The main legal point established is that in a suit for specific performance of a contract, the plaintiff must prove due execution of the agreement, readiness and willingness to perform the contract, and that subsequent transfers are not protected under Section 19(b) of the Specific Relief Act.

JUDGMENT :

Dr. A.K.Rath, J

Defendants are the appellants against a reversing judgment.

2. Respondent as plaintiff instituted O.S. No.32 of 1979-I in the court of the learned Subordinate Judge, Bhubaneswar for specific performance of contract, declaration that the sale deed executed by defendant no.1 in favour of defendant no.2 to 4 are illegal and void, recovery of possession and in the alternative for a decree of Rs.8000/-with PI&FI. Case of the plaintiff is that defendant no.1 is the owner of the suit schedule land. To press his legal necessity, defendant no.1 entered into an agreement on 29.3.1976 with the plaintiff for sale of the land for a consideration of Rs.10,000/-. He received an amount of Rs.8000/-towards part consideration and delivered possession. It was agreed between the parties that defendant no.1 would receive the balance consideration of Rs.2000/-and execute the sale deed in favour of the plaintiff within four months. The plaintiff was ready and willing to perform part of the contract. He approached defendant no.1 on different occasions to execute the sale deed, but later avoided on false pretext. Subsequently defendant nos.2 to 4 in connivance with defendant no.1 obtained three nominal sale deeds in their favour in respect of the suit land knowing fully well about the existence of the agreement. The transfer of the land having made during pendency of the suit, the same is hit by lis pendens.

3. Defendant no.1 filed a written statement denying the assertions made in the plaint. The case of the defendant no.1 is that he is a resident of Cuttack town. He along with one Lokanath Mohanty had jointly acquired about two acres of land in mouza-Pandara. They were in possession of their respective shares pursuant to an amicable partition. One Siba Parida of Palasuni purchased some land from Lokanath Mohanty. He approached defendant no.1 in the year 1975 to sell away his share to him. Defendant no.1 did not agree. As he was in need of money for marriage of his daughter, he sold the suit land to defendant nos.2 to 4 by means of three sale deeds on 2.1.1982 for a valid consideration and delivered possession. It was further pleaded that Siba Parida having failed in his attempt to purchase the land might have created a forged agreement in connivance with the plaintiff to grab the property. Defendants 2 to 4 pleaded, inter alia, that defendant no.1 executed three sale deeds in their favour for a consideration and delivered possession. They are the bona fide purchasers for value of the suit schedule property. They did not have the knowledge of the agreement to sell.

4. On the inter se pleadings of the parties, learned trial court struck eight issues. Both the parties led evidence, both oral and documentary, in support of their cases. Learned trial court came to hold that the stamp paper of the agreement vide Ext.2 was not purchased by defendant no.1 as the number written on the reverse side appeared to be discrepant. He was residing at Cuttack not at Palasuni. Thus the plaintiff had no occasion to come to his contact, expressed his intention to purchase the suit schedule land and entered into an agreement with defendant no.1. Defendant no.1 was residing at Cuttack has been established in Misc. Case No.327 of 1982 filed under Order 9 Rule 13 CPC. The same will operate as res judicata. Defendant no.1 being an illiterate person, onus lies on the plaintiff to prove that he had executed the agreement after understanding the contents thereof. No certificate to that effect has been appended by the scribe at the buttom of the agreement. Plaintiff has failed to prove that he paid consideration amount of Rs.8000/-out of Rs.10000/-at the time of execution of the agreement. P.W.5-plaintiff deposed that he paid the part consideration amount in one instalment, but in Misc. Case No.327 of 1982, he deposed that the said amount was paid in two instalments. The area of the suit land has been wrongly recorded in the agreement. Valuation of the suit