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Second Appeal No. 163 of 1965/Civil Revision Case No. 238 of 1968, decided an 6th February 1909.

, S. 103‑Second appeal---- Issues of fact, High Court's power to determine ‑ First appellate Court reversing judgment of trial Court but not discussing evidence of number of witnesses examined by appellant and misread ing evidence of appellant himself‑Decision arrived at, held, illegal‑High Court in circumstances proceeded to determine question of fact involved.

Nasiruddin Choudhury for Appellant.

Syed J. R. Mudassir Hossain for Respondent.

This Second Appeal No. 163 of 1965 and the Civil Revision Case No. 238 of 1968 have been heard together in pursuance of this Court's order dated 26th February 1968, which was passed at the time of issuing the rule in the said Civil Revision case; and these are disposed of by one judgment.

In the second appeal the defendant No. 7 is the appellant and it arises out of a suit for specific performance of contract. The plaintiff respondent filed Title Suit No. 139 of 1962 in the 3rd Court of Munsif, Habiganj, against the present appellant and 6 others as defendants with the prayer for specific performance of a contract alleged to be made on the last day of the mouth of Aswin 1368 B. S. In the said suit the plaintiff's case, in short, is that the defendants Nos. 1‑6 entered into a written agreement in the last day of the month of Aswin 1368 B. S. to sell 0'62 paisa share of the land in suit to the plaintiff for Rs. 700 on condition that Rs. 300 would be required to be paid on the 1st Kartick 1368 B. S in the morning when a bainanama would be executed by the defendants Nos. l‑--6 in favour of the plaintiff and that accordingly the plaintiff paid the sum of Rs. 300 to the said defendants in the morning of the stipulated date and got the bainanama executed in his favour upon an old stamp paper. It was further alleged by the plaintiff that the defendants Nos. 1‑6 were to execute and register a kabala in favour of the plaintiff within Chaitra 1368 B. S. on payment of the balance of the consideration money and that the said defendants deferred execution of the kabala although the plaintiff after arranging the balance consideration money of Rs. 400 in the first week of Magh 1368 B. S. approached them for fixing a date for execution and registration of the kabala; arid that the defendant No. 7 had the knowledge of the said agreement of sale between the plaintiff and defendants Nos. 1.‑6 from the very beginning, but when the plaintiff came to know that the defendant No. 7 was trying to purchase the interest of the defendants Nos. 1‑6 in the land in suit he was requested by the plaintiff to abstain from purchasing the said interest. It has been further aliened by the plaintiff that thereafter the plaintiff pressed the defendants Nos. 1‑6 at the end of the Ist week of Magh, 1368 .U. S. for executing the kabala in his favour but they deferred the same on various pretexts and on enquiry thereafter the plaintiff came to learn that the defendants Nos. 1‑6 executed a kabala already in favour of the defendant No. 7 fraudulently and as such the plaintiff was constrained to file the said suit against the defendants for specific performance of contract.

The said suit was contested by defendants Nos. 1, 2, 4, 5 and 6 by one written statement jointly and it was contested by defen dant No. 7 by filing another set of written statement. The case of the defendants Nos. 1, 2, 4, 5 and 6 is that the defendants Nos. 1 and 2 made a contract to sell the land in suit to the plaintiff for Rs. 700 in Aswin, 1368 B. S. and executed a bainapatra in favour of the plaintiff on receipt of Rs. 300 and that it was further settled that the plaintiff would pay the balance of consideration in Poush 1368 B. S., but he failed to do so in spite of demands and informed them that he would not be able to pay the sum before Chaitra 1368 B. S. and so the said defendants repudiated the contract and transferred their interest to the defendant No. 7 for a consideration of Rs. 800 with the consent of the plaintiff and that they were agreeable to refund the money which was paid to them. The further case of the said defendants is that the re payment of the money to the plaintiff would be made on receipt of the full consideration from defendant No. 7 and that the plain tiff's dues could not be repaid and as such the possession of the disputed land also could not be delivered to the defendant No. 7.

The case of the defendant No. 7, the appellant before me, is that he is a bona fide purchaser for valuable consideration in respect of the land in suit Plots Nos. 1., 2 and 3 from the defendants Nos. 1‑6 without any notice of the alleged contract for sale between the plaintiff and defendants Nos. 1‑6 and he is in possession of the said lands since his purchase by a registered kabala dated 12th Magh 1368 B. S. and that the plaintiff is not entitled to get a kabala in respect of the share of defendants Nos. 1‑5 in the said lands in suit Plots Nos. 1, 2 and 3. It is also the case of the defendant No. 7 that the alleged bainanama is the result of collusion between the plaintiff and the defendants Nos. 1‑6 who are close relations.

On the said pleadings the parties fought the suit and the learned Munsif by his judgment dated 12th February 1963 decreed the suit in part on contest against defendants Nos. 1 and 2 and ex parte against defendant No. 3 and dismissed the suit on contest against defendants Nos. 4, 5, 6 and 7 and the defendants Nos. 1‑3 were directed to execute and register a kabala in favour of the plaintiff in respect of their 5 annas 8' shale of the lands in suit Plots No . 4‑9 only at the costs of the plaintiff on receipt of Rs. 38‑12‑0 from the plaintiff within two months from the date of the judgment and that failing which the plaintiff would be entitled to get a kabala through Court for the said share of the suit Plots Nos. 4‑9 on depositing the aforesaid sum of Rs. 38‑12‑0 within 15 days from the expiry of the aforesaid 2 months in execution of the decree. The plaintiff being dissatisfied with the decision of the learned Munsiff preferred an appeal to the learned District Judge, Sylhet being Title Appeal No. 125 of 1963, who, by his judgment and decree dated 13th June 1964, reversed the decision of the learned Munsif and modified the same and ordered that the suit be decreed in part on contest against contesting defendants and ex parte against the rest with half costs and that the plaintiff would get the kabala in respect of 5 annas 8f pies share of the entire suit plots as against defendants 1 to 3 but not against the other defendants 4‑6 and that the defendants 1‑3 together with defendant No. 7 would .execute and register the kabala in respect of their above share in the suit plots within 3 months of the date of the said order on receipt of the proportionate balance of consideration money, failing which the plaintiff would be at liberty to have the kabala registered through Court according to law. The defendant No. 7 being aggrieved by the said decision of the learned Subordinate Judge preferred the present second appeal.

In the meantime the defendant No. 7 instituted Title Suit No. 96 of 1967 in the 3rd Court of Munsiff, Habiganj, in respect ‑of the aforesaid disputed lands as described in the Schedule to the plaint of Title Suit No. 139 of 1962 for specific performance of contract out of which the instant second appeal has arisen, against Md. Mokbul Ali, who is plaintiff‑respondent in this second appeal, and 10 others. In the said Title Suit No. 96 of 1967 the defendant‑appellant alleged that he purchased the land in suit by registered kabala and was put to possession of the same in pursuance of the said dyed of sale and that Md. Makbul Ali in collusion with others created ante‑dated bainapatra and filed the earlier suit for specific performance of contract on the basis of the alleged bainapatra and that he was then threatened with dispossession in the lands in suit in the said suit he came with a prayer for permanent injunction against the defendant of the said suit including the plaintiff‑respondent of the present appeal. The appellant before me filed an application for temporary injunction in the said suit of 1967 before the learned Munsiff, who, by an order dated 27th May 1967, granted temporary injunction in favour of the present appellant restraining the defendants of the said suit including the plaintiff‑respondent before me from interfering with his possession in the land in suit till the decision of the Second Appeal No. 163 of 1965 of this Court. As against the said decision of the learned Munsiff the plaintiff‑respondent before me preferred at appeal in which the learned Subordinate Judge, 2nd Additional Court, Sylhet passed an order reversing the decision of the learned Munsif and thus refused to grant temporary injunction as prayed for by the defendant‑appellant before me, who being dissatisfied with the said decision of the learned Subordinate Judge obtained the present Rule in Civil Revision No. 238 of 1968 of this Court. While issuing the Rule on the 26th of February 1968, this Court stayed operation of the order of the learned Subordinate Judge and directed that the said revision case should be heard along with the present appeal. Accordingly, the said revision has come up for hearing along with the second appeal before me as I have already mentioned above.

Mr. Nasiruddin Chowdhury, the learned Advocate appearing on behalf of the appellant before me submits that the learned appellate Court below did not consider the evidence of the plaintiff himself who admitted that he did not get possession in any portion of the lands in suit after he got the alleged bainapatra executed in his favour and also the positive finding of the learned Munsif in that regard and thus he committed error in law in finding that the appellant was not a bona fide purchaser for value without notice on the ground that the plaintiff was in possession of the land in suit and the said possession of the plaintiff was notice to the appellant as to his contract. I have carefully read and considered the judgments of both the Courts below with reference to the material evidence on record. The learned Munsiff after carefully considering and scrutinising the evidence on. record particularly the evidence of plaintiff himself who admitted in cross‑examination that he got no possession in any portion of the suit plots after the alleged bainapatra found that evidently the: defendants Nos. 1‑6 were in possession of the suit Plots 1‑3 at the time of the kabala of defendant No. 7 from the defendants Nos. 1‑6. Further it appears that the learned Munsiff. correctly found on scrutiny of the evidence of the plaintiff that he stated in cross‑examination to the effect that he requested the defendant No. 7 not to purchase the land from the defendants. Nos. 1‑6 as they contracted to sell '62 paisa share of the suit, plots to him, six or seven days after he learnt from the Registry Office that defendant No. 7 obtained a kabala from defendants Nos. 1‑6. Unfortunately the learned appellate Court below did not at all consider the said positive evidence which would go to, show that really the plaintiff was not in possession of the disputed: land after he obtained the alleged bainapatra and that his case to the affect that defendant No. 7 was informed by him as to his, contract with the defendants Nos. 1‑6 for sale of the disputed land and as such the defendant No. 7 had notice of the said' contract prior to his purchase from the said defendants Nos. 1‑6 , stood clearly disproved. The onus of proving knowledge of the alleged bainapatra is certainly on the plaintiff. It appears from, the judgment of the learned Subordinate Judge that he was very much carried away by the fact which is, according to him, that the plaintiff was in possession of the disputed land in pursuance of the alleged bainapatra and that the transfer in favour of the defendant No. 7 took place before the expiry of the period of" contract as per the alleged bainapatra. The relevant finding of' the learned Subordinate Judge may be quoted below:‑

Even if the plaintiff's contention that he offered the money by the 1st week of Magh 1368 B. S. is not believed, still the‑ plaintiff's case will not fail, because the subsequent transfer took place before the expiry of the period embodied in the contract. So, I find that it is useless to discuss the evidence of the number of witnesses examined by the plaintiff. What I find is, that the plaintiff definitely got the bona fide and valid contract m his favour and at the same time he had been in possession of the contracted land. The very fact that before the expiry of the period of the contract, the subsequent transfer took place in collusion between the defendant 7 arid the other defendants itself is a proof to the fact that the defendant 7 definitely had the knowledge of the contract at least from the fact of possession of the plaintiff although the contract is an unregistered one.

From the said findings of the learned Subordinate Judge it appears that he has thoroughly confused the issue relevant for the disposal of the matter before him. The real issue is whether the defendant No. 7 was a bona fide purchaser for value without notice of the contract of the plaintiff that with defendants Nos. 1‑6 in respect of the sale of the disputed land and for the matter of that the evidence as adduced by both the parties should be considered in their true perspective. The learned Subordinate Judge refrained from discussing the evidence o number of witnesses examined by the plaintiff on the reason which is far from convincing. Moreover, he misread the evidence of the plaintiff himself particularly as to the fact that the plaintiff admitted in his cross‑examination that he could not get possession in pursuance of the alleged bainapatra in respect of the disputed land. The manner in which the appeal has been disposed of would have certainly pursuaded to remand the case to the learned appellate Court below but as I find that this case B was started as far back as in the year 1962 and it is continuing for long and it has resulted in various litigations. I prefer to invoke my jurisdiction under section 103 of the Code of Civil Procedure. In doing so L have carefully considered the material evidence on record and I am perfectly in agreement with the learned Munsiff on the point that the defendant‑appellant before me is a bona fide purchaser for value without notice and as such I feel I should interfere with the decision of the learned Subordi nate Judge.

In the result this appeal is allowed. The judgment and decree passed by the learned Subordinate Judge are set aside and those of the learned Munsiff restored. In the facts and circum stances of the case I make no order as to costs.

With regard to the Revisional application of which the facts have already been stated by me above I would like to mention here that the learned appellate Court below was swayed away by the finding of the learned Subordinate Judge in Title Appeal out of which the present second appeal arose to the effect that possession was with the plaintiff‑respondent before me in respect of the disputed land. Now, that I have found that the finding of the learned Subordinate Judge as to possession of the plaintiff respondent in the disputed land is erroneous I have no hesitation to say that the decision arrived at by the learned appellate Court below out of which this revisional application has come up before me is erroneous and he has acted illegally and with material irregularity in the exercise of his jurisdiction in this regard.

I, therefore, make the rule absolute and set aside the judg ment and order passed in Miscellaneous Appeal No. 176 of 1967 of the 2nd Additional Court of Subordinate Judge, Sylhet. Irk fact the rule before me has become infructuous because the prayer of the petitioner was that he should be granted temporary injunction in the facts and circumstances of the case till the disposal of the second appeal before me. However, considering the facts and circumstances of the case as stated above I have disposed of the rule as above.

I make no order as to costs.

S. A. H. Rule made absolute.

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