Decided on April 02,1951

Ramprosad Himmatsingka And Another Appellant
Shehomoy Mitra And Others Respondents


Ram Labhaya, J. - (1.) THIS petition of revision is directed against an order of the Subordinate Judge, L. A. D., dated the 29th May 1950 by which he allowed an amendment of the plaint and also accepted the amended plaint. Defendants 1 and 2 are the petitioners. They assail the validity of the order by this petition under S. 115, Civil P.C. and also under Art. 227 of the Constitution of India.
(2.) THERE were 6 defdts, in the case. Land measuring 18 B. 3 K. 2 L. described in Schedule A attached to the plaint belonged to defendants 3, 4 and 5 and in equal shares. These defdts. are brothers. Defendant No 6 purchased some land out of the share of defendant 4, After the sale transaction, he instituted a suit for partition and separate possession of the share purchased by him in the Court of the Special Sub -Judge, A.V.D. Defendants 3, 4 and 5 of the present litigation were the defendants in the partition suit. In the course of this litigation, the learned Subordinate Judge issued a temporary injunction against the defdts. (now defdts. 3 -5) on 6 -6 -1947 restraining them from alienating or otherwise disposing of any portion of the property involved in the suit until further orders of the Court; Defendant 5 was entitled to 6B. 1 K. 2/3D, of the land of Schedule A. Before 30.8.1949 he had sold about 1 K. 11 L. out of his share. On 30 -8 -1948 his share was to the extent of 5 B. 4 K. 9 2/3 L. By reason of the injunction issued in the partition case, he could not sell away his share on 30 -8 -1943 as the suit was till pending and the injunction against him was subsisting. He, however, entered into an agreement with the plaintiffs to sell to them the remaining portion of his share of the land measuring 5 B. 4 K. 2 2/3 L. for Rs. 12,000. At the time of the execution of the agreement, he received Rs. 6,000 as part payment of the price. The plaintiffs alleged that they got formal possession of the property also at the time of the agreement. This agreement provided that the sale deed in favour of the plaintiffs would be executed and registered within 6 months from the date of the final disposal of the partition suit pending in the Court of the Special Sub Judge. It was at that time the balance of the consideration was also to be paid to defendant 5. On 3 -11 -1948 , defendants 1 and 2 got a sale deed executed by defendant 5 in their favour. The deed purported to convey 5 bighas of land out of his share to the two defdts. (defdts. 1 and 2) for a consideration of Rs. 10,000.
(3.) PLAINTIFFS ' case as put in the original plaint was that the sale deed in favour of defdts. 1 and 2 was the result of a conclusive arrangement and that it was without any consideration. It was also alleged that defdts. 1 and 2 were fully aware of the agreement of sale in plaintiffs' favour and also of the injunction by which defdt. 5 was prohibited from alienating the land. Defendants 1 and 2 tried to obtain permission for sale but they did not succeed in this move. On these facts it was claimed that the sale in favour of defendants 1 and 3 was not valid and it did not confer any right or title in the land on them as against the rights which the plaintiffs had. The sale was challenged as illegal and void and as, according to the plaintiff, it cast a cloud on their title under the agreement, they prayed for a declaration that defendant 5 was under an obligation to sell 5B. 3K. 9 2/3 L. of land to the plaintiffs under the agreement dated 30 -8 -1948 within 6 months from the date of the final disposal of the partition suit and that defdts. 1 and 2, being the purchasers with notice of the plaintiffs' earlier agreement, were also bound by the contract of sale in plaintiffs' favour. The declaration prayed for was further to include the relief that the sale deed in favour of defdts. 1 and 2 was void. In addition to the declaratory relief an injunction was sought for against defdts. 1, 2 and 5 restraining them from acting on the sale in favour of defendants 1 and 2 until the final disposal of the suit.;

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