SHAKOOR Vs. PALAKDHARI

JUDGEMENT

(1.) THIS is a second appeal by the Defendants against the judgment and decree passed by the Court below in a suit for specific performance of contract of sale.

(2.) THE Plaintiffs alleged that the Defendants, first set, were residents of village Gauna Tappa Kenwali Pargana Haveli district Gorakhpur where they bad their residential house and also cultivatory land. The Defendants first set also owned some bhumidhari land in village Shyam Dewrwa including plot No. 370. The entire bhumidhari land of this village was transferred by them to the Plaintiffs through two sale deeds except plot No. 370 because in the revenue records its khasra number had been wrongly mentioned as plot No. 317 which required to be corrected. According to the Plaintiffs in March, 1968 the parties negotiated the sale of this plot also in favor of the Plaintiffs and it was agreed that the Defendants first set will first get the number of the plots corrected in the revenue records within six months and thereafter execute a sale deed in favour of the Plaintiffs. The earnest money was received by the Defendants first set on 8th March, 1968 when an agreement of sale was also executed. It is also alleged that the father of Defendants second set was fully aware about the transaction in question but inspite of this he got a sale deed of the plot in question executed in favour of his minor sons, who are Defendants second set. The Plaintiffs were approaching the Defendants first set, for getting the sale deed executed but they avoided the same. Ultimately, on 10 -12 -68 a notice had to be served asking them to execute the sale deed. Apart from this, one Sita Ram was also deputed to personally request the Defendants first set to execute the sale deed when it was revealed that they had already transferred the property to the Defendants second set. The Plaintiffs, therefore, prayed for specific performance of contract of sale on payment of the balance amount of consideration that is Rs. 500/ - at the time of registration.

(3.) ON the evidence led by the parties on record the trial Court came to the conclusion that the Defendants first set had infact entered into an agreement on 8th March, 68 to sell the land to the Plaintiffs and had also received Rs. 1000/ - by way of earnest money. The Court, however, held that as the Defendants second set were bonafide transferees for consideration without notice of the agreement between the Plaintiffs and Defendants first set and, as such, they were entitled to get the benefits of Section 41 of the Transfer of Property Act. In view of these findings the Court instead of granting a decree for specific performance to the Plaintiffs merely awarded a decree for refund of Rs. 1000/ - paid as earnest money to the defts. first set. The claim against the Defendants second set was rejected. The Plaintiffs filed an appeal and the lower appellate Court allowed the same holding that the Defendants second set were net bonafide purchaser for value and, therefore, the appeal was allowed and the Plaintiffs were held entitled to a decree for specific performance against all the Defendants. Aggrieved, the defts of both the sets have come up in appeal before this Court.