PRABHU DAYAL Vs. RADHEY SHYAM SWAMI

JUDGEMENT

(1.) HEARD learned Counsel for both the parties. This civil regular first appeal under Section 96 of the Code of Civil Procedure, on behalf of the plaintiffs, is directed against the impugned judgment and decree dated 16th March 1991 passed by the Additional District & Sessions Judge, Kishangarhbas, District Alwar, in Civil Suit No. 63/1987, whereby the suit of the plaintiffs for specific performance of agreement was dismissed but it was decreed against defendant No. 1 for recovery of a sum of Rs. 32,000/ -.

(2.) BRIEFLY stated, the facts of the case are that the plaintiffs filed a suit for specific performance of agreement dated 01.10.1984 and 21.06.1985 against the defendants in the lower court wherein it was pleaded that defendant No. 2 Mst. Mini Devi was the recorded tenant of agriculture land bearing Khasra No. 435 measuring 4 bigha and 12 biswa situated in village Mundanwara Khurd, Tehsil Mundawar. She had executed a power -of -attorney dated 19.07.1984, which was registered on 21.07.1984, in favour of the defendant No. 1 Radhey Shyam. The defendant No. 1, being a power -of -attorney -holder of defendant No. 2, had agreed to sell the disputed land to the plaintiffs, vide agreement dated 01.10.1984, for a sum of Rs. 80,000/ - and accepted part payment thereof i.e. Rs. 32,000/ -and handed over the possession of the disputed land on 21.06.1985 after executing another agreement. Thereafter, in pursuance of the terms and conditions of the agreement dated 21.06.1985, the plaintiffs paid the remaining amount i.e. Rs. 48,000/ - to defendant No. 1, the power -ofattorney -holder of defendant No. 2. The defendant No. 1 executed two sale -deeds in the name of plaintiff No. 1 Prabhu Dayal and his son plaintiff No. 2 Rajendra Kumar, for a consideration of Rs. 40,000/ - each for half -half share of the disputed land. It was further pleaded that subsequently the defendant No. 2 executed another registered sale -deed in respect of the disputed land in favour of defendant No. 3 on 16.09.1987. It was further pleaded that defendants No. 2 and 3, both, had full knowledge that the disputed property had been purchased by the plaintiffs and they are in possession of the same, but the defendant No. 3, with mala -fide, purchased the said land without value with notice, whereas the plaintiffs are bona -fide purchaser for value without notice. Therefore, it was prayed that a decree of specific performance be passed in favour of the plaintiffs in respect of agreement dated 01.10.1984 and 21.06.1985, and defendants be directed to get the sale -deed dated 26.06.1985 registered in favour of the plaintiffs No. 1 and 2. It was also pleaded that the sale -deed dated 16.09.1987 executed by the defendant No. 2 in favour of the defendant No. 3 be declared null and void and ineffective against the plaintiffs. In alternative, it was also pleaded that in case the suit for specific performance is not decreed then a suit for refund of amount of Rs. 80,000/ - with costs of sale -deed etc. be decreed in favour of the plaintiffs.

(3.) THE defendant No. 3, the subsequent purchaser of the disputed land, filed his written -statement, wherein he raised his pleas inter alia that the agreement to sell executed in favour of the plaintiffs is forged and the defendant No. 2 rightly sold the disputed land to defendant No. 3 through registered sale -deed dated 16.09.1987. It was also pleaded that the possession of the disputed land was never given to plaintiffs but it was given by defendant No. 2 to defendant No. 3 at the time of execution of registered sale -deed dated 16.09.1987 and at present he is in possession of the disputed land. In the additional pleas, he also pleaded that he is a bona - fide purchaser of the disputed land for value without notice, therefore, no decree of specific performance can be passed against him and the suit of the plaintiffs is liable to be dismissed.