Shamsuddin Ahmed, J. - (1.) This appeal is directed against the judgment and decree passed by the learned Subordinate Judge, 3rd Court, Alipur in title appeal no. 344 of 69 confirming the judgment and order passed by the learned Munsif, 2nd Additional Court, Diamond Harbour in Title Suit No. 518 of 1967.
(2.) Plaintiffs' suit was a suit for specific performance of contract for reconveyance of the suit land. The disputed land belonged to Hare Krishna Ghosh. Hare Krishna sold it to pro defendant no 2 by a registered kobala dated 8.1.65 with a condition for reconveyance. It was stipulated that if Hare Krishna pays back the consideration money within Chaitra, 1381 B.S. pro-defendant no. 2 would execute and register a deed of conveyance in favour of Hare Krishna. On the date of the transfer defendant no. 2 executed a deed of agreement on the same date to that effect. The plaintiff on the death of Hare Krishna tendered the money to pro-defendant no. 2 who refused to accept the same and disclosed that defendant no. 1 has pre-empted the suit land in a pre-emption proceedings. In the said proceedings the defendant no. raised on objection stating that the transfer in his favour was subject to an agreement for reconveyance. Plaintiff then tendered money to defendant no. 1 but he refused to accept. Under these circumstances, the plaintiff filed the suit. Defendant no. 2 contested the suit His defence was that he is a bona fide purchases for value without notice and deed of agreement of reconveyance was ante-dated and not a simultaneous transaction.
(3.) Both the trial court and the first appellate court held that the agreement of reconveyance was simultaneous and also held that the defendant no. 1 had notice of the agreement of sale in favour of the original owner. The trial court decreed the suit and the first appellate court affirmed the same.;