BANNOBI Vs. MST AFROZZIA

JUDGEMENT

(1.) THIS is a plaintiffs' second appeal in a suit for specific performance of a contract of sale of a house. The original plaintiff Mohd. Ibrahim having died shortly after filing the suit, he is represented by his heirs and legal representatives. Respondents Nos. 1 and 2 are the subsequent transferees of the house which was the subject-matter of the contract of sale. The vendor, Mohd. Zia Khan, was defendant No. 3. He died during the pendency of appeal in the lower appellate court and is now represented by defendant- respondents Nos. 2 (sic) to 6.

(2.) THE plaintiffs' case was that on 17th Feb., 1964, Mohd. Zia Khan agreed to sell the house in suit to him for Rs. 12,000/-. Out of it, Rs. 6,400/- were paid that day as advance and the balance Rs. 5600/- were payable before the Sub-Registrar at the time of the registration of the sale-deed; that the sale-deed was to be executed within a period of 5 months; that the plaintiff was in possession of the house since long before the said agreement as a tenant of Mohd. Zia Khan and continued to remain in possession; that on account of circumstances beyond his control, the plaintiff could not get the sale-deed executed within 5 months as originally agreed, and on his request, Mohd. Zia Khan agreed on 9th August, 1965, on payment of Rs. 600/-, to extend the time for completion of the sale up to the end of November, 1965, that the plaintiff requested Mohd. Zia Khan to execute the sale-deed during the last week of October, 1965 but Mohd. Zia Khan did not do so, and on enquiry the Plaintiff found that Mohd Zia Khan had sold the property on 15th October, 1965 to defendant-respondents Nos. 1 and 2 for a real consideration of Rs. 6000/- only although the consideration shown in the sale-deed was Rs. 7000/-; that defendants Nos. 1 and 2 knew that Mohd. Zia Khan had agreed to sell the house to the plaintiff and had extended the date for completing the sale and that the house was in the plaintiff's possession as a tenant, but prevailed upon Mohd. Zia Khan to execute the sale-deed in their favour with full knowledge of the contract in the plaintiff's favour; that the plaintiff asked the defendants to execute the sale-deed in his favour but they refused, hence the suit. THE relief originally claimed in the suit was for specific performance of the agreement dated 17th February, 1964 coupled with the agreement dated 9th August, 1965, on payment of Rs. 5,600/- with the prayer in the alternative that the specific performance of the contract may be decreed in favour of the plaintiff even on payment of Rs. 6000/- the amount actually paid or Rs. 7000/- shown to have been paid by defendants Nos. 1 and 2 to Mohd. Zia Khan, as the court may deem fit. By an amendment of the plaint, a further plea in the alternative was added to the effect that if the court be not inclined to decree specific performance of the contract or if the plaintiff is not found entitled to the same, although he was always ready and willing to purchase the house in suit, a decree for the refund of Rs. 6,400/- paid to Mohd. Zia Khan towards part payment of the price and for recovery of Rs. 5,600/- as compensation for the breach of contract may be passed, and further prayer claiming relief to that effect was also added. THE third defendant Mohd. Zia Khan, denied the plaintiff's claim but specifically stated that there was an agreement between him and the plaintiff but the plaintiff did not get the sale-deed executed within time; that the third defendant's son was ill and he was in urgent need of money and had repeatedly asked the plaintiff to have the sale-deed executed and pay the money, but the plaintiff did not care and the third defendant was compelled to execute the sale-deed in favour of third persons and even his son died in the meanwhile; that the third defendant was not at fault and did not want to do anything which may harm the plaintiff and further that Qudrat Ullah had purchased the house in suit in the name of his son-in-law's son and the latter's wife and had promised that he would meet the litigation with which the third defendant will have, no concern and on being assured as aforesaid by Qudrat Ullah, he, the third defendant, who was in urgent used of money for the treatment of his son, executed the sale-deed. THE third defendant did not, however appear at the trial and the suit was contested by the subsequent transferees, defendants Nos. 1 and 2. Further, in their written statement, they denied the plaint allegations in toto, and pleaded that the agreements dated 17th February, 1964 and 9th August, 1965 were fictitious and fraudulent, antedated and collusive; that even according to the plaintiff's own allegations, since he was not ready and willing to perform his part of the contract within the time limited by the original agreement, he was not entitled to specific performance of the same; that the subsequent agreement dated 9th August, 1965 could not revive the agreement dated 17th February, 1964 which had already extinguished; that the plaintiff's allegation that he was prepared or willing to perform his part of the contract was false; and in the end it was pleaded, in the alternative, by them that they bona fide purchased the house for valuable consideration of Rs. 7000/- without notice of any prior agreement between the plaintiff and defendant No. 3.

(3.) IT was contended before me by the learned counsel for the plaintiff-appellants that the last finding of the lower appellate court was erroneous in law. IT was urged that the lower appellate court had disbelieved Kamar Akhtar, defendant No. 2 (D.W. 1), his father Ali Ahmad (D.W. 3) and the latter's father-in-law Qudrat Ullah (D.W. 4) and had believed the plaintiff's case that the bargain for the sale of the house was settled between him and Mohd. Zia Khan at the Arhat shop of Qudrat Ullah in the presence of the said three persons and had held that defendants Nos. 1 and 2 knew about the agreement dated 17th February, 1964 for sale of the house in the plaintiff's favour for Rs. 12000/-, out of which Rs. 6,400/- had been paid in advance by the plaintiff, and that being so, the lower appellate court could not have come to the finding that defendants Nos. 1 and 2 had no notice of the contract of sale which, was found by the lower court to have been subsisting on 15th October, 1964, simply because the time for completion of the sale had been extended by Mohd. Zia Khan by a fresh agreement in writing dated 9th August, 1965.