Arijit Pasayat, J. - (1.) Challenge in this appeal is to the judgment rendered by a learned Single Judge of the Karnataka High Court allowing the second appeal filed by the respondent No.1 under Section 100 of the Code of Civil Procedure, 1908 (in short the CPC).
(2.) Respondent No.1 is the plaintiff and had filed the suit for specific performance of the contract of sale dated 31.1.1972. Suit was decreed by the Trial Court and the appeal was dismissed by the First Appellate Court. The second defendant-respondent No.2 took the stand that he was the purchaser subsequent to the agreement for sale, he had no knowledge of the agreement and had no notice of the sale and he is not bound by the earlier agreement of sale. The Trial Court came to hold that defendant No.2 had knowledge of the agreement. The First Appellate Court held that either he had dishonest notion or had notice. At the time of the admission in the second appeal the following question of law was formulated : "Whether the Court below was just in placing reliance on the order of the Assistant Commissioner, who rejected the permission of sale of the land and thus hold against the appellant -
(3.) Thereafter with the following observations/conclusions the second appeal was allowed. "When the trial court on evidence has come to the conclusion on seeing the witness in the box, appreciated the demeanor, the appellate court without considering the points raised by the trial court went on discussing the legal position and came to a different conclusion which I have no hesitation, to set aside on the ground that they are not warranted by the facts of the case. The entire approach of the appellate court is vitiated by the pre-considered mind that the agreement of sale cannot be given effect to once there was a sale in between the parties. This view is certainly wrong and under such pre-considered notion, the approach made by the appellate court which has resulted in wrong delivery of the judgment." ;