- (1.) THIS is a defendants' appeal against the judgment dated 14-10-1970 of the Civil Judge, Azamgarh, dismissing the appellants' appeal and upholding the trial court's judgment decreeing the plaintiff- res pondent's suit for specific performance of a contract entered into between the plaintiff and defendant-respondent No. 2.
(2.) THE relevant facts, as recorded by the courts below, are that defendant No. 1 Brij Behari Rai and the plaintiff, namely, Rajdeva Rai entered into the agreement (Ex. 1) dated 21-2-1964 under which Brij Behari agreed to sell the property described in the plaint to the plaintiff for Rs. 1,000.00 within six months and was paid Rs. 400.00 by the plaintiff as earnest money. It was further agreed upon that the balance shall be paid at the time of registration of the sale-deed. Ultimately, defendant No. 1. Brij Behari Rai sold the property by the deed dated 24-7-1965 to the appellants who were arrayed as defendants Nos. 2 and 3. It has also been found that defendants Nos. 2 and 3 were not bona fide purchasers as they were aware of the agreement (Ex. 1) between the plaintiff and defendant No. 1 when the appellants purchased the property in 1965. It may be mentioned that in the plaint the plaintiff did not specifically plead or aver that he had been and was still ready and willing to perform his part of the agree ment though he did plead in paragraph 6 of the plaint that he had been approaching de fendant No. 1 regularly with the request that defendant No. 1 should execute the sale-deed and get it registered thereby performing the contract of sale but the defendant avoid ed doing so. Defendant No. 1, on the other hand, pleaded in his written statement that after the agreement (Ex. 1) was entered into, he approached the plaintiff to carry out his part of the contract as the defendant was urgently in need of money but the plaintiff avoided getting the sale-deed executed by the defendant and, therefore, the defendant excited the sale-deed in favour of defendants Nos. 2 and 3, the appellants before this Court.
(3.) NO issue was framed by the trial Court on the question as to whether the plaintiff was willing at all times to perform his part of the contract and this question was also not entered into by the lower appellate Court. It may be mentioned, however, that the trial Court did record a finding that the allegations made by defendant No. 1 about his having approached the plaintiff to carry out his part of the agreement and to have the sale-deed executed, were not the that defendant No. 1 failed to prove the same. In the trial Court the only questions decided were whether the plaintiff and defendant No. 1 had entered into the agreement (Ex. 1) and whether the appellants were bona fide purchasers for value.;