Patna High Court
Sakhichand Mandal vs Prem Tanti & Ors on 5 March, 2012
Author: Vijayendra Nath
Bench: Vijayendra Nath
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.362 of 1985
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Sakhichand Mandal, Son of Raghu Mondal, resident of Mohalla- Mungrawra, P.S.-
Jamalpur, District- Munghyr.
--Defendant 2nd set -Respondent-Appellants.
.... .... Appellant/s
Versus
1. Prem Tanti .
2. Shiv Ratan Tanti.
3. Guru Charan Tanti, All Sons of Late Chet Narain Tanti.
4. Tunni Kumari.
5. Rajju Kumari. Both minor daughters of Late Chet Narain Tanti, under the
guardianship of their mother Smt. Manna Devi.
6. Dharmi Tanti, Son of Late Dhupal Tanti.
7. (a) Ranjeet Kumar Tanti.
(b) Manish Kumar.
(c) Sikandar Kumar.
All Sons of Late Anul Lal Tanti.
(d) Kalawati Kumari.
(e) Archana Kumari.
All daughters of Late Anup Lal Tanti.
8. Ramawtar Tanti, Son of Late Dhupal Tanti.
9. Deoki Devi, Wife of Late Dhupal Tanti.
Respondent nos. 6 to 9 residing of Mohalla- Chhoti Ashikpur, P.S.- Jamal;pur,
District- Munghyr.
--Defendant 1st set Respondent 1st set.
10. Umesh Prasad Sinha, son of Late Lachhu Prasad Sinha, resident of Mohalla-
Choti Ashikpur, P.S.- Jamalpur , district- Munghyr. Defendant 3rd set -
Respondent 3rd set.
.... .... Respondent/s
with
Second Appeal No. 502 of 1985
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1. (a) Ranjeet Kumar Tanti.
(b) Manish Kumar.
(c) Sikandar Kumar.
All Sons of Late Anul Lal Tanti.
(d) Kalawati Kumari.
(e) Archana Kumari.
All daughters of Late Anup Lal Tanti
2. Ram Autar Tanti, Son of Late Bhuplal Tanti.
3. Deoki Devi @ Saro Devi, W/o Late Bhuplal Tanti, All residents of Mohalla-
Chhoti Ashikpur, P.s.- Jamalpur, District- Munghyr.
.... .... Appellant/s
Versus
1. Sakhichand Mandal, S/o Raghu Mandal ,R/o Mohalla- Mungrawra, P.S.-
Jamalpur, District- Munghyr-Plaintiff-Appellants- Respondents.
2. Prem Tanti.
3. Guru Charan Tanti. All Sons of Late Chet Narain Tanti.
2 Patna High Court SA No.362 of 1985 dt.05-03-2012
2 / 20
4. Tunni Kumari.
5. Rajju Kumari, Both Minor daughters of late Chet Narain Tanti, under the
guardianship of their mother Smt. Manna Devi.
Respondent nos. 2 to 5 resident of Mhalla- Chhoti Ashikpur, P.s.- Jamalpur,
district- Munghyr.
6. Umesh Prasad Sinha, S/ o Late Lachhu Prasad Sinha, Resident of Mohalla-
Chhoti Koshapur, P.S.- Jamalpur, district-Munghyr.
Defendant -Respondent - ..... .... Respondent/s
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Appearance :
(In SA No. 362 of 1985)
For the Appellant/s : Mr. Suresh Prasad Singh, Adv. .
Mr. Kalyan Shankar
Mr. . DHIRENDRA KR.JHA
For the Respondent/s : Mr. DEVENDRA NARAIN SINGH
Mr. Chandra Kant Sinha
Mr. Raj Kr.Sahay
Mr. Prabhakar Roy
Mr. Manoj Kumar
(In SA No. 502 of 1985)
For the Appellant/s : Mr. Chitranjan Sinha, Sr.Adv.
with Jitendra Kishore Verma, Adv
For the Respondent/s :
Mr. VAIDYA NATH SAHAY
Mr. V. Sahay
Mr. Ym.R.
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CORAM: HONOURABLE MR. JUSTICE VIJAYENDRA NATH
C.A.V. JUDGMENT
Date: 05-03-2012
Vijayendra
Nath, J. Heard the learned senior counsel Mr.Chitranjan Sinha,
appearing on behalf of the appellant in S.A.No.502/1985 and also
Mr.Suresh Prasad Singh, advocate appearing on behalf of the appellant in
S.A.No.362/1985. No one has appeared on behalf of the respondents.
2. The S.A.No.362/1985 and S.A.No. 502/1985 arise out of
common judgment and decree passed in T.A.No. 08/82 by Subordinate
Judge II, Munger on 03.08.1985 reversing the judgment and decree dated
25.01.1982of T.S.No. 37/1975 passed by Munsif I, Munger. The S.A.No. 3 Patna High Court SA No.362 of 1985 dt.05-03-2012 3 / 20 502/1985, was directed to be heard, by order dated 18.11.1991, with S.A.No. 362/1985.The S.A.No. 502/ 85 has been filed by the heirs of the defendant no.1 (since deceased) and the S.A.No. 362/85 has been filed by the defendant no.2 who is purchaser of the suit land from the defendant no.1 The parties to the two appeals shall hereafter be referred by their position in the suit.
3. While admitting the S.A.No.362/1985 for hearing the following substantial question of law has been framed:
Whether in absence of averment in the plaint that the plaintiffs are ready to perform their part of contract, the suit can be decreed?
4. In S.A.No.502/1985, the following substantial question of law was formulated at the time of admission:
Whether the court below erred in law in holding that the Jar Baiyana deed executed in favour of the plaintiff was genuine and not fabricated as said by the defendant-appellant?
5. When the hearing of the appeals was taken up, the learned counsel for the appellant in S.A.No. 362/1985 proposed an additional substantial question of law and prayed that the appeal be heard also on the same. After hearing the submissions of the learned counsel, the following additional substantial question of law has been framed:
"Whether the finding by the appellate court below, that the defendant no.2 had purchased the suit land with the knowledge of 4 Patna High Court SA No.362 of 1985 dt.05-03-2012 4 / 20 agreement for sale in favour of the plaintiff and is not a bona fide purchaser, is sustainable in law as there is no evidence to support the said finding."
6. In order to appreciate the substantial question of law, the necessary background facts are as follows:
The suit was filed for seeking specific performance of contract for sale against the defendant no.1 and for declaration that the sale deeds in favour of the defendant no.2 was fraudulent, ineffective and not binding upon the plaintiffs. The plaintiff's case was that the defendant no.1 was the owner of the suit property and had executed a Jar Baiyana deed (agreement to sell) on 11.04.1974 in favour of the plaintiff no.1 for total consideration money of Rs.4250/- after taking a sum of Rs. 1500/- out of that amount by way of advance. The agreement was to execute the sale deed as early as possible, and in July, 1974, the defendant no.1 and the defendant no.3 (who was the scribe) approached the plaintiff for the payment of the balance consideration money of Rs.2750/- whereupon the plaintiff agreed for execution and registration of the sale deed on 29.07.1974 and paid Rs. 300/- to defendant no.3 for purchase of stamp papers. The defendant no.3 promised to get the sale deed executed and registered by defendant no.1 within two weeks even when the plaintiff would fail to turn up at the Registration Office. The plaintiff did not turn up at the Registration office, as he was a railway employee, on the date of 5 Patna High Court SA No.362 of 1985 dt.05-03-2012 5 / 20 registration but the defendant no.3, later on, handed over to the plaintiff the registration receipt duly signed by the defendant no.1. When the plaintiff withdrew the document from the Registration Office, he discovered that instead of being a sale deed, the document was a deed of will executed by the defendant no.1 in favour of the plaintiff. The plaintiff also came to know later that a sale deed for the suit land had been executed in favour of the defendant no.2 by the defendant no.1 in collusion with the scribe (defendant no.3). The plaintiff asserted in the plaint that he had paid the balance consideration money of Rs. 2750/- to the defendant no.1 at the time of delivery of registration receipt after deducting Rs. 900/- being mortgage money and thus had become entitled to get a sale deed executed and registered in his favour from the defendant no.1. The sale deed in favour of defendant no.2 had been assailed as fictitious, collusive and fraudulent document.
7. The defendant no.1 (since deceased and substituted by his heirs) in his written statement, had denied the validity of the agreement for sale and also denied to have received Rs. 1500/- in cash by way of advance from the plaintiff. The payment of Rs. 2750/- and Rs. 300/- by the plaintiff had also been denied. It was the case of the defendant 1 st set that the suit land was the joint family property of the original defendant no.1 and the sale in favour of the defendant no.2 had been accepted.
8. The scribe, who was impleaded as defendant no.3 in the suit, in 6 Patna High Court SA No.362 of 1985 dt.05-03-2012 6 / 20 his written statement had accepted to have scribed the Bai Bayana deed (agreement for sale) on the request of plaintiff but the payment of Rs. 500/- as advance out of total consideration money of Rs. 4250/- had only been accepted. The defendant no.3 had specifically stated that the agreement was for execution of registered will between the plaintiff and the defendant no.1 in order to save cost of stamp and had denied any knowledge regarding the sale deed of the defendant no.2.
9. The defendant no.2 in his written statement had asserted the genuineness of his sale deed and had claimed to have made enquiry from the plaintiff who was in possession of the suit land as mortgagee before the purchase. He had denied the knowledge of the agreement for sale between the plaintiff and defendant no.1 and had claimed himself to be bonafide purchaser without notice of the agreement for sale. He had also alleged the agreement for sale as forged and collusive document.
10. The additional written statement had also been filed by the defendant 1st set, 2nd set and 3rd set wherein the defendant 2nd set claimed to have got the possession over the suit land through Anchal Office. This fact had been accepted by the defendant 1st set in his additional written statement. The defendant 3rd set in his additional written statement had denied the execution of the agreement for sale by the defendant no.1 in his presence and had also denied the payment of money in his presence but has accepted to have scribed the agreement for sale in absence of the 7 Patna High Court SA No.362 of 1985 dt.05-03-2012 7 / 20 defendant no.1.
11. In view of the pleadings of the parties, the trial court framed issues including the issue regarding the validity and genuineness of the agreement of sale, the entitlement of the plaintiff to the grant of a decree for specific performance of contract and the validity and binding effect of the sale deed of the defendant 2nd set upon the plaintiff. After considering the evidence of the parties, the trial court dismissed the suit on the following main findings:
(i) The agreement for sale (Ext.10) was not a valid and genuine document and the plaintiff had fabricated the same after committing forgery and fraud.
(ii) The defendant 2nd set was a bond fide purchaser for value of the suit land from the defendant 1st set and was in possession of the same within the knowledge of the plaintiff.
12. The appellate court below, however, on reappraisal of evidence in view of the rival submissions of the parties, allowed the appeal reversing the judgment and decree of the trial court with the following main findings.
(i) Some interpolations had been made in the agreement for sale (Ext.10) but the said interpolation had been done by the same person who had originally written the document.
(ii) There was alternation in the figure 500 to 1500 but the said 8 Patna High Court SA No.362 of 1985 dt.05-03-2012 8 / 20 figure 1500 was supported by other evidence and thus the agreement for sale was executed after receiving Rs. 1500/- as advance.
(iii) The agreement for sale was genuine and for consideration and the plaintiff was entitled to get the sale deed executed from defendant 1 st set on payment of Rs. 1000/- to the defendant 1st set in order to remove any discrepancy.
(iv) The defendant 2nd set had the knowledge of the agreement for sale in favour of the plaintiff by the defendant no.1 before his purchase by the sale deeds dated 03.09.1974 and as such the sale deeds dated 03.09.1974 were null and void and were not binding upon the plaintiff.
13. The learned senior counsel appearing on behalf of the appellant in S.A.No. 502/85 has mainly submitted that the facts, which have come before the Court and supported by evidence on record, unfailingly establish that the plaintiff has not come before the Court with clean hands and his conduct throughout had not been above blemish. It has been submitted that the material interpolation in the deed of agreement for sale (Ext.10), once having been established, were itself sufficient for refusal of the relief for specific performance of contract to the plaintiff, as the same would straightway make the agreement void. It has been urged that there was no pleading that there was also agreement for adjustment of mortgage money of Rs.900/- in the consideration amount and thus the story of payment of the balance consideration money after adjustment of 9 Patna High Court SA No.362 of 1985 dt.05-03-2012 9 / 20 mortgage money should not have been accepted. It has been next contended that the deposition of the plaintiff itself shows that he had no ready money on 29.07.1974 as he had accepted that he would be able to pay the consideration money only after getting the salary. The learned senior counsel has also argued that the readiness and willingness of the plaintiff has neither been pleaded nor established and once after accepting that Rs. 1000/- still remained to be paid, this aspect has become more prominent. It has been contended that the trial court has correctly appreciated the evidence and reached to the correct findings but the appellate court below, even after accepting the fact of interpolations in the agreement for sale, has wrongly ignored the same and found the deed of agreement for sale to be valid and genuine document.
14. The leaned counsel for the appellant in S.A.No. 362/85, has submitted that the appellate court below has wrongly placed the burden of proof upon the defendant no.2 to establish the want of knowledge of the agreement for sale before the purchase. It is the contention of the learned counsel that in all cases, it is for the plaintiff to finally establish that the subsequent purchaser has the notice of the prior agreement for sale, after the denial of the said fact, which is sufficient to discharge the initial burden of the subsequent purchaser. It has also been submitted that there is no positive evidence on record to impute the prior knowledge of the agreement for sale upon this defendant no.2 and thus the finding of the 10 Patna High Court SA No.362 of 1985 dt.05-03-2012 10 / 20 appellate court below in this regard is without evidence and thus perverse.
15. It is admitted by both the parties that the defendant no.1(now deceased, through L.R.) had the title over the suit property which is an amalgamated area of 11 katha of land of plot nos. 1483,1489,1491 and 1494 described in Schedule I of the plaint with specific boundary. The basis of the claim of the plaintiff is the agreement for sale (Ext.10) dated 11.04.1974 said to have been executed by the defendant no.1 for the suit land. This document has been assailed by the defendants as forged and fabricated document and it has also been asserted that no amount was paid to the defendant no.1 by the plaintiff. It is also the case of the defendants that the plaintiff had made interpolation in this agreement for sale by putting the digit "1" before "500" to make it "1500" and similar interpolation had also been made in the words to make it "pandrah" in place of "panch".
16. In view of the specific case of the plaintiff that the total consideration money was Rs.4250/- out of which he paid Rs. 1500/- in advance and only Rs. 2750/- remained as balance consideration money which he paid at the time of getting the registration receipt, and denial of this fact by the defendants, the genuineness of the deed of agreement for sale (Ext.10) assumes importance. A handwriting expert was appointed on the prayer of the plaintiff to examine the genuineness of the deed of agreement for sale (Ext.10). This handwriting expert had examined the 11 Patna High Court SA No.362 of 1985 dt.05-03-2012 11 / 20 writing and the signature of the defendant no.1 upon this document and compared the same with his admitted signature. The report of this handwriting expert has been marked as Ext.7, and the expert has also been examined as witness (P.W. 10) in the suit. In his report, the expert has opined that the alteration and interpolation, though, had been made in the deed but the same had been made in the writing by the one and same person. The appellate court below, on its own examination of the words and figures said to have been added or altered by interpolation, has also found the same to be in the writing of the person who had written the whole document. As the interpolation and alteration in the deed (Ext.10) has been found, it has been submitted on behalf of the appellant that no relief could be granted to the plaintiff as he had not come with clean hands before the Court. Pointing out to the fact, admitted by the plaintiff that the deed of agreement for sale had all along remained with him, it has also been submitted that clearly it is the plaintiff alone who is to be blamed for making interpolation and alteration in the agreement for sale.
17. However, even after accepting that there have been interpolation and alteration in the deed of agreement for sale, still the question remains to be considered whether such interpolation and alteration can be said to be material and substantive enough to effect the rights of the parties as originally agreed. If the alteration or interpolation in the deed has no effect in varying the rights, liabilities and legal 12 Patna High Court SA No.362 of 1985 dt.05-03-2012 12 / 20 obligations of the parties as established by other evidence on record, the same will be of no consequence. The legal principle in this regard, has been clearly laid down by the Privy Council in the matter of Nathulal Vs. Gomati Kuer (AIR 1940 P.C. 160) as follows:
"...If an alteration (by erasure, interlineations or otherwise) is made in a material part of a deed after its execution, by or with the consent of any party thereto or person entitled thereunder, but without the consent of the party or parties liable thereunder, the deed is thereby made void.......................
A material alteration is one which varies the rights, liabilities or legal position of the parties as ascertained by the deed in its original state or otherwise varies the legal effect of the instrument as originally expressed, or reduces to certainty some provision which was originally unascertained and as such void, or may otherwise prejudice the party bound by the deed as originally executed.
The effect of making such alteration without the consent of the party bound is exactly the same as that of cancelling the deed..."
18. In view of the aforesaid legal principle, the nature of the alteration and interpolation done in the deed (Ext. 10) is to be examined. It is admitted case of the parties that the Wasiyatnama (will), adduced in evidence as Ext.6, had been executed by the defendant no.1 in favour of the plaintiff. It is the specific case of the plaintiff that although he paid the 13 Patna High Court SA No.362 of 1985 dt.05-03-2012 13 / 20 entire agreed consideration money to the defendant no.1 for the sale deed but instead of executing the sale deed, he had executed a will. The plaintiff has also filed the money receipt (Ext.1) on the basis of which he has claimed to have paid the balance consideration money to the defendant no.1. This Ext.1 has been executed by the defendant no.1 on a 10 paise revenue stamp paper on 11.08.1974. The execution of this money receipt has been accepted by the scribe who has been impleaded as defendant no.3 in the suit but he denied to have knowledge of the L.T.I. of the defendant no.1 on this document. The L.T.I. on this Ext.1 was also examined by the handwriting expert who has found that the L.T.I. appearing on this money receipt (Ext.1) has tallied with the admitted L.T.I. of the defendant no.1 Bhupal Tanti. The defendants, in order to contradict this expert report, however, had not got the L.T.I. of defendant no.1 Bhupal Tanti appearing on this money receipt examined by any other expert. The contents of this money receipt (Ext.1) have material bearing on the cases of the parties. It has been clearly stated in this money receipt (Ext.1) that Bhupal Tanti (original defendant no.1) had executed a registered deed on 29.07.1974 in favour of the plaintiff and the registration receipt of the same had been handed over to the plaintiff after accepting the entire consideration money of Rs. 1850/- by making adjustment of Rs. 1500/- paid as advance and Rs. 900/- towards the mortgage money. The word "Wasiyatnama" even after having been penned through in this document (Ext.1) is still decipherable. 14 Patna High Court SA No.362 of 1985 dt.05-03-2012 14 / 20 Thus the case of the plaintiff regarding the payment of Rs. 1500/- as advance as well as his case of adjustment of Rs. 900/- by way of mortgage money in the sale price of the suit land is clearly corroborated by this money receipt (Ext.1). Considering together the deed of agreement for sale (Ext.10), the money receipt (Ext.1) and the admitted registered will dated 29.07.1974(Ext.6), the plaintiff's case of payment of Rs. 1500/- as advance and further payment of the balance consideration money of Rs. 1850/- after adjustment of Rs. 900/-(mortgage money) out of total consideration money of Rs. 4250/- to the defendant no.1 is established. Thus the alteration and interpolation by way of adding/ substituting the words and figures to make it appear Rs. 1500/- cannot be said to be a material alteration varying the original terms of agreement between the parties and on this score the agreement for sale cannot be adjudged to have become void and not enforceable. The plaintiff on this score cannot be held to have come with unclean hands before the Court. The appellate court below has elaborately considered the evidence of the parties in this regard and has rightly come to the conclusion that the agreement for sale i.e. Jar Baiyana deed (Ext.10) is valid and genuine document. There is no perversity in the finding by the appellate court below. The substantial question of law, in this regard is, accordingly, decided against the appellants.
19. It has also been submitted on behalf of the appellants that 15 Patna High Court SA No.362 of 1985 dt.05-03-2012 15 / 20 the plaintiff has not pleaded and proved his readiness and willingness to perform his part of the contract, and the fact that the plaintiff has become ready to pay Rs. 1000/- to the defendant 1st party for execution of the sale deed is itself sufficient to support this contention. From the facts and evidence as discussed above, it is established that the plaintiff was to pay Rs. 4250/- as total consideration money for the execution of the sale deed in pursuance to the agreement for sale, and that was the only part which the plaintiff was required to perform. As the plaintiff had already paid the total consideration money, which is established by the money receipt (Ext.1), no part of the contract remained to be performed by him. Therefore, the plaintiff was not required to plead and prove his readiness and willingness to perform his part of the contract as required by Section 16(c) of the Specific Relief Act. The plaintiff's readiness to pay Rs. 1000/- , in the background of the facts and circumstances as discussed in the appellate court judgment, can only be said to be an attempt to purchase peace and by no stretch it can be taken to be an admission of a vital fact by the plaintiff in order to discredit his case. As such there is no merit in the substantial question of law in this regard which is decided against the appellants accordingly.
20. The appellant in the S.A.No. 362/85, has claimed to have purchased the suit land bonafidely and without notice of the agreement for sale with the plaintiff. The plaintiff has impleaded him as defendant no.2 16 Patna High Court SA No.362 of 1985 dt.05-03-2012 16 / 20 in the suit but there is absolutely no assertion in the plaint that the defendant no.2 has purchased the suit land with the notice of the agreement of sale in question. The only assertion in this regard has been made in paragraph no.9 of the plaint stating that the defendant no.2 has got the sale deed executed by the defendant no.1 in collusion with defendant no.3 and further in paragraph no.11 it has again been said that defendant no.2 had obtained the sale deed of the suit land in his favour in collusion with other defendants and as such the said sale deed should be held to be fictitious and without consideration, collusive and fraudulent. In his deposition also the plaintiff as P.W.6 has not uttered a word regarding the notice to the defendant no.2 of the plaintiff's agreement for sale before he purchased the suit land. The plaintiff in his deposition has chosen to state as follows:
Þ--- eq>s /kks[kk nsus ds ckn Hkqiky us l[kh pan dks dsokyk ;gh tehu dj fn;kA og dsokyk uktk;t Hkqiky us l[kh pan dks fd;k FkkA eqnky;g l[kh pan dks rdjkjh tehu ls dksbZ ljksdkj dHkh ugha jgkAÞ
21. But the defendant no.2 in his deposition has specifically denied any prior knowledge of the agreement for sale of the plaintiff and has claimed that he purchased the suit land for valuable consideration after making enquiry. It has also been averred in the written statement that as the plaintiff was in possession of the suit land as mortgagee, the defendant no.2 made enquiry from the plaintiff before purchasing the suit land but he
17 Patna High Court SA No.362 of 1985 dt.05-03-2012 17 / 20 did not disclose anything. The defendant no.2, further in his deposition, also has described in detail the enquiry made by him from the plaintiff, whom he approached with Babulal Mandal (examined in the suit as P.W.14) and has stated that the plaintiff did not raise objection to the purchase of the suit land by him.
22. Thus the only case, made out by the plaintiff against defendant no.2, was that his sale deed was fraudulent which he had obtained in collusion with the defendant no.1 and defendant no.3. Except this statement made in the plaint as well as in his deposition, as mentioned above, the plaintiff had not chosen to establish allegation of the collusion and fraud by describing its facets and had also led no further evidence to substantiate this allegation. Section 19(b) of the Specific Relief Act provides an exception to the law of enforcement of a contract against a subsequent purchaser if he is a bona fide purchaser for value and without notice of the contract in favour of the plaintiff. Thus it is the subsequent purchaser who has to establish the fact that he has purchased the property bonafidely and without notice of the earlier contract. However, it is by now well settled that this burden of proof on the subsequent purchaser is somewhat light and even a mere denial may suffice. But this question of burden of proof pales into insignificance when both the parties have led evidence because thereafter, it is the appreciation of evidence of the parties which becomes material and not the burden of proof. 18 Patna High Court SA No.362 of 1985 dt.05-03-2012 18 / 20
23. Both the courts below have considered the question of the validity of the sale deed of the defendant no.2. The trial court has come to the finding that the defendant no.2 had purchased the suit land after paying the consideration money to the defendant no.1 but, there is no specific finding by the trial court regarding defendant no.2 having the prior notice of the agreement for sale of the plaintiff. The appellate court below had held that the defendant no.2 had notice of the previous agreement for sale, firstly, on the ground that the statement regarding the absence of knowledge of the agreement of sale has come by way of amendment in the written statement of the defendant no.2 and secondly, on the assumption that, in the general common sense, the plaintiff would be taken to have disclosed the information of his agreement for sale on enquiry by the defendant no. 2. The emphasis has also been laid by the appellate court below on the non-disclosure of the fact of absence of notice in the reply sent by the defendant no.2 to the letter of the plaintiff. The conclusion reached by the appellate court on this issue does not appear to be reasonable, because a subsequent purchaser of a land cannot be fastened with notice of the prior agreement for sale of that land only on the basis of assumptions and presumptions without there being cogent evidence to support the said fact. Moreover, the assumption by the appellate court that the plaintiff must have disclosed the fact of his agreement to purchase, to the defendant no.2, also cannot be accepted when the plaintiff in his 19 Patna High Court SA No.362 of 1985 dt.05-03-2012 19 / 20 deposition had stated that the defendant no.2 had never approached him. As mentioned earlier, there is no statement in the plaint that the defendant no.2 had purchased the suit land with notice of the agreement for sale of the plaintiff. The allegations of fraud and collusion have been made against the defendant no.2 but no evidence has been adduced by the plaintiff even remotely suggesting the kind of fraud played by the defendant no.2 or his collusion with the defendant no.1 or defendant no.3 in defrauding the plaintiff. There is also no finding by the appellate court below that the defendant no.2 had played any fraud with the plaintiff or had colluded with the defendant no.1 and defendant no.3 to defraud the plaintiff.
24. Further the plaintiff was admittedly in possession as mortgagee over the suit land and this fact had also been mentioned in the sale deed of the defendant no.2 wherein the mortgage money had also been mentioned for payment to the mortgager. This fact of the possession of the plaintiff over the suit land as mortgagee was known to the defendant no.2 and he has also led evidence to establish that he made an enquiry from the plaintiff as well as the boundary raiyats of the suit land before his purchase. Thus the statutory presumption of notice as envisaged in explanation 2 to Section 3 of the T.P.Act will also be not available for the benefit to the plaintiff. As such the finding by the appellate court below that the defendant no.2 had purchased the suit land with prior notice of the 20 Patna High Court SA No.362 of 1985 dt.05-03-2012 20 / 20 agreement for sale in question cannot be sustained. The substantial question of law in this regard, accordingly is decided in favour of the appellant of the S.A.No.362/85.
25. For the foregoing reasons and discussions, the S.A.No. 502/85 is dismissed and the judgment and decree of the appellate court below against defendant nos. 1 and 3 is upheld. The S.A.No. 362/85 is allowed and the impugned judgment and decree by the appellate court below against the defendant no.2 is accordingly, set aside, and the suit for the relief of the specific performance of contract against the defendant no.2 is dismissed. In the facts and circumstances of the case, there shall be no order as to costs.
(Vijayendra Nath, J) Patna High Court/ The 05 of March, 2012/ N.A.F.R./Nitesh