TMI Blog1968 (5) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... brought by the plaintiff to the court below, the finding about the lack of genuineness of the said agreement was reversed; but the plaintiff's suit for specific performance was equally refused by the lower appellate court on the ground that the defendant No. 2 was a bone fide purchaser for value and without notice of the agreement between the plaintiff and defendant No. 1 for sale of the property concerned. The appellate court, however, modified the trial court's decree to the extent that the plaintif was to get ₹ 500/- from defendant No. 1. Against the dismissal of the suit for specific performance of the contract the plaintiff has come in this second appeal. 2. Learned counsel for the appellant contended that the deed of sale executed on the 10th of July, 1959 by the defendant No. 1 in favour of defendant No. 2 in respect of a part of the property which was the subject matter of the agreement to sell to the plaintiff, having not been registered before the institution of the suit, cannot present any difficulty to the plaintiff getting a decree for specific performance of the contract on the finding that that agreement was genuine. That appellate finding, however, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract. It has to be seen whether the defendant No. 2 can come within clause (b) above. He is claiming a title arising subsequent to the contract of which the plaintiff asked for specific performance and, therefore, specific performance could be enforced against him. If he did not claim such a title, then there was no need for the plaintiff to make him a party and ask for specific performance of the said contract against Mm. It is the claim of a title which has brought the defendant No. 2 within the exception given in clause (b) of Section 19 of the Specific Relief Act and that was the reason why the plaintiff made him a party. It would not now be open to the plaintiff to say that the defendant no, 2 had no title or did not claim any title before the institution of the present suit. In spite of the fact that the registration of the deed of sale (Ext. Ka) was not complete till the 24th of October, 1959, the defendant No. 2's title under that document has become operative from the 10th of July, 1959, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that defendant No. 2 had paid his money to the vendor in good faith at a time when he had no notice of the original contract between the plaintiff and defendant No. 1. Learned counsel placed another aspect of this matter in a different way. He argued that the plaintiff was in possession of the property involved in the said contract when defendant No. 2 purchased the property. According to learned Counsel he (defendant No. 2) should have made enquiries from the plaintiff as to the nature of his possession before fee entered into transaction with the plaintiff for the same property. If he would have made such an enquiry, he would have come to know about the existence of the original contract between the plaintiff and defendant No. 1. There is some force in this line of argument. But on the facts of the present case nothing will be gained by that. Both the plaintiff and defendant No. 2, according to the evidence, had been tenants in respect of one room each in the some house of the defendant No. 1 and carrying on the business of goldsmith. The nature of possession of the plaintiff in that room was well known to the defendant No. 2. There has not been any change in that nature in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, it was no part of the agreement of tenancy between the plaintiff and defendant No. 1 in respect of the room which he (the plaintiff) had been in occupation for several years, that he could have enforced his right to purchase either that room or any other rooom in that house from the owner (defendant No. 1). The contract on which the plaintiff relies is entirely different and much subsequent to his tenancy. In that view, that is not a right of equity which the tenant could enforce against a subsequent purchaser. Secondly, as I have already pointed out, on the facts of the present case the defendant No. 2 was well aware of the nature of the possession of the plaintiff in one room of that house; plaintiff was not in possession of other two rooms and there had not been any change in that whatsoever after the contract came between the plaintiff and the defendant No. 1 and he (defendant No. 2) being a co-tenant in the same premises, did not or could not have any necessity to make any enquiries about the nature of possession of the plaintiff before he entered into any transaction for purchase of a portion of that house from defendant No. 1. Absence of such enquiry in the present case c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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