JUDGMENT M.P. Mehrotra, J.
1. This second appeal arises out of a suit for specific performance of an agreement of sale. The plaintiff further claimed that in case he was found out of possession, then possession should be awarded to him of the property in dispute. The plaintiff also claimed, in the alternative, that in case specific performance could not be decreed then a decree for a sum of Rs. 127/-should be passed in his favour in respect oil the earnest money which was paid by him to the defendants Nos. 1 to 3. The nature of the controversy will appear from the following passage which has been extracted from the judgment of the lower appellate court;
"the plaintiff brought the suit with the allegations that the plots in suit belonged to Jhaga father of defendants 1 to 3 (appellants 2 to 4), that the suit under Section 209 of the U. P. Act 1 of 1951 against one Bhikam was decreed by the learned Revenue Court as well as by the Commissioner's Court; that Jhaga died during the pendency of the appeal in the Commissioner's Court and defendants 1 and 3 were substituted and the appeal was decided in their favour and they got possession over the land in suit in the year 1959; that on 15-4-1958 Jhaga in the presence of defendants 1 to 3 executed an agreement to sell the plots in suit at the rate of Rs. 550/- per Bigha and he had paid Rs. 100/- as earnest money; that after getting the possession after the decision of the appeal the defendants 1 to 3 put the plaintiff in possession of the plots in suit; that the defendants subsequently executed a sale deed in favour of Ram Govind, defendant No. 4 (appellant No. 1) in spite of notice of the agreement to sell executed by their father, hence the suit.
The defendants 1 to 3 contested the suit on the grounds, inter alia, that any agreement as alleged was not executed by their father to their knowledge; that the plaintiffs might have obtained thumb impression of their father on any paper and converted the same into agreement; that they had never put the plaintiff into possession as alleged; that the plaintiff did not give any notice and the suit was false and liable to be dismissed with special costs.
The defendant No. 4, appellant No. 1, contested the suit on the ground inter alia that he was a bona fide purchaser for value without any notice of the alleged agreement of sale executed by Jhaga as alleged and he was, therefore, entitled to the benefit of Section 41 of the Transfer of Property Act."
2. The trial court decreed the suit but in appeal the. lower appellate court set aside the trial court's judgment and decree and rejected the plaintiff's claim for specific performance. However, a decree for a sum of Rs. 127/- was passed in his favour against the defendants Nos. 1 to 3, with interest, pendente lite and future at the rate of 4% per annum on the principal sum of Rs. 100/-. The plaintiff has now come up in the instant second appeal.
3. The lower appellate court allowed the appeal on a finding that the defendant No. 4, Ram Govind, who is the respondent No. 1 before me, was a bona fide purchaser for value without any notice of the agreement (Ex. 7) and that he was entitled to the benefit of Section 41 of the Transfer of Property Act. The lower appellate court also held that the trial court had erred in holding that the plaintiff was in possession of the property. In my opinion, these findings are pure findings of fact. They are based on an appraisal of the evidence on record Shri Sahai, learned counsel for the appellant, has contended that the finding about the possession recorded by the lower appellate court is not a correct one on the ground that the entries in the revenue record supported the plaintiff's possession. The lower appellate court has considered the relevant documentary evidence but on the ground that the necessary formalities had not been corn-plied with as required under the Land Records Manual, it refused to place much reliance on the same. The lower appellate court also considered the oral evidence adduced by the parties and on a cumulative consideration of the different pieces of evidence, has recorded a finding against the plaintiff. In this situation, I cannot accede to the contention that the finding of fact recorded by the lower appellate court is bad in law.
4. The second contention, which learned counsel raised, is to the effect that the benefit of Section 41 of the Transfer of Property Act was wrongly extended to the defendant No. 4, Ram Govind, in the absence of any finding that he had made necessary enquiries which he was bound to do in the circumstances of the case. Section 41 of the Transfer of Property Act seems to be a mistake inasmuch as the said provision of law is not at all applicable to the facts of the case. The said provision speaks of a transfer by an ostensible owner and we are not concer-,ned here with any such situation. It is a suit where the real owners and not the ostensible owner transferred the property, but did so in favour of a party who came on the scene subsequent to the plaintiff who had obtained a prior agreement for the sale of the property. Learned counsel, therefore, correctly drew my attention to Section 19(b) of the Specific Relief Act which lays down as under:
"19 Except as otherwise provided by this Chapter specific performance of a contract may be enforced against:
(a) .................
(b) any other 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 original con-tract."
His contention is that the expression 'good faith' used in this provision postulates due enquiry and that there is no difference in the effect of the phraseology which has been used in Section 41 of the Transfer of Property Act and the language which has been used in Section 19(b) of the Specific Relief Act. In my opinion, this contention is not correct. In Section 41 the requirement is that the purchaser should have taken reasonable care to ascertain that the transferor had power to make the transfer. This is an additional requirement which has been added to his acting in good faith which expression has also been used in Section 41. In Section 19(b) of the Specific Relief Act there is no such requirement on the part of the purchaser to take reasonable care to ascertain that the transferor had power to make the transfer. The requirements of the provision in the Specific Relief Act are only twofold, viz., (1) that the transferee has paid money in good faith and (2) he should have done so without notice of the original contract. In my opinion, the statement which the defendant No. 4 made in the witness-box clearly established these ingredients and nothing was done on behalf of the plaintiff to show that the defendant No. 4 had any prior notice of the agreement in favour of the plaintiff or that the said defendant did not act in good faith. In this situation, I do not think that the judgment of the lower appellate court can be said to be bad in law even though reference to Section 41 of the Transfer of Property Act was misconceived and the said court should have relied on Section 19(b) of the Specific Relief Act.
5. The appeal, therefore, fails and is dismissed with costs.