- (1.) THIS is defendants second appeal from a decree dated 20-11-67 passed by the 1st Additional Civil Judge Bulandshahr confirming the judgement and decree passed by the 1st Munsif, Bulandshahr, decreeing the suit for specific performance in favour of plaintiff-respondent no. 1.
(2.) THE facts giving rise to this appeal briefly stated are that the suit was originally filed by Jagdish Prasad respondent no. 2 on the allegations that the defendant-appellant Mool Chand had executed an agreement to sell his land in his favour for a sum of Rs. 4,200/- and had received Rs. 900/- as advance. An agreement was duly executed on 1-10-1965. THE sale deed was to be executed by 2-12-1965. Since the defendant-appellant failed to execute the sale deed, Jagdish Prasad filed a suit for specific performance on 6-12-1965. By means of an amendment application moved on 30-4-1966 it was alleged by Jagdish Prasad that he was Benamidar of Ram Phool who is now plaintiff-respondent no. 1 and that it was Ram Phool who was the real purchaser of the disputed property. For that, there was an agreement executed between Jagdish Prasad and Ram Phool on 15-4-1966. THE relief for specific performance was hence prayed for in favour of plaintiffs or either of them found entitled thereto. Necessary amendments were made in the plaint. The defendant-appellant contested the suit and pleaded that plaintiff Jagdish Prasad was his relation and had obtained the disputed agreement by exercise of fraud. He also disputed that Jagdish Prasad was Benamidar of Phool Chand. The trial court held that the agreement to sell had been only executed and was not tainted by fraud and that Jagdish Prasad was Benamidar of Ram Phool. It accordingly decreed the suit in favour of plaintiff no. 2. Ram Phool for specific performance of the contract on his depositing Rs. 3,300/- within a particular period. He was awarded costs of the suit.
(3.) THE defendant-appellant Mool Chand preferred am appeal against that judgement and decree and disputed the aforesaid findings recorded by the trial court. THE learned 1st Additional Civil Judge, agreed with those findings and dismissed the appeal. Being aggrieved, this further appeal has been filed by Mool Chand defendant before this Court. On behalf of the appellant two submissions were made before me : firstly that on the basis of the disputed contract no decree could be granted in favour of Ram Phool, plaintiff-respondent no. 1 since there was no privity of contract between the appellant and Ram Phool and, secondly that assuming for the time being that this contract could be enforced by Phool Chand, it was yet to be proved as to who had paid the consideration. Jagdish Prasad had of course come forward with the case that he was Benamidar of Phool Chand and an agreement dated 15-4-1966 was set up in that behalf. At the time of recording of the evidence, however, he disowned that contract and his statement on oath was that he was not Benamidar of Phool Chand. That stand of Jagdish Prasad was not accepted by the trial court. In other words, the trial court dismissed the suit in so far as Jagdish Prasad as concerned. Against that judgement Jagdish Prasad did not prefer any appeal and hence his right to claim specific performance on the basis of the disputed contract was lost. Therefore, if it is found that the disputed contract cannot be enforced by Ram Phool no decree whatsoever can be passed and the entire suit is liable to be dismissed.;