MD MUSTAFA Vs. HAJI MD ISA

JUDGEMENT

(1.) This appeal by the plaintiff is directed against the judgement and the decree dismissing his suit for specific performance of contract with regard to the sale of a house said to have been entered into by the original defendant 1 Haji Md.Isa and the plaintiff.

(2.) The case of the plaintiff is that he was a tenant in one of the Katras of a Pucca house, which stood over four decimals of land appertaining to plot Nos. 2230 and 2231 under Khata No. 721 in village Alamgirpur Phulwarisharif, a suburb of town of Patna, which belonged to original defendant 1 Md. Isa, who was his uncle. In the month of April, 1972 Haji Md.Isa expressed his desire to plaintiff Md.Mustafa to sell the house, as he was in need of some money, and eventually, after some negotiation, Md. Isa agreed to sell the house to the plaintiff for a sum of Rs. 20,000/-. As the plaintiff had not got so much fund with him at that time for getting the sale deed executed, he wanted some time and Md. Haji Md.Isa agreed to grant him some time. It is said that on 14th June, 1972 Md. Isa told the plaintiff that he urgently required Rs. 7,000/- and so he should advance the amount to him and get a deed of agreement to sell executed by him. The plaintiff agreed. On the following day i.e. on 15-6-1972 the plaintiff advanced Rs. 7,000/- towards the aforesaid consideration money of Rs. 20,000/- to Haji Md.Isa, who, in turn, executed an agreement to sell on a stamped paper and delivered the same to the plaintiff. According to this agreement Md. Isa agreed to execute a registered sale deed in respect of the said house in favour of the plaintiff on payment of the balance of the consideration money by the last week of January, 1973, but he put the plaintiff in possession of the entire building at that very time in part performance of the contract. The case of the plaintiff is that he managed the balance of the consideration money and he asked Md. Isa to execute the sale deed, but he did not do, and hence the plaintiff sent a registered notice through his pleader on 7-10-1972 which was refused. In the meantime, the plaintiff learnt that the father of the minor defendants 6 and 7, namely, Arif Hussain, brought a collusive sale deed dt. 20-7-1972 into existence in the name of these defendants said to have been executed by Md. Isa. It is said that this sale deed is a fraudulent document and was brought into existence in spite of the aforesaid agreement executed by Md. Isa in favour of the plaintiff. It has also been alleged that this sale deed can have no legal effect, as it was executed without consideration and with full knowledge of the said agreement in favour of the plaintiff.

(3.) Original defendant 1 Haji Md.Isa had led written statement denying the allegations of the plaintiff but he died during the pendency of the suit on 20-6-1974, and his heirs, namely, respondents 1(a) and 1(b), who were substituted in. his place adopted the written statement filed by him. Defendants 2 and 3 have filed a joint written statement. The case, however, put forward in the two sets of written statement is substantially the same. The case of the defendants is that Md. Isa was in need of money and so he wanted to sell the house. It has also been admitted by Md. Isa that the plaintiff also wanted to purchase the house, but the price offered by him was too low and hence he had rejected his offer. He has denied to have agreed to sell the house to the plaintiff for a sum of Rs. 20,000/- or to have executed an agreement in his favour in this connection. According to these defendants the agreement said to have been-executed by Md. Isa and filed by the plaintiff is a forged, fabricated and antedated document. Their further case is that Md. Isa had agreed to sell the house to defendants 2 and 3 for a sum of Rs. 24,000/- and he actually executed a registered sale deed in their favour on 20-7-1972 after receiving the full consideration money of Rs. 24,000/- from them. According to them, this sale deed is a genuine document and was executed for consideration and Md. Isa had also put defendants 2 and 3 in possession of the house after sale and they are coming in possession thereof. Further case of the defendants 2 and 3 is that they are bona fide purchasers for value without any notice of the alleged agreement.