MALI BEWA Vs. DHUNDA SAMAL

JUDGEMENT

(1.) THE plaintiffs are in appeal against a reversing judgment of the lower appellate court in a suit for specific performance of a contract of sale. Defendant No. 1 was the original owner of the Ka and Kha Schedule lands, and for legal necessity, the plaintiffs allege, she entered into an agreement to sell the properties in dispute on 27-8-57 for a total consideration of Rs. 400/ -. Rs. 200/-as a part consideration was paid that day to defendant No. 1 and it is claimed that she put the plaintiffs in possession. The agreement is marked as Ext. 2. It is asserted by the plaintiffs that in spite of repeated demands by them defendant No. 1 postponed the execution of the document and ultimately on 29-11-57 she executed a sale deed in respect of the Kha schedule land of the plaint, which was a part of the contract, under Ext. 2 for Rs. 275/-in favour of defendant No. 2, The sale deed is marked as Ext. A.

(2.) ON the footing that defendant No. 2 had notice of the contract between the plaintiffs and defendant No, 1 the suit for specific performance was filed on 5-159. Defendant No. 1 filed a written statement denying the suit contract, but did not contest the litigation at the trial. Defendant No. 2 denied the agreement, delivery of possession, passing of part consideration and took the stand that he was a bona fide purchaser for value without notice.

(3.) THE learned Munsif discussed the evidence at length, but did not record any categorical finding on the question of delivery of possession or passing of consideration. He held, "i come to the conclusion that the defendant No. 1 definitely entered into a contract to sell the suit land to the plaintiffs as alleged and the deed of contract is genuine and for consideration". The treatment of the issues in the hands of the trial Court under issue Nos. 3 and 4 shows that they have been very perfunctorily decided though there was certain evidence on either side. Apart from making a running statement what each of the witnesses had deposed, conclusions were not drawn from such evidence. The trial Court, however, gave a decree to the plaintiffs.