TRIBENI PRASAD SINGH Vs. JAINARAIN SINGH

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit for specific performance of a contract. The Courts below have awarded a small damage to the plaintiffs against defendant No, 1 but have refused to grant a decree for specific performance and so the plaintiffs have preferred this second appeal.

(2.) The plaintiffs impleaded in this suit four sets of defendants of which the defendants first party consist of defendant No. 1, the father, defendant No. 2, his major son, and defendants Nos. 3 to 5, his minor sons-Defendants 2nd, 3 and 4 parties are co-sharers of defendants first party and some of them have purchased portions of the property which is the subject-matter of this suit. The case of the plaintiffs 13 that on February 6,19i8, defendant No. 1 as karta of his family executed an agreement contracting to sell to the plaintiffs 10 gandas odd zamindari interest in Mauza Sukhpur Solhni in the District of Bhagalpur for a sum of Rs. 3,000. In this contract reference has also been made to certain lands which are said to appertain to the said zamindari interest and which are described in these words: 22 bighas khudkasht batai nisf and gairmazrua khas recorded in the khatian of executant No. I and one-third share in the lands recorded in the name of executant No. 1 and one Jogendra Narain Singh.

(3.) As to these lands it is stated that they had before the date of the contract been settled with a third party at a rental of Rs. 71 per year and the "plaintiffs were entitled only to receive the above rent from the settlement holder. It is necessary to mention this fact because (I) it has been found by both the Courts below that in spite of this recital the lands in question were actually in possession of the defendants first patty and this fact was fully known to the plaintiffs at the time when they entered into the present contract, and (2) because it appears that subsequent to the contract there was an agreement between defendant No. 1 and his other co-sharers, namely defendants 2nd, 3 and 4 parties by which the position inter se of all these persons in respect of khudkasht lands was defined and it was made clear that the survey entries in respect of some of those lands were not correct. It has been argued in this Court on behalf of the appellants that this agreement was a collusive one and was intended to prejudice their claim for specific performance but the trial Court has found that the agreement had been executed in good faith and that in fact the survey entries are not correct in certain particulars.