CHAND MOHAMMAD Vs. MURTUZAKHAN MOHAMMAD MUSTAFAKHAN

JUDGEMENT

(1.) THIS second appeal raises an interesting question on which, it is staled before me by counsel appearing at the Bar, there is no direct decision of any Court in India. The dispute relates to a house in Circle No. 17/23 at Nagpur originally of the ownership of the Hajrabi and her son Shaikh Hussain. On 3rd September 1946 Hajrabi and Shaikh Hussain agreed to sell the house to the plaintiff for Rs. 925. On 5th September 1945, one Chand Mohmad, who will hereafter be referred to as the first defendant, persuaded Hajrabi and Shaikh Hussain to sell the house to him. On 7th November 1943 the plaintiff was intimated about the sale to the first defendant but the plaintiff obtained on 6th December 1945 a sale deed of the house from Hajrabi and Shaikh Hussain in purported fulfilment of the obligation under the agreement dated 3rd September 1945. The plaintiff then filed civil suit No. 12-A of 1949 in the Court of die 3rd Civil Judge, Class II, Nagpur, for a declaration that ho is the owner of the house purchased by him from Hajrabi and Shaikh Hussain (who were impleaded as defendants 2 and 3) and that the first defendant had acquired no right or title thereto under the sale deed dated 5-9-1955 the sale deed having been taken by the first defendant with due notice of the agreement dated 3rd September 1945 in plaintiff's favour. The plaintiff also claimed an injunction restraining the first defendant from disturbing the plaintiff's possession of the house in suit.

(2.) THE first defendant denied the agreement for sale of the property dated 3rd September 1945 set up by the plaintiff and contended that in any event he had no notice of the agreement and that he had purchased the house bona fide for valuable consideration from defendants 2 and 3. He also contended that the suit for a mere declaration of title was not maintainable.

(3.) THE learned trial Judge held that the defendants 2 and 3 had on 3rd September 1945 agreed to sell the house for Rs. 925 to the plaintiff, and the first defendant had, when he obtained the sale deed from defendants 2 and 3, notice of the agreement of sale. The learned Judge also held that the plaintiff was at the date of the suit in possession, and a suit for mere declaration of title and injunction was maintainable. Accordingly, he passed a decree declaring that the plaintiff was the owner of the house and granted an injunction restraining the first defendant from interfering with the plaintiff's possession. This decree was confirmed in appeal to the District Court at Nagpur. The learned Additional District Judge agreed with the view of the trial Court that decree was in fact an agreement between the plaintiff and defendants 2 and 3 for sale of the house on 3rd September 1945, and that the first defendant had with full notice of the agreement bought the house from defendants 2 and 3. The learned Judge also held in view of section 40 of the Transfer of Property Act that the right vested in the plaintiff could be enforced against the first defendant who was a transferee with, notice. Holding that the suit for a declaration and injunction was maintainable, the learned appellate Judge confirmed the decree passed by the trial Court