SUNIL Ambwani, J. - (1.) This second appeal filed on 5-10-2006 arises out of judgment and decree dated 1-9-2006 passed by Addl. District Judge, Court No. 3, Rampur in Civil Appeal No. 8 of 2006 by which he set aside the judgment in Original Suit No. 46 of 1997, Smt. Firasat Jahan Begum v. Smt. Jadid-Un-Nisa Begum and Ors. and decreed the suit for specific performance of agreement dated 4-4-1988, on receipt of Rs. 55,000/- within three months failing which the sale deed will be executed through Court.
(2.) I have heard Shri B. D. Mandhyan, learned Counsel for the defendant-appellants and Shri M. Islam for the plaintiff-respondent. The plaintiff respondent filed the suit for specific performance of registered agreement dated 4-4- 1988 by which after receiving Rs. 20,000/- defendant No. 1 had agreed to sell 488 sq. yards of land situate in Mohalla Baradari Mahmood Khan, Rampur to the plaintiff, on receipt of balance sale consideration of Rs. 55,000/ -. The agreement recorded a condition that the sale deed will be executed within three months of the decision of Suit No. 452 of 1986. This suit was decided on 22-2-1994. The plaintiff had also published a news item in daily newspaper on 13-9-1989 restraining general public from dealing with or purchasing the property from defendant No. 1. The plaintiff thereafter having waited for three months after the decision of Suit No. 452 of 1986 gave a registered notice dated 21-5-1994 and reached the office of the Sub-Registrar, Rampur with balance sale consideration on 23-5-1994. The defendant No. 1 did not give any reply. During the pendency of the suit the plaintiff got the information that defendant No. 1 had sold the property by three different sale deeds dated 18-10-1989, 20-12-1989 and 17-4-1990 in favour of defendant Nos. 2 to 4. The plaintiff also pleaded the bar of Section 52 of the Transfer of Property Act as against these transferors. The defendant No. 1 denied the plaint allegations. In her written statement, she admitted the execution of the agreement dated 4-4-1988 but stated that the sale deed was to be executed on the decision of a case under Section 145, Cr. P. C. The plaintiff's husband is a Reader in District Court and played a dominating role in execution of the contract. He wrongly entried the case number in the agreement as Original Suit No. 452 of 1988, without her knowledge. The proceedings under Section 145 in case No. 23 of 1986 were decided by City Magistrate on 9-9-1988 against which Revision No. 73 of 1988 was decided on 13-4-1989. She requested the plaintiff several times to execute the sale deed but the plaintiff failed to respond, on which the earnest money stood forfeited. She needed money for her daughter's marriage and thus sold the land by three different sale deeds to defendant Nos. 2, 3 and 4. Defendant Nos. 5 and 6 were impleaded in the suit. They also denied the plaint allegations and claimed themselves to be bona fide purchasers for value without notice of the agreement dated 4-4-1988. It was stated by them that they have constructed boundary wall and a tin shed.
(3.) THE trial Court framed seven issues. On the first issue regarding readiness and willingness to perform her part of contract, it held that there were no clear recitals in the plaint of the readiness and willingness of the plaintiff to perform her part of the contract. The requirement of Section 16 (c) of the Specific Relief Act were not complied with. On issue No. 2 regarding forfeiture of the earnest money the trial Court held that since there was no alternative prayer of refund of earnest money the amount shall be treated to be forfeited. The third issue of limitation was decided against defendant No. 1 with the finding that the suit could be filed within three years of the date fixed of execution of the sale deed. The agreement provided for three months time after the decision of Original Suit No. 452 of 1986, which was decided on 22-2-1994 and thus limitation of three years began from 22-5-1994. The suit was filed well within limitation on 20-2-1997. Issue No. 5 with regard to Sections 16 and 34 of the Specific Relief Act was decided in favour of the plaintiff, as she had not sought any declaration with regard to her title. Issue No. 6 was framed to decide as to whether defendant Nos. 2 to 6 are bona fide purchasers for value without notice of the agreement. The trial Court held that the burden of proving the issue was on the defendants. Defendant Nos. 5 and 6 purchased parts of property from defendant No. 2 on 15-3- 1999, after the defendant No. 2 was served with the summons of the suit, though by refusal. The respondent Nos. 5 and 6 as such were not found to be bona fide purchasers for value. Issue No. 7, whether the defendant No. 1 had received Rs. 20,000/- as earnest money, was decided in favour of the plaintiff on admission of defendant No. 1. The question of estoppel in issue No. 8 was decided in favour of defendant No. 1 on the finding that the plaintiff was residing near the property, and was passing by it almost every day and, as such, he had knowledge of the sale deeds dated 18-10-1989, 20-12-1989 and 17-4-1990, and the constructions raised by the purchasers. The suit as such was held to be barred by the principle of estoppel, and was dismissed.;