- (1.) BY the Court :-The present second appeal came up for hearing before a learned Single Judge, but because of the importance of the questions of law involved in the case, he referred the case to a larger Bench. This is how this appeal has come before us.
(2.) THE present appeal by the defenders arises out of a suit for specific performance of a contract. THE parties belong to the same family and descend from Ajib Khan, as would be evident from the pedigree, given below : Ajib Khan Amir Baksh Buniyad Khan Jhandu Khan Altaf Khan Abdul Razzaq Ayub Khan Abdul Sattar Masooqu Ali PIff. Mahmud Khan Mahboob Khan Mahjooj Khan D. 3. D. 2. Abdul Razzaq was the bhumidhar and sirdar of the disputed plots. On 10th December, 1969, he entered into an agreement with Ayub Khan to sell away the same for a consideration of Rs. 1600/. A sum of Rs. 1200/- was paid towards earnest money. It was stipulated that Abdul Razzaq would acquire bhumidhari rights in respect of the sirdari plots by depositing ten times rental within four months, and, thereafter, he would transfer the plots. It was further stipulated that along with the plots, the crops standing thereon on the date of the agreement would also be transferred by Abdul Razzaq to Ayub Khan. Abdul Razzaq, however, instead of executing the sale deed in favour of Ayub Khan, executed a sale deed dated 29th December, 1969, in favour of his cousins, i. e. defendant nos. 2 and 3. THE plaintiff requested Abdul Razzaq to execute the sale deed in his favour, but he'refused. Under the circumstances, the plaintiff was obliged to file a suit for specific performance of the contract. He impleaded the transferees under the sale deed dated 29th December, 1969, also as parties. It appears that during the pendency of the suit, Adbul Razzaq died and the plaintiff inherited one-third share in the property of the deceased defendant and the remaining two-third share vested in the defendants. The plaintiff, therefore, deducting his own share, confined his suit for the performance of contract 'only for two-third share of Abdul Razzaq, after making payment of the reduced balance amount of Rs. 266.65 p. The suit was contested by defendant no. 1 with the allegations that he never executed any deed of agreement nor was possession delivered to the plaintiff, that his thumb impressions were taken by the plaintiff fradulently on blank papers on the pretext that the same was required for demarcation of the boundary. The deed of agreement is as a result of fraud, that he executed the sale-deed in favour of defendant nos. 2 and 3 and he delivered possession to them.
(3.) DEFENDANT nos. 2 and 3 filed a separate written statement. Their stand was that after executing the sale deed in their favour, defendant no. 1 wanted to harm them and thus executed an agreement deed in favour of the plaintiff antedating the same, that the agreement was fictitious and without any consideration, that they were bona fide purchasers for value without notice of any previous agreement, if any, that they have been in possession from the date of the sale deed dated 29th December, 1969. The trial court decreed the suit holding that the agreement dated 10th December, 1969 was a valid agreement and defendant nos. 2 to 4 in whose favour Abdul Razzaq executed the sale deed had full knowledge of the agreement dated 10th December, 1969, between the plaintiff and Abdul Razzaq and, as such, they were not the bona fide purchasers for value without notice and, as such, the sale deed dated 29th December, 1969, in favour of the defendants was ineffective. The defendants feeling aggrieved by the judgment and decree of the trial Court went up in appeal before the lower appellate Court and a plea was raised on behalf of the defendants, for the first time, that it had not been alleged by the plaintiff in the plaint that he had been ready and willing to perform his part of the contract and, therefore, the suit for specific performance should not have been decreed. Elucidating the point, it was argued that Form No. 47 of Appendix 'A' to the Civil Procedure Code and Section 16 (c) of the Specific Relief Act requires that the plaintiff should aver in the plaint that he has been and is still ready and willing to perform his part of the contract and in support of this contention, reliance was placed by the appellant on Rajendra Prasad Rai v. Rajdeva Rai, AIR 1974 All. 294.;