Judgment :

sabyasachi Bhattacharyya, J.

1. The present first appeal has been preferred by the plaintiff in a suit for specific performance of a contract. In the said suit, the original defendant nos.1 and 3, namely Smt. Gita Dutta and Smt. Sabita Dutta alias Saba Haque respectively, filed with their joint written statement a counter claim for eviction against the plaintiff. The defendant no.2 Somnath Dutta also filed a written statement independently, virtually admitting the plaint case.

2. During the pendency of the suit, however, a separate amended written statement was filed by the defendant no.1, whereby she disowned her previous joint written statement and counter claim and supported the plaint case.

3. The original defendants Smt. Gita Dutta, Sri Somnath Dutta and Smt. Sabita Dutta alias Saba Haque were initially arrayed as respondents in the appeal. Smt. Gita Dutta having died during pendency of the appeal, her name was expunged, as the two other respondents survived her as her only heirs and legal representatives. Sri Somnath Dutta had all along supported the plaint case and has not contested the appeal. Since only the Defendant / Respondent No. 3 Smt. Sabita Dutta alias Saba Haque has contested the suit and the appeal, she is being referred as “the respondent” hereunder.

4. According to the plaintiff, an oral agreement was entered into between the plaintiff and one Sukumar Dutta, the predecessor-in-interest of the defendants, on June 12, 1995 whereby the said Sukumar Dutta (since deceased) agreed to sell a garage space (the suit property) to the plaintiff. Rs.10,000/- was paid as a part of the consideration in advance and Rs. 40,000/- paid as loan, on the self-same date, that is, June 12, 1995, for which two separate money receipts have been produced in evidence by the plaintiff, which were marked as Exhibit Nos.1 and 2 respectively.

5. On October 16, 1995, the oral agreement was reduced into writing by entering into an agreement for sale of the said garage space, which has been marked as Exhibit-3. According to the plaintiff, a plan of the garage was also made over by Late Sukumar Dutta to the plaintiff and has been marked as Exhibit-4. On July 21, 1997, non-judicial stamp paper was purchased, according to the plaintiff for completing the purchase, which has been marked as Exbibit-5, but unfortunately on July 25, 1997 the said Sukumar Dutta died.

6. Subsequently the defendants, in particular defendant nos. 1 and 3, being heirs of the Late Sukumar Dutta, having refused to honour the agreement, the plaintiff filed the suit for specific performance on June 25, 1995, giving rise the Title Suit No. 1085 of 1999.

7. On April 26, 2004, that is, during the pendency of the suit, a registered deed of conveyance was executed by the defendant nos. 1 and 2, namely Gita and Somnath, in favour of the plaintiff in respect of their 2/3^rd share of the suit property, wherein they admitted that out of the total agreed consideration amount of Rs.1,05,000/-, Rs. 1,00,000/- had already been paid by the plaintiff. The said vendors received their 2/3^rd share of the balance consideration of Rs.5,000/-. A memo of consideration, showing the break-up of the payments of consideration, was also made a part of the said sale deed.

8. The learned Trial Judge framed issues on all relevant points and arrived at findings on the same upon consideration of the evidence on record and hearing the arguments of both sides, but dismissed the suit on the ground of limitation under Article 54 of the Schedule to the Limitation Act, 1963.

9. On the other hand, the counter claim for eviction was simultaneously decreed against the plaintiff.

10. During pendency of the present appeal, the name of the defendant nos. 1 and 2/respondents were expunged and only Sabita Dutta alias Saba Haque remained as the defendant/respondent in the appeal.

11. While arguing the appeal, at the outset, learned counsel for the respondent submits that only one appeal has been preferred against the jud