PARMESHWAR MANDAL Vs. MAHENDRA NATH TEWARI

JUDGEMENT

(1.) This appeal by defendant No. 2 (defendant second party) arises out of a suit for specific performance of contract and recovery of possession.

(2.) The plaintiffs' case was that defendant No. 1 had 2.23 acres of land in village Majrohi and 1 bigha 10 kathas of land in village Tarwa, described in Schedule I of the plaint. On the 22nd Magh 1362 Fasli corresponding to the 30th of January, 1955, defendant No. 1 contracted to sell these lands to Dwarkanath Tewary (who was originally the plaintiff, but later on died during the trial) for Rs. 3,130, and he executed a deed of contract the same day on taking Rs. 930 as earnest money. Defendant No. 1 stipulated to execute the sale deed by Bhado 1362 Fasli, and he put Dwarkanath Tewary in possession of those lands. On the 23rd April, 1955, defendant No. I received a further sum of Rs. 1,200 out of the amount of consideration. On the 6th September, 1955, Dwarkanatli sent a notice to defendant No. 1 to execute a sale deed, but he did not do so, and it transpired that he had already executed a sale deed in favour of defendant No. 2 on the 4th February, 1955, in respect of those lands. Defendant No. 2 had knowledge of the previous contract in favour of Dwarkanath Tewary, but in spite of that he got the sale deed executed by defendant No. 1. Dwarkanath instituted the suit on the 14th October, 1955, but after his death his heirs were substituted in his place. They got the plaint amended and sought for recovery of possession as well in case they were found to be out of possession.

(3.) Defendant No. 1 contested the suit on grounds inter alia that he neither executed the deed of contract nor received any sum as earnest money. He further denied to have received a sum of Rs. 1,200 and asserted that the sale deed executed in favour of defendant No. 2 was valid Defendant No. 2, on the other hand, averred that he was a bona fide purchaser for value without any notice of the contract between the plaintiffs and defendant No. 1.