JAGATI TIMMARAJU Vs. IMMANI HANUMANTHA RAO

JUDGEMENT

(1.) This appeal is filed by the third defendant against a decree passed by the learned Subordinate Jndge, Elaru in O.S.No. 22 of 1966. The suit was filed by the first respondent herein for specific performance of an agreement of sale, Ex. A. 1 dt. 9-2-1965 executed by the first defendant (2nd respondent herein) in favour of the plaintiff, agreeing to convey the suit land for Rs. 27,125/-. A sum of Rs.500/- was paid as advance. Out of the balance of consideration Rs.10,000/- was agreed to be paid on 28-2-1966 while the rest of Rs.l6,225/- had to be paid by 25-3-1966. The 1st defendant, instead of performing the contract, sold the property, under Ex. B-1 dt. 27-3-1966 to the third defendant for Rs. 27,000/-, The third defendant who is the subsequent purchaser paid Rs.10,000 on 27-3-66 itself and agreed to pey Rs.13,750/- on the date of the registration The balance of Rs.3,250/- was agreed to be paid by discharging a mortgage executed by the first defendant in favour of the Co-operative Land Mortgage Bank Kovvur. The plaintiff having come to know about the subsequent sale, filed the present suit for specific performance on 1-4-66 impleeding the vendor as the first defendant and the subsequent purchaser as the third defendant.

(2.) The first defendant contested the suit by filing a written statement alleging that the agreement of sale was obtained by the plaintiff who was his own brother by the exercise of force and coercion and secondly that the time was the essence of the contract and that the plaintiff himself committed a breach of the contract by not tendering the amount within the stipulated time. The third defendant filed a separate written statement pleading that he was a bona fide purchaser for value witbout notice of the prior agreement of the sale in favour of the plaintiff. The trial court on a consideration of the evidence and probabilities of the case, negatived the pleas raised by the first and the third defendants and accordingly decreed the suit for specific performance against the vendor and the third defendant who is the subsequent purchaser.

(3.) In this appeal filed by the third defendant, the three main points argued by the learned counsel for the appellant, Sri Ananta Babu, are (1) that the third defendant-appellant had no notice of the prior agreement of sale In favonr of the plaintiff ; (ii) that be paid the entire consideration bona fide and without notice of the said agreement ; and (iii) that in any event, there was a prior oral agreement of sale dt.1-2-65 that is prior to the suit agreement in favour of the plaintiff and that the appellant is entitled to priority over the plaintiff. The first defendant represented by Sri M.S.K.Sastry also contended that the agreement of sale In favour of the plaintiff was vitiated by coercion and that in any event, the plaintiff committed default In performing the contract. The learned counsel for the third defendant also supported the first defendant with respect to these contentions.