- (1.) THIS is an appeal by Kashiram and two others against the judgment and decree of the Civil Judge of Ganganagar in a suit for specific performance of a contract.
(2.) THE suit was brought by Netram against the three appellants and Bhinyaram who has not preferred to appeal. THE case of Netram was that 21 Bighas of land in Murabba 54 in Chak 9 HH belonged originally to Bhinyaram. THEy were mortgaged with possession with the plaintiff through two mortgage-deeds one for Rs. 2450/- and the other for Rs. 1225/-, that is, the total amount of the encumbrance on the property was Rs. 3,675/ -. On the 27th of October, 1949, Bhinyaram was in need of more money and executed an agreement Ex. P-1 in favour of Netram by which he agreed to sell these 21 Bighas to Netram at the rate of Rs. 275/- per Bigha. He also received Rs. 1000/- in advance and promised to execute the sale-deed by next Jeth. THE Balance of the consideration amounting to Rs. 1100/- was agreed to be paid before the Sub-Registrar. It was also agreed that in case Bhinyaram failed to carry out the agreement. Netram would be entitled to file a suit for specific performance or to get back the sum of Rs. 1000/- paid in advance with interest. THE plaintiff's case was that he was pressing Bhinyaram to execute the sale-deed, but Bhinyaram was putting it off for one reason or the other. On the 20th March, 1950, the plaintiff learned that Bhinyaram was going to sell the property to a third person. He, therefore, went to Ganganagar and informed Kashiram and his brothers (appellants) about the agreement in his favour but in spite of that, a sale-deed was executed on that very day viz. , 10th March, 1950. THEn on the 21st March, the plaintiff filed the suit praying for temporary injunction against Bhinyaram as well as Kashiram. He tried to get the injunction crier served on these persons, but they refused to accept it. THEn he applied to the Sub-Registrar on the same day viz. , 21st March, asking him not to register the sale-deed; but the Sub-Registrar did not desist (as he obviously could not refuse to register the deed because of an objection of this nature ). THE sale-deed was executed and actually registered on the 22nd March, 1950. It may be mentioned that 9 Bighas were mortgaged with Kashiram and his brothers, but that does not affect the position so far as the present suit is concerned. On the 30th March, 1950, the plaintiff applied for an amendment of the plaint and impleaded Kashiram and his brothers as defendants. THE suit was resisted by the vendees. Bhinyaram filed a written statement in which he admitted the plaintiff's claim and thereafter took no further part in the proceedings. A number of issues were framed by the trial court; but the main contention was whether the vendees were bonafide purchasers for value without notice of the original agreement. This point was decided by the trial court against the appellants, and the suit was therefore decreed. Learned counsel for the appellants raised three points before us. In the first place he urges that the agreement Ex. P-l has not been proved as against the appellants, and, therefore, the suit should not have been decreed. It may be accepted that strict formal proof, which is necessary before a document which is not admitted can be said to have been proved, was not given by the plaintiff with respect to Ex. P-l. But the circumstances were that the man who had executed Ex. P-l had admitted its execution, and though the defendant-appellants denied the execution of Ex. P-l, they did not care to see that an issue was specifically framed on this point. It seems, therefore, that the trial proceeded in the lower court after the framing of the issue on the assumption that the document did not require proof. So all that we find is that the plaintiff, when he came into the witness-box, referred to this document and said that it had been executed by Bhinyaram, without saying formally that he was present at the time of execution, and that the thumb-impression of Bhinyaram was made in his presence. Considering, however, that the way in which the suit was proceeded with in the lower court suggests that the plea in the written statement about Ex. P-l was apparently given up, we think that it would be waste of time to remand the suit now merely for formal proof of this document. We are not prepared, therefore, to allow the defendant-appellants, in the circumstances of this case, to raise this matter in appeal. The next point that was urged was that the plaintiff did not state in the plaint that he was ready and willing to perform his part of the contract, and this is very necessary in a suit for specific performance of the contract. Here again, it may be noted that this technical plea was not taken in the trial court, nor has it been taken in the grounds of appeal before us. Learned counsel is raising it for the first time to-day. If this plea had been taken at the proper time, the plaintiff might have met it by amending the plaint and by leading evidence if necessary, Under the circumstances, we are not prepared to allow this new plea to be raised for the first time in arguments before us to-day. This leaves the last point which was contested, as we have already said, before the trial court and which is being strenuously argued before us also viz. , that the appellants were bonafide purchasers for value without notice of the agreement. It was urged that the appellants had no knowledge of the original agreement of sale on or before the 20th March 1950, on which date the sale-deed in their favour was executed. In this connection, certain circumstances may be pointed out. In the first place, the appellants are first cousins of Bhinyaram. They live in the same village as Bhinyaram and the Abadi of the village consists of only 35 houses. There is evidence that on the 21st March, 1950, the process server tried to serve the injunction order on Kashiram. There is also evidence that the Tehsildar read out the objection of the plaintiff to the registration of the sale-deed on the ground that there was an agreement to sell in his favour already existing; but in spite of these things, the defendant-appellants persisted in carrying on with the registration of the deed. Now, if they had no knowledge of the original agreement to sell in favour of the plaintiff we would have thought that as ordinary prudent men, they would have stayed their hands and would not have insisted on rushing through the registration of the deed. This conduct of theirs in itself suggests that they had full knowledge of the original agreement as they might well have had, being near relations of the vendor and living in the same village, and, therefore, they were not surprised when the plaintiff made frantic efforts to stop them from getting the sale-deed registered. Then we have the direct evidence of three witnesses about this knowledge. The plaintiff says that he came to Ganganagar on the 20th March, 1950, when he came to know that Bhinyaram was going to sell this property to the defendants. He then read over this agreement to the defendant-appellants and asked them not to take the sale-deed. In cross-examination he amplified his statement and said that he had this talk with Kashiram at the time when they were contemplating to get the sale-deed written out. This shows therefore that the defendant-appellants were informed of the original agreement at least a short time before the sale-deed in their favour was executed. We see no reason to disbelieve the evidence of the plaintiff, even though he is a very interested party, in the circumstances of this case. Then we have the evidence of Sheraram who is a brother of Bhinyaram and first cousin of defendant-appellants. He says that 10 or 15 days before the 20th March, when he came to know that the defendants were going to purchase this property, he told them that they should not do so as there was already an agreement about the sale of this property in favour of the plaintiff. We feel that the conduct of Sheraram was very natural in the circumstances, and he must have felt it his duty to inform his cousins of the real position even if the cousins did not know of it from before. Then, there is the statement of Chetram who is a cousin of Bhinyaram, to the same effect viz. , that he had also warned the appellants about the agreement in favour of Netram. We see no reason to disbelieve the evidence of this witness either and, therefore, are satisfied that the defendant-appellants had full knowledge of the agreement in favour of: Netram well before the sale-deed was executed on the 20th March, 1950. In this view of the matter, the trial court was right in decreeing the suit of the plaintiff. Lastly it has been urged on behalf of the defendant-appellants that in any case the sum of Rs. 1100/- which the plaintiff has still to pay may be ordered to be paid to them because they have already paid a sum of Rs. 4150/- in cash to Bhinyaram when the sale-deed of the 20th March was executed and registered in his favour. This request appears to us to be reasonable. We, therefore, dismiss the appeal with this modification only that the amount of Rs. 1100/- which the plaintiff has to pay in order to get the two sale-deeds will be paid only to the defendant-appellants. The plaintiff-respondent will get his costs of the appeal as well as of the lower court from the defendant-appellants. . ;