Syed Md.Mahfooz Alam, J.

1. This second appeal has been preferred by the appellant Phullan Mian and others (defendant - second set in the suit) against the judgment dated 31st August 1988 and decree dated 5.9.1988 passed by the 1st Additional District Judge, West Champaran, Bettiah in Title Appeal No. 22 of 1985/31 of 1988 where by he has been pleased to dismiss the appeal of the defendant-second set and confirmed the finding of the learned Munsiff, Bettiah passed in Title Suit No. 31 of 1984 decreeing the suit of the plaintiff-respondent far specific performance of contract.

2. The case of the plaintiff-respondent, in brief, is that on 28.1.1984 defendant No. 1 Rita Devi entered into a contract for sale, of land measuring an area of 5 kathas 6 dhurs situated in village Motihari fully described in Schedule I of the plaint with the plaintiff for which total consideration was fixed at Rs.3000.00 . Towards part performance of the contract the plaintiff-respondent paid Rs. 1500.00 as earnest money and accordingly, a Mahadanama was executed by the defendant-first party who agreed to execute the. sale deed latest by 15.3.1984 after receiving the rest consideration amount. After execution of Mahadanama the. plaintiff was put in possession of the land which was the subject matter of sale. Further case of the plaintiff is that the plaintiff has always been requesting the defendant No. 1 to receive rest consideration money and execute the sale deed but on one pretext or the other she remained avoiding to execute the sale deed. Thereafter the plaintiff sent a registered notice to defendant No. 1 on 5,3.1984 which was duly served upon the defendant No. 1, who sent: reply dated 13.3.84 of the notice. From the reading of the reply it was disclosed that defendant second party had fraudulently got a sale deed executed in their favour on 22.2.1984 from the defendant No. 1 for the land which was agreed to be sold to the plaintiff under the Mahadanama. The plaintiff also came to know that the sale deed was brought in existence without payment of consideration money. It is further stated that the defendant-second party had full knowledge, about the Mahadanama executed by defendant No. 1 in favour of the plaintiff and as such, the subsequent sale deed executed in - favour of the defendant-second party by defendant No. 1 was illegal, inoperative and not binding upon the plaintiff. It. is further said that the plaintiff was always ready and willing to perform his part of the contract and was ready to pay the balance consideration money but as the defendant-first party was avoiding to execute the sale deed hence, the? necessity of filing the suit for specific performance of contract arose.

3. Defendant first party as well as Defendant second party both filed separate written statements. From perusal of the written statement filed by defenant first party it appears that defendant No. 1 Rita Devi is not the contesting defendant rather she has fully supported the case of the plaintiff and has admitted that she had executed the agreement of sale prior to execution of the sale deed in favour of the defendants second party. She. has alleged that, the defendants second party on false pretext had fraudulently got the sale deed registered in their favour by putting undue pressure and without making payment of consideration money. However, she has stated at para-1 of written statement that the present suit is not maintainable, against her as she never refused to perform the part of her contract and she has further stated that she is ready to execute the sale deed in favour of the plaintiff.

4. The case of the contesting defendants i.e. defendant second party is that the suit as framed is not maintainable as the same has been filed for declaration of title and recovery of possession under the garb of the suit for specific performance of contact and hence, the same cannot proceed without paying proper court-fee. It is further alleged that the suit is bar