Judgment

BOSE J.: This appeal arises out of a vendee s suit for specific performance of a contract of sale dated 7-2-1942. The vendor is the first defendant whom we will call the Nawab as that is how he has been referred to in the courts below. He is now in Pakistan and his property has been taken over by the Custodian, U. P. The plaintiff is the vendee and the second and third defendants, who appeal, are subsequent purchasers.

2. The only question which we are asked to decide here, except for certain subsidiary matters, is whether the agreement of 7-2-1942 was a concluded one. The plaintiff s case is that on that date the Nawab agreed to sell the plaint property to him for Rs. 62,000 and accepted Rs. 10,000 as earnest money the same day Later, namely on 4-4-1942, the Nawab sold the same property to the appellants for a sum of Rs. 72,000. The plaintiff states that the appellants had notice of his prior agreement.

3. The appellants, case is that the plaintiff s so called agreement of 7-2-1942 was not a concluded one as the parties never reached finality. They raised a number of other defences such as misrepresentation and fraud, an agreement with the Nawab prior to that of the plaintiff, lack of knowledge of the plaintiff s agreement and so forth. But all those position were abandoned in this Court and the only point argued, aside from certain subsidiary ones with which we shall deal later, was whether the parties reached finality on 7-2-1942.

4. The learned trial Judge held, among other things, that there was no concluded contract and so dismissed the suit. In the High Court the appellate Bench which heard the appeal differed. Harish Chandra J. held that the parties reached finality while Kaul J. differing from him agreed with the trial Court and held they had not. The matter was accordingly referred to a Full Bench of three Judges. All three held that there was a concluded contract in view of this, the appeal was allowed and the plaintiff s suit was decreed on condition that the plaintiff deposit Rs. 62,000 in court. This he did. Defendants 2 and 3, who are subsequent purchasers, appeal.

5. The plaintiff and the appellants were prepared to compromise in this Court on terms that the plaintiff should get the property and the appellants be paid Rs. 62,000 to compensate them for Rs. 58,000 which they said they had paid to the Nawab for their subsequent purchase and for the loss of the property. (The plaintiff said the appellants paid the Nawab Rs. 72,000 and not Rs. 58,000 but there is no finding about this). As the Nawab s estate had vested in the Custodian, U. P., we thought it proper to join him in his appeal in case he should later lay claim to the plaintiff s Rs. 62,000. The fears of the parties regarding the Custodian U. P. were justified, for he refused, to compromise and claimed Rs. 62,000 despite the fact that the Nawab had already been paid Rs. 58,000. His learned counsel stated that it was for him to decide whether anything had been paid to the Nawab and if so how much and for him to decide what should be done with the Rs. 62,000. In view of that we have been obliged to proceed with the appeal.

6. The differing opinions of the various learned Judges who have handled this case show that the evidence is nicely balanced. The question of burden accordingly assumes importance, as also another guide which Judges of experience have applied through the years. When the question is one of fact and is of a simple nature it is useful to collect facts which are admitted or proved beyond doubt and then see which case fits in with those facts. They are useful as pointers to show the way.

7. Now the question here is one of fact. The plaintiff founds on a contract which the defendants deny. He must therefore prove it. The initial burden is on him. He relies on two facts in the plaint. The first is that he paid a sum of Rs. 10,000 to the Nawab on 7-2-1942 by two cheques. The Nawab accepted this money and chased the cheques and the money went