MAIKU LAL Vs. DWARIKA PRASAD AND A

JUDGEMENT

(1.) THIS second appeal arises out of a suit brought by respondent no. 1 for specific performance of agreement of sale dated 9th July, 1963. The agreement has been filed Ext. 11. The case of respondent no. 1 is that he entered into a contract with Sultan, who is respondent no. 2 in this appeal, to execute a sale-deed in respect of the properties mentioned in paragraph 1 of the plaint. Respondent no. 1 maintains that he advanced Rs. 850.00 to Sul an on 9-7-1963 who again borrowed Rs. 350.00 and executed a pronote and a receipt dated 5-10-1963. It was further contended by respondent no. 1 that Sultan executed a Patta in his favour on a rent of Rs. 20.00 per annum. Subsequently, Sultan executed a sale-deed in respect of the property in favour of the present appellants on 7-6-1963. On these allegations the respondent no. 1 maintains that he is entitled to a decree for specific performance of contract directing the defendants to execute the sale deed in his favour and in the alternative, has claimed refund of the advance money. Respondent no. 1 contested the suit on the allegation that he had purchased plot no. 350 for Rs. 750.00 and had no knowledge about any agreement in plaintiifs favour.

(2.) HE further contended that he was a bona fide purchaser for value without notice of the rights of the plaintiff and was protected by section 41 of the Transfer of Property Act. On the above pleadings, following issues were framed:-

(3.) THE next question that arises is that what relief can be granted to the appellants in view of the change in the numbers of plots. From the narration of facts given by the lower appellate Court, it appears that in place of plots mentioned in Ext. 11, respondent no. 2 was given plots nos. 7, 8, 10 and 350. It appear that plots nos. 7 and 350 were the original plots ard they have been kept intact and allotted to respondent no. 1. The question would, therefore, arise as to how the. equiries have to be adjusted. Ext. 11 indicates that the sale consideration for the plots mentioned in the deed is Rs. 2000.00. The question would arise as to what price would be payable in respect of the two plots which were also included in the original holding. Mr. Harguru Charan Srivastava has contended that in regard to plot no. 350, there was some litigation between Dwarika Prasad and Maiku and the name of Maiku was ordered to be recorded by the Consolidation authorities. It is not possible for this Court on the material already on record to determine as to what amount would be payable to the plaintiff if the decree for specific performance of contract is passed after the change of plot numbers. In order to determine this question, it is necessary that inquiry be made as to on payment of what amount the suit for specific performance can be decreed and on what conditions. After having heard Mr. Harguru Charan Srivastava at length. I find that the plaintiff's suit for specific performance of contract has to be decreed.