BHOTI DEVI Vs. DULECHA

JUDGEMENT

(1.) G. S. N. Tripathi, J. This appeal has been filed by the defendants against the judgment and decree dated 3. 9. 76 passed by IIIrd Addl. District Judge, Saharanpur in Civil Appeal No. 270 of 75 of the same district, whereby the appeal of the defendant was dismissed. That appeal arose out of judgment in O. S. No. 173 of 1971 of the Court of Civil Judge, Saharanpur. The suit was decreed by the judgment and decree dated 9. 8. 75 passed by the Civil Judge, Saharanpur as aforesaid. The suit of the plaintiff for specific perfor mance of contract was decreed.

(2.) DULECHA, respondent No. 1 (plaintiff) filed O. S. No. 173/71 before the Civil Judge, Saharanpur. He has alleged that defendant No. 1 Khila, was the owner of the disputed property. He agreed to sell the same of the plaintiff on 6. 4. 71 for a sum of Rs. 12,000 out of which, Rs. 7,000/- was paid by him in cash as an earnest money. A portion of the disputed property was Sirdari, for which bhumidhar certificates had to be obtained with a month and thereafter the sale-deed was to be executed after paying the remaining sale consideration of Rs. 5,000. The plaintiff was always ready and willing to perform his part of the compromise. At the time of the execution of the agreement deed itself, possession was transferred to the plaintiff. But the defendant No. 1 was not ready to perform his part of the compromise. Not only this, he surreptitiously and illegally transferred the property to the defendant No. 2, who is Bhabhi of defendant No. 1. This sale deed Is totally fictitious without any consideration. Moreover, defendant No. 2 had knowledge of the agreement in favour of the plaintiff throughout. Now the defendants are not ready to execute the sale deed in favour of the plaintiff. Therefore, the suit was filed for specific perfor mance of the contract.

(3.) THE learned Civil Judge framed the following issues: (1) Whether the defendant No. 1 agreed to sell the land in suit and executed the impugned agreement of sale in favour of the plaintiff as alleged? (2) Whether the plaintiff advanced Rs. 7000 towards part consideration of the proposed sale to the defendant No. 1 as alleged? (3) Whether the plaintiff has been willing and prepared to perform his part of the contract? (4) Whether the plaintiff or defendant No. 2 is in possession of the land in suit? (5) Whether the defendant No. 2 is bona fide purchaser for valuable considera tion without notice of the impugned agreement? (6) To what relief, if any, is the plaintiff entitled?