TOPAN DASS Vs. AMI CHAND

JUDGEMENT

(1.) The following substantial questions of law arise for consideration in the second appeal:-

(2.) The plaintiff's suit for specific performance of an agreement of sale dated 11.09.1977 was decreed. The appeal at the instance of the subsequent purchasers, namely, D5 and D6 was allowed on a reversal of finding that the defendants were bona fide purchasers for value without notice of agreement and the plaintiff was not entitled to a specific performance of agreement.

(3.) The facts that would be relevant to be considered on the points of law raised are that the plaintiff had paid Rs. 4,000/- out of the total consideration of Rs. 9,000/- as advance under P4 and had undertaken to discharge the mortgage of Rs. 2,500/- contracted by the vendors D1 to D4. He had also offered to pay the balance of Rs. 2,500/- within two years from the date of execution of the agreement. When the period arrived, the defendants had obtained an extension of time for execution of sale deed by another 5 years and as per the terms of the extension obtained through a memorandum in writing, the sale was to be completed before 28.01.1982. The plaintiff would state that he filed a suit on 27.09.1983. The plaintiff would explain that he issued a notice on 14.02.1982, tendered proof of the fact that he was actually present at the Sub Registrar's office and that the defendants 1 to 4 did not appear and filed the suit for enforcement of the agreement. Defendants 1 to 4 remained ex parte and defendants 5 and 6, who claimed as subsequent alienees through document dated 31.10.1977 and 16.11.1977 sought to contend that they had no knowledge of the agreement of sale and that they were bona fide purchasers. The plaintiff would point out that the 5th defendant was himself a witness to the agreement dated 11.09.1977 and he was deliberately kept out of the witness-box. D6 was D5's brother and the plaintiff contended that he ought to have known about the agreement of sale in his favour. The trial Court accepted this contention and decreed the suit but in appeal, the reversal arose by the different line of approach in reasoning adopted by the appellate Court, namely, the knowledge attributed to the 5th defendant cannot be inferred to his brother as well and the plaintiff had not established that the 6th defendant also had the knowledge of the recitals in the agreement by being a witness to the document.