MOSTT MARKHI DEVI Vs. RAM CHARAN MAHTO

JUDGEMENT

(1.) HEARD the parties and with their consent this appeal is disposed of under Order 41 Rule 11 of the Code of Civil Procedure.

(2.) PLAINTIFF filed Title Suit No. 64 of 1976 against the defendants for specific performance of contract. On 29.12.1975 defendant no.1 executed a sada agreement for sale (Ext.2) is respect of 32 1/2 decimals land, situated in village Nonihari, District Bhagalpur (now Banka) for valuable consideration of Rs.3500/ - out of which Rs.2000/ - was paid on the same day and further Rs.1200/ - was paid on 12.3.1976 (vide Receipt Ext.3). Stipulated time of execution of sale deed and payment of balance consideration amount was mentioned in the deed by 31.7.1976. However, defendant no.1 by registered sale deed dated 28.7.1976 sold 30 decimals out of the said land to defendants 2 to 4. Again on 9.5.1978 i.e. during pendency of the suit, defendant no.1 sold the rest 2 1/2 decimals to Parmeshwar Thakur, who was added as defendant no.5. The trial court held that Ext.2 was genuine and a sum of Rs. 3200/ - was received by defendant no.1. However, it was held that defendants 2 to 4 had no knowledge about the agreement, Ext.2 and that they paid full consideration amount and were put in possession thereon. The trial court held that plaintiff was not entitled to decree for specific performance. However, he was granted equitable relief for refund of money already paid by him to defendant no.1. The trial court, however, decreed the suit for specific performance of contract in respect of the said 2 1/2 decimals and the plaintiff was held entitled to recover the balance amount after deducting proportionately the amount equal to the full consideration of 2 1/2 decimals.

(3.) IN the present Second Appeal by defendants 2 to 4 it has been contended that the court of appeal below misplaced the onus of proof upon them, whereas the onus was upon the plaintiff to prove that defendants 2 to 4 had knowledge of the contract (Ext.2). Under the provisions of Specific Relief Act, specific performance of a contract can be enforced against the either party thereto or against any other person claiming under him by a title arising subsequently to the contract, except a transferee for value, who has paid his money in good faith and without notice to the original contract. It is thus clear that the party, who wants to take advantage of the exception has to prove it. It was, therefore, incumbent upon the defendants 2 to 4, in the present case to prove in the first instance that they were transferees for value and that they had paid their money in good faith and without notice of the original contract.