The breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money, as per the provisions of the Specific Relief Act.

JUDGMENT

1. On the following substantial questions of law, this second appeal has been admitted for hearing:--

I. Whether the learned Courts below committed illegality in not holding that the transfer of some of the suit property during the pendency of the suit in question are hit by section 52 of the Transfer of Property Act, 1882?

II. Whether the learned lower Courts have overlooked the provisions of explanation to section 10 of the Specific Relief Act, 1963?

Heard learned counsel, Mr. D. Bhattacharjee for the appellant and learned counsel, Mr. D.K. Biswas for the respondents.

2. The appellant as plaintiff instituted Title Suit No. 39 of 1989 in the Court of learned Civil Judge, Sr. Division, North Tripura at Kailashahar praying for a decree of specific performance of contract against defendant-respondent No. 1 Niranjan Malakar for the suit land mentioned in the schedule of the plaint

3. The case of the plaintiff, in short, is that the respondent No. 1 Niranajan Malakar proposing to sell land measuring 13 gandas, described in the schedule of the plaint, had entered into an agreement with the plaintiff-appellant on 08.01.1989 and settled to sell the land at a price of Rs. 54,625/- and received an advance of Rs. 8,805/-. An agreement in writing was signed by the parties. It was stipulated that within 3 months, the plaintiff-appellant will tender the rest amount and on receipt of the amount, the respondent will execute the sale deed for the suit land. The plaintiff-appellant repeatedly tendered the money but the defendant-respondent No. 1 did not execute the sale deed. On the contrary, the defendant respondent No. 1 sold out a part of the suit land to defendant respondent No. 3 Nirmal Malakar and his father, since deceased, Nirode Behari Malalkar and handed over possession of a part of the suit land to those purchasers. Since the defendant-respondent No. 1 failed to execute the sale deed in terms of the agreement, the plaintiff-appellant instituted the suit for decree of specific performance of contract.

4. Defendant-respondent No. 1 contested the suit inter alia, contending that the suit land was a path way for the entry in the house of the defendant-respondent No. 1 and the defendant respondent No. 1 did not really intend to sell the suit land described in the deed of agreement and the defendant also denied such agreement of sale.

5. Considering the pleadings of the parties, the learned Civil Judge framed the following issues:--

(i) Whether there is any cause of action?

(ii) Whether there was at all any contract between the Plaintiff and the Defendant in regard to subject matter of this suit?

(iii) Whether the contract as alleged in the plaint is at all enforceable?

(iv) Whether the suit is bad for non-joinder of party?

(v) Whether the alleged Chuktipatra dated 8.1.1989 as mentioned in the plaint is a genuine document or a fraudulent and anti dated and manipulated document?

(vi) Whether the plaintiff was ready and willing to fulfill his part under the alleged contract?

(vii) Whether the plaintiff is entitled to get the decree as prayed for?

(viii) To what other reliefs the parties are entitled?

Additional Issue No. I.

Whether the sale deed dated 13.6.89 executed by defendant No. 1 in favour of defendant No. 3 and his father (now late) is void and liable to be delivered up?

6. The plaintiff-appellant examined himself as P.W. 1 and also examined another witness namely P.W. 2 Umesh Ch. Debnath and proved deed of agreement of sale as Exbt. 3. Defendant-respondent No. 1 has examined' himself as D.W. 1.

7. The trial Court considering the pleadings and the evidence on record, decided all the issues in favour of the plaintiff and accordingly decreed the suit in favour of the plaintiff-appellant.

8. Challenging the judgment and decree, the defendant-respondent No. 1 preferred Title Appeal No. 38 of 99 before the Court of learned District Judge, North Tripura, Kailashahar and the learned Addl. District Judge(Fast Track Court) by judgment dated