DURGABALA DASI Vs. TARASANKAR DIKHIT

JUDGEMENT

(1.) This second appeal arises out of a suit for specific )3erformance of a contract for sale of an eight- anna share of a residential house standing on C.S. plot No. 315 of mauza Bhabanipur. The suit was instituted by Plaintiff Tarasankar Dikhit, Respondent No. 1 of this appeal. Admittedly, the above share of the house belonged to one Harih#r Chandra, Respondent No. 2 of this appeal and Defendant No. 1 of the trial court. According to the case of the Plaintiff, Harihar had agreed to convey this eight-anna share of the house by executing a bainapatra in favour of the Plaintiff on the 20th Kartick, 1357 B.S. corresponding to November 6, 1950 for a consideration of Its. 996 out of which a sum of Its. 29 was paid by way of earnest money at the time of the execution of bainapatra and the balance was payable at the time of the execution of the sale deed. The Plaintiff's case further was that he had already purchased the other half share of the house from Harihar's brother and he was in possession of that share. The Plaintiff also averred that upon the execution of the bainapatra, he was put in possession of Harihar's separate half share of the house. The Plaintiff next alleged that he had to institute this suit because Harihar refused to execute the conveyance in terms of the contract although requested in that behalf by the Plaintiff.

(2.) The Appellants of this appeal who are Defendants Nos. 2 and 3 of the trial court and who are husband and wife were impleaded on the allegation that they had taken a collusive and fictitious kobala from Harihar, with notice of Plaintiff's alleged contract.

(3.) The suit was separately defended by Harihar, and Durgabala, Appellant No. 1. There was no appearance of Durgabala's husband in the trial court. The contesting Defendants denied in toto that any contract for sale had been entered into by Harihar Chandra and the execution of the bainapatra by Harihar was denied. Defendant No. 2, Durgabala- further contended that she was a bona fide purchaser for value without notice of Plaintiff's alleged contract. These defences were negatived by the trial court and the suit was decreed against Defendants Nos. 2 and 3 who were directed to execute a conveyance in favour of the Plaintiff-Respondent upon his depositing the balance of the consideration money, namely. Rs. 700. This decision was confirmed in appeal. Hence Defendants Nos. 2 and 3 of the trial court have preferred this second appeal.