Judgment

Mukherjea J. This appeal is on behalf of the pltf. & it arises out of a suit for specific performance of a contract to sell a house in the town of Gaya, belonging to the defts. second party who, it is alleged, agreed to sell the house to the pltf. but subsequently resiled from the agreement & sold the same to the defts. first party who purchased it with notice of the contract.

2. The pltf s case, in substance, is that in September 1941 the defts. second party, who owned a house at Gaya, entered into negotiations for sale of the same, with one Jadu Ram, & the title deeds of the property were actually handed over to the latter. These negotiations failed & the second party defts. thereupon approached the pltf. firm & a contract was entered into by & between them some time towards the end of October 1945, under which the former agreed to sell to the latter their house at Gaya for a consideration of Rs. 34,000. Out of this consideration, a sum of Rs. 30,000 was paid by the pltf. firm on behalf of the vendors to a creditor of the latter on 28-10-1941. The vendors in their turn put the pltf. in possession of the house agreed to be sold in part performance of the contract & promised to execute a convenience as soon as the title deeds were returned to them by Jadu Ram & the balance of consideration money amounting to Rs. 4,000 was paid by the pltf. The second party defts. however, went back on their promise & did not execute the conveyance in favour of the pltf. even after they get back their title deeds from Jadu Ram and on the other hand, they sold the house to the defts. first party on 13-8-1943. The pltf, was thus obliged to bring this suit, claiming specific performance of the contract of sale.

3. The suit was contested by both sets of defts. The second party defts. contended interalia that they never agreed to sell their house at Gaya to the pltf. & the story of a contract of sale as set up by the pltf. was entirely false. They admitted that they were in need of money & hence approached the pltf. for a loan & the pltf. did advance to them a sum of Rs. 30,000 carrying interest at 6% per annum. It was entirely for facilitating payment of interest due on this loan & not in part performance of the contract of sale that the pltf. was put in possession of the same.

4. This defence was reiterated by the first party defts. who further pleaded that they were bona fide purchasers for value having no notice of any contract of sale with the pltf.

5. The learned Subordinate Judge, who heard the suit came to the conclusion, on the evidence adduced by the parties that the story of a contract of sale, as alleged by the pltf. was not established & it was not in pursuance of any such contract that the pltf. was put in possession of the house. It was held that the defts story was true & that the pltf. did advance a sum of Rs. 30,000 to the defts. second party, but this was by way of a loan & not a part payment of the consideration money. So far as the first party defts. were concerned, it was held that they were bona fide purchasers for value without notice. In view of these findings, the Subordinate Judge dismissed the pltf s claim for specific performance but as the second party defts. admitted that they had taken an advance of Rs. 30,000 from the piff., a money decree was given in the pltf. for this sum aganist these defts with interest at 6% per annum from the date of the suit till realisation.

6. Against this decision, the pltf. took an appeal in the H. C. at Patna, & the second party defts. also filed cross-objections challenging the propriety of the money decree that was passed against them. The appeal was heard by a Division Bench of the Patna H. C. who, by their judgment dated 29-8-1941 dismissed the appeal of the pltf. & allowed the cross-objections preferred by the second part defts. The learned Judges held, concurring with the trial Ct., that no case of concluded contract between the parties was established by the evidence addu