SAIKIA,J. - (1.) THIS plaintiff's first appeal is from the judgement and decree dated 12-6-70 and 25-6-70 respectively, of the Assistant District Judge, Nowgong, in Title Suit No. 26 of 1967, partly decreeing the suit against respondent No. 1 and dismissing the suit against respondents Nos. 2 and 3. The facts of the case, in brief are as follows : The suit land with structures thereon belonged to late Nasiben Nesa who died in Sept., 1964, leaving the defendant No. 1 her only son and heir. During her lifetime the defendant No. 1 leased out the suit property the plaintiff on rent of Rs. 40/- per month from 23-6-59 till Aug., 1962. On expiry of the lease the plaintiff remained in possession without paying rent since July, 1963. After the death of Nasiben Nesa in Sept., 1964, on 30-12-64 the defendant No. 1 entered into an agreement in writing with the plaintiff to sell the suit property to the plaintiff for Rs. 9,000/-, received to Rs. 5,000/- as advance, and agreed to execute the sale deed within 3 months on receipt of the balance amount, and formally delivered possession of the property; and further agreed that no rent would be payable from January next. Pursuant to the said agreement, on 13-2-65 the plaintiff and the defendant No. 1 came to Court to execute the deed which was already prepared, but the defendant without executing the same left the place and never came back to execute the same. After repeated demands for execution in vain the plaintiff served a Lawyer's notice on the defendant which was replied to and from the reply the plaintiff learnt that the defendant No. 1 meanwhile sold the suit property to the defendants, Nos. 2 and 3. The plaintiff states that the defendants Nos. 2 and 3 knew about the earlier agreement with him. Hence he instituted this suit for specific performance of the contract and for confirmation of possession. The defendants contested the suit filing two written statements, one by the defendant No. 1 and another by defendants Nos. 2 and 3. Defendants Nos. 2 and 3 averred that they did not know anything about the earlier contract with the plaintiff, and that they purchased the property with information to the plaintiff who did not object, and that they were bona fide purchasers of the property for value without notice and as such their purchase could not be affected. The defendant No. 1 averred that he never made any agreement with the plaintiff to sell the property; he never delivered possession to the plaintiff pursuant to any agreement and never received any advance. He stated that he first agreed to sell the property to defendants Nos. 2 and a and on receipt of Rs. 2,500/- as advance executed and registered an agreement on 7-1-65 to that effect and thereafter executed his deed of sale on 16-3-65 on receipt of the balance amount and informed the plaintiff by a notice. He further stated that after the sale he delivered possession of the property to the defendants Nos. 2 and 3.
(2.) THUS while the plaintiff claims specific performance of an agreement dated 30-12-64 to sell the property to him, the defendants Nos. 2 and 8 claimed by a registered deed of purchase dated 16-3-65 pursuant to an agreement to sell dated 7-1-65. On the pleading the following 9 issues were framed : (1) Whether there is any cause of action for the suit ? (2) Whether the defendant No. 1 agreed to sell the property to the plaintiff for Rs. 9,000/- ? (3) Whether the defendant No. 1 received Rs. 5,000/- as advance and executed the document as alleged in the plaint ? (4). Whether the defendant No. 1. failed to fulfil his part of the contract ? (5) Whether the suit property is in possession of the plaintiff ? (6) Whether the plaintiff is entitled to a decree for specific performance of the contract by sale of the suit property to his name ? (7) Whether the defendants Nos. 2 and 3 are the bona fide purchasers for value without notice ? (8) Whether the defendants Nos. 2 and 3 are protected under Section 41 of the T. P. Act ? (9) To what relief the parties are entitled ?
(3.) ISSUES Nos. 1, 2, 3, 4 and 5 were decided in favour of the plaintiff while Issues Nos. 6, 7 and 8 were decided in favour of the defendants and the suit was dismissed against defendants Nos. 2 and 3 but decreed against defendant No. 1 for Rupees 5,000/- with proportionate cost on contest. Hence this, first appeal.;