Mahitosh Majumdar, J. - (1.) This appeal against the judgment and decree dated July 22, 1968 passed by the Additional District Judge, 2nd Court, Midnapore, reversing the judgment and decree dated January 31,1968 passed by the learned Munsif, 2nd Court, Contain, in other Suit No. 208 of 1964, is on behalf of the defendant Nos. 2 to 4. The plaintiff instituted suit for specific performance of contract of sale of the suit land. The plaintiffs case is brief is as follows :
(2.) The suit land belonged to defendant No. 1, who contracted to sell it to the plaintiff for Rs. 1,500/-. The plaintiff at the material time had not the entire consideration money with him, the defendant No. 1 executed a bainanama in the month of Falgoon, 1367 B.S. after taking Rs. 300/- from the plaintiff. On June 5, 1961 the defendant No. 1 executed a kobala in respect of the suit land on receiving the balance of consideration money from the plaintiff On account of illness of the defendant No. 1 and other inconvenience, the kobala could not be registered in time. In the month of Agrahayan, 1368 B.S. the defendant No. 1 agreed to execute and register a similar kobala, but inspite of repeated demands, the defendant No. 1 did not execute and register it. On Jaistha 10, 1371 B.S. the defendant refused to disclose the fact that he had sold the suit land to the defendant Nos. 2 to 4. The plaintiff instituted the suit and asserted that defendants are not bonafide purchasers for value without notice of plaintiffs contract. They are bound by the contract and the plaintiff is entitled to get a decree against them. The defendant Nos. 2 to 4 contested the suit by denying the contract alleged by the plaintiff. They contended and asserted that the plaintiffs bainanama and kobala are collusive and ante dated deed without consideration and had been created for the purpose of the suit. It is also contended by the defendants that they are bonafide purchasers for value without notice of the alleged contract and hence the suit should be dismissed. The following issues were framed at the trial : "1. Is there any contract for sale of the suit land between the plaintiff and the defendants as alleged, by the plaintiff 2. Are the defendant Nos. 2 to 4 bonafide purchasers for value without notice as claimed by them 3. Is the plaintiff entitled to a decree as prayed for -
(3.) The learned trial Court on consideration of the materials on record and respective pleadings of the parties came to the finding that the defendant No. 1 executed the deed on receiving the consideration money mentioned therein It is also found by the learned trial Court that the defendant No 1 did not come forward to deny the alleged contract or execution of the bainanama Ext. 3 and kobala Ext. 1, nor did he say that he did not receive any consideration money under the aforesaid deed. The learned trial Court further found the bainanama Ext. 3 and kobala Ext. 1 are genuine and the defendant No. 1 executed them on receiving the consideration money as mentioned therein, and accordingly, the finding of the learned trial Court is that there is contract for sale of the suit land between the plaintiff and the defendant No. 1 as allege I. The learned trial Court proceeded on the footing that the plaintiff can succeed in the suit provided the plaintiff established that the defendant Nos. 2 to 4 are not bonafide purchasers for value without notice of the said contract. The learned trial Court considered the matter from the angle whether the defendants were aware of the plaintiffs contract at the time of the execution of the kobala. Ext. 1 and on consideration of the evidence on record, the learned trial Court found that the defendant Nos. 2 to 4 in all probabilities were not present at the time of the execution of the bainanama Ext. 3 and kobala Ext. 1. It is also found by the learned trial Court that the defendant No. 3 was present in the kobala majlish. According to P.W, 4 he was present in the kobala majlish. P.W. 4 deposed that only he was present in the kobala majlish. So their evidence on this point is inconsistent and contrary and they are in conflict with each other. The learned trial Court on consideration of the circumstances came to the finding that at the time of the execution of bainanama Ext. 3, and kobala Ext. 1, the defendant Nos. 2 to 4 were not present and they, therefore, were not aware of (his deed or the plaintiffs contract at the time of the kobala Ext. 1, or in other words it is found that the defendant Nos. 2 to 4 are purchasers without notice of the plaintiffs contract. It is also found by the learned trial Court that the consideration money was paid by the defendant Nos. 2 to 4 and got their names mutated in the landlords seresta and paid rent. The learned trial Court accordingly accepted the defendants explanation about the kobala and further found that the defendant Nos. 2 to 4 are bonafide purchasers for value without notice of the plaintiffs contract. It was held by the trial Court that the contract cannot he enforced against the defendant Nos. 2 to 4. Accordingly, the defendant Nos. 2 and 3 with cost and ex pane against the rest.;