LAXMAN HOTA Vs. RAMA CHANDRA HOTA

JUDGEMENT

(1.) - This appeal has been filed by the plaintiff against the affirming decision of the learned Additional District Judge, Puri. Plaintiff's suit is for specific performance of contract and costs. The following genealogy which is admitted would show the relationship of the parties. :- The suit is in respect of A.O. 2 3/16 decimals out of A.O. 07 decimals of homestead land appertaining to plot No.238, Khata No.94 of Mouza Satyabadi alias Penthapada. The following facts are not in dispute. First, the suit land being 1/3rd of the suit plot had fallen to the share of the plaintiff in a partition between him, his brother (defendant No.1) and his father, the late Somanath, before the other brothers were born. Second, on 15-4-1963, while defendant No.2 was a minor, the plaintiff sold the suit land to defendant No.2 represented by his father by a registered deed of sale for a consideration of Rs. 300. The plaintiff's further case is that on the same day on which he sold the suit land to defendant No.2, that is on 15-4-1963, the late Somanath as the father-guardian and on behalf of defendant No.2 entered into an agreement (Ext.1) with the plaintiff that in case defendant No.2 would decide to sell the suit land in future he must sell it to the plaintiff for a consideration of Rs. 500. The plaintiff asserts that this agreement was made in the presence of his elder brother, defendant No.1. Some time thereafter disputes: arose between defendant No.1 and the plaintiff and the former influenced the late Somanath and defendant No.2 and fraudulently got a sale deed executed by defendant No.2 in his favour on 10-2-1967 for a purported consideration of Rs. 400 while in fact no consideration was paid. Defendant No.1 threatened to dispossess the plaintiff from the suit land and hence the suit.

(2.) Defendants 1 and 2 and the guardian ad litem of minor defendant No.6 contested the suit while the other defendants were set ex parte. In his written statement defendant No.1 has denied that he had purchased the suit land with the previous knowledge of the agreement (Ext.1) purported to have been executed by the late Somanath on behalf of defendant No.2. He has also denied that there was any agreement to the effect that defendant No.2 was bound to sell the property to the plaintiff for Rs. 500 and he has pleaded that even if such an agreement was in existence, he was not legally bound by it since he purchased the suit-land without any knowledge of any such agreement and for consideration. He has also claimed to be in possession of the suit-land on the strength of the sale deed executed in his favour by defendant No.2. In his written statement defendant No.2 has substantially supported the case of defendant No.1. He has pleaded that the suit land was purchased by his father-guardian on his behalf on 15-4-1963 for consideration of Rs. 300 and he had taken over possession of the suit land since after the purchase. On 10-2-1967, after he had attained majority, he sold the suit land to defendant No.1 for consideration and delivered possession of the suit land to defendant No.1. He has further pleaded that he had no knowledge of any agreement executed by his father on his behalf during his minority and even if there was such agreement it was not legally binding upon him. The guardian ad litem has also denied. The allegations contained in the plaint. Both the Courts below have held that the agreement (Ext.1) was not valid and hence not enforceable and that defendant No.1 was a bona fide purchaser for value without notice of the agreement, Ext.1. The plaintiff's suit was accordingly dismissed by the learned trial Court and the said decision has been confirmed in appeal.

(3.) The hearing of this appeal is confined to the following two questions :