The court emphasized the importance of proving that the sale consideration was made without notice of the original agreement in a specific performance case, and held that the evidence led by the plaintiff went unrebutted.

VINOD K. SHARMA, J. (ORAL) - This regular second appeal has been filed against the judgments and decrees passed by the learned Courts below vide which suit filed by the plaintiff-respondent No.1 for specific performance of the contract, has been ordered to be decreed.

2. The plaintiff respondent No.1 brought a suit for specific performance for enforcement of an agreement to sell dated 3.6.1998 executed between the plaintiff and defendant No.1, for sale of land, for a total sale consideration of Rs. 3,85,000/-(Rupees three lac and eighty five thousand only). Out of that a sum of Rs. 3,00,000/-( Rupees three lac only) was received as earnest money-cum-part payment from the plaintiff respondent No.1 and it was agreed that sale deed would be executed on or before 30.6.1998 on payment of balance sale consideration. Liberty was also given to plaintiff respondent No.1 to get the sale deed executed and registered in his favour or in favour of his nominee.

3. The plaintiff pleaded that he was always ready and willing to perform his part of contract, however, defendant No.1 on 9.9.1998 executed a sale deed in favour of defendant No.2 for a total sale consideration of Rs. 3,24,000/-( Rupees three lac and twenty four thousand only) in violation of the terms and conditions of the agreement to sell dated 3.6.1998. It was specifically pleaded in plaint that the agreement to sell dated 3.6.1998 was well within the knowledge of defendant No.2-appellant herein and the impugned sale deed dated 9.9.1998 was executed in order to create or cause wrongful loss to the plaintiff. The mutation in favour of the appellant defendant No.2 was also challenged. It was also the case of the plaintiff that in order to defeat the rights of the plaintiff appellant, respondents herein in collusion with each other createad a charge over the suit land by way of mortgage with defendant No.3. The mortgage was also challenged. It was also claimed that the defendants in collusion with each other, are threatening to dispossess the plaintiff from the suit land illegally and forcibly and also want to alienate the same further with a view to defeat the valuable and legitimate right of the plaintiff.

4. Defendants No.1 and 3, chose not to contest the suit. The suit was contested by defendant No.2 who filed written statement. It was claimed that he purchased the land in dispute for a total consideration of Rs. 3,24,000/-( Rupees three lac and twenty five thousand only) and sale deed was executed in his favour. It was also claimed that possession of the suit land was given to him in pursuance to the said sale deed. It was claimed that subsequent sale deed and mutation was valid. One of the pleas taken was that defendant No.2 had no knowledge of the agreement dated 3.6.1998 entered into between the plaintiff and defendant No.1. It was further claimed that defendant No.2 had mortgaged the suit land as owner thereof. Collusion with defendant No.1 was denied. It was pleaded that agreement to sell dated 3.6.1998 was not in the knowledge of defendant No.2 or defendant No.3. Other preliminary objections were also taken.

5. The learned Courts below on appreciation of evidence have recorded a concurrent finding of fact that defendant No.1 had entered into an agreement to sell the suit property to the plaintiff/respondent No.1 for a sum of Rs. 3,85,000/-( Rupees three lac and eighty five thousand only). A finding has also been recorded that a sum of Rs.3,00,000/-(Rupees three lac only) had been paid as earnest money. The Courts below also come to the conclusion that the plaintiff was always ready and still ready and willing to perform his part of contract and it was defendant No.1 who had failed to perform his part of the contract. The sale deed in favour of defendant No.2 was held to be illegal, null and void and not binding on the rights of the plaintiff. The suit was held not to be collusive between the plaintiff and defendant No.1.

6. Defendant No.2 was not held to be bona f