Judgment

GROVER, J. :- This is an appeal by special leave from a judgment of the Patna High Court in a suit for specific performance of a contract for sale of certain properties described in Schedule 1 of the plaint.

2. The facts to the extent they are material may be stated. The suit which was filed by Babu Thakur Prasad Singh and others in 1943 was on the basis of a contract for sale made in 1931 by Saroda Charan Guha (deceased) defendant First Party in the suit and Babu Ambika Prasad Singh and others-defendants second Party to whom defendant first party had actually sold the properties in dispute. It was alleged, inter alia, in the plaint that the total sale consideration was Rupees 99,995/-. Out of that sum, Rupees 23,000/- had already been paid to defendant first party. It was further stated that defendant second party in spite of full knowledge of the agreement between the plaintiffs and the defendant first party purchased the suit properties for Rupees 1,63,400/- by means of deed of sale dated December 11, 1942. Among the reliefs which were prayed for were for a decree for specific performance being passed in favour of the plaintiffs against the defendants on payment of a sum of Rupees 55,306.25 paise or such other amount as the Court might determine and if, for any reason, such a decree be not granted a decree for a sum of Rupees 44,688/- with interest at 6% from the date of the suit till the date of realisation be passed against defendant first party.

3. A written statement was filed on behalf of the defendant first party. Therein he admitted receipt of a sum of Rupees 15,000/- only by way of payment as earnest money or part consideration. The defence of defendants second party was that being bona fide purchaser for value and having paid full consideration in good faith and without notice of the alleged contract of sale set up by the plaintiffs the suit was liable to be dismissed. The trial Court decided the suit by a judgment dated October 10, 1947. Out of the issues framed on the pleadings of the parties the following need be mentioned :

"5. Are the plaintiffs guilty of breach of any of the terms embodied in the agreement?

6. Are defendants second party bona fide purchasers for consideration without notice?

7. Are the plaintiffs entitled to get a refund of the amount alleged by them to have been paid to defendant first party or of any other amount?"

It was found on issue No. 5 that the plaintiffs were not guilty of breach of the terms embodied in the agreement of sale and that it was defendant first party who had "played false with the plaintiffs and sold the disputed property along with others to defendants second party in December 1942. The entire liability for the breach of plaintiff s contract lies upon Mr. Guha and not on the plaintiffs. The three issues are answered accordingly". On issue No. 6 the trial Court held that defendants second party had failed to prove that they had paid the consideration money in good faith and without notice of the contract of 1931. On issue No. 7 the Court observed that it was unnecessary to consider in detail the alternative relief prayed for. It proceeded to say:

"I may, however, incidentally mention in passing that if I would have refused to decree the main relief of the plaintiffs there would have been no difficulty in my way in passing decree for the alternative claim against defendant first party on account of whose conduct the completion of the sale deed in favour of the plaintiff s have been made impossible".

Finally a decree for specific performance was granted in these terms:

"The plaintiffs shall get a decree for specific performance of contract of sale regarding the disputed property for a consideration of Rupees 1,00,000. The defendants are directed to execute and register a deed of sale for the same in favour of the plaintiffs on payment of Rupees 77,000 by the latter to the former and also put the latter in possession of the same."

4. Three appeals were preferred to the High