JUDGMENT

Abdul Raoof, J. - This second appeal has arisen out of a suit; for the specific performance of a contract for sale of a vacant site measuring 4 marlas and 187 feet and for possession thereof. There was a further prayer for an injunction and removal of a certain building erected on it. The facts are as follows:

2. The plaintiff, Bindraban, is a Vakil of the Lahore High Court. The defendant No. 1, Fateh Chand, is a teacher in a Primary School. Bodh Raj, defendant No. 2, is an Arora, all being the residents of the village Dhulial. The allegations in the plaint are that the defendant No. 1, the owner of the site in suit, entered into an agreement to sell the land to the plaintiff at Rs. 125 per marla, and received Rs. 40 as earnest money; that the plaintiff asked the defendant orally ad in writing several times to complete the sale and hand over the possession of the site on receipt of price but the latter paid no heed, that later on the plaintiff came to know that the defendant Bodh Raj was erecting a building on the land, and that thereupon the plaintiff sent a notice to Bodh Raj telling him that Fateh Chand had already contracted to sell the land to him (plaintiff). As the defendant No. 1 failed to perform the contract the present suit was instituted. The defendant No. 1 at first denied totally the alleged agreement and the receipt of the earnest money. Bodh Raj, the defendant No. 2, pleaded that he had got the land in exchange and that he was a bona fide purchaser for value without notice of any prior contract between the plaintiff and Fateh Chand and that he had spent Rs. 100, in constructing building on the land.

3. The following issues were framed by the Trial Court.

1. Did defendant No. 1 agree to sell the vacant site in suit to the plaintiff at Rs. 125 per marln? Onus probandi on plaintiff.

2. Had defendant No.2 knowledge of the prior contract (in respect of this site) between the plaintiff and defendant No. 1, and, if so, what is the effect)? Onus probandi on plaintiff.

3. What improvements has the defendant No. 2, made on the site in suit and is he entitled to compensation in respsect of the improvements and up to what extent? Onus probandi on defendant No. 2.

4. The Trial Court after a detailed consideration of the evidence, both oral and documentary, decided the first issue in favour of the plaintiff a nd held that the plaintiff had been keen on getting the contract completed and that the defendant No. 1 had been putting it off on one pretext or another and that eventually after receiving a notice, dated the 5th July, 1919, he had effected an exchange of the land in dispute with the defendant No. 2 by a registered deed, dated the 16th August, 1919. On the second issue also the Trial Court found in favour of the plaintiff and held that the defendant No. 2, had knowledge of the previous contract in favour of the plaintiff. On the third issue relating to compensation also after referring to a number of rulings it came to the conclusion adverse to the defendant No. 2 and decreed the suit granting to the plaintiff a decree for the specific performance of the contract directing the defendant No. 1 to execute a registered sale-deed on receipt of As. 546-8 0 and ordered the defendant No. 2 to remove the materials of his building and to hand over possession to the plaintiff. It further restrained the said defendant permanently from erecting any building on the site in dispute.

5. Bodh Raj, the defendant No. 2, preferred an appeal to the Court of the District Judge of Jhelum making the plaintiff Bindraban and the defendant No. 1, Fateh Chand, as respondents. The lower appellate Court agreed with the decision of the first Court on the first issue, but differed from it as regards the finding on the second issue. On the first issue it recorded the following finding:

It is, in my opinion, proved that defendant No. 1 definitely agreed to sell and plaintiff to buy the site in suit, and that the agreement amounted to a contract, which