- (1.) This second appeal has been filed by the defendants-appellants against the judgment and decree dated 11.12.1998 passed by Ist Additional District Judge, Farrukhabad in Civil Appeal No.5 of 1988 (Smt. Shyama Devi and others Vs. Smt. Chanda Devi), arising out of judgment and decree dated 11.12.1987 passed by Additional Civil Judge, Farrukhabad in Civil Suit No.242 of 1984 (Smt. Chanda Devi Vs. Shyama Devi and others) and the relief sought by this appeal is to allow the appeal and set-aside the judgment and decree passed by two courts below and dismiss the suit of plaintiff with costs throughout.
(2.) The brief facts relating to the case are that Smt. Chanda Devi, widow of Pandit Suraj Prasad filed Civil Suit No.242 of 1984 on 23.8.1984 for specific performance of contract with the contention that Smt. Bitola Kunwar @ Ram Bitoli, widow of Raghunandan Prasad was bhoomidhar of the land detailed at the foot of the plaint, with transferable rights, agreed to sell her land in favour of plaintiff for an agreed consideration of Rs.20,000/-, executed a registered agreement for sale after receiving Rs.5,000/- as advance sale consideration and sale deed was agreed to be executed after notification of village under Section 52 of U.P. Consolidation of Holdings Act or upon obtaining of requisite permission from consolidation authorities; that on death of Smt. Ram Bitoli @ Bitola Kunwar on 6.9.1982 her real sister Smt. Shyama Devi, the defendant no.1 became owner and Bhumidhar of the property in suit and plaintiff is entitled to get the sale deed executed by defendant no.1; that though Smt. Ram Bitoli had only half share in the property in suit and was competent to execute agreement only in respect of her half share, she pretending herself to be owner of entire property executed the agreement for sale in respect of entire; that the plaintiff has always been ready and willing to perform her part of contract and served the defendant no.1 with notice by registered post as well as telegram for execution of sale deed but she did not turn up; that since the price of entire land was agreed to be Rs.20,000/- and Smt. Ram Bitoli was held owner only to the extent of half share during consolidation, the sale deed of ½ share in the land in suit is required to be executed for half consideration Rs.10,000/- and plaintiff has always been ready and willing to perform her part of contract and get the sale deed executed in her favour on payment of Rs.5,000/-; that after execution of agreement for sale instead of executing sale deed in favour of the plaintiff, defendant no.1 in order to delay and defraud the claim of plaintiff, executed sale deeds of the property in suit in favour of defendant nos.2 & 3, who have also been impleaded as defendants; that the defendant nos.2 & 3 had full knowledge of the agreement in favour of the plaintiff and are not bonafide purchasers for value without notice and being subsequent purchasers are bound to execute sale deed in favour of plaintiff.
(3.) The defendants filed their respective written statements. The defendant no.1 contended that it is wrong to say that Smt. Ram Bitoli executed any agreement for sale in favour of plaintiff-respondent or concealed any fact regarding her bhoomidhari rights in respect of half share in the land in suit; that the sale deed in favour of defendant no.3 was executed after due permission from the consolidation authorities; that the agreement is void being a 'contingent contract' and specific performance in piecemeal, in respect of ½ share of Smt. Bitoli may not be permitted; that since the nature of property in suit has been changed and major part of the land has been sold to defendant nos.2 & 3 before filing of the suit, the specific performance of agreement has become impossible; that the plaintiff was tenant of Smt. Ram Bitoli, and got executed a registered power of attorney from Smt. Ram Bitoli in favour of her son Ram Sewak, at the office of Sub Registrar and appears to have obtained the agreement for sale in question by playing fraud on Smt. Ram Bitoli without her knowledge; that Smt. Ram Bitoli was not aware of the execution of alleged agreement; that Smt. Ram Bitoli had cancelled the power of attorney dated 20.5.1982 executed in favour of the son of plaintiff by executing a registered deed of cancellation on 16.7.1982 and also informed through notice; that the description of property is wrong and vague; that the suit is liable to be dismissed with costs.;