HARAKCHAND Vs. SOHANRAJ

JUDGEMENT

(1.) This is a second appeal by Harakchand against the appellate decree of the Additional District Judge No. 2, Jodhpur dated November 7, 1974 whereby the said Judge reversed the decree of the Munsif Jodhpur District dated April 11,1972 and dismissed the plaintiff's suit for specific performance of contract to sell a plot situated in village Dhunara Tehsil Jodhpur.

(2.) Facts leading to the filing of this second appeal are that on December 6, 1966 plaintiff appellant Harakchand instituted Civil, Original Suit No. 147 of 1966 against the respondents with the averments that a plot of land detailed and described in para 1 of the plaint as Talia and situated in village Dhunara Tehsil Jodhpur belonged to Purshottam defendant No. 1. On November 27, 1964 an agreement was entered into between the plaintiff and Purshottam at Ahmadabad whereby the latter agreed to sell this plot to the plaintiff for an amount of Rs. 700/-. An agreement to sell was executed in that respect on the said date at Ahmadabad. The plaintiff paid the entire consideration amount of Rs. 700/- to Purshottam and the latter agreed to get a sale deed registered of the said plot in favour of the plaintiff after coming to Jodhpur within a month or 1 months. Thereafter the plaintiff reminded Purshottam to execute and get registered the sale deed in respect of the suit plot in favour of the plaintiff and to deliver its possession to him, but the latter avoided to do so. On September 2, 1966 Purshottam sold this plot of land to Sohanraj defendant No. 2 for a sum of Rs. 991/- and got a sale deed registered in favour of Sohanraj. It was alleged that Sohanraj was aware of the prior agreement to sell having been executed by Purshottam in favour of the plaintiff and despite knowledge of the agreement, he got a sale deed of the plot registered in his favour from Purshottam on September 2, 1966. The plaintiff prayed for decree of specific performance of contract. In the alternative, the plaintiff prayed that a decree for Rs. 1200/- be passed against the defendants.

(3.) Purshottam defendant No. 1 could not be personally served and, therefore, substituted service was effected on him. The purchaser Sohanraj appeared and contested the suit. The sum and substance of defence of defendant No. 2 was that he had no knowledge of the alleged agreement to sell in favour of the plaintiff. He had made enquiries and he did not come to know of any such agreement. He alleged that he had purchased the suit plot for valuable consideration in good faith and without notice of the alleged agreement to sell.