- (1.) THIS is a plaintiff's second appeal arising out of a suit filed by him for specific performance of a contract and in the alternative for recovery of Rs. 750/- paid in advance and Rs. 800/- by way of damages.
(2.) THE case taken in the plaint was that defendant No. 1. Smt. Chandra Kali had executed an agreement to sell her sirdari land situated in village Rampuria Taluqa Lakhora, Tehsil Faridpur, district Bareilly in favour of the plaintiff for a sum of Rs. 1,550/- on 23-9-1964. A sum of Rs. 750/- was paid to her in advance and the sale deed was to be executed within six months. An agreement to sell was executed by her on that date. It was also agreed that she would obtain Bhumidhari rights and permission from consolidation authorities. It was alleged that because of increase in the prices of land, the defendant No. 1 did not execute the sale deed and hence the instant suit was filed. During the pendency of the suit defendant No. 1 transferred the disputed property in favour of defendants 2 and 3. According to the plaintiff those defendants had full knowledge of the agreement which had been made by defendant No. 1 in his favour and hence the transfer in their favour was of no avail. Defendant No. 1 denied the execution of any agreement to sell and pleaded that her thumb impression had been obtained by exercise of fraud and misrepresentation. She also denied the receipt of any money as advance. Defendants 2 and 3 asserted that they were bona fide purchasers for value without notice. A number of issues were framed by the trial court. After considering the evidence on record it held that Smt. Chandra Kali had entered into an agreement to sell disputed land with the plaintiff and had received Rs. 750/- as advance but since the contract was about the sale of sirdari land, it was illegal and not enforceable. It also found that the sale deed made in favour of defendants 2 and 3 could not be cancelled. The plaintiff was found entitled to recover Rs. 750/- which had been paid as advance and the suit was decreed for recovery of the same.
(3.) AN appeal was preferred from that judgement and decree by the plaintiff-appellant and before the lower appellate court the following submissions were made; Firstly, that even though the agreement to sell was in respect of sirdari land it could be enforced as subsequently the transferor acquired Bhumidhari rights therein; secondly that in view of Section 43 of the Transfer of Property Act the plaintiff was entitled to claim enforcement of the disputed contract; thirdly that the trial court had erred in holding that the plaintiff-appellant could not give evidence to show that it was a part of the agreement that defendant No. 1 would acquire Bhumidhari rights and then execute the sale deed and lastly that the transfer made in favour of defendants 2 and 3 was collusive and was made to defeat the interest of the plaintiff. None of these submissions found favour with the lower appellate court and it dismissed the appeal and confirmed the decree of the trial court. Aggrieved, the present appeal had been filed by the plaintiff. The main submission made before me on behalf of the plaintiff-appellant by Sri Ashoke Gupta is that the seller having acquired Bhumidhari rights in the disputed property subsequent to the agreement to sell, the benefit of Section 43 of the Transfer of Property Act was clearly available to him. It was urged that in the instant case the agreement for sale was not of the sirdari plots as such. It was within the knowledge of the parties that the seller was only sirdar of the disputed plots, but it was in their contemplation as also a part of the agreement that she would acquire Bhumidhari rights and then execute the sale deed and hence the case was fully covered by Section 43 aforesaid as also by Section 13 of the Specific Relief Act, 1963.;