RAKESH KUMAR JAIN,J - (1.) THE plaintiff is in Second Appeal. Plaintiff and Defendant No. 1 are real brothers entered into an Agreement to Sell dated 19- 08-1982, in respect of 31 kanal 10 marlas of land, for a consideration of Rs. 22,000/- per acre and received Rs. 17,500/- towards earnest money. The sale deed was proposed to be executed by 10-01-1983. Just after about a month of the aforesaid Agreement, defendant No. 1 clandestinely sold 13 kanals of land out of 31 kanals 10 marlas abovestated to defendants No. 2 and 3, vide Sale Deed dated 14-09-1982, for a consideration of Rs. 47,750/- and kept on postponing the execution of the Sale Deed in favour of plaintiff which led to the filing of the present suit for specific performance of agreement to sell dated 19-08-1982. The suit was contested by defendants No. 1, 2 and 3 by filing separate written statements. Defendant No. 1 denied the agreement, whereas, defendants No. 2 and 3 claimed a protection of bona fide purchasers of the suit land, without notice of the agreement to sell. The plaintiff filed replication, controverting the pleas taken by the defendants and reiterated the contentions of the plaint.
(2.) ON the respective pleading of the parties, following issues were framed on 04-10-1985 :- 1. Whether the plaintiff and defendant No. 1 had entered into an agreement to sell as alleged ? OPP 2. Whether the plaintiff has been always ready and willing to perform his part of obligation as alleged ? OPP 3. If issue No. 1 is proved in affirmative, whether the agreement is not enforceable ? OPD. 4. Whether the suit is not maintainable in the present form ? OPD. 5. Whether the suit is time barred ? OPD. 6. Whether the plaintiff is estopped from filing the present suit by his own act and conduct ? OPD. 7. Whether the suit is not properly valued for purposes of court fee and jurisdiction ? If so what is the correct valuation ? OPD. 8. Whether the sale dated 14.09.1982 in favour of the defendants No. 2 and 3 is valid ? OPD- 1. 9. Whether the suit is collusive, fraudulent and malicious and filed at the instance of defendant No. 1 ? OPD 2-3. 10. Whether defendants No. 2 and 3 are bona fide purchasers of the suit land, as alleged ? OPD 2-3. 11. Whether the defendants are entitled to special costs u/s 35-A CPC? OPD. 12. Relief. Both, plaintiff and defendants, led oral as well as documentary evidence. The trial Court decreed the suit of the plaintiff, holding that Agreement (exhibit P-1) has been validly executed. The plaintiff was and is still ready and willing to perform his part of contract and the agreement is enforceable in accordance with law. It was further held that defendants No. 2 and 3 have not been able to prove that they are bona fide purchasers of the suit land, failed to bring on the record that they had no information or notice of the execution of the Agreement (exhibit P1). The trial Court, thus decreed the suit for specific performance in favour of the plaintiff.
(3.) BOTH , vendor Babu Ram and the subsequent vendees from him, came up in the first Appeal. The First Appellate Court found that both, plaintiff and defendant No. 1, are the real brothers and co-owners in joint holding and the agreement (exhibit P-1) was found to have been executed by defendant No. 1. However, on the issue of bona fide purchaser pertaining to defendants No. 2 and 3, the First Appellate Court has found that once Sube Singh, transferee (DW3) has stated that he had no notice of any such agreement to Sell between Babu Ram and the plaintiff, it was for the plaintiff to prove by producing evidence that he had the knowledge. It was also observed that the time gap between the two transactions was too short that there was no chance for the vendees for gaining knowledge of the earlier agreement. On the basis of these findings, defendants No. 2 and 3 were held to be bona fide purchasers. However, the First Appellate Court had found that both the plaintiff and defendant No. 1 were co-owners to the extent of land measuring 186 kanals 13 marlas as per jamabandi for the year 1984-85 (exhibit PX) therefore even after the sale of an area measuring 13 kanals in favour of defendants No. 2 and 3, the defendant No. 1 was still joint owner of area measuring 33 kanals 13 marlas, out of which, he could have easily transferred 31 kanals 10 marls to the plaintiff on the basis of agreement to Sell dated 19-08-1982.;