KESHARMULL AGARWALA Vs. RAJENDRA PRASAD

JUDGEMENT

(1.) This is a Letters Patent Appeal by the plaintiff against the Judgment of a Single Judge of this Court (Mahapatra, J.) dated the 27th February, 1961, dismissing his appeal (First Appeal No. 345 of 1958) against the judgment of the 3rd Additional Subordinate Judge of Hazaribagh in a suit for specific performance of contract of sale. The property in question consists of a house in holding No. 1085 in Ward No. 7 in the town of Hazaribagh, The Plaintiff was admittedly occupying a portion of the house as a tenant under the previous owner. He alleged that on the 11th December, 1955, defendants 1 and 2 executed an agreement to sell the house to him for a consideration of Rs. 6,000/- and that on the date of the agreement Rs. 1,000/- was paid in cash by the plaintiff and that the previous payment of Rs. 500/- and adjustment of a previous loan of Rs. 1,600/- were also mentioned in the deed of agreement. It was further alleged that notwithstanding the said agreement to sell, defendant No. 1 sold the house by two sale-deeds dated the 29th December, 1955, and 2nd January, 1956, duly registered, to defendant No. 3 for a consideration of Rs. 8,000/-. Defendant No. 4 is the husband of defendant No. 3. Soon after the purchase, defendant No. 3 issued a notice on the plaintiff to vacate the house, and then the plaintiff brought the present suit for specific performance of the contract of sale on the basis of prior agreement in his favour. Defendant No. 2 is the widowed mother of defendant No. 1. It was alleged that she re-married and left the place and had no further interest in the property.

(2.) The trial court disbelieved the evidence about the execution of the agreement on the 11th December, 1955, and was inclined to take the view that it was an ante-dated document brought into existence after the execution of the sale-deeds in favour of defendant No. 3. It also held that defendant No. 3 was a bona fide purchaser for value who had paid the consideration in full and that she had no notice of the alleged agreement in favour of the plaintiff. On appeal the learned Single Judge disagreed with the trial court so far as the agreement was concerned and held that it was a genuine document executed on the date given in the document, namely, the 11th December, 1955, but he confirmed the finding of the trial court as regards defendant No. 3 being a bona fide purchaser for value without notice of the earlier contract. Hence he dismissed the appeal, though for reasons slightly different from those given by the trial court.

(3.) In view of the Full Bench Judgment of this Court in Smt. Asho Devi v. Dukhi Sao Mr. Lal Narain Sinha for the appellant quite properly conceded that questions of fact could not be agitated before this Court in a Letters Patent Appeal of this type. He, however, urged that the finding of the learned Single Judge is vitiated by the following errors of law: