ANWARUL HAQ Vs. NIZAM UDDIN

JUDGEMENT

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

(2.) THE defendant No. 1 was the Bhumidhar of the land specified at the foot of the plaint. On Oct. 29, 1963 be 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 N. 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.) SRI S. N. Verma, learned counsel for the appellants submitted that there was no agreement to sell executed by the defendant No. 1 in favour of the plaintiff on Oct. 29, 1963 and that the defendant No. 2 did not have notice of any such agreement. Both these contentions are concluded by the concurrent findings of fact. The agreement was found duly executed vide Ex. II. In regard to the notice it was held on the basis of the evidence placed on the record that the defendant. No. 2 had been present personally when the agreement was executed. The testimony of the plaintiff to this effect was accepted by both the courts below. There is no perversity shown to exist in relation to these findings. In view thereof these contentions have to be rejected.