- (1.) THIS appeal is filed by defendant No.8. The plaintiff filed suit for possession by way of specific performance of the agreement to sell through her attorney Bhag Singh, alleging that on 27.5.1982 agreement was executed by defendant No.1 and Shangara Singh (deceased) in respect of 16 kanals of land situated in Village Boara along with rights of irrigation, passage and 1/7 share of tubewell, all kinds of trees standing on the land and other rights appurtenant thereto on payment of Rs. 18,000/ - after deducting Rs. 4900/ - paid by way of earnest money to Sadhu Singh and Shangara Singh and in the alternative, suit for recovery of Rs. 7900/ -. The sale deed was to be executed upto 20th Jeth, 2039 B.K. on payment of balance sale consideration and in case of failure to execute the sale deed, the plaintiff was entitled to get the agreement to sell specifically enforced through Court, or to get Rs. 3500/ - plus damages suffered by her and in case the plaintiff failed to get the sale deed executed, the earnest money was to be forfeited. The agreement was entered on 2.9.1981 and renewed on 27.5.1982 when the plaintiff paid another sum of Rs. 1400/ - to Sadhu Singh and Shangara Singh on the same terms and conditions which were incorporated in the earlier agreement and then they agreed to execute the sale deed on or before 27.11.1982. An endorsement was also made on the back of the agreement dated 2.9.1981. The plaintiff had alleged that she had always been ready and willing to perform her part of the Contract on payment of balance sale consideration but Sadhu Singh and Shangara Singh (deceased, represented by defendants No.1 to 6), failed to execute the sale deed. It is also alleged that the sale made in favour of defendants No.1 to 3 is also illegal.
(2.) DEFENDANTS No.1 to 3 in their joint written statement controverted the plaintiff's allegations and alleged that defendant No.1 and Shangara Singh (deceased) were having dealings with the plaintiff, her husband and brother Bhag Singh. It is also alleged that the signatures/thumb -impressions might have been taken on the blank papers and converted into the agreement which was without any consideration. Defendant No.1 had sold land measuring 4 kanals, out of khasra Nos.230 and 239, to defendant No.8 for Rs. 6000/ - vide sale deed dated 22.9.1982 and defendants No.2 and 3 sold the land measuring 8 kanals 10 marlas out of 42 kanals 15 marlas of land to defendant no.7 for Rs. 7000/ - vide sale deed dated 7.9.1982. Defendants No.7 and 8 filed their separate written statement in which they denied the plaintiff's allegations and pleaded that they are bona fide purchasers of the land in dispute without notice.
(3.) ON the pleadings of the parties, following issues were framed: - "1. Whether Sadhu and deceased Shangara executed an agreement to sell dated 2.9.1981 and agreement to sell dated 27.5.1982 and received earnest money of Rs. 3500/ - and Rs. 1400/ - respectively? OPP 2. Whether the plaintiff remained ready and willing to perform her part of the contract? OPP 3. If issue No.1 is proved, whether the agreements were got executed by fraud and mis -representation? OPD 1 to 3 4. Whether defendant No.7 purchase 8 K 10 Ms. Of the land vide registered sale deed dated 7.9.82 for valuable consideration and without any notice? If so its effect? OPD 5. Whether defendant No.8 purchased 8 K of land vide sale deed dated 27.9.1982 for valuable consideration and without notice, if so its effect? OPD No.8. 6. Relief." The trial Court decided issue No.1 to 3 in favour of the plaintiff and issues No.4 and 5 were decided in favour of the defendants as a result thereof, the trial Court dismissed the suit of the plaintiff for specific performance of the agreement but passed a decree for recovery of Rs. 6880/ -. This led to the filing of the first appeal by the plaintiff and the same has been allowed by the Appellate Court. While upsetting the finding recorded in issues No.4 and 5, which are decided in favour of the defendants, the appellate Court held that defendant No.7 has not been able to prove to be the bona fide purchaser but insofar as defendant No.8 is concerned, following finding has been recorded, in para No.12, to hold that he was also not a bona fide purchaser: - "This brings us to the case of defendant No.8. He is minor. The land in his name was purchased by his father Ajit Singh. In order to prove that defendant No.8 is a bona fide purchaser for consideration, of the land in dispute without notice of the plaintiff's rights, there are only the statements of Sadhu Singh defendant No.1 and Ajit Singh, who is the father of defendant No.8 on the basis of their statements alone, the learned trial Court has held that defendant No.8 is also a bona fide purchaser of the land in dispute for consideration and without notice of the plaintiff's rights. But I think, the decision given by the learned trial Court in this behalf is also incorrect and erroneous. Sale in favour of defendant No.8 is although proved to be for consideration but there is no sufficient evidence to prove that defendant No.8 through his father, had no notice of the agreement in favour of the plaintiff simple statements of defendant No.1 and the father of deft. No.8 about the prior agreement of sale in favour of the plaintiff, I think are not sufficient to prove that father of defendant No.8 had no notice of the price agreement of sale in favour of the plaintiff. Defendant No.8 and his father although belong to a different village but there lands adjoin the land in dispute. The land in dispute, as already stated, was under mortgage with Bhag Singh attorney of the plaintiff. Father of defendant No.8 was therefore, supposed to make enquiry from Bhag Singh as to nature of his possession. Had be done so, he must have come to know from Bhag Singh, who is the attorney of the plaintiff, about the prior agreement of sale in favour of the plaintiff. However, it appears that no enquiry was made by the father of defendant No.8 from the previous mortgagee who is no other than the attorney of the plaintiff. That being so, defendant No.8, I think, cannot be said to be a bonafide purchaser without notice of the plaintiff's rights notwithstanding the fact that he belongs to a different village.";