( 1 ) THIS appeal is directed against the appellate judgment and decree in Regular Civil Appeal No. 41 of 1961 decided by Mr. D. A. Desai District Judge Baroda.

( 2 ) THE facts of the case briefly stated are as under. The defendant No. 1 owned a piece of land in the Wadi locality of the city of Baroda. He farmed out plots in that piece of land and started selling them as building sites. There were several rows of plots known as A B C and so on. Row C contained 10 plots which were numbered as C-1 to C-10. On 26th August 1958 the plaintiff entered into an agreement of sale with the defendant No. 1 for purchasing plot C-5. The defendant No. 1 agreed to sell it to her for a sum of Rs. 326. 25 p. The agreement of sale is evidenced by receipt of payment Ex. 43 under which on 27th August 1958 the plaintiff paid to the defendant No. 1 a sum of Rs. 51/as earnest money. On 3rd March 1959 the balance of 275. 25 p. was paid by the plaintiff to the defendant No. 1. It is the plaintiffs case that thereafter the defendant No. 1 did not execute the sale-deed inspite of the plaintiffs attempts to get it executed by him. The plaintiff therefore filed Regular Civil Suit No. 1252 of 1959 in the Court of the Civil Judge (Senior Division) at Baroda for obtaining decree for specific performance of the said agreement.

( 3 ) THE defendant No. 1 filed his written statement. He contended that though he had farmed out the plots and numbered them it was only a provisional lay-out because it was subject to the approval of the Municipality of Baroda. According to him since the Municipality of Baroda did not accord immediate approval to his lay-out of the plots he could not execute a sale-deed in favour of the plaintiff. All that he did was to register the intending purchasers of the plots. He further contended that plot C-5 had not been in existence at the time of the final lay-out because it had merged into a road. Therefore according to him no specific performance can be ordered against him.

( 4 ) THE trial Court raised the issues and recorded evidence. It held the agreement of sale to have been proved. But it further held that plot C-5 as it existed at the date of the suit was materially different from the original plot C-5 and that therefore the identity of the original plot C-5 had been lost. In that view of the matter the learned trial Judge dismissed the suit.

( 5 ) THE plaintiff filed in the Court of the District Judge at Baroda Regular Civil Appeal No. 41 of 1961 challenging the decree passed by the learned trial Judge.

( 6 ) THE learned District Judge on consideration of evidence arrived at the finding that though original plot C-5 had undergone alterations they were not substantial or material alterations and that therefore the plaintiff was entitled to obtain decree for specific performance against the defendant No. 1. In that view of the matter the learned District Judge allowed the appeal set aside the decree of the trial Court and passed decree for specific performance against the defendants.

( 7 ) I may state here that the defendant No. 2 has purchased the new plot C-5 from the defendant No. 1. His defence is that he is a bona fide purchaser for value without notice. On appreciation of evidence his plea has been negatived by the Courts below.

( 8 ) IT is against this appellate decree of the learned District Judge that the defendants have filed the present Second Appeal.

( 9 ) MR. Karlekar who appears for the original defendants has raised three contentions before me; (1) identity of the original plot C-5 has been lost and therefore specific performance cannot be ordered (2) application Ex. 58 was made to the trial Court for framing an issue whether the power of attorney holder had the authority to transfer the property and the trial Court was in error in rejecting that application (3) there is an error in holding that the defendant No. 2 is not a bona fide purchaser for value without notice.

( 10 ) SO far as the third contenti