ARIJIT PASAYAT, J. - (1.) CHALLENGE in this appeal is to the judgment rendered by a learned Single Judge of the Allahabad High Court allowing a Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908 (in short the 'CPC'), by reversing the judgment and decree passed by the trial court as affirmed by the Appellate Court.
(2.) THE factual background, as projected by the appellant in a nutshell is as follows: An agreement to sell was executed between the appellant, herein and Mahadeo defendant No. 1 in the suit (since deceased) in respect of the suit property for a sum of Rs.7,000/- on 13-12-1975. Out of the said sum Rs.5,000/- was paid as earnest money on the date of agreement and the balance was payable on the date of the sale. Registration of the sale could not be done as admittedly there was a prohibition on sale of urban property at the relevant point of time. THE agreement to sell was made on 13-12-1975. Defendant No. 1 Mahadeo executed a sale deed in favour of respondents 1 and 2 (defendant Nos. 2and3 in the suit) for a sum of Rs.6,000/- allegedly on the basis of an agreement to sell dated 13-12-1975. On 3-7-1978 a notice was sent by respondent Nos. 1 and 2 demanding arrears of rent from the appellant. On 3-1-1979 appellant filed the suit for specific performance of the agreement dated 13-12-1975. It was inter alia indicated that the defendant No. 1 put off the registration of the sale deed on one pretext or other, on 3-7-1978 she came to know that Mahadeo had executed a sale deed in favour of respondent Nos. 1 and 2 and, therefore, suit was filed on 3-1-1979. Further the respondent Nos. 1 and 2 had full knowledge of agreement to sale executed by Mahadeo in favour of the appellant, and in spite of that respondent Nos. 1and 2 got the sale deed executed. It was specifically stated in the plaint that she was throughout ready and willing to get the sale deed executed. Written Statement of Mahadeo and the respondents 1 and 2 i.e. defendants 2 and 3 was to the fact that Mahadeo had not entered into any agreement to sell the suit property on 13.12.1975. On the other hand, Mahadeo had entered into an agreement to sell the property dated 18.12.1973 with respondents 1 and 2 which culminated in the sale deed dated 18.4.1977. Mahadeo further alleged that the agreement to sell was a forged document and it did not bear either the signature or L.T.I, of Mahadeo and the defendant Nos.2 and 3 i.e. respondents 1 and 2 herein, had no knowledge of the agreement to sell purported to have been executed on 13.12.1975. Respondents 1 and 2 further took the stand that the sale deed dated 18.4.1977 was executed by Mahadeo and with the full knowledge of the plaintiff appellant who was the tenant. Mahadeo never signed in Hindi and used to sign in Mahajani. Following issues were framed by the trial court: 1).(A) Whether defendant No.l Mahadeo executed an agreement deed on 13.12.1975 for the sale of the house detailed at the foot of the plaint for Rs.7,000/- in favour of the plaintiff? (B) Whether defendant Mahadeo accepted Rs.5,000/- as earnest money on that date and thereafter executed an agreement deed? 2). Whether the sale deed dated 18.4.1977 regarding the disputed house executed by Mahadeo in favour of Rameshwar Das and Jamuna Prasad is null and void? 3). Whether defendant Nos. 2 and 3 are bona fide purchasers for value and without notice? 4) A. Whether the suit is under valued? B. Whether court fee paid is insufficient? 5). Whether the suit is barred by the principle of mutuality? 6). Whether the plaintiff is in possession of the disputed house as a tenant or in part performance of the said agreement deed? 7). To what relief if any is the plaintiff entitled? Both the trial court and the first appellate Court answered all the questions in favour of the plaintiff.
(3.) IN the second appeal following questions were raised by the present respondents who were the appellants before the High Court: 1). Whether there was no evidence to suggest that the thumb impressions on the agreement relied upon by the plaintiff was that of Mahadeo? 2). Whether the suit was barred by time? 3). Whether the appellants are the bona fide purchasers for value without notice? 4). Whether the sale deed was validly executed by Mahadeo in favour of the appellant? The High Court held that the pleadings in the plaint do not satisfy the requirement of Section 16 (c) of the Specific Relief Act, 1963 (in short the 'Act') read with Form Nos. 47 and 48 of the Appendix-A of the First Schedule of the CPC. It was held that the defendants 2 and 3 were bonafide purchasers for value without notice. The reasons given by the courts below to hold that the defendant Nos. 2 and 3 had knowledge of the plaintiff's agreement were imaginary reasons and they were not acceptable. The plaintiff cannot get a decree for specific performance of the contract as the legal heirs were not brought on record in place of deceased-defendant No.1. The trial court while dealing with issue No. 7 as noted above recorded as follows: "In issue Nos. 1 and 2 the plaintiff has corroborated her statement that she want to get the sale deed executed in her favour by all the defendants. The defendant No.1 Mahadeo had died having no successor and on this basis no sale deed can be executed by him. So far as the defendant Nos, 2 and 3 are concerned, the sale deed executed by Mahadeo was found null of void. Hence they also cannot execute sale deed. In such circumstances after receiving remaining Rs. 2000/- only Court can order to execute the sale deed." ;