HARI MOHAN DEY SARKAR Vs. RAM NARAIN DUTT

JUDGEMENT

(1.) The plaintiff was the mortgagee of a certain occupancy-holding. Having obtained a decree upon his mortgage, he took a hukumnamah from the defendant No. 6, who was the 14-anna landlord. After purchasing the property at the sale in execution of the mortgage-decree, he settled the amount of nazarana and paid a part of it to the defendant No. 6, the rest was to be paid after the sale had been held and confirmed. He made the purchase and, after having taken the settlement from the other co-sharers of the defendant No. 6, went to the defendant No. 6 to have the settlement from him on payment of the balance of the nazurani. He was, however, told that the land had already been leased out to the appellants. He, however, brought this suit, on a statement of these facts for recovery of the land, on the ground that the consent of the landlord to his purchase had given him a complete title and he could not be ousted by the landlord by any subsequent action of his.

(2.) Both the lower Courts decreed the suit of the plaintiff.

(3.) In second appeal, it is contended by the learned Vakil for the appellants that the Courts below have erred because the suit in its nature was virtually one for the specific performance of a contract, namely, that based on the hukumnamah and so long as it is not found that the defendants took with notice of the original contract, no decree can be passed in favour of the plaintiff. Reliance has been placed for this contention on the provision of Section 27 of the Specific Relief Act which prpvides specific performance of a contract may be enforced against (a) either party thereto, (6) any other person claiming under him by a title arising subsequently to the contract except a transferee for value who has paid his money in good faith and without notice of the original contract." It is contended that this section embodies the only rule of equity that is applicable to a case of this kind and that so far as it does so, it virtually repeals any law of estoppel under Section 115 of the Evidence Act or otherwise.