BHAGERAN RAI Vs. BHAGWAN SINGH

JUDGEMENT

(1.) This is an appeal by the plaintiffs from the judgment and decree of the Additional District Judge, Patna, dated 22nd July, 1958, reversing the Judgment of the Additional Subordinate Judge of the same place, dated 9th September, 1937, by which their suit for specific performance of contract had been decreed.

(2.) The plaintiffs, seven in number of whom plaintiffs 5, 6 and 7 are minors, represented by their next friend and natura1 guardian, constitute a Hindu joint family with plaintiff No. 1. as the karta and manager. Similarly, defendants 1 to 4, of whom defendants 3 and 4 are minors, represented by their natural guardian, constitute another Hindu joint family, of which defendant No. 1 is the karta. Defendants 5 and 6 are purchasers from defendants 1 to 4. The plaintiffs' family and defendants 7 and 8 are partners, holding equal shares in Patna Brick Manufacturing Company, which is defendant No. 9 (hereinafter referred to as the Company).

(3.) Defendants 1 to 4 Owned and possessed 3 bighas 1 1/4 kathas of land comprised in Survey plot No. 4734 under khata No. 1365 situate in village Makdumpur Digha. They gave in lease 2 Bighas, out of the said land, to the company on 30-10-1945 for a period of five years, but it is still in possession thereof though no registered deed of lease has yet been executed. The case of the plaintiffs, in brief, is that on 24-11-1953 defendants 1 and 2 agreed orally, on behalf of their joint family, to sell to them the said land of 5 bighas 1 1/4 kathas for a consideration of Rs. 4000 and, three days after executed a sale deed on 27-11-1953, in favour of the minor plaintiffs 5 to 7 who are the grandsons of plaintiff No. 1 and put them in possession, and promised to register the sale deed a few days after. The plffs, further alleged that two or three days after the execution of the sale deed defendant No. 1 approached plaintiff No. 1 and took from him Rs. 200 for purchasing potato, and in token of this payment he handed over to him the sale deed with a promise to register it next day. It is common ground that the plaintiff did not pay the balance of the consideration money i.e. Rs. 3800, nor did they get the sale deed registered for about ten months. Their case is that defendants 1 and 2 evaded registration of the deed and went on putting off the matter. On 4-10-1954 defendants 1 and 2 executed a registered sale deed (Ext. C) in favour of Bhagwan Singh (defendant No. 5) and Sohan Lal defendant No. 6) in respect of the same property for a consideration of Rs. 4500. On 8-9-1954 the subsequent purchasers served on the Company a notice to quit, vide Ext. 3b. The company by a letter dated 21-9-1954, declined to vacates the land on the ground that it had already been sold to the plaintiffs on 27-11-1953 and possession also had been delivered. a second notice to quit was served on the company on 17-4-1955 (Ext. C 3), which also met with the same fate. Thereafter, on 17-12-1955, the said purchasers instituted Title suit No. 122 of 1955 in the court of the 3rd Munsif, Patna for eviction of the company from the land leased to it, impleading as defendants, besides the company its partners and the minor plaintiffs vendees. The suit, which has given rise to this appeal, was brought by the plaintiffs on 23-5-1956 for specific performance of the contract of sale. Their case is that the subsequent sale deed was deliberately bought into existence by defendants 1 and 2 in collusion with defendants 5 and 6 with a view to depriving the plaintiffs of the benefit of the contract of sale and further that the subsequent sale deed will not prevail over their contract as defendants 5 and 6 took the sale deed (Ext. C) with full knowledge of the contract of sale entered into by defendant 1 and 2 in favour of the plaintiffs.