ANWARUL HAQ Vs. NIZAM UDDIN

JUDGEMENT

(1.) This appeal is directed against the judgment and decree of the Second Temporary Civil & Sessions Judge, Azamgarh dated Aug. 23, 1969.

(2.) The defendant No. 1 was the Bhu-midhar of the land specified at the foot of the plaint. On Oct. 29, 1963 he entered into an agreement in writing to sell, this land to the plaintiff for consideration of Rs. 4000/- of which a sum of Rs. 500/- was paid by the plaintiff to the defendant No. 1 the same day as earnest. The sale was to be executed after obtaining permission from the Settlement officer (Consolidation) since the land in question was under consolidation proceedings. The plaintiff asked the defendant No. 1 to apply for the permission which the defendant no. 1 did. On the permission being obtained the plaintiff insisted upon the defendant No. 1 to execute the sale in his favour and obtain the balance of the sale Consideration. This was evaded by the defendant No. 1. On Dec. 21, 1963, the defendant No. 1 executed sale of the land in favour of the defendant No. 2. The plaintiff required him to rescind the sale but to no effect. The suit was instituted with these allegations on March 23, 1964 seeking the relief of specific performance of the agreement to sell.

(3.) In defence the defendant No. 2 averred that there was no agreement to sell arrived at between the plaintiff and the defendant No. 1. It was refuted that the defendant no. 2 had notice of any such agreement. The plea taken was that he was a bona fide purchaser for consideration of Rs. 4800/- without notice. The defendant No. 1 did not put in contest and the suit proceeded ex parte against him.