RAM LAKHAN Vs. RAM GOVIND

JUDGEMENT

(1.) THIS second appeal arises out of a suit for specific performance of an agreement of sale. The plaintiff further claimed that in case he was found out of possession, then possession should be awarded to him of the property in dispute. The plaintiff also claimed, in the alternative, that in case specific performance could not be decreed then a decree for a sum of Rs. 127.00 should be passed in his favour in respect of the earnest money which was paid by him to the defendants Nos. 1 to 3. The nature of the controversy will appear from the following passage which has been extracted from the judgment of the lower appellate court:

(2.) THE trial court decreed the suit but in appeal the lower appellate court set aside the trial court's judgment and decree and rejected the plaintiff's claim for specific performance. However, a decree for a sum of Rs. 127.00 was passed in his favour against the defendants Nos. 1 to 3, with interest, pendente lite and future at the rate of 4% per annum on the principal sum of Rs. 100.00. The plaintiff has now come up in the instant second appeal.

(3.) THE second contention, which learned counsel raised, is to the effect that the benefit of S.41 of the Transfer of Property Act was wrongly extended to the defendant No. 4, Ram Govind, in the absence of any finding that he had made necessary enquiries which he was bound to do in the circumstances of the case. S.41 of the Transfer of Property Act seems to be a mistake inasmuch as the said provision of law is not at all applicable to the facts of the case. The said provision speaks of a transfer by an ostensible owner and we are not concerned here with any such situation. It is a suit where the real owners and not the ostensible owner transferred the property, but did so in favour of a party who came on the scene subsequent to the plaintiff who had obtained a prior agreement for the sale of the property. Learned counsel, therefore, correctly drew my attention to S.19 (b) of the Specific Relief Act which lays down as under :