ASHUTOSH JANA Vs. ANANTA KUMAR JANA

JUDGEMENT

(1.) This second appeal is at the instance of defendant No.2 in a suit for specific performance of contract and is directed against the judgment and decree dated March 10, 1988 passed by the learned Additional District Judge, 3rd Court, Midnapore in other Appeal No. 500 of 1986 thereby reversing those dated April 30, 1986 passed by the learned Munsif, Additional Court at Contai in other Suit No. 35 of 1986.

(2.) The parties to the instant proceeding are all brothers. The plaintiffs, two of the brothers, filed the aforesaid suit for specific performance of contract of sale of the property which was admittedly owned by defendant No.1. According to the plaintiffs, the defendant No.1 on November 6, 1976 entered into an Agreement for Sale of the suit property in their favour at the price of Rs. 2,500/- after receiving Rs. 2,000/- as earnest money. Subsequently the said defendant No. 1 sold away the suit property by a registered deed dated July 18, 1979 at a consi- deration of Rs. 4,490/- on the basis of an agreement for sale between defendant No.1 and defendant No.2 dated May 27, 1979.

(3.) The aforesaid suit was not contested by defendant No.1 but defendant No.2, the subsequent purchaser, contested the same thereby disputing the case of the plaintiffs. The defendant No.2 specifically asserted that the alleged agreement between plaintiffs and defendant No. 1 was a collusive ante-dated document and was created for the purpose avoiding the sale deed executed in favour of defendant No. 2. The further defence of the defendant No. 2 was that he was a bonafide purchaser for value without notice of any agreement for sale executed earlier by the defendant No. 1 and as such the suit was liable to be dismissed.