GANGA CHARAN Vs. BANS BAHADUR SINGH

JUDGEMENT

(1.) FACTS giving rise to this appeal may be set out at the outset. The suit was filed by respondent No. 1 Bans Bahadur Singh on the grounds that defendant Girja Baksh Singh, who was respondent No. 2 in this appeal, owned Chak No. 30 which included plots Nos. 269 and 318. The aforesaid Chak was known as Ameliya Chak No. 30. On 8-1-1965 defendant Girja Baksh Singh entered into an agreement with the plaintiff to sell the aforesaid plots for a sum of Rs. 3,100 in favour of the plaintiff. Rs. 150 were paid as earnest money and a receipt was duly executed. Thereafter, on further demand by Girja Baksh Singh Rs. 50 was paid by the plaintiff as further earnest money on 15-2-1965. Receipt of the same was also executed by aforesaid Girja Baksh Singh. Plaintiff subsequently on several occasions asked Girja Baksh Singh to execute the sale deed and accept the remaining sale consideration but Girja Baksh Singh went on delaying the matter on one pretext or the other. Ultimately, on 24-12-1967 he flatly refused to execute and register the sale deed as well as to accept the remaining sale consideration. Suit was filed on 8-1-1968 for specific performance by the plaintiff praying that Girja Baksh Singh be ordered to execute sale deed in respect of the plots in question for Rs. 3,100, out of which the plaintiff was willing to pay the balance i.e. Rs. 2,900. It was prayed in the alternative that in case relief for specific performance was disallowed then plaintiff be given a refund of Rs. 200.00 by Girja Raksh Singh. Subsequently, the plaint was amended and the present appellant was impleaded as defendant No. 2 on the grounds that he in spite of having notice of the suit as well as agreement had got a sale deed executed in his favour from Girja Baksh Singh on 27-1-1968. He was, therefore, impleaded and a relief was claimed that he may be asked to execute the sale deed along with Girja Baksh Singh in his favour. The suit was contested by the newly added defendant, namely, appellant on the grounds that he was a bona fide purchaser for value without notice. He further pleaded that Girja Baksh Singh had taken a loan from him in February 1964 in connection with marriage of his daughter and had executed a pronote on 5-2-1964 for a sum of Rs. 400, Later on he executed another pronote on 17-4-1966 for Rs. 1,000. Actually the agreement was in between him and Girja Baksh Singh that Girja Baksh Singh would sell the plots to him as he needed money in connection with his daughter' marriage. Since there was delay in execution of the sale deed Girja Baksh Singh executed an agreement in his favour on 28-10-1966, and ultimately executed sale deed in his favour on 27-1-1968 for Rs. 3,500 and also gave possession to him. On these grounds, the suit of the plaintiff was resisted.

(2.) THE learned Civil Judge, who tried this case, held that there was an agreement to sell between the plaintiff and Girja Baksh Singh and that defendant No. 2 was not a bona fide purchaser for value without notice and that in any case his defence was barred by Section 52 of the Transfer of Property Act. Consequently, he decreed the suit of the plaintiff. An appeal was preferred by Ganga Charan before the learned District Judge but the same was dismissed.

(3.) SRI S. N. Misra who argued this case on behalf of the appellant urged three points before me. The first point was that Section 52 of the Transfer of Property Act did not apply in this case; secondly that no issue had been framed on the point that the appellant was a bona fide purchaser, for value without notice with the result that his client' case had been prejudiced; and lastly that in any case since the appellant had been ordered to join Girja Baksh Singh in executing the sale deed and since the appellant has paid full consideration to Girja Baksh Singh, Rs. 2,900 if deposited by the plaintiff should be paid to the appellant.