinafter referred to as “Ajit”) and the plaintiff tried to dispossess the defendant from the suit property for which an application under Section 144 of the Code of Criminal Procedure was filed before the executive Magistrate, Jalpaiguri on 7th July, 2000 being case no 279 of 2000. In the written statement the defendant had alleged that the suit and compromise petition containing terms of settlement are all forged and fabricated documents. In any event it was alleged that the suit is barred by limitation.

9. The learned Trial Judge on the basis of pleadings and documents framed 14 issues. The learned Trial Judge accepted the contention of the plaintiff that an agreement had been entered into by and between the parties in a suit instituted by the original defendant and accordingly decreed the