The onus of proving that a subsequent purchaser is a transferee for value, who has paid his money in good faith and without notice of the original contract, lies on the subsequent purchaser.

Raj Kishore Prasad, J.

1. Plaintiff is the petitioner. He has moved this Court in revision against an order dated 21-3-55 of Subordinate Judge, 1st Court, Arrah, refusing the application of the plaintiff, purported to have been made under order 18, rule 3, C. P. C., for permission to reserve his right to adduce evidence by way of answer to the evidence produced by defendant 2.

2. The plaintiff on the basis of a contract for sale, alleged to have been executed by defendant 1 in favour of the plaintiff on 1-3-52, brought a suit for specific performance of contract under Sec.27 of the Specific Relief Act on 2-6-52, On 7-7-52 the plaintiff filed an application for amendment of the plaint, by which he wanted a new para 6(a) to be added, and, defendant No. 2 to be added as a party to the suit, on the allegation that subsequently the plaintiff had learnt that defendant 2 was a subsequent purchaser with notice of the prior contract, and he was not a transferee in good faith.

This application was allowed, with the result that defendant 2 was added as a party to the suit, and a new para 6(a) was added to the plaint. Defendant 2 filled her written statement thereafter on 12-9-52, in which she alleged that defendant 1 had executed a sale deed in her favour on 30-5-52, which was registered on 21-6-52, and that she was a transferee for value and without notice of the alleged original contract between the plaintiff and the defendant 1.

On the pleadings of the parties, the court below on 21-3-55 recast the issues framed before, and one of the issues was: "Issue No. 4. Is defendant 2 a bona fide purchaser for value, without notice of the previous contract, if any?" On 16-3-55 the plaintiff filed a petition, as stated before, praying to allow him to reserve his right to adduce evidence on defendant 2 being a purchaser without notice in rebuttal. This application was considered by the court below on 21-3-55.

The learned Subordinate Judge took the view that as the plaintiff had alleged in the plaint that defendant 2 had knowledge of the contract, but in spite of the knowledge she got a sale deed in respect of the house in suit from defendant No. 1, he, in the first instance, had to adduce evidence in support of all his allegations against the defendants, and, then the defendants would adduce evidence in rebuttal. In that view of the matter, he rejected the plaintiffs applications as being frivolous and unwarranted at that stage.

It is against this order that the plaintiff has come up in revision, before this Court.

3. Mr. D.N. Varma, appearing for the petitioner, has argued that the court below has not correctly appreciated the scope of a suit brought under Sec.27 of the Specific Relief Act, and, particularly, of Clause (b) of the section, He, therefore, contends that as the onus to prove that defendant 2 was a transferee for value, who had paid his money in good faith, and without notice of the original contract, was on her, the plaintiff had a right to ask the Court to permit him to reserve his right to adduce evidence in its rebuttal.

4. Mr. Krishna Ballabh Narain Singh, appearing for defendant 1, the vendor, has contended that it is true that in law the onus is on defendant 2, the subsequent purchaser, but in view of the allegations made in para 6(a) of the plaint, the plaintiff has taken upon himself to prove all facts, and as such he has to adduce evidence first, even with regard to the transfer in favour of defendant 2. Mr. Chandi Prasad, who appears for deft. 2, the subsequent purchaser, has supported Mr, Singh, and further contended that the initial onus being on the plaintiff to prove the contract between him and the defendant 1, it was for the plaintiff to prove all facts, even with regard to the purchase of defendant 2, alleged in the plaint.

5. The short question for determination therefore, in the present application is, whether the plaintiff should be allowed to reserve his right to adduce evidence as far as the purchase of