Janaki Nath Sarkar vs Innatennessa Bibi and Others

Greaves, J.—This is an appeal from a derision of the 5th Subordinate Judge of Dacca, dated the 17th December 1917, reversing a decision of the 3rd Munsif of Dacca, dated the 23rd August 1913.

The suit was one for specific performance of a certain contract and for possession of properties. The Munsif decided that the suit could not succeed inasmuch as there was doubt as to the identity of the properties in respect of which a decree for specific performance was sought. The Munsif states that the bainapatra sought to be specifically enforced is not in itself very specific and clear with respect to the properties claimed.

The learned Subordinate Judge has held that this question does not really arise having regard to certain facts, which he states have appeared in the pleadings, and it is against this decision that this appeal has been preferred.

It is said that the Subordinate Judge was wrong in not applying his mind to the question of identity upon which ground the Munsif had dismissed the suit. Now, it is clear that the bainapatra, of which specific performance is sought, does not in the schedule contain a very complete description of the properties of which specific, performance is sought, but the reasons for this are explained, and there is no doubt that the identity of the properties described in the schedule to the bainapatra can be satisfactorily established. Indeed, in the plaint the properties of which specific performance is sought are set out in detail with their boundaries.

We agree with the decision of the Subordinate Judge that the question with regard to identity, having regard to the facts in the ease, does not really arise.

In these circumstances the appeal fails and we think that there is no necessity that the appeal should be sent back to bare the question of identity determined by the lower Appellate Court.

The appeal is accordingly dismissed with costs.

Walmsley, J.

I agree.