Defects remedied by oral evidence.

The second defendant in the suit is the appellant before me The respondent filed the suit in the District Munsif’s Court for enforcing a contract. for sale of a house by the first defendant. The suit was for specific perfomance and the contract was an oral one; but subsequent to that oral contract, there was a sale deed executed but was not registered, owing to certain machinations, which are alleged against the appellant. The learned District Munsif dismissed the suit on the ground that the contract alleged, on the basis of which specific performance was claimed, was not true and was not proved. A further question also arose in the suit as to whether this appellant, who was the second defendant in the lower Court and who had purchased the property from the first defendant, had notice of the contract between the plaintiff and the first defendant and whether he was entitled to retain the property purchased by him. On this, the learned District Munsif gave a finding against the plaintiff. The plaintiff, thereupon, preferred an appeal before the learned Subordinate Judge, who held that there was a valid contract between the first defendant and the plaintiff in respect of the sale of the property in question. But, on the second point he felt that the learned District Munsif had not applied his mind as to whether the appellant was a purchaser without notice and, therefore, remanded the suit for further trial and disposal. Against this remand order, the second defendant has preferred this appeal.

The first point raised by the appellant is that so far as he was concerned, necessary averments in the plaint have not been made that he was a purchaser with notice of the contract between the plaintiff and the first defendant or that he had not paid value in good faith for the property purchased from the first defendant and that section 27(b) of the Specific Relief Act has not been complied with. Therefore, his contention is that the plaintiff was not entitled to any relief against him in the absence of such averments in the plaint and in the absence of proof of the same. On this point, the learned counsel for the respondent has pointed out the averments contained in paragraph 9 of the plaint and would urge that that paragraph is a sufficient answer to the complaint of the learned counsel for the appellant in that it has been alleged that the second defendant had notice of the sale, and that he was not a purchaser for value in good faith. I do not think that the averments in paragraph 9 of the plaint could be construed to contain all that the learned counsel for the respondent would urge to contain. That paragraph is simply a complaint against the defendant for having suppressed the sale deed said to have been executed by the first defendant in favour of the plaintiff, and it does not, in my opinion, comply in terms with the conditions that have to be alleged and proved under section 27(b) of the Specific Relief Act. Section 27(b) would say that except as otherwise provided by this chapter, specific performance of a contract may be enforced against any other person claiming under him by a title arising subsequent to the contract, except a transferee for value, who has paid his money in good faith and without notice of the original contract. According to sub-clause (b) of section 27, the conditions to be satisfied are that the plaintiff must prove that the second defendant purchaser was not a purchaser for value, that he had not purchased it in good faith and that he had notice of the original contract. These allegations cannot be spelled out of paragraph 9 of the plaint. In substance, the averment in paragraph 9 of the plaint is only to the effect that the second defendant had fraudulently suppressed the sale deed and that, therefore, the plaintiff was entitled to have a sale made to her and possession of the property delivered to her by her enforcing the right of specific performance against all the defendants. I do not think, as