- (1.) TARUN Agarwala, J. Heard Sri Satya Prakash, the learned Counsel holding the brief of Sri A. N. Sinha, the learned Counsel for the plaintiffs-appellants.
(2.) LIST has been revised. No one appears for the defendants/opposite parties. The plaintiffs instituted a suit for specific performance praying that the defendants be directed to execute a sale-deed either in favour of plaintiff No. 2 or in favour of the plaintiff No. 1 or in favour of both of them whoever is found by the Court to have the right as per the alleged agreement dated 4-11- 1973 and/or agreement dated 17-10-1978 with regard to the property No. 322 measuring 4 biswas in Nabasla (Baba Nagar), Hamirpur Road, Kanpur. The facts leading to the filing of the suit is that the defendant No. 1 Sri Bal Govind agreed to sell 4 biswas land in favour of plaintiff No. 1 and also received the entire amount. The fact that he had sold the land and had received the consideration was recorded on a piece of paper. Based on this agreement, dated 4-11-1973, the plaintiffs entered into possession and, soon thereafter, constructed their house on two biswas of land. The remaining two biswas was left open and was being used as their sehan. This agreement did not specify any time period for the execution of the sale-deed. It seems that the defendants desired some further amount in order to execute the sale-deed and consequently, a second agreement dated 2-4-1975 was executed between the defendant No. 1 with the plaintiff No. 2 with regard to two biswas of land namely, the land which had been left vacant by the plaintiffs on a further consideration. Inspite of this agreement, the defendant No. 1 demanded more money and consequently a third agreement dated 17-10-1978 was executed between the defendants and the plaintiff No. 2 and this time the agreement related to the entire 4 biswas of land. In the third agreement, it was stated that a sale-deed would be executed within 15 days. The plaintiffs contended that he was ready and willing to execute the sale-deed. The defendants failed to execute the sale-deed and consequently the suit for specific performance was instituted on 27-2-1979.
(3.) DURING the pendency of the suit, the plaintiffs came to know on 22-3-1979 through a third person that the defendant No. 1 had already executed a sale-deed in favour of defendant No. 2 by means of a sale- deed dated 9-11-1978. Consequently an amendment application was filed which was allowed and the plaint was amended and a further relief was incorporated restraining the defendant No. 2 from interfering in the possession of the plaintiff. The defendant No. 1 appeared and contested the suit alleging that no such agreement of 1973, 1975 or of 1978 was ever executed with the plaintiffs and that no such agreement for sale had ever been entered by the defendants with the plaintiffs. The defendant No. 2 in his written statement contended that he was a bona fide purchaser and that a sale-deed for value was executed between defendant No. 2 and defendant No. 1 vide sale-deed dated 9-11-1978 with regard to the two biswas of open land.;