The main legal point established in the judgment is that under Section 27 of the Specific Relief Act, a person having some interest in the contract can enforce the contract and claim rescission. Additionally, Section 36 of the Registration Act lays down the procedure to be followed where appearance of the executant or witnesses is desired.

JUDGMENT :

SUNIL DUTTA MISHRA, J.

1. This Second Appeal is directed against the Judgment dated 31.07.2018 and Decree dated 18.08.2018 passed by learned Additional District Judge IInd, Bhojpur at Ara in Title Appeal No. 02 of 2017 affirming the Judgment dated 29.11.2016 and Decree dated 09.12.2016 passed by learned Sub Judge VIIIth, Bhojpur at Ara in Title Suit No. 46 of 2005.

2. The appellant was defendant in the Trial Court and respondent 1st Set was the plaintiff who filed the suit against defendants seeking relief for decree of specific performance of contract about the suit property and also that defendants be directed to execute the sale deed before the Registrar in favour of the plaintiff as per the Mahadanama (agreement to sale) and also to declare that defendant 1st set had no right to execute sale deed dated 25.08.2004 in favour of defendant 2nd set and the said sale deed dated 25.08.2004 is without consideration and not binding upon plaintiff with other relief.

3. The case of the plaintiff is that she was the tenant of defendant no. 1 who became ready to sell out the suit property to plaintiff on payment of consideration money of Rs. 1,17,000/- and plaintiff had given Rs. 60,000/- as earnest money and a registered Mahadanama dated 11.05.2004 was executed by defendant no. 1 in favour of plaintiff. On the basis of said registered Mahadanama dated 11.05.2004 the sale deed dated 11.08.2004 was presented before Registrar but defendant no. 1 fled away from the Registry Office in collusion with defendant no. 2 before admitting the registration of document.

4. The defendant no. 2/appellant, appeared in the suit and filed written statement stating therein that when defendant no. 1 agreed to sell the suit property then Mahadanama dated 25.12.2003 (Ext. B) was executed in favour of defendant no. 2 and after receiving the full and final consideration money, sale deed dated 25.08.2004 with respect to suit property was executed followed by mutation and possession of the defendant no. 2. The municipal record of right was also prepared with respect to the holding of the purchased house and thereafter defendant no. 2 reconstructed and remodeled the suit property.

5. On the basis of pleading, Trial Court framed as many as six issues including issue no. 5 as to whether the plaintiff legally entitled for a decree of specific performance of contract about the suit land property as prayed for?

6. In Trial Court, after considering the evidence on behalf of the parties given finding that the registered Mahadanama deed dated 11.05.2004, executed by defendant no. 1 in favour of plaintiff is genuine and valid document and is admissible as evidence. Defendant no. 2 had full knowledge about the execution of Mahadanama deed dated 11.05.2004 and sale deed dated 11.08.2004 by defendant no. 1 in favour of plaintiff. Accordingly, it is held that defendant no. 2 is not a bonafide purchaser of valid consideration and decided issue no. 5 in favour of the plaintiff and allowed the suit on contest for defendant no. 2 and decreed accordingly.

7. In this appeal, the First Appellate Court affirmed the Judgment and Decree of the Trial Court.

8. Heard learned counsel for the appellant.

9. Learned counsel for the appellant submits that the learned Trial Court as well as the learned Appellate Court failed to appreciate that respondent no. 1 in compliance of the agreement with appellant on 25.12.2003, had executed sale deed in her favour on 25.08.2004 and suppressing this fact she had entered into an agreement with the appellant on 11.05.2004 in order to defraud her. He has further submitted that the judgments and decrees passed by the learned courts below in favour of respondent no. 1 of specific performance of the contract is wholly bad in law, perverse and not based on law and facts.

10. He has next submitted that the courts below failed to appreciate that a decree for specific performance of contract under Section 27 of the Specific Relief Act cannot be passed against t