- (1.) THE instant appeal is directed against the judgment dated 24th November, 1984 passed by Learned Second Court of additional District Judge, Birbhum. Learned First Appellate Court by the said judgment allowed the appeal being Title Appeal No. 11 of 1981 in part which was directed against the judgment dated 20th September, 1980 passed by the learned first Court of Munsif, Bolpur, District Birbhum in Title Suit no. 84 of 1973. Appellant, as plaintiff, filed the said suit for Specific Performance of contract. The case, as made out in the plaint, is as follows: -Defendant No. 1, Murari Lal Bhakat, by a registered deed of agreement for sale dated 30th Jaistha, 1379 B. S. , corresponding to 13th June, 1972, on receipt of Rs. 2,000/- from the plaintiff as advance, agreed to transfer the suit property, as described in the schedule of plaint. It was thus agreed that plaintiff would pay the balance amount of Rs. 5,000/- before the expiry of the month of Chaitra, 1379 B. S. and on receipt of the same, defendant No. 1 would execute a deed of sale in his favour. Plaintiff after collecting the said amount approached the defendant No. 1 to complete the transaction. But defendant No. 1 on various pretexts deferred the same. On 29th Chaitra plaintiff came to know that the defendant was pursuing a deal with one Sripati Choudhury, who reportedly offered a higher price. Defendant No. 1 confirmed the same on 30th Chaitra, 1379 b. S. and so, refused to transfer the suit property in favour of the plaintiff. Immediately thereafter, the plaintiff rushed to the said Sripati Choudhury but failed to prevent him from purchasing. 02 decimals of land appertaining to the suit property in the name of his wife. Plaintiff alleged that wife of Sriupati choudhury had no income of her own. She was not a purchaser for value without notice. Consideration amount of Rs. 4,000/- was inflated and the transaction in her favour was collusive and illegal. Plaintiff in such circumstances approached the learned Civil Court for redressal.
(2.) DEFENDANT No. 1 filed a written statement denying, inter alia, the material allegations made in the plaint. Defendant Nos. 2 and 3 being Sripati Choudhury and his wife, Smt. Kalyani Choudhury, by filing a separate written statement, contested the suit. It was claimed that defendant No. 1 did not know about the suit being Title Suit No. 30 of 1973 of the said learned Court. Defendant No. 1 claimed that plaintiff in a designed manner filed the said suit knowing fully well that the learned Court had no jurisdiction to try the same. He further alleged that the plaintiff despite being repeatedly approached failed to perform his part since he could not collect the balance amount. It was claimed that time was the essence of contract. Being left with no choice, defendant No. 1 subsequently transferred the same in favour of the defendant No. 3, during the middle of baisakh, 1380 B. S. and Jaistha, 1380 B. S at a total consideration money of rs. 6,000/ -.
(3.) DEFENDANT Nos. 2 and 3 claimed to be bonafide purchasers. Upon the pleadings, learned Trial Court framed as many as six issues and by the judgment dated 20th September, 1980, decreed the suit in favour of the plaintiff. Such judgment was assailed by filing an appeal, which was allowed in part by the learned First Appellate Court by its judgment dated 24th November, 1984. Plaintiff, as appellant, then filed the present appeal alleging misappreciation of the evidence and the law. The following substantial points of law were formulated for adjudication in the present appeal: - (1) Was the leaned Lower Appellate Court justified in holding that the first transfer of the disputed property was not hit by the doctrine of lis pendens ? (2) In the facts and circumstances of the case, was the learned lower appellate Court justified in allowing the appeal in part after setting aside the decree passed by the learned Trial court? Mr. S. P. Roychowdhury, learned Senior Counsel, appearing on behalf of the appellant first referred to the decision in the case of Santosh Hazari vs. Purushottam Tiwari (deceased) by Lrs. , reported in (2001) 3 SCC 179. This was in the context of the scope of a second appeal. It cannot be denied that improper functioning of first appellate court may give rise to substantial question of law. It is perhaps needless to mention that the judgment of the first appellate court must display conscious application of mind and record findings supported by reasons on all issues and contentions. In the case of Santosh Hazari (supra), the Apex Court held that the High Court is not bound to confine itself to dealing only with the question initially framed by it. It may hear the appeal on any other such question so long as it is satisfied that the case involves the question and records its reasons for such satisfaction. Here in the present case, no such substantial question of law was formulated at the time of admission of the appeal by the learned Division Bench. Subsequently however, this aspect was taken care of at the time of hearing of the instant appeal.;