Contracts for specific performance are unenforceable when vendors lack title, and suits are barred by limitation if not filed within prescribed timeframes.

JUDGMENT :

Siddhartha Roy Chowdhury, J.

1. Challenge in this appeal is to the judgement and decree passed by learned Additional District Judge, 5th Court, Barasat, North 24 Parganas in Title Appeal No. 36 of 2008 affirming thereby the judgement and decree passed by learned 1st Court, Civil Judge (Senior Division) Barasat in Title Suit No. 94 of 2001.

2. Briefly stated, respondent no. 1, Sk. Wahider Rahaman filed a suit for specific performance of contract with consequential relief against respondent no. 2 and 3 Sri Manoj Kumar Shaw and Sri Kailash Nath Shaw. In the said proceeding nine persons were added as defendant nos. 3 to 11 at the behest of the plaintiff.

3. It is contended that suit property was joint property of the original defendants. They agreed to sell the suit property in favour of the plaintiffs at a consideration of Rs. 75,000/-. The agreement for sale was executed on 15th February, 1993 and it was duly registered.

4. The defendants executed power of attorney in favour of the plaintiffs thereby appointed the plaintiffs as lawful attorney to take appropriate step to get the suit property vacated after evicting the tenants or occupants. On the strength of such general power of attorney the defendants filed two separate title suits being Title Suit No. 416 of 1993 and Title Suit No. 22 of 1997 before the learned 4th Court, Civil Judge (Junior Division) Sealdah, against Nilangshu Banerjee and others and against Shyamlal Agarwal. Those two suits were decreed on 3rd July, 1997 and 17th September, 1998 respectively.

5. Thereafter, the plaintiffs requested the defendants to execute the deed of conveyance upon receipt of balance consideration money amounting to Rs. 53,900/- but it was not adhered to. Hence the suit, which was contested by the defendants by filing a written statement. Learned Trial Court after considering the evidence on record was pleased to pass the decree.

6. Aggrieved by such order, the defendant no. 11 Raman Srivastav preferred an appeal being Title Appeal No. 36 of 2008 contending, inter alia, that during pendency of the suit though at the behest of the plaintiff defendant no. 3 to 11 were impleaded in the said suit, but no notice was served upon the defendant no. 11. Therefore, he could not contest the suit.

7. Learned First Appellate Court, however, did not accept the plea of the appellant (defendant no. 11) that notice was no notice was served upon him, the suit as framed is barred by limitation and as such the agreement cannot be specifically enforced. More so the proposed vendors do not have title to transfer the property.

8. Learned First Appellate Court refused to accept the appeal; aggrieved thereby the defendant no. 11 as preferred the second appeal which was admitted on 3 rd January, 2017 on the following substantial question of law :-

1. Whether the learned courts below were justified in passing a decree for specific performance of contract in favour of the plaintiffs/respondents against his vendor viz., Manoj Kumar Shaw and Kailash Nath Shaw when the title in the suit property of the predecessor of the defendant nos. 1 and 2 could not be established in Title Suit No. 39 of 2002 wherein it was held that the transaction which was held between the predecessor-in-interest of the defendant nos. 1 and 2 with the admitted original owners Madhabi Banerjee and others was not an out an out sale, but is a product of loan transaction and thereby the sale deed which was executed by those Banerjees in favour of the predecessor-