PRABHU RAMCHANDRA BALAI Vs. SUKHA NANDA

JUDGEMENT

(1.) THIS second appeal arises out of a suit for specific performance of contract executed by defendant No. 1 Sukkha S/o. Nanda on Asad Badi 2 Samvat year 2011 (18-6-1954) in favour of the plaintiffs agreeing to sell his house for a consideration of Rs. 700/ -. The case of the plaintiffs is that at the time of executing the agreement the defendant No. 1 received the entire consideration of rs. 700/- and delivered possession to the plaintiffs and it was agreed that the vendor should secure registration of the sale-deed within a month; that however later on the defendant No. 1 changed his mind and dishonestly sold away the house to defendants Nos. 2 and 3 Tarachand and Gordhan for an apparent consideration of Rs. 800/- and executed in their favour a registered sale-deed; that at the time of this latter sale-transaction the defendants 2 and 3 were fully aware of the agreement made by Sukkha in plaintiffs' favour and that he had delivered possession of the suit house to the plaintiffs in part-performance of the same; that the defendants Nos. 2 and 3 had not actually paid any part of the consideration to defendant No. 1 but had kept Rs. 500/- with themselves in deposit for payment to the plaintiffs and had credited Rs. 150/- towards the Khata of defendant No. 1 with them which too was bogus. The plaintiffs on these allegations claimed specific performance of the agreement of sale in their favour and they sought decree against the defendants.

(2.) THE defendant No. 1 admitted the execution of the agreement and to have received Rs. 500/ -. According to him the plaintiffs have been living in the suit house as his tenant since about a year and three quarters before and that he had received from the plaintiffs rent upto 7-8-1955. He however in his later part of the written statement denied the agreement referred to in para 4 of the plaint regarding his having agreed to secure registration of the sale-deed within a month. According to him he had entered into the agreement of sale not in plaintiffs' favour but in favour of Saligram Bohra. He de-Died to have made any conspiracy with defendants Nos. 2 and 3. He had in fact received considerations of rs. 800/- from defendants Nos. 2 and 3 and had executed the sale-deed in their favour and had it registered. But subsequent to this he came to know of the fraud played upon him by Saligram and the plaintiffs in securing the deed not in the name of Saligrarh with whom he had a talk about the sale but in plaintiff's name. There was thus, according to him, no genuine and enforciable agreement between him and the plaintiff.

(3.) AS regards defendants Nos. 2 and 3, they denied knowledge about the transaction of sale in plaintiff's favour and asserted that they were bona fide purchasers for value without any notice of the plaintiffs' transaction. They also contended that the plaintiffs were in the occupation of the house as a tenant and not under the alleged transaction of sale. They asserted that they paid full consideration, Rs. 150/- having been adjusted towards their Khata with them and rs. 650/- paid in cash. The plaintiffs, it is said, were under a duty to speak when they knew oi the sale-transaction with them. They having kept silent are estopped from challenging the same. Material issues which were framed in the case were --