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Judgment
The appellants/defendants have filed the present appeal under Section 96 of the Code of Civil Procedure being aggrieved by the judgment and decree dated 06.11.1996 passed by the Additional Judge to the Court of District Judge, Panna in Civil Suit No. 5A/1991, decreeing the suit filed by the respondent No.1/plaintiff for specific performance and declaring the sale deed in favour of the appellants as null and void.
The undisputed facts of the case are that the residential house of the plaintiff, marked by the letters A,B,C and D as well as the entire portion of the disputed plot were owned by defendant Nos. 1 to 3. The defendant Nos. 1 to 3 by a registered sale deed dated 25.11.1983 sold the portion shown by the letters A, B, C, D in the map annexed to the plaint. The plaintiff constructed her house on the said portion and had been residing there. Prior to 18.01.1991, the plaintiff had constructed one room on 8 x 11 ft portion of the disputed plot, which is shown by letters Sa, Kha, Ka and Da. The defendant Nos. 1 to 3, on 18.01.1991, executed a registered sale deed of the disputed plot in favor of defendant Nos. 4 and 5. No other facts are expressly admitted.
The facts stated in the plaint by the plaintiff are that on 25.11.1983, the plaintiff purchased a plot measuring 21 feet in width (north–south) and 40 feet in length (east–west) from Defendants No. 1 to 3 . After the purchase, the plaintiff duly constructed a residential house on the said land and had been residing there. On the southern side of the house, a five-feet wide passage/gallery had been left, which is shown in the map by the letters A, B, K, and G.
Adjacent to the said plot, there remained an open land measuring about 1370 square feet, which continued to be the remaining property of defendants No. 1 to 3. Between the plaintiffs house and the remaining land of the defendants, a passage was kept reserved for ingress and egress. The plaintiff's house is situated in Ward No. 10, Devendranagar bearing House No. 655.
Defendants Nos. 1 to 3 entered into an agreement to sell dated 11.02.1990 with the plaintiff for the sale of the entire remaining land situated on the eastern side of the plaintiff's house for a total consideration of Rs. 30,000/-. In part performance of the said agreement, the defendants received Rs. 3,000/- as advance money and also delivered possession of the portion adjoining the eastern side of the plaintiff's house to the plaintiff.
As per the terms of the agreement for sale, the plaintiff was to pay the remaining amount within one month and thereafter defendant Nos. 1 to 3 were to execute the sale deed in favor of the plaintiff and deliver possession of the remaining portion of the land. However, the defendant kept postponing the matter on one pretext or another and continued to request time to vacate the house, due to which the agreement could not be performed within the stipulated time.
Defendant Nos. 1 to 3 received the following amounts from the plaintiffs as advance: Rs. 1,000/- on 05.03.1990, Rs. 1,000/- on 09.05.1990, Rs. 3,000/- on 28.08.1990, and Rs. 5,000/- on 21.11.1990, making a total sum of Rs. 9,500/- received as advance. During this period, the plaintiff, with the consent of defendant Nos. 1 to 3, constructed one room and a chajja (Sun Shed) on an 8 × 11 sq.ft. portion of the land covered under the agreement to sell. As a result, the dimensions of the plaintiff's house became 48 × 20 sq.ft., and a two-storied building was constructed.
The plaintiff repeatedly requested defendant Nos. 1 to 3 to vacate the land and execute the sale deed. However, defendants No. 1 to 3 continued to postpone the matter on one pretext or another. Ultimately, on 18.01.1991, they executed a sale deed of the remaining portion of the contracted disputed land in favour of defendant Nos. 4 and 5. Upon coming to know about the same, the plaintiff, through her advocate sent a legal notice to the defendants on 16.02.1991.
In part performance of the agreement to sell, the plaintiff had taken possession and also constructed a room on the 8 × 11 sq.ft. portion of the land. The plaintiff was always ready and willing to perform the terms of the sale agreement, which prevented defendant Nos. 1 to 3 from having any right to sell the property to defendant Nos. 4 and 5. Nevertheless, despite this, the sale deed was executed illegally, which is void and ineffective against the plaintiff.
Under these circumstances, the relief has been sought to enforce the specific performance of the sale agreement and to declare the sale deed executed in favour of defendants Nos. 4 and 5 on 18.01.1991 as illegal and ineffective.
The defendant Nos. 1 to 5 filed a joint written statement. The have stated in the written statement that the land in question was sold by defendant Nos. 1 to 3 to the plaintiffs on 25.11.1983, on which the plaintiff has constructed a building. It is stated that the husband of the plaintiff holds the post of Tahsildar and is a prominent and well-established person, both socially and financially. On this account, the plaintiff forcibly constructed a room on the 8 × 11 sq. ft portion of the disputed land and also extended a chajja towards the defendants’ land and for removal of the said Chajja, the defendant Nos. 1 to 3 filed a Civil Suit No. 81-A/1990 in the Civil Court, which is currently pending adjudication. It is also stated that on 11.02.1990, a sale agreement for a portion of the disputed land was executed in favour of the plaintiff, with an advance payment of Rs. 3,000 and thereafter, an amounts of Rs. 9,500/- was received on different dates in installments. In the written statement, the defendant Nos. 1 to 3 have clearly denied the claim. According to the written statement, a registered sale deed in favour of defendants Nos. 4 and 5 was executed by defendant Nos. 1 to 3 on 18.01.1991.
On the basis of the above facts and averments, the court below has framed as many as seven issues.
The court below after considering the averments made by the parties and taking into consideration all the material and evidence placed before it has passed the impugned judgment and decree directing defendants Nos. 1 to 3 to execute a registered sale deed in favour of the plaintiff in accordance with agreement Ex.P/1 within a period of one month upon receipt of the remaining sale consideration. It is also directed that in the event defendant Nos. 1 to 3 fail to execute the sale deed, the plaintiffs may deposit the remaining sale consideration in the court, after which the court may execute the sale deed in favour of the plaintiffs. The court below permanently restrained the defendants from interfering in any manner with the two-storied building and chajja constructed by the plaintiff or with the plaintiff's possession and enjoyment of the same. In the event, after execution of the sale deed, the defendants fail to deliver possession of the remaining portion of the sold land to the plaintiff, the plaintiff shall be entitled to obtain possession through the court.
Heard the counsel for the appellant and perused the record.
It is has been contended by the counsel for the appellant that the learned court below has given a perverse finding in regard to execution of the agreement to sale -Ex.P/1, whereby it is found that agreement to sale of the plot of which details mentioned in the plaint and the agreement has been duly executed. Counsel for the appellant has invited attention of this Court towards the back leaf of the stamp paper on which the agreement has been reduced in writing to state that the stamp paper was purchased on 24.05.1985 in the name of Tulsidas only. However, the agreement was executed in the year 1990 after five years and that too by Tulsidas and three others, who are sons of Tulsidas and Smt. Koshaliya shown to be the vendee. It is also submitted that the signature of vendee has not been made on any of the paper of the agreement and even on the receipt signed for part payment of the consideration of sale made after the execution on subsequent dates and even on a receipt Ex. P/2. The defendants witnesses have though admitted the signature of the defendants witnesses over the document but have categorically stated that such document was executed as a mortgage deed and therefore prayed that such agreement is not proved beyond doubt for the purpose of specific performance of contract.
From perusal of the evidence of plaintiff it is found that PW-1, who is the vendee, has examined herself stating that at the time of execution of agreement on 11.02.1990, Rs.3,000/- as an advance was paid. Thereafter on subsequent dates the payment was made and signatures of the vendors were obtained. However, she admitted that at the time of execution of agreement, she was not present and it has been informed to her that the agreement was written by a scribe namely, Janki Prasad. She denied the suggestion that as the plaintiff was not having the sufficient fund. therefore she has shown her inability to purchase the said plot. The scribe has also been examined, who has also stated that the agreement was executed and the signatures were made by the parties in front of him. He has also admitted the signatures over the document. It is further submitted that after the agreement, a room was made by the plaintiff over the disputed plot. Same statement has been reiterated by the attesting witness. Some other witnesses have also been examined to state that the later transaction made by the plaintiff in favour of the defendant Nos. 1 to 3 on subsequent dates of which receipt was obtained on the back side of the agreement. The husband of the plaintiff, who is stated to be a Tahsildar by defendant, has also been examined as PW-5, who has stated that on 09.05.1990 after taking part payment of Rs.1000/- on subsequent dates, fifteen days extension of time was granted to execute the sale deed. It is also stated that on 28.08.1990 again Rs.3000/- out of the total consideration as a part payment was given pursuant to agreement and receipt was obtained. It is further stated that between 09.05.1990 and 28.05.1990, Rs. 1000/- was paid. However, no receipt was drawn but, in the later receipt Ex. P/2, the defendants have admitted payment of total Rs.9500/- on the date of receipt and also consented for construction of a room admeasuring area 8 x 11 sq.ft. and a projection. The said receipt was drawn on 21.11.1990. It is further stated that the said witness has also requested for execution of sale deed within a month but the defendants had sought time. It is submitted that in January, 1999 again he has requested for execution of the sale deed and the defendants have denied. It is submitted that the plaintiff and the witnesses came to know about the subsequent sale dated 18.01.1991 of which they have obtained the copy Ex. P/3 and issued notice Ex. P/6 through registered post receipt Ex.P/7 and Ex. P/8, when the reply was not received, the suit was filed in the month of March. The said witness in cross-examination has admitted that he was not aware that in the agreement the vendee/purchaser too has also signed the agreement. It has also been stated that though the payment has been made by him on subsequent date and he only has written the acceptance of the money by the defendant but he has not signed the receipt. He has categorically denied that such agreement was executed as a mortgage deed. He admitted that he is working as a Nayab Tahsildar in Morena but he denied the suggestion that the stamp was in his possession since 1985.
On the contrary, same statements have been reiterated by the other plaintiff witnesses. Tulsidas, who is the main vendor, has not been examined before the court below. The subsequent purchaser Ganesh Prasad has been examined as DW-1, who has stated that the land and a dilapidated house (Khadhar) was mortgaged to him by Tulsidas (vendor)/defendant No.1. It is stated that such mortgage deed was executed on 04.12.1989 at the residence of defendant Tulsidas and he has obtained the possession in which he remained in possession for one year, but, as the said Khandhar/dilapidated house broke down ,therefore, he had shifted to his village. He has admitted that though the subsequent sale deed Ex. P/3 and D/1 has been said to be executed for a sale consideration of Rs.30,000/-, however, in the sale deed, sale consideration of Rs.10,000/- was paid as redemption value of the mortgage deed which was returned back a day before execution of subsequent sale deed Ex. D/1 and thereafter, he has paid Rs.30,000/-. However, the said facts have not been stated in the written statement for which he said that he informed to the counsel but why it has not been mentioned in the written statement, he has shown his ignorance. DW-2-Kanchedilal Dubey, who is the attesting witness of sale deed, has stated that the daughter-in-law of Tulsidas is living on a disputed plot, who is using the gallery for ingress and egress and on the said plot, there is one dilapidated house (Khandhar) having an area 15 x 20 sq.ft in which Ganesh Prasad is living. He has also stated that Rs.10,000/- was given to Tulsidas because the sale consideration was agreed to be Rs.10,000/-. The other subsequent purchaser Defendant No.4 Radhika (DW-3) has also stated that he has paid Rs.30,000/-, but not obtained any receipt. However, as the counsel has stated that registry can be done in Rs. 10,000/-, therefore, Rs. 10,000/- was written in the sale deed. He admitted that if the construction of room had been made by the plaintiff, he has got no information. He has also shown ignorance in respect of suggestion of construction of double story room over the gallery by stating that he is not aware that who had constructed rooms over the gallery.
When the evidence of both the parties have been evaluated, it is found by this Court that the evidence of the plaintiff has been more reliable than the evidence of the defendants, as there are material contradictions in the statements of the defendants witnesses in respect of payment of consideration for the subsequent sale. It is also found that the defendant Nos. 4 and 5 were very much aware of the fact that the agreement has been executed between plaintiff and the defendants and there has been constructions over the plot after the execution of the agreement. Therefore, in the considered opinion of this Court, the defendant Nos. 4 and 5 cannot be said to be the bona fide purchasers. They were very much aware of the fact that the construction has been made by the plaintiff. The fact of having the plot mortgaged with the defendants was also not proved in absence of any document. It is also stated by defendants witnesses that a day before the execution of sale deed, the said amount of Rs.10,000/- obtained under mortgage was returned back then under what circumstances such sale deed has been executed has not been explained. The said fact has also been corroborated by statement of DW-6-Bihari, who is one of the executor of the agreement, who stated that Rahannama was executed by Tulsidas-Defendant No.1 in favour of Kanchedilal, brother of defendant Nos. 4 and 5. It is stated that Rs.10,000/- was received by his father, however, it was agreed to be sold for consideration of Rs.30,000/-. However, Rs. 20,000/- they have not obtained till date, therefore, in the said house Malti has been still living, who is the daughter-in-law of Tulsidas. He has also shown ignorance in respect of agreement to sale by saying that his father Tulsidas must be knowing about the agreement (Ex.P/1). He admitted the acceptance of Rs.1000/- by Tulsidas from plaintiff and also in presence of Janki Maharaj (scribe). He has also admitted that the plaintiff has made construction over the gallery by making a room and also made a room in the disputed plot having area 11 x 20 sq. ft. It is also admitted that when the construction was made, his father and he never stopped plaintiff from raising construction. It is stated that it was not an agreement to sale, however, it was a mortgage deed. He admitted the signature over the agreement Ex. P/1. In the present case, it is a peculiar circumstance, where the vendor himself has not been examined before the court and instead the subsequent purchasers have been examined and filed joint written statement. The son of the defendant No.1-vendor, who is also shown to be one of the vendor, has been examined and he has shown ignorance of the agreement and has stated that somewhere in between there was a mortgage, however, to support the said fact no other evidence has been led. As the material witnesses, to deny the execution of sale deed, have not been examined before the Court, it is presumed that the material witnesses have deliberately not come before the court for which adverse inference can be drawn coupled with the fact that the statement has been given by one of the defendant, who is the son of the vendor and also signed the agreement as one of the vendor, has shown ignorance in respect of the construction raised by the plaintiff after execution of the agreement.
Therefore, on marshalling the evidence of all the witnesses of plaintiff as well as defendants, it is found by this Court that the plaintiff witnesses are more reliable than the defendants witnesses and therefore, the court has rightly found that the agreement to sale has been executed by the defendant Nos. 1 to 3 in favour of the plaintiffs. The only defence, which has been taken by the defendant Nos. 1 to 3, is that the agreement was not the agreement to sale and in fact it was a mortgage deed, but there is no explanation that why in subsequent dates the defendant Nos. 1 to 3 have taken money as a consideration and signed the receipt on the same agreement. It is also found that as lastly the part payment of the agreement to sale was done by receipt Ex. P/2 on which the signature has been made, which has not been denied by the defendants and has been admitted by showing ignorance by defendant witness No. 6, who is one of the executant of the agreement. The said receipt was said to be executed on 21.11.1990 i.e. after nine months of the agreement.
From the last paragraph of the agreement, it is found that the vendors have admitted that they will give vacant possession of the house and land and thereafter receive the remaining consideration to execute the sale deed, therefore, it cannot be said that the 30 days time was fixed to execute the sale deed, however, from the perusal of the receipt, which has not been denied, it is found that it contains signatures of the defendants and at lastly on 21.11.1990. Therefore, when the defendants were receiving the payment of part consideration then it cannot be said that the plaintiff was not ready or willing to perform her obligation pursuant to the agreement. It is also found that the defendant witness No. 6, who is also one of the executant of the agreement, has also categorically admitted that there has been construction by the plaintiff after execution of the agreement, which also corroborates the fact that the consent of sale has been given after obtaining the part payment on subsequent dates. Therefore, executing a sale deed just after two months of the receipt executed on 21.11.1990, in the the considered opinion of this Court, it cannot be held that the plaintiff was not performing the obligation. However, in fact, the defendants have denied the execution of the sale deed and executed sale deed Ex. D/1 on 18.01.1991 to brother of the neighbour Kanchedilal, who has also been examined as a defendants witness. It is also nowhere pleaded or evidence has been led to the effect that before execution of sale deed 18.01.1991 (Ex.D/1) any notice has been given or paper publication has been made to the effect that the defendant Nos. 1 to 3 are alienating the disputed plot of which agreement has been executed in favour of the plaintiff. Therefore, in the considered opinion of this Court, the subsequent purchasers are not bona fide purchasers and they were very much aware of the fact that there is a dispute of the plot and the agreement between the parties. They were also aware of the fact that the construction has been raised by the plaintiffs after execution of the agreement. One of the defendants witness Kanchedilal has also stated that he is having house adjoining the said plot, which shows that the said subsequent sale deed has been executed to defeat the agreement.
In the case of Parwat (Dead) through L.Rs. Smt. Kesar Bai and others vs. Pyarelal and others reported in 2010(2) MPLJ 377, the Coordinate Bench of this Court in paras 19, 20, 21, 22, 23, 24 and 25 has held as under:-
"19.In order to establish bona fide subsequent purchase for value without notice of earlier agreement, a subsequent purchaser shall have to establish that he made the requisite enquiry. If the vendor is not in physical possession of the property, the intending purchaser is bound to make enquiry from the occupant in the present case, there was a dispute about possession with the plaintiff, as admitted by Chandrabhan Singh (DW-2). If defendant No. 1 had made an enquiry from occupant i.e. Parwat, present plaintiff, he would have come to know about earlier agreement dated 7-6-1984. It is worthwhile to reproduce the relevant observations from the decision of the Apex Court in the case of R.K. Mohammed Ubaidullah v. Hajee C. Abdul Wahab (D) by LRs., (2000) 6 SCC 402 (equivalent to AIR 2001 SC 1658):—
14.Section 19 of the Specific Relief Act, 1963, to the extent it's relevance, reads:
“19.Relief against parties and persons claiming under
them by subsequent title. — Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against—
(a)either party thereto;
(b)any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract;
(c)-(e) As may be seen from section 19(a) and (b) extracted above specific performance of a contract can be enforced against (a) either party thereto and (b) any person claiming under him by a title arising subsequent to the contract, except a transferee for value who has paid his money in good faith and without notice of the earlier contract. Section 19(b) protects the bona fide purchaser in good faith for value without notice of the original contract. This protection is in the nature of exception to the general rule. Hence the onus of proof of good faith is on the purchaser who takes the plea that he is an innocent purchaser. Good faith is a question of fact to be considered and decided on the facts of each case. Section 52 of the Penal Code emphasizes due care and attention in relation to the good faith. In the General Clauses Act emphasis is laid on honesty.
15.Notice is defined in section 3 of the Transfer of Property Act it may be actual where the party has actual knowledge of the fact or constructive. “A person is said to have notice” of a fact when he actually knows that fact, or when, but for wilful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it. Explanation II of said section 3 reads:
“Explanation II:— Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.” Finally the Apex Court has summed up in paragraph 19 as under:
“In view of what is stated above, it is clear that the defendants 2 to 5 were not bona fide purchasers for value without prior notice of the original contract and that they were required to make inquiry as to the nature of possession or title or further interest, if any, of the plaintiff over the suit property at the time when they entered into sale transaction notwithstanding they were already aware that the plaintiff was in possession of the property as the tenant. What is material is the inquiry at the time when subsequent sale transaction was entered into.”
20.In the case of Jagan Nath v. Jagdish Rai, (1998) 5 SCC 537. The Apex Court while dealing with the matter of subsequent purchaser has observed:
“It is well settled that the initial burden to show that the subsequent purchaser of suit property covered by earlier suit agreement was a bona fide purchaser for value without notice of the suit agreement squarely rests on the shoulders of such subsequent transferee. In the case of Bhup Narain Singh v. Gokul Chand Mahton the Privy Council relying upon earlier section 27 of the Specific Relief Act of 1877 which is in pari materia with section 19(1)(b) of the present Act, made the following pertinent observations at p. 70 of the Report in this connection:
Section 27 lays down a general rule that the original contract may be specially enforced again a subsequent transferee, but allows an exception to that general rule, not to the transferor, but to the transferee, and therefore it is for the transferee to establish the circumstances which will allow him to retain the benefit of a transfer which prima facie, he had no right to get:” However, it has to be kept in view that once evidence is led by both the sides the question of initial onus of proof pales into insignificance and the Court will have to decide the question in controversy in the light of the evidence on record.”
21.It is not at all impossible but little improbable to prove by direct evidence that a subsequent purchaser had notice of earlier agreement. This is to be gathered from the attending facts and circumstances. Subsequent purchaser is also required to have acted with bona fide. Absence of bona fide may also be gathered from absence of enquiry as well as absence of publication of public notice for intended/proposed purchase. Admittedly, defendant No. 1 has not issued any public notice expressing his intention to purchase the suit land from defendant No. 2. Had he issued such public notice, plaintiff would have definitely objected to it in writing. He has not appeared in witness box to prove that he has made any enquiry with respect to the suit land on spot or otherwise.
22.Now coming to the case in hand, it may be seen that agreement of sale dated 7-6-1984 is found proved by both the Courts below in concurrent manner. Accordingly, defendant No. 2 has executed an agreement to sell in respect of suit land in favour of plaintiff after receiving entire consideration of Rs. 8500/-. It has already been found by the trial Court that defendant No. 2 executed a registered sale deed on 11-12-1987 with mala fide intention of unduly gaining more money. Defendant No. 1 being subsequent purchaser was bound to prove that he acted in good faith by purchasing the suit land from defendant No. 1 for value without notice of earlier agreement. Admittedly, he has not chosen to appear in the witness box to prove bona fide on his part. Similarly, he has not appeared in the witness box to assert his possession pursuant to the registered sale deed dated 11-12-1987. According to law laid down by the Apex Court at times and again it was obligatory on his part to establish bona fide on his part which could have been proved by establishing that he had made requisite enquiry. Existence of dispute on account of possession on the suit land is already established as admitted by DW-2. This dispute occurred with Parwat, the plaintiff who was put into possession of the suit land as per Ex. P/1. Delivery of possession has already been recited in Ex. P/1 which has been found proved by the Courts below in concurrent manner. Defendant No. 1 who is stated as per written statement to have obtained possession pursuant to the registered sale deed dated 11-12-1987 has not appeared in the witness box to establish his possession despite being defendant. Thus, adverse inference is liable to be drawn against him about possession as well as about absence of knowledge of earlier agreement in view of law laid down by the Apex Court in the case o f Vidhyadhar v. Manikrao, (1999) 3 SCC 573 : AIR 1999 SC 1441 wherein it is observed:
“Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct.”
23.Learned Courts below have not focused on the aforesaid law laid down by the Apex Court in the matter of burden to be discharged by subsequent purchaser, in the present case, defendant No. 1 being subsequent purchaser was bound to prove that the purchase made by him falls in the exception envisaged under clause (b) of section 19 of Specific Relief Act, 1963. He has not even dared to appear in the witness box. This being so, he is not found to be bona fide purchaser without notice of the prior agreement and is not found to have paid money in good faith. Learned Courts below ought to have granted decree for specific performance against the defendant No. 2 as well as defendant No.
Accordingly substantial question of law No. 1 is answered in favour of appellant.
24.In view of answer to substantial question of law No. 1, substantial question of law No. 2 need not be answered.
25.In the result, the appeal is hereby allowed. Suit for specific performance instituted by the plaintiff is hereby decreed in his favour against defendant No. 1 as well as defendant No. 2. Both these defendants are directed to execute registered sale deed in favour of plaintiff within a period of three months at the cost and expenses of plaintiff. Decree be modified accordingly, impugned judgment and decree are hereby set aside."
It is contended that in regard to readiness and willingness, no specific pleading has been made in the plaint. When it has been examined by this Court, it is found that though it is not happily worded but it is stated in the plaint that the plaintiffs were always ready to execute the sale deed. The learned court below while deciding the issue Nos. 1 and 2 has categorically given finding in respect of readiness and willingness, though a specific issue was not framed. It has been observed by the court below that by giving payment in part of sale consideration on subsequent dates, the plaintiff was always willing to execute the sale deed. This court, in agreement with the findings given by the court below, is of the opinion that once the defendant Nos. 1 to 3 have accepted the part payment on a subsequent date then it cannot be said that the plaintiff was not ready and willing to execute the sale deed. More so, when the last payment was received by the defendant Nos. 1 to 3 in the month of November and the subsequent sale deed has been executed in the month of January within two months, therefore, this Court does not find any merit in the arguments raised by the appellant. The findings arrived at by the court below are in consonance with evidence led by the parties. Defendant Nos. 1 to 3 have failed to prove that agreement Ex. P/1 has not executed by them. On the contrary, respondent/plaintiff has proved the execution. Relief of specific performance is an equitable relief. It is a discretion of the Court which has been found to be exercised judicially by the court below on consideration of pleadings and evidence.
As defendant Nos. 1 to 3 (vendors) have not preferred appeal, therefore, appeal on behalf of subsequent purchasers can be entertained to the extent of their right in the lis. As it is already found by this Court that defendant Nos. 4 and 5 are not found to be bonafide purchasers, therefore, they are not entitled for any relief under Section 20 of the Specific Relief Act, 1963.
In view of the foregoing analysis of fact and law, in the considered opinion of this Court, no material irregularity and illegality has been committed by the court below. Therefore, the appeal sans merit and is hereby dismissed.