R.R.Misra - - (1.) THIS Second Appeal filed by the plaintiff is directed against the judgment and decree dated 30-10-1976 passed by the III Addl. District Judge Kanpur, whereunder he allowed the appeal of the defendant-respondents and set aside the decree for specific performance and possession and instead granted a decree to the plaintiff-appellant for recovery of Rs. 2140.00 only from Virendra Kumar and the estate of Surendra Kumar.
(2.) THE facts relevant to the present appeal are as under :- THE plaintiff-appellant had filed a suit for specific performance of a contract dated 3rd April 1969 for sale of House No. 89/321 situate in Gwebat Ullah Park, Bansmandi. Kanpur. Shamsher Ah, husband of the defendant respondent Smt. Sayeeda Khatoon are admittedly tenants of different portions of this house. It is not disputed that one Mathura Prasad was owner of the house in dispute. His death took place on 3-6-1956 before the Hindu Succession Act 1956 came into force. His wife Smt. Rani Kunwar, however, on 23rd July 1960 transferred one-third share of the property in dispute to one Brij Behari Dixit who was the daughter's son of Mathura Prasad deceased. Virendra Kumar and Surendra Kumar defendants claimed interest in the disputed house under a will said to have been executed by the Late Mathura Prasad in the year 1948. THE agreement of sale executed on 3rd April 1969 between the plaintiff and Virendra Kumar and Surendra Kumar was for a consideration of sale of Rs. 8000/-. THE earnest money paid at the time of the agreement was Rs. 2000/-. THE Agreement (Ex. 1) itself mentions that on the date of the agreement Virendra Kumar and Surendra Kumar, the executants of the agreement, have delivered possession of the house in question immediately after the said agreement to sell was executed. THE plaintiff, therefore, came in possession of the house in question immediately after the agreement on 3rd April 1969. It was further stipulated in the aforesaid agreement that the sale-deed was to be executed by the aforesaid Virendra Kumar and Surendra Kumar defendants in favour of the plaintiff within a period of six months. Subsequent to the aforesaid agreement of sale dated 3rd April 1969, Virendra Kumar and Surendra Kumar defendants, however, executed another sale- deed dated 22nd July 1969 in favour of Smt. Sayeeda Khatoon wife of Akbar Khan defendant no. 3 for a sum of Rs. 9000/-. Since the aforesaid Virendra Kumar and Surendra Kumar failed to execute the sale-deed within a period of six months, the plaintiff, therefore, brought a suit on 22nd October 1969 for specific performance of the aforesaid contract of sale dated 3rd April 1969 against Virendra Kumar and Surendra Kumar and also impleaded Smt. Sayeeda Khatoon, Akhtar Khan and Mohammad Sabir Khan. THE plaint also contained a relief, in the alternative, for a decree for recovery of Rs. 2140/- along with pendentelite and future interest against Virendra Kumar and Surendra Kumar. Virendra Kumar, defendant no. 1, did not file any written statement. Surendra Kumar, defendant no. 2, however, in his written statement admitted the execution of the agreement of sale dated 3rd April 1969 and also receipt of earnest money of Rs. 2000/- aforesaid. The real contest in the case was between the plaintiff and Smt. Sayeeda Khatoon and Akhtar Khan defendants. They, in their defence, not only denied the execution of the agreement of sale in favour of the plaintiff and the payment of earnest money but also pleaded non-impleadment of Brij Behari Dixit and also rested their defence on the ground that they are bona-fide purchasers for value without notice. The trial court framed a number of issues including one as to whether the defendants Smt. Sayeeda Khatoon, Akhtar Khan and Mohammad Sabir Khan are bona-fide purchasers for value without notice of the agreement to sell and, if so, its effect. Another issue framed in the case was as to whether the suit was bad for non-joinder of Brij Behari Dixit. The trial court, on a consideration of the evidence, led by the parties, held that the defendants Virendra Kumar and Surendra Kumar had, in fact, agreed to sell the house to the plaintiff and had executed the agreement of sale on 3rd April 1969 and had also received the earnest money in question. It was further held that the plaintiff was ready and willing to get the sale-deed executed and Virendra Kumar and Surendra Kumar had committed breach of agreement. The trial court further held that Smt. Sayeeda Khatoon and her sons and husband are not purchasers in good faith without notice. According to the trial court Brij Behari Dixit had no interest in the house and was not a necessary party. With these findings, the trial court decreed the suit of the plaintiff for specific performance of the contract dated 3rd April 1969.
(3.) THE defendants thereupon filed a first appeal which was ultimately decided by the III Additional District Judge, Kanpur by the impugned judgment dated 30th October, 1976. THE lower appellate court allowed the appeal of the defendants and set aside the decree for specific performance as aforesaid. Aggrieved against the aforesaid decision of the lower appellate court, the plaintiff Smt. Shahjahah Begum has preferred the present second appeal in this Court.;