JUDGMENT N.K. Mehrotra, J.
1. This is second civil appeal against the judgment and decree dated 1.5.1979, passed by the Vth Additional District Judge, Barabanki in Civil Appeal No. 40 of 1977, Smt. Ram Dulari v. Jagjiwan Prasad and Ors..
2. I have heard Shri P. L. Mishra, the learned counsel for the plaintiff-appellants and Shri Mohd. Arif Khan, the learned counsel for respondent No. 3 Smt. Ram Dulari.
PLEADINGS
3. Plaintiff Jagjiwan Prasad filed a suit for specific performance of the agreement to sell dated 24.12.1973. Babu, the defendant No. 1 filed his written statement admitting the case of the plaintiff. The plaintiff has alleged that on 16.4.1974, the defendant No. 1 illegally executed a sale deed in favour of Smt. Kamla wife of Bhagauti Prasad and Smt. Ram Dulari wife of Basdeo. Thereafter, the plaintiff impleaded Smt. Kamla and Smt. Ram Dulari as defendant Nos. 2 and 3 as subsequent purchasers. Both the defendant Nos. 2 and 3 filed a joint written statement. After filing the written statement, defendant No. 2 Smt. Kamla entered into a compromise through a Paper No. 26-Ka. It was duly verified by the parties through their counsel in the Court and it was directed to be kept on record. Later on, Smt. Kamla, the defendant No. 2 moved an application 47C making allegations therein that she has come to know that a forged compromise had been filed on her behalf and sought time to file objection.
4. The case of the plaintiff is that the plaintiff, defendant No. 1 Babu and Bhagauti Prasad (so-called husband of Smt. Kamla) are real brothers and jointly recorded bhumidhars over the disputed land. Smt. Ram Dulari is a married sister of Babu and Bhagauti Prasad. Admittedly, the plaintiff and defendant No. 1 have half share each in the disputed land. The defendant No. 1 Babu was unmarried. He agreed to sell his half share in favour of the plaintiff for a consideration of Rs. 13,500 and executed an agreement to sell on 24.12.1973 after receiving Rs. 12,000 and agreed to execute the sale deed after depositing twenty times of the land-revenue and receiving the balance amount of Rs. 1,500. The plaintiff paid Rs. 250 out of the balance amount to the defendant No. 1 on 1.2.1974 by getting a receipt in writing. The defendant No. 1 avoided to execute the sale deed. The plaintiff sent two registered notices dated 25.2.1974 and 12.3.1974, for execution of the sale deed but those notices were returned back after refusal by the defendant No. 1. It is alleged that the defendant No. 1 Babu illegally executed a sale deed on 16.4.1974 in favour of defendant Nos. 2 and 3. The agreement in favour of the plaintiff is not a registered agreement.
5. In the joint written statement filed by the defendant Nos. 2 and 3, it was contended that defendant No. 1 Babu never agreed to sell his half share in the land in suit in favour of the plaintiff for a consideration of Rs. 13,500 on 24.11.1973 nor he executed any agreement. It is contended that the alleged agreement in favour of the plaintiff is fictitious and collusive document. The plaintiff never paid Rs. 250 to the defendant No. 1. It is alleged that the plaintiff and the defendant No. 1 are actually in collusion. It is also alleged that the defendant No. 1 has executed a sale-deed in favour of the defendant Nos. 2 and 3 after receiving consideration on 16.4.1974. The possession of the plaintiff over the land in suit was also denied. The defendant Nos. 2 and 3 claimed to be the bona fide purchasers for value without notice.
6. Following issues have been framed in the trial court :
"(1) Whether there was any contract between the plaintiff and defendant No. 1 for sale of the plots mentioned in para 1 of the plaint the extent of his half share and an agreement to sell was executed on 24.12.1973 as alleged?
(2) Whether the plaintiff paid to the defendant No. 1 Rs. 12,000 on 24.12.1973 and Rs. 250 on 1.2.1974?
(3) Whether the plaintiff came into possession of the share of defendant No. 1 in the plots in suit?
(4) Whether the plaintiff has always been ready to perform his part of the contract and offered to Rs. 1,250 as the balance of the sale consideration as alleged?
(5) Whether the defendant No. 3 is a bona fide purchaser for value and without notice of the plaintiff's contract if any?
(6) To, what relief if any is the plaintiff entitled?
FINDINGS BY THE TRIAL COURT
7. It was held by the learned trial court that the plaintiff has proved that an agreement to sell was executed by the defendant No. 1 for the sale of his half share of the land in suit after receiving the amount of Rs. 12,000 and he had also received an amount of Rs. 250 out of the balance amount of Rs. 1,250 and possession was given to the plaintiff after the execution of the agreement. It was also held that the plaintiff was ready to perform his part of contract. The defendant No. 3 is not bona fide purchaser for value without notice. The suit was decreed. The sale deed dated 16.4.1974 in favour of the defendant Nos. 2 and 3 was declared as fictitious. The defendant No. 1 was directed to execute the sale deed in favour of the plaintiff. The compromise as alleged in paper No. 26-Ka was made a part of the decree against the defendant No. 2 on the terms given in the compromise.
IN FIRST APPEAL
8. Defendant No. 1 Babu and defendant No. 2 Smt. Kamla did not file any appeal. The first appeal was filed by Smt. Ram Dulari one of the subsequent purchasers who was defendant No. 3 in the suit. The first appellate court held that the agreement to sell is an ante-dated and the stamp papers were not purchased on the date as has been written in the endorsement, in the back of the stamp papers. The finding with regard to possession is immaterial because the plaintiff was one of the joint owners in the disputed land. The defendant No. 3 had no knowledge of the alleged agreement in favour of the plaintiff. The defendant No. 3 is a bona fide purchaser for value without notice. The appeal filed by the defendant No. 3 Smt. Ram Dulari was allowed. The plaintiff's suit for specific performance of contract for sale was dismissed. The plaintiff was directed to be paid Rs. 12,250 by the defendant No. 1.
IN SECOND APPEAL
9. The instant second appeal has been filed by plaintiff Jagjiwan Prasad against the judgment and decree dated 1.5.1979 passed by the first appellate court.
10. Following substantial questions of law were formulated :
"(i) Whether the finding of the 1st appellate court that the agreement of sale was not at all executed between the plaintiff and the defendant No. 1 on the alleged date of the agreement, is perverse?
(ii) Whether the finding of the 1st appellate court with regard to the defendant Nos. 2 and 3 being bona fide purchaser for value without notice, is perverse?
(iii) Whether the compromise entered into between the plaintiff-appellant and the defendant-respondent No. 2 can be ignored in deciding the appeal by the appellate court?
(iv) What is the effect of the admission of the defendant No. 1, the vendor?
11. The first substantial question of law relates to the finding of the first appellate court regarding the execution of the agreement to sell. Admittedly, the agreement to sell is an undisputed document and it was executed on two stamp papers on the denomination of Re. 1 and Rs. 3.50 paise as per endorsement in the back of the stamp paper. The serial numbers of the stamp register and the name of the stamp vendor with his signatures were available in the back of stamp papers. The defendant No. 3 produced the concerned stamp vendor along with the register and it was found that these stamp papers were never sold at such serial numbers in the stamp register either to the plaintiff or defendant No. 1 on the alleged date. The plaintiff made an attempt to explain this absence of entry in the stamp register of stamp vendor Ram Naresh by producing another stamp vendor Ram Manohar who is alleged to be an ex-stamp vendor whose licence was cancelled on that date and he gave statement that he had made an endorsement at the instance of the stamp vendor Ram Naresh at the time of sale of these two stamp papers. The learned first appellate court on the basis of such fictitious endorsement in the back of the stamp papers has drawn a conclusion that those stamp papers were ante-dated and the agreement was also fictitious and ante-dated.
12. The learned counsel for the plaintiff-appellants has argued that this finding was perverse because the most important evidence, the copies of the registered notices sent by the plaintiff to the defendant No. 1 have not been taken into consideration by the first appellate court. It appears from the evidence on record that after the date of agreement, the plaintiff paid Rs. 250 by getting a receipt from the defendant No. 1 Babu as part of the balance amount of consideration. After that the plaintiff sent a registered notice on 25.2.1974 and another registered notice on 12.3.1974. These notices have been filed by the plaintiff. These notices are Exts. 4 and 5. These notices were sent before the execution of the sale deed. The learned counsel for the plaintiff-appellants has argued that these notices go to show that some agreement was in existence before the first date of notice dated 25.2.1974 and therefore, the inference of the learned first appellate court that the agreement to sell was not in existence upto the date of sale and it was fictitious is not correct. I find that the learned first appellate court has not taken into consideration these two notices and there is no finding about the inference about these two notices drawn by the plaintiff-appellants here in this appeal. Therefore, it appears to me that the findings on the agreement to sell recorded by the first appellate court cannot be said to be a finding in accordance with law after taking the entire evidence on record. The overall effect of the notices Exts. 4 and 5 is to be taken into consideration at the time of recording a finding of fact about the validity of the notices and the notices being ante-dated. Therefore, this finding with regard to the validity of the execution of agreement to sell is to be re-considered after taking into consideration the effect of the notices Exts. 4 and 5 available on the record of the lower court.
FINDING ON SUBSTANTIAL QUESTIONS OF LAW NOS. 2 AND 3
13. The learned first appellate court has recorded a finding that defendant No. 3 Smt. Ram Dulari is a bona fide purchaser for value without notice and her interest is protected under the law. There is no finding of the learned first appellate court with regard to defendant No. 2 Smt. Kamla. Defendant No. 2 Smt. Kamla had entered into a compromise through Paper No. 26-Ka which was duly verified through the counsel of the plaintiff and the defendant No. 2 Smt. Kamla. After verification, the trial court passed an order that the compromise shall be kept on record. Subsequently, Smt. Kamla challenged the genuineness of this compromise and moved an application through Paper No. 47C. No finding was recorded on this application of Smt. Kamla in which she had challenged the genuineness of the compromise filed on her behalf. At the same time, the learned trial court treated this compromise as genuine compromise and at the time of passing the decree, the compromise Paper No. 26-Ka was made a part of the decree against defendant No. 2 Smt. Kamla. The learned first appellate court has not taken into consideration that the decree of specific performance of agreement to sell against defendant No. 2 Smt. Kamla was passed on the basis of the compromise Paper No. 26-Ka. So even if, the finding of fact in favour of defendant No. 3 Smt. Ram Dulari that she is a bona fide purchaser for value without notice is accepted, even then, the suit for specific performance of the agreement to sell the entire land involved in the sale deed cannot be decreed because the decree passed against defendant No. 2 Smt. Kamla who is one of the subsequent purchaser is based on the compromise entered between the plaintiff and defendant No. 2 Smt. Kamla. In view of the compromise and the application moved by Smt. Kamla, the defendant No. 2, it was incumbent upon the first appellate court to make an enquiry as to whether the compromise filed by the plaintiff and defendant No. 2 Smt. Kamla through their counsel was a genuine document or not? and if, it is found that this compromise is a genuine document then a suit for specific performance of agreement to sell for the entire land involved in the sale deed cannot be decreed. It is only defendant No. 3 Smt. Ram Dulari who if, proved to be a bona fide purchaser for value without notice can be protected under Section 19 of the Specific Relief Act.
14. There is another aspect of the matter that at the time of recording the finding about the notice of the earlier agreement to Smt. Ram Dulari, the contents of the compromise entered into between the plaintiff and defendant No. 2 Smt. Kamla, one of the joint subsequent purchasers will also be material piece of evidence. It appears that Smt. Ram Dulari, the defendant No. 3 is the sister of Bhagauti Prasad (so-called husband of Smt. Kamla, the defendant No. 2) and whether the notice to Smt. Kamla will also amount to the notice of agreement to Smt. Ram Dulari is the material question to be decided at the time of recording the finding of fact by the first appellate court on the question ; as to whether defendant No. 3 Smt. Ram Dulari is a bona fide purchaser for value without notice or not? In this appeal, I find that the question of notice of earlier agreement is the question of fact because the parties have led evidence and the plaintiff has alleged that both the defendant Nos. 2 and 3 had knowledge of the earlier agreement in favour of the plaintiff and he has led oral evidence also on this point ; so this is a case of constructive notice. The learned first appellate court has not taken into consideration the interpretation of the phrase 'a person is said to have notice' given under Section 3 of the Transfer of Property Act, 1882. The Transfer of Property Act, 1882 contemplates three kinds of notice ; (i) actual notice, (ii) constructive or implied notice, and (iii) notice to an Agent. It appears that the case of the plaintiff is about actual notice of the agreement to the defendant Nos. 2 and 3. At the time of recording the finding of actual notice, the fact of the compromise will also be taken into consideration and before ignoring the compromise entered between the plaintiff and the defendant No. 2, one of the joint purchasers on record, the first appellate court has to consider as to whether the compromise is the genuine document and as to whether it would affect the rights of the defendant No. 2 Smt. Kamla only or it would affect the rights of the defendant Nos. 2 and 3 namely ; Smt. Kamla and Smt. Ram Dulari both. The issue with regard to the defendant No. 3 being bona fide purchaser for value without notice has not been decided by the first appellate court after taking into consideration the genuineness of the compromise and the effect of the contents of the compromise between the plaintiff and one of the joint purchasers. Since the question of the defendant Nos. 2 and 3 with regard to bona fide purchasers for value without notice has been decided without deciding the fact of genuineness of the compromise between the plaintiff and the defendant No. 2 and the effect of the contents of that compromise on the issue of notice and since this issue requires a finding of fact as to whether the defendant Nos. 2 and 3 are the bona fide purchasers for value without notice or not? the proper course is to remand the appeal to the first appellate court for deciding it afresh.
15. The fourth substantial question of law is with regard to effect of admission of the defendant No. 1 Babu, the executant of the agreement. The learned first appellate court has also not taken into consideration the effect of admission of defendant No. 1 Babu in his written statement at the time of recording finding on the genuineness of the agreement to sell executed by him. So after the remand of the case, the effect of the admission shall also be taken into consideration by the first appellate court at the time of deciding the issue with regard to the validity of the agreement to sell in favour of the plaintiff.
16. In view of the aforesaid findings, it appears to me that the findings on the point determined by the first appellate court for deciding the first appeal are perverse as the material evidence on record has not been taken into consideration at the time of deciding those two points as referred to above with regard to validity of the agreement and the defendant Nos. 2 and 3 being bona fide purchasers for value without notice. Since these issues require finding of fact which cannot be recorded in the second appeal, the matter is to be remanded to the first appellate court to decide the aforesaid relevant issues afresh after taking into consideration the evidence as observed above.
17. After the remand of the matter, if it is found by the first appellate court that the compromise entered into between the plaintiff and the defendant No. 2 is a genuine document, the first appellate court will consider the question of decreeing the suit for specific performance to sell for half of the share of defendant No. 2 Smt. Kamla Devi only on the basis of the compromise and if, it is found that the compromise is not a genuine document then, the first appellate court will record a specific finding with reasons thereof before deciding the first appeal. For the purpose of deciding this question, the first appellate court shall be free to give opportunity to the parties to adduce evidence also.
18. In result, this second appeal is allowed. The impugned judgment and decree dated 1.5.1979, passed by the Vth Additional District Judge, Barabanki in Regular Civil Appeal No. 40 of 1977, Smt. Ram Dulari v. Jagjiwan Prasad and Ors., is set aside and the appeal is remanded to the first appellate court concerned to decide it afresh as observed above. Costs easy.