In a suit for specific performance of a contract for sale, the conveyance should be executed in favor of the plaintiff by the contracting party as well as by the subsequent transferee of his interest.

Tarkeshwar Nath, J.

1. This appeal by defendant No. 2 (defendant second party) arises out of a suit for specific performance of contract and recovery of possession.

2. The plaintiffs case was that defendant No. 1 had 2.23 acres of land in village Majrohi and 1 bigha 10 kathas of land in village Tarwa, described in Schedule I of the plaint. On the 22nd Magh 1362 Fasli corresponding to the 30th of January, 1955, defendant No. 1 contracted to sell these lands to Dwarkanath Tewary (who was originally the plaintiff, but later on died during the trial) for Rs. 3,130, and he executed a deed of contract the same day on taking Rs. 930 as earnest money. Defendant No. 1 stipulated to execute the sale deed by Bhado 1362 Fasli, and he put Dwarkanath Tewary in possession of those lands. On the 23rd April, 1955, defendant No. I received a further sum of Rs. 1,200 out of the amount of consideration.

On the 6th September, 1955, Dwarkanatli sent a notice to defendant No. 1 to execute a sale deed, but he did not do so, and it transpired that he had already executed a sale deed in favour of defendant No. 2 on the 4th February, 1955, in respect of those lands. Defendant No. 2 had knowledge of the previous contract in favour of Dwarkanath Tewary, but in spite of that he got the sale deed executed by defendant No. 1. Dwarkanath instituted the suit on the 14th October, 1955, but after his death his heirs were substituted in his place. They got the plaint amended and sought for recovery of possession as well in case they were found to be out of possession.

3. Defendant No. 1 contested the suit on grounds inter alia that he neither executed the deed of contract nor received any sum as earnest money. He further denied to have received a sum of Rs. 1,200 and asserted that the sale deed executed in favour of defendant No. 2 was valid Defendant No. 2, on the other hand, averred that he was a bona fide purchaser for value without any notice of the contract between the plaintiffs and defendant No. 1.

4. The Subordinate Judge held that there was a valid and subsisting contract between, the plaintiffs and defendant No. 1 for the sale of the lands in question, and the latter had received the earnest money besides the sum of Rs. 1,200 out of the amount of consideration. He further held that defendant No. 2 had notice of the contract and he was not a bona fide purchaser for value. Accordingly, he decreed the suit for specific performance of contract and recovery of possession, directing the plaintiffs to deposit the balance of consideration amounting to Rs. 1,000 by the 31st January, 1958, and defendant No. 1 to execute a sale deed in respect of the lands in suit within the first week of February, 1958.

5. Defendant No. 2 (defendant second party), being aggrieved by the said decree, preferred an appeal. The Additional District Judge affirmed the findings and held that there was a valid contract of sale of the lands in suit between Dwarka Nath Tewary (the Original plaintiff) and defendant No. 1. He further found that defendant No. 2 had notice of this contract and he was not a bona fide purchaser. Accordingly, he dismissed the appeal. Hence defendant No. 2 has preferred this appeal.

6. The concurrent finding of the Courts below that there was a valid and subsisting contract of sale and defendant No. 2 had notice of this contract was based on a consideration of the evidence adduced in the case, and they have not been challenged in this appeal. Mr. Lalnarayan Sinha for the appellant, however, raised the point that, in view of the decree passed by the trial Court and affirmed by the lower appellate court, which related to the execution of. the sale deed by defendant No. 1 only there could be no decree for recovery of possession against defendant No. 2.

He developed his point in this mannerr (1) The Subordinate Judge directed, that defendant No. 1 should execute a sale deed in respect of the lands in suit in favour of the plaintiffs, and there was no direction