MAHMOOD KHAN Vs. AYUB KHAN

JUDGEMENT

(1.) BY the Court :-The present second appeal came up for hearing before a learned Single Judge, but because of the importance of the questions of law involved in the case, he referred the case to a larger Bench. This is how this appeal has come before us.

(2.) THE present appeal by the defenders arises out of a suit for specific performance of a contract. THE parties belong to the same family and descend from Ajib Khan, as would be evident from the pedigree, given below : Ajib Khan Amir Baksh Buniyad Khan Jhandu Khan Altaf Khan Abdul Razzaq Ayub Khan Abdul Sattar Masooqu Ali PIff. Mahmud Khan Mahboob Khan Mahjooj Khan D. 3. D. 2. Abdul Razzaq was the bhumidhar and sirdar of the disputed plots. On 10th December, 1969, he entered into an agreement with Ayub Khan to sell away the same for a consideration of Rs. 1600/. A sum of Rs. 1200/- was paid towards earnest money. It was stipulated that Abdul Razzaq would acquire bhumidhari rights in respect of the sirdari plots by depositing ten times rental within four months, and, thereafter, he would transfer the plots. It was further stipulated that along with the plots, the crops standing thereon on the date of the agreement would also be transferred by Abdul Razzaq to Ayub Khan. Abdul Razzaq, however, instead of executing the sale deed in favour of Ayub Khan, executed a sale deed dated 29th December, 1969, in favour of his cousins, i. e. defendant nos. 2 and 3. THE plaintiff requested Abdul Razzaq to execute the sale deed in his favour, but he'refused. Under the circumstances, the plaintiff was obliged to file a suit for specific performance of the contract. He impleaded the transferees under the sale deed dated 29th December, 1969, also as parties.

(3.) DEFENDANT nos. 2 and 3 filed a separate written statement. Their stand was that after executing the sale deed in their favour, defendant no. 1 wanted to harm them and thus executed an agreement deed in favour of the plaintiff antedating the same, that the agreement was fictitious and without any consideration, that they were bona fide purchasers for value without notice of any previous agreement, if any, that they have been in possession from the date of the sale deed dated 29th December, 1969.