A subsequent purchaser in a suit for specific performance of contract cannot dispute the genuineness of an agreement between the plaintiffs and the principal defendant, even if the principal defendant has not contested the suit or appealed the judgment, unless the subsequent purchaser can prove that they are bona fide purchasers for value without notice.

( 1 ) THIS second appeal is at the instance of defendant No. 2 in a suit for specific performance of contract and is directed against the judgment and decree dated March 10, 1988 passed by the learned Additional District Judge, 3rd Court, Midnapore in other Appeal No. 500 of 1986 thereby reversing those dated April 30, 1986 passed by the learned Munsif, Additional Court at Contai in other Suit No. 35 of 1986.

( 2 ) THE parties to the instant proceeding are all brothers. The plaintiffs, two of the brothers, filed the aforesaid suit for specific performance of contract of sale of the property which was admittedly owned by defendant No. 1. According to the plaintiffs, the defendant No. 1 on November 6, 1976 entered into an Agreement for Sale of the suit property in their favour at the price of Rs. 2,500/- after receiving Rs. 2,000/- as earnest money. Subsequently the said defendant No. 1 sold away the suit property by a registered deed dated July 18, 1979 at a consi- deration of Rs. 4,490/- on the basis of an agreement for sale between defendant No. 1 and defendant No. 2 dated May 27, 1979.

( 3 ) THE aforesaid suit was not contested by defendant No. 1 but defendant No. 2, the subsequent purchaser, contested the same thereby disputing the case of the plaintiffs. The defendant No. 2 specifically asserted that the alleged agreement between plaintiffs and defendant No. 1 was a collusive ante-dated document and was created for the purpose avoiding the sale deed executed in favour of defendant No. 2. The further defence of the defendant No. 2 was that he was a bonafide purchaser for value without notice of any agreement for sale executed earlier by the defendant No. 1 and as such the suit was liable to be dismissed.

( 4 ) THE learned trial Judge on consideration of the materials on record disbelieved the case of the plaintiffs that any such prior agreement was entered into by defendant No. 1 in their favour agreeing to sell the suit property.

( 5 ) BEING dissatisfied, the plaintiffs preferred an appeal being other Appeal No. 500 of 1986 which was ultimately heard by the learned Additional District Judge, 3rd Court, Midnapore and by the judgment and decree impugned in the instant appeal the learned first appellate court set aside the judgment and decree passed by the learned trial Judge and decreed the suit for specific performance of contract in favour of the plaintiffs.

( 6 ) BEING dissatisfied, the defendant No. 2 has preferred the instant second appeal.

( 7 ) AT the time of admission of the instant second appeal, the Division Bench admitting the appeal under Order 41 Rule 11 of the Code decided to hear out the Instant appeal on all grounds taken in the Memorandum of Appeal. At the time of hearing of the instant appeal before this court, Mr. Roychowdhury, the learned senior advocate appearing in support of the instant second appeal prayed for permission to argue an additional ground. Mr. Roychowdhury contended that in the absence of any finding as to whether the appellant herein was a bona fide purchaser for value without notice of earlier agreement, the learned first appellate Court erred in law in passing a decree for specific performance of contract simply after holding that there was a valid agreement for sale between plaintiffs and defendant No. 1. Since the aforesaid question is a pure question of law, I permitted Mr. Roychowdhury to agitate the said point and accordingly a new point has been formulated to the aforesaid effect.

( 8 ) APART from the aforesaid point, Mr. Roychowdhury further submitted that the finding of the learned first appellate court that the agreement for sale between the plaintiffs and defendant No. 1 was a genuine one is based on total misconsideration of evidence on record, inasmuch as the witness for the plaintiffs gave evidence that the said agreement was made sometime in the year 1983 whereas the alleged agreement shows that the same was made in the year 1976. Thus, Mr. Roych