Calcutta High Court
Sahida Khatoon Bibi vs Debilal Shaw And Ors. on 30 January, 2004
Equivalent citations: AIR2004CAL191, (2004)3CALLT32(HC), 2004(4)CHN460, AIR 2004 CALCUTTA 191, (2005) 1 CIVLJ 471, (2005) 3 ICC 203, (2004) 3 CALLT 32, (2004) 4 CAL HN 460
JUDGMENT Gorachand De, J.
1. This Second Appeal is directed against the judgment and decree dated 11-6-1980 passed by the learned Additional District Judge, 11th Court at Alipore in Title Appeal No. 769 of 1979 reversing the judgment and decree dated 29-5-1979 passed by the learned Munsiff, 6th Court at Alipore in Title Suit No. 397 of 1973.
2. The plaintiffs-respondents Debilal Shaw and four others filed a Suit on 27-1-1973 against Ram Adhar Dube and Smt. Sahida Khatoon Bibi praying for specific performance of a contract of sale dated 27th June 1972. The plaint case in brief is that the defendant No. 1 Ram Adhar Dube was the absolute owner of a Bastu measuring 21/2 decimals appertaining to Plot No. 393 Khatina No. 310 of Mouza Jaichandipur P.S. Budge Budge, District 24 Pgs. (South) along with the structure standing thereon fully described in the schedule to the plaint, that the defendant No. 1 agreed to sell the suit property to the plaintiffs and the plaintiffs agreed to purchase the same at a fixed price of Rs. 5000/- and on the basis of such agreement, a registered deed of agreement was executed by the defendant No. 1 on 27-6-1972 after taking an advance of Rs. 1000/-from the plaintiffs. The defendant No. 1 also put the plaintiff in possession of a portion of the suit land on the date of execution of the deed of agreement for sale on 27-6-1972. Since the defendant No. 1 failed to supply the documents of title within the stipulated time in spite of repeated demands by the plaintiffs, the defendant No. 1 sent a letter dated 10th March 1973 to the plaintiff informing that the time mentioned in the agreement was the essence of contract and that he rescinded the said contract. However, three days' time was given to complete the transaction on payment of the balance consideration amount. The plaintiffs sent reply to the said letter on 15-3-1973 intimating that the defendant failed to produce the document of title in spite of demand made by the plaintiffs. Moreover, the plaintiffs came to know from the defendant No. 2, Sahida Khatoon Bibi as well as on search being made in Court that Title Suit No. 283 of 1972 between Sahida Khatoon Bibi and the defendant No. 1 in the 6th Court of Munsiff at Alipore was pending. As the title of the defendant No. 1 in the suit property was not clear, the plaintiffs could not purchase the same. Thereafter, the plaintiffs wrote a letter to the defendant No. 1 in his village address at Bihar for completing the transaction. The defendant No. 1, in reply, expressed his desire to execute and register the Sale Deed in favour of the plaintiffs within a short period. On or about 8-8-1973, the defendant No. 1 approached the plaintiffs with the original title deed of the suit property and disclosed his intention to complete the transaction-in terms of the agreement on taking the balance of the consideration money. It was also disclosed that the suit filed by Sahida Khatoon Bibi was dismissed for default. The plaintiffs accordingly purchased stamp paper on 9-8-1973 and got the Sale Deed written in the office of the Sub-Registrar at Budge Budge. But as there was delay in writing the Sale Deed and also completing other formalities, the deed could not be registered on that date for which the plaintiffs and the defendant No. 1 returned with the understanding that the same would be registered on 13-9-1973, the Monday next. But the defendant did not turn up as assured nor he executed and registered the Sale Deed. Accordingly the plaintiff was constrained to file the suit praying for specific performance of the contract. It is also alleged that the defendant No. 1 in collusion and conspiracy with the defendant No. 2, has transferred the suit property in the name of the defendant No. 2, Sahida Khatoon Bibi who purchased the same with full knowledge of the contract between the plaintiff and the defendant No. 1. Accordingly, the plaintiffs are entitled to get a decree for specific performance of contract against the defendant No. 2 also.
3. In spite of service of notice, the defendant No, 1 did not appear in the suit. However, the defendant No. 2 contested the suit after filing a Written Statement on 19-11-1974 denying the material allegations made in the plaint and it is specifically stated that the defendant No. 2 was not aware of any contract between the plaintiffs and the defendant No. 1 as regards sale of the suit property arid even if there is any such contract, the plaintiffs rescinded the said contract for which it is not legally enforceable. It is also contended that the defendant No. 2 is in possession of the suit land as a tenant under the defendant No. 1 and the plaintiffs have been in possession of a vacant piece of land as licensee under the defendant No. 1. It is also alleged that the defendant No. 2 is a bona fide purchaser for value without any knowledge about the contract between the plaintiffs and the defendant No. 1. Accordingly, a prayer has been made for dismissal of the suit.
4. On the basis of respective pleadings, the learned Munsiff framed as many as seven issues and after taking into consideration the evidence adduced by the parties, dismissed the suit on contest without costs.
5. The plaintiffs being aggrieved by the said judgment and decree of the trial Court preferred Title Appeal No. 761 of 1979 and the learned Additional District Judge of the 11th Court at Alipore by his judgment dated 11-6-1980 set aside the Judgment and decree of the trial Court after allowing the appeal and decreed the suit on contest and directed the plaintiffs to deposit a sum of Rs. 4000/- in favour of the defendant No. 2 failing which liberty was given to execute the decree.
6. The Second Appeal was filed on 24-9-1980 before this Hon'ble Court and the Division Bench by an order dated 27-2-1981 admitted the appeal thereby directing that the appeal will be heard on the grounds taken in the Memo of Appeal,
7. In course of hearing of this appeal, the learned counsel for the appellant pointed out that the grounds No. (ii), (iii), (vii), (viii), (ix) and (xi) indicate the substantial question of law. After due consideration of the grounds taken in the Memo of Appeal and on consent of the learned counsel of both sides, the following five substantial questions of law were framed.
"(i) Whether in view of the fact that by the letter dated 15-3-1973 by which the plaintiffs rescinded the contract a suit for a specific performance does lie ?
(ii) Whether the learned Judge erred in law in not holding that letter dated 15-3-1973 (Ext. A) taken together with letter dated 10-3-1973 (Ext. 8) established a clear case of rescission of contract ?
(iii) When by 'Ext. A' i.e. the letter dated 15-3-1973 the plaintiff claimed refund of the earnest money from the defendant does he have any right for specific performance of contract or the contract should be held to have been rescinded ?
(iv) In the facts and circumstances of the case is the finding that defendant No. 2 is not a transferee for value in good faith and without notice of the Original Contract without considering Ext. B, i.e. the registered deed of sale as found by the trial Court was a correct finding under the law ?
(v) If in the facts and circumstances of the case the Court of Appeal was right in exercising its discretion under the Specific Relief Act?
8. At the very outset, it is to be pointed out that the following facts are either admitted in the pleadings or in course of the evidence adduced by the parties :--
(a) The defendant No. 2 Sahida Khatoon Bibi was the owner of the suit land along with the adjacent land and on the basis of a Sale Deed dated 1-6-1954 (Ext. B(1)), she sold it to the defendant No. 1, Ram Adhar Dube.
(b) On 27-6-1972 Ram Adhar Dube executed an agreement for sale (Ext. 1 of the suit land to the plaintiffs Debilal Shaw and others after taking Rs. 1000/- as advance.
(c) Half of the land sold to Ram Adhar Dube was sold to one Rabin Ghosh and the rest 11/2 cuttah of the land, which is the suit land was repurchased by the defendant No. 2 Sahida Khatoon Bibi at a price of Rs. 5000/- on the basis of a registered deed of sale dated 22-8-1973 (Ext. B).
(d) Sahida Khatoon Bibi filed Title Suit No. 283 of 1972 in the 6th Court of Munsiff at Alipore against Shri Ram Adhar Dube praying for declaration of title and for permanent injunction in respect of the suit land in which the defendant Ram Adhar Dube appeared on 8-9-1972. But ultimately the suit was dismissed for non-prosecution on 7-9-1973 that is after the execution of the Sale Deed in favour of the defendant No. 2 on 22-8-1973.
9. It appears from the Sale Deed in favour of the defendant No. 2 (Ext. B) that the vendor Ram Adhar Dube (defendant No. 1) clarified to the plaintiffs that he entered into an agreement for sale in respect of the suit property with the present plaintiffs, Debilal Shaw and others, that Rs. 1000/-was received as advance out of the total consideration of Rs. 5000/-, that the transaction was to be concluded within the month of Feb., 1973, that as the transaction was not concluded by the stipulated date, a lawyer's notice was sent by defendant No. 1 to the present plaintiffs requesting the plaintiffs to complete the transaction failing which the advance money was to be forfeited, that the plaintiffs on receipt of the said letter denied to purchase the suit property on the plea of complications in the title in respect of the suit land and accordingly, the contract was rescinded.
10. The lawyer's letter indicated in the Sale Deed (Ext. B) is a letter dated 10th March, 1973 written by Shri Jamini Ranjan Se:ngupta, Advocate calling upon the present plaintiffs Debilal Shaw and others (Ext. 8) to complete the transaction within a period of three days on payment of the balance amount. In the said letter, it is also indicated that as the time was the essence of the contract, the contract would come to art end after the expiry of the stipulated period.
11. In reply, Mr. Golam Kibria, Advocate of the Judges' Court at Alipore sent a letter dated 15-3-1973 (Ext. A) to Shri Jamini Ranjan Sengupta, Advocate on be-half of Shri Ram Adhar Dube indicating that the transaction could not be completed as Title Suit No. 283 of 1972 between Sahida Khatoon Bibi and Ram Adhar Dube was pending in the sixth Court of Munsiff at Alipore in respect of the suit property. It was also intimated that since it relates to a disputed title the present plaintiffs Ram Adhar Dube and others were not agreeable to purchase the suit property and accordingly, demand was made for refund of the advance amount of Rs. 1000/- within a fortnight, in default, threat of filing a suit for recovery of the said amount of Rs. 1000/- was given.
12. It appears that the trial Court duly considered these two documents, namely, Ext. A and Ext. 8 and came to a finding that on the basis of Ext. A, the contract was rescinded by the present plaintiff and accordingly, the defendant No. 1 was at liberty to execute the Sale Deed in favour of the defendant No. 2. Practically relying on the evidence on record, specially the Ext. A and Ext. 8, the trial Court took the view that the Sale Deed in favour of the defendant No. 2 (Ext. B) having been lawfully done, there is no reason to exercise the discretion as regards decreeing the suit for specific performance of contract in favour of the plaintiffs. So the suit was dismissed. But keeping in view the circumstances, no cost was awarded against the plaintiffs.
13. The first appellate Court, however, did not consider Ext. A and Ext. 8 as rescission of the contract. On the other hand, placing reliance on Ext. 5 (translated copy being marked Ext. 6) and Ext. 5(a) (the translated copy being marked Ext. 6(a)) took the view that the contract did not come to an end and it was virtually revived. Reliance was also placed on the evidence of the plaintiffs to the effect that in terms of the assurance given in Ext. 5(a), the plaintiffs purchased stamp paper of Rs. 180/- on 9-8-1973 after the arrival of the defendant No. 1 from Bihar on 8-8-1973 and on the basis of the Title Deed handed over by the defendant No. 1, the Sale Deed in favour of the plaintiffs was written on 10-8-1973. Reliance was also placed in the evidence that as the transaction was not completed for shortage of time on 10-8-1973, the defendant No. 1, Ram Adhar Dube took away the original Sale Deed with him with the assurance that the transaction would be completed on the next Monday. Accordingly, the written up Sale Deed was kept with the scribe. It is also claimed by PW 5 (Ganesh Ch. Shaw) that at the request of Ram Adhar Dube, the plaintiff No. 2, Ram Janam Shaw kept the balance amount of Rs. 4000/- with him (P.W. 5). So the first appellate Court did not believe in the story of rescission of the contract and placing reliance on the Exts. 5 and 5(a) came to a conclusion that the time was not the essence of the contract, that the plaintiffs were all along eager to complete the transaction and that on the basis of Exts. 5 and 5(a), the Ext. A was waived. Accordingly, placing reliance on the provision of Section 19(b) of the Specific Relief Act, 1963, a decree for specific performance of contract was passed against the defendants.
14. The learned counsel appearing on behalf of the 'present appellant (defendant No. 2 -- Sahida Khatoon. Bibi) contended that the defendant No. 2 was a bona fide purchaser for value without any notice of the Exts. 5 and 5(a). It is also contended that the earlier agreement between the plaintiffs and the defendant No. 1 having been rescinded on the basis of Ext. A and Ext. 8, it cannot be revived without a fresh agreement. It is also argued that even if it is presumed that the original agreement for sale was revived, it being without the knowledge of the defendant No. 2, specific performance of such contract should not be granted as it would adversely affect the interest of the defendant No. 2 who duly purchased the property on payment of full consideration money. So it is argued that the discretionary power of decreeing a suit for specific performance within the meaning of Section 20 of the Specific Relief Act, 1963 should not be exercised in the present case. It is further contended that the plaintiffs have not come up with a clean hand and that the Exts. 5 and 5(a) (translated copy being Exts. 6 and 6(a) were marked as exhibit without proper proof for which the trial Court did not place on these two letters.
15. In course of hearing of this appeal, it was pointed out and the original Exts. 5 and 5(a) were placed before the learned counsel of both sides to show that the dates appearing on Ext. 5(a) on both sides of the letter was written in blue ink. It was also pointed out that at the top of the Ext. 5, the address Kalipur, Budge Budge is written in black Ink though the body was written in blue ink. It was also pointed out that the dates in black ink appearing in Ext. 5(a) and the writing Kalipur, Budge Budge in Ext. 5 appears to be of same hand by using the same pen. In Ext. 5(a), all the writings were also not proved in accordance with law and as such, the trial Court rightly decided not to place reliance on the said letter. It is also to be noted that the intentional writing of the two dates in Ext. 5(a) is sufficient to indicate that an attempt was made to convert a previous writing into a writing of 22-5-1973. It is also rightly argued that for the purpose of extending the period of contract, the Ext. 5 with the date 7-6-1973 was written as if it was in reply to the letter dated 22-5-1973 (Ext. 5(a)). From the evidence on record as well as from the Order No. 101 dated 29-3-1979, it appears that these two letters especially the Ext. 5[a) was not properly proved and those were marked exhibits simply placing reliance on the transaction of those documents being marked Exts. 6 and 6(a). The plaintiff having not taken appropriate steps for proving Ext. 5(a), I hold and conclude that the first appellate Court without considering this aspect illegally placed much reliance on the same paper and set aside the finding of the trial Court without any legal explanation. I find that the trial Court rightly opted not to place any reliance on Exts. 5 and 5(a).
16. It is already stated above that the entire decision of the first appellate Court is based on these two documents Exts. 5 and 5(a) (translated copy being marked as Ext. 6 and 6(a)). But nowhere it was clarified as to how the dates in black ink were written in Ext. 5(a) by using the same pen and hand appearing in top of Ext. 5 indicated herein-above. These two documents specially the Ext. 5(a) having not been lawfully proved, no reliance should be placed on it and the trial Court rightly came to a just conclusion in not placing any reliance on the same. If no reliance was placed on Ext. 5(a), the entire case of the plaintiffs falls to the ground inasmuch as the theory or revival of contract is solely based on this Ext. 5(a). In fact, there is nothing in Ext. 5(a) which indicates the revival of the earlier contract or the waiver of the letter written by the lawyer (Ext. 8 or Ext. A).
17. However, the learned counsel appearing on behalf of the respondents made a streneous effort to support the finding of the first appellate Court. Placing reliance on Maxwell on Interpretation of Statute (page 328), it was contended that "everyone has a right to waive and to agree to waive the advantage of a law made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy." On this score, reliance was also placed on a Division Bench Judgment of the Patna High Court (Life Insurance Corporation of India v. Ramdas Agarwal). In this decision Their Lordships took the view that waiver signifies nothing more than an intention not to Insist upon the right. So it was concluded that waiver must be an intentional act with knowledge. In the present case, the defendant No. 1, Ram Adhar Dube did not appear and contest the suit nor he was called as a witness by the plaintiffs to prove the Ext. 5(a). So that being the position, it cannot be said that on the basis of the said letter (Ext. 5(a)), the defendant No. 1 had the intention to waive his earlier notice (Ext. 8) or the reply given by the plaintiffs (Ext. A). Even the date of the letter having not been proved, it cannot be said that the said letter was written after the Ext. 8 and Ext. A. So, the materials on record does not support the claim of waiver as argued by the learned counsel for the respondents.
18. In support of the contention of the plaintiffs that the time was not the essence of the contract in the present case, the learned counsel appearing on behalf of the respondents placed reliance on the decision of the Apex Court In Gomathinayagam Pillai v. Palaniswami Nadar . In this case, the Apex Court analysed the situation when time should be construed as essence of the contract. It is also viewed that time can be construed as essence of the contract if parties intended it to be so. It was also viewed that such intention is to be derived from the express stipulation or by circumstances which are sufficiently strong to displace ordinary presumption that in contract for sale of land, stipulation as to time is not an essence. It was also viewed following the earlier decision of the Privy Council in Jamshed Kodaram Irani v. Burjorji Dhunjibhai AIR 1915 PC 83 and also in Stickney v. Keeble, 1915 AC 386 that if time is not of essence originally, it can be made so even subsequently by serving notice on other party.
19. Reliance was also placed in Govind Prasad Chaturvedi v. Hari Dutt Shastri in which the earlier decision in Gomathinayagam Pillai, (supra) was followed and it was re-affirmed that the fixation of the period within which the contract has to be performed does not make the stipulation as to time the essence of the contract. When a contract relates to sale of immovable property, it will normally be presumed that the time is not the essence of the contract. So the learned counsel contended that the time was not the essence of the contract in the present case and even if it was an essence, it was waived by Ext. 5(a) and 5(b) and thus the time was extended for a further period giving a go-by to the intention of making the time as essence of the contract. But it is already discussed hereinabove that Ext. 5(a) having not been proved lawfully it is not possible to take the view that it was written after Ext. 8 and Ext. A. On the other hand, even if the time was not construed to be an essence by sending Ext.8, time was made an essence of the contract and by Ext. A, the plaintiffs opted to rescind the contract and claimed refund of the earnest money of Rs. 1000/- within a fortnight. So, on the basis of the principles laid down on this score, it was rightly concluded by the trial Court that the time was made an essence of the contract and the plaintiffs by their own act rescinded the contract for which the contract could not be specifically enforced.
20. The learned counsel for the respondents placing reliance on the provision of Section 100 of the Code of Civil Procedure as amended in 1976 argued at length on the scope of Second Appeal. He also placed reliance on the decision of the Apex Court in Kondiba Dagdu Kadam v. Savitribai Sopan Gujar , in support of the contention that no substantial question of law is involved in the present case.
21. Reliance was also placed in Navaneethammal v. Arjuna Chetty reported in 1997 (1) Civil LJ 161 : (AIR 1996 SC 3521), in support of the contention that High Court in second appeal should not re-appreciate the evidence even if another view is possible.
22. Reliance was also placed in Ninge Gowda v. Linge Gowda reported in 1977 (2) Civil LJ 138, in support of the contention that in second appeal, the second appellate Court should not interfere with the findings of fact recorded by first appellate Court.
23. Reliance was also placed in (Arumugham v. Sundarambal) in support of the contention that reversal of the judgment of the first appellate Court is not permissible merely on the ground that the first appellate Court had not come to grips with reasonings of the trial Court.
24. However, the learned counsel appearing on behalf of the appellant placed reliance on a three Judge Bench decision of the Apex Court , (Santosh Hazari v. Purushottam Tiwari) where the scope of the second appeal including the substantial question of law was discussed. The decisions cited by the learned counsel for the respondent are equally applicable in the present case if it is found out that the first appellate Court acted lawfully as well as in accordance with law. It is already discussed above that the trial Court did not place reliance on Ext. 5 and 5(a) (translated copy being marked Ext. 6 and 6(a)). It is also discussed hereinabove that the Ext. 5(a) having not been proved lawfully, no reliance should be placed on it. It is also discussed hereinabove that the sheet anchor of the judgment of the first appellate Court is the Ext. 5(a) (translated copy being marked 6(a)). Since the document is not lawfully proved, its value is being questioned from the very trial stage, the first appellate Court erred in law in not considering this aspect and thereby took erroneous view in upsetting the finding of the trial Court. Here the question was not of a second opinion or another view, but it was a question of lawful acceptance of evidence. Since the Ext. 5(a) is not lawfully accepted in evidence, its evidentiary value also cannot be accepted lawfully. Accordingly, the finding of the first appellate Court on this score cannot be supported in law. This is undoubtedly a substantial question of law. It is also to be noted that the Ext.8 and Ext. A practically decided the fate of the contract which according to the trial Court was a rescission of the contract. But the first appellate Court without considering the legality of the Ext. 5(a), came to an erroneous finding that the original contract was revived by the parties. No attempt was made to call the defendant No. 1 as a witness in the suit for proving such intention. Accordingly, the finding of the first appellate Court deserves interference on the point of law. Such a view can be taken placing reliance on the principles adopted by the Apex Court in Budwanti v. Gulab Chand, , State of Rajasthan v. Harphool Singh , Saraswathi v. Ganapathi, Deena Nath v. Pooran Lal .
25. In Jai Singh v. Shakuntala also the Apex Court in paragraph 6 viewed :--
"While scrutiny of evidence does not stand out to be totally prohibited in the matter of exercise of jurisdiction in the second appeal and that would, in our view, be too broad a proposition and too rigid an interpretation of law not worthy of acceptance but that does not also clothe the superior Courts within jurisdiction to intervene and interfere in any and every matter. It is only in very exceptional cases and on extreme perversity that the authority to examine the same in extenso stands permissible -- it is a rarity rather than a regularity and thus in act it can thus be safely concluded that while there is no prohibition as such, but the power to scrutiny can only be had in very exceptional circumstances and upon proper circumspection .........."
Though Their Lordships in this case indicated that the said view is without expression of any opinion pertaining to Section 100 of CPC, but the series of decision of the Apex Court indicated that the power of Judicial scrutiny is to be exercised in case of perversity or in appropriate cases where it is found that the statutory mandate was not followed. In view of such cases. It was also viewed that findings based on surmises and conjectures or perverse findings not based on legally acceptable evidence cannot have any impugnity from interference in the hands of the appellate authority. Considering all these aspects, it is concluded that the finding of the first appellate Court deserves interference.
26. The learned counsel for the respondents also contended placing reliance on a Bench decision of the Punjab & Haryana High Court in Devinder Singh v. Mansha Singh in support of the contention that the question whether the defendant No. 2 was a bona fide purchaser for value without any notice to the previous agreement being a question of fact and that question having been settled by the first appellate Court cannot be interfered with in second appeal even if another view is possible on reading of evidence. In Ext. B, the details of the transaction between the plaintiffs and the defendant No. 1 upto the termination or rescission of the contract have been analysed and there was no indication of sending any letter (Ext. 5(a)) or getting any reply (Ext. 5). So the trial Court rightly held that the defendant No. 2 had no notice of the Exts. 5 and 5(a). It is already discussed above that the Ext. 5(a) is undoubtedly a questionable document, not legally proved in this case. Even if it is found to be lawful the defendant No. 2 had no knowledge of the same. On the other hand, the defendant No. 2 placing reliance on Ext. 8 and Ext. A purchased, the suit land for value. This question of fact decided in favour of the defendant No. 2 has been upset by the finding of the first appellate Court mainly placing reliance on Ext. 5(a) without taking into consideration that it was a private correspondence in respect of which the defendant No. 2 cannot have any knowledge. So the defendant No. 2 was rightly found by the trial Court to be a bona fide purchaser for value without any notice. An attempt to upset such a finding without recourse to law in the manner discussed hereinabove is not taking of another view as discussed by His Lordship in Devinder Singh's case (supra).
27. In this connection it is also to be pointed out that none of the Courts below did take into consideration another aspect of the case. The defendant No. 2 purchased the stamp paper on 14-8-1973, that is four days after the purchase of the stamp paper by the defendant No. 1. The Deed in favour of the defendant No. 2 (Ext. B) was executed by the defendant No. 1 on 22-8-1973 thereby indicating that the defendant No. 1 was very much present in Calcutta at that time. But the evidence of the plaintiffs is that after 10-8-1973, the defendant No. 1 was not available in West Bengal. This evidence undoubtedly is without any basis inasmuch as upto 22-8-1973 the defendant No. 1 was very much present in West Bengal for the purpose of execution and registration of Ext. B. It is interesting to note that the defence witnesses were not cross-examined on the point on non-availability of defendant No. 1 during the relevant period. So there remains a reasonable doubt as to whether the defendant No. 1 was aware of purchase of the stamp paper by the plaintiffs. Even if he gave consent for a Sale Deed that was not within the knowledge of the defendant No. 2. So such act of defendant No. 1 is not proved to be within the knowledge of the defendant No. 2 and as such, when the defendant No. 2 purchased the suit land on payment of full consideration money, he became a bona fide purchaser for value without any notice.
28. A question was raised that before purchase of the suit property the defendant No. 2 as a bona fide purchaser was required to inquire from the plaintiffs inasmuch as they were in possession of a portion of the suit land. On this score, the learned counsel for the respondent placed reliance on (R.K. Mohammed Ubaldullah v. Hajee C. Abdul Wahab). But from the materials on record, It appears that the plaintiffs were in possession of a portion of the suit land as a tenant and similarly, the defendant No. 2 Was also occupying a portion of the suit land which according to the defendant No. 1 Was the possession of a licensee and according to the defendant No. 2, a possession of a tenant. When the plaintiffs and the defendant No. 2 were in possession, the question of asking the plaintiffs about their possession which was rescinded on the basis of Ext. A and Ext. 8 did not arise and the trial Court rightly analysed this aspect and came to a just decision. Since the original contract is proved to have been rescinded on the basis of the letter (Ext. A), the question of making further inquiry did not arise. On the other hand, the first appellate Court practically was lawfully misled in placing full reliance on Ext. 5(a) and without considering all other 'legal aspects came to a decision that the plaintiffs were entitled to enforce the contract specifically. Such a decision is excepted under the provision of Section 19(b) of the Specific Relief Act. Moreover specific relief being a discretionary relief should not be exercised in a case of this nature where the plaintiffs did not come up with a clean hand. On the other hand, the defendant No. 2 being a bona fide purchaser for value without any notice of Ext. 5 and 5(a) (translated copy marked 6 and 6(a)), should not be thrown into troubles by allowing the prayer of the, plaintiffs. In this connection, it is also pertinent to mention that the plaintiffs were aware of the pendency of the title suit between the defendant No. 1 and the defendant No. 2, even on the date of purchase of their stamp paper on 9-8-1973, and hence they did not come for specific performance of the contract in clean hands and on this score, the learned counsel for the appellant rightly placed reliance on the Judgment of the Apex Court (Lourdu Mari David v. Louis Chinnaya Arogiaswamy). On this score, the learned counsel also placed reliance on another decision of the Apex Court . (Manjunath Anandappa Urf. Shivappa Hanasi v. Tammanasa) in support of the contention that the discretionary relief is not available to the plaintiffs for causing unnecessary delay in the transaction. The Ext. 4 produced by the plaintiffs indicates that the title suit between the defendant No. 2 and the defendant No. 1 was pending when the stamp paper was purchased by the plaintiffs and also by the defendant No, 2 and the suit was actually allowed to be dismissed for non prosecution on 7-9-1973 immediately after the conclusion of the transaction between the defendant No. 2 and defendant No. 1 on 22-8-1973 (Ext. B). So the Sale Deed in favour of the defendant No. 2 also appears to be outcome of the title suit between the defendant No. 1 and defendant No. 2. Practically for the pendency of the title suit the plaintiffs opted not to purchase the suit land and rescinded the contract on the basis of Ext. A. This important legal aspect was also not considered by the first Appellate Court.
29. So after a due consideration of the materials on record and the discussions hereinabove made, it is concluded that the plaintiffs having rescinded the contract on the basis of the letter dated 15-3-1973, a suit for specific performance at their instance does not lie. It is further held that the defendant No. 2 is a transferee for value in good faith and without any notice of the alleged subsequent contract. So the first appellate Court was not right in exercising its discretion under the Specific Relief Act for which the judgment of the first appellate Court being opposed to law is liable to be set aside. Consequently, this appeal is to be allowed and the Judgment and decree of the trial Court are to be confirmed. The substantial questions of law indicated herein-above are accordingly decided.
30. Memo of Appeal accordingly stamped. The appeal is accordingly allowed. The Judgment and decree of the first appellate Court are hereby set aside. The judgment and decree passed by the trial Court are accordingly affirmed. The parties do bear their own cost of this appeal.