NAND LAL RAI Vs. RAM KALI DEVI

JUDGEMENT

(1.) THIS appeal has been preferred by above named defendants of Title Suit No. 61/71 against the Judgment and Decree passed in favour of the plaintiff -respondents in Title Appeal No. 18/21 of 1978/1982 passed by the Second Additional District Judge, Vaishali at Hajipur.

(2.) THE original suit was filed by the plaintiffs -respondents against the defendant 1st party who are now Respondents second party in this appeal for specific performance of the oral contract dated 10.5.1971 entered into between the plaintiff and the Defendant second party orally for sale of the suit land for a consideration of Rs. 4,000/ - and an amount of Rs. 500/ - has been taken as advance. But soon after that agreement was arrived at, the Defendant 1st party i.e. Respondent Second party had sold away the suit land to the Defendant Second party who are now the appellants, on 19.6.1971 by a registered sale -deed for a consideration of Rs. 13,000/ -. According to the plaintiff, such purchase by the Defendant Second party was with knowledge of the agreement of sale and also without consideration and as such they are not bonafide purchasers.

(3.) AN appeal was filed before the Appellate court and at the time of hearing of the argument it was felt by the Presiding Officer of the Appellate court that the signature of Ext. 5 requires to be verified with the admitted signature of the Defendant 1st party through an expert and as such evidence was taken to that effect and then it was held by confirming the trial courts Judgment that there was oral agreement between the plaintiff and the Defendant 1st party regarding the sale of the property on 19.6.1971. Then, on the second point regarding the knowledge of the Defendant Second party and purchasing the property on consideration, it was held by the Appellate court that the consideration was passed between the Defendant First party and the Defendant Second party while executing the saledeed dated 19.6.1971, but then it was held that the lower court committed error in not considering the knowledge part and hence he had considered the oral evidence on record of P.Ws. 5, 10. and 11 who were present at the time of the oral agreement and who had deposed categorically that the Defendant Second party was present at the time of such oral agreement and their evidence could not be dis -allowed in any way whatsoever and hence held that the plaintiffs case has been proved and decree has been granted in favour of the plaintiff by the impugned Appellate courts Judgment.