JUDGMENT
Ashwini Kumar Sinha, J.
1. This second appeal is by the plaintiff and it arises out of a suit for specific performance of a contract D/- 16-6-1969 (Ext. 3) and it arises out of a judgment of affirmance.
2. It is the admitted case of the parties that the disputed land (fully described in the plaint) belonged to one Ramyaad Singh of village Quasha Maker told Sheoji (district Saran) who was the father of defendant 1 and the husband of defendant 2. The plaintiff’s case was that as his sister was married in village Quasba Maker he used to visit that village from time to time and during visits he picked out acquaintance with Ramyaad Singh. The plaintiff pleaded that in the year 1969 Ramyaad Singh was in need of money and he was unable to manage the amount without disposing of some of his lands and, therefore, he negotiated with the plaintiff for the sale of one bigha of his land to the plaintiff for a sum of Rs. 6,000/-. According to the plaintiff, the negotiation was finalised and the plaintiff claimed to have advanced a sum of Rs. 4,000/- to Ramyaad Singh by way of earnest money on 16-6-1969 on which date, according to the plaintiff, Ramyaad Singh executed a deed of agreement in favour of the plaintiff agreeing to sell one bigha of his land of the plaintiff for a sum of Rs. 6,000/-. According to the plaintiff, the said deed of agreement was executed by Ramyaad Singh in presence of his son (defendant No. 1) and Thakur Singh (defendant No. 3) of the suit. According to the plaintiff, repeated request of the plaintiff to Ramyaad Singh to execute a sale deed in his favour in pursuance of the said deed of agreement borne no fruit and subsequently Ramyaad Singh died in the month of Magh 1375 Fasli leaving behind his son defendant No. 1 and his widow defendant No. 2 as his heirs. According to the plaintiff, he requested defendants 1 and 2 also to execute the sale deed in his favour in accordance with deed of agreement but neither defendant 1 nor defendant 2 ever cared to do so.
3. The plaintiff’s case further was that he came to know that Ramyaad Singh had fraudulently executed a sale deed in favour of defendant 3 in respect of the suit land, besides other lands, without consideration in order to defeat the legal right acquired by the plaintiff on the basis of the deed of agreement in question. The plaintiff’s case was that the aforesaid transfer in favour of defendant 3 did not create any right, title or interest in him and the plaintiff was entitled to a decree for specific performance of the contract as per the said deed of agreement (Ext. 3). According to the plaintiff, registered notices were also sent to defendants 1 and 2 but none of them cared to reply. Hence the suit.
4. The suit was contested only by defendant 3. This defendant 3 (contesting defendant) claimed to have purchased the suit land, along with some other lands, from Ramyaad Singh by virtue of four sale deeds dated 11-8-1969 for Rs. 2,000/-each. The defence was that he was a bona fide purchaser of the suit land for value without notice of any earlier contract for sale. The contesting defendant asserted that he was in no way affected by any deed of agreement entered into by Ramyaad Singh with the plaintiff and he further contended that the deed of agreement relied upon by the plaintiff was a forged and fabricated document created on an ante-dated stamp in order to defeat his title based on the aforesaid sale deeds. According to the contesting defendant, the plaintiff was a maternal uncle of defendant 1 and a full brother of defendant 2 and he had been set up by defendants 1 and 2 to file the suit on the basis of an ante-dated document which, according to him, was created only a few days before the death of Ramyaad Singh. On these pleas, the contesting defendant’s case was that the plaintiff was not entitled to any relief on the basis of deed of agreement which, according to defendant, was forged and fabricated one.
5. The trial court dismissed the suit and held that Mahadnama relied upon by the plaintiff was suspicious document and that defendant 3 was a bona fide purchaser for value without notice of any prior contract. It further held that in view of the denial on the part of the defendant 3 about the notice/knowledge of any prior contract the onus was upon the plaintiff to prove that defendant 3 had
prior knowledge about the alleged Mahadnama. The trial court also held that the plaintiff had failed to prove that he was and is ready on his part to perform the contract. On these findings, the trial court dismissed the suit.
6. Against the judgment and decree of the trial court, the plaintiff preferred an appeal. The court of appeal below held that the deed of agreement (Ext. 3) executed by Ramyaad Singh was not forged and fabricated one nor it was ante-dated. Still on the following findings it dismissed the plaintiff’s appeal, It held that defendant 3 was a bona fide purchaser for value without notice and this defendant 3 had no prior knowledge of the alleged Mahadnama. It further held that defendant 3 came in possession of the lands in suit after the purchase. It further held that the delay in filing the suit (i. e. after two years of the execution of the alleged Mahadnama) was also one of the factors against the plaintiff. On these findings the court of appeal below, as stated above, dismissed the appeal.
7. Thus, the plaintiff has filed the present second appeal. The learned counsel appearing for the plaintiff-appellant has contended firstly, that the courts below misplaced the onus of proof upon the plaintiff and it was contended that the onus was upon the contesting defendant to prove that he had no knowledge of the prior contract. According to the learned counsel for the plaintiff appellant the onus was upon the contesting defendant to prove that he was a bona fide purchaser for value without notice. Secondly, the learned counsel submitted that knowledge of the prior contract has not been denied by the contesting defendants in his written statement and in that view of the matter the courts below had wrongly thrown the onus upon the plaintiff and having thug committed an error of law came to finding against the plaintiff which was not binding in the second appeal and lastly, that the court of appeal below committed an error of law in dismissing the plaintiff’s suit on the ground of delay of two years in filing the suit after the execution of the Mahadanama in favour of plaintiff. According to the learned counsel for the appellant, the Court of appeal below should have taken notice of the rule of law that so long as the period prescribed by the Limitation Act did not expire there was no question of
waiver or acquiescence on the part of a person claiming specific performance of contract. The first and the second submissions advanced by the learned counsel for the plaintiff-appellant are interrelated, It is well settled that the onus is upon the defendants to prove that they were transferees for value and that they had paid their money in good faith and without notice of the prior contract. In a suit for specific performance of a contract if the plaintiff proves his prior contract, the burden of proving a subsequent bona fide transfer for value without notice lies on the party alleging it. This is the settled law but it is also well settled that very little evidence, and in certain circumstances a mere denial, regarding want of knowledge of the plaintiff’s contract would discharge this onus and shift the onus upon the plaintiff. Reference be made to the case of Ramdeni Singh v. Gumani Raut (AIR 1929 Pat 300).
8. In view of the aforesaid settled
view of law it is to be seen whether the Courts below have rightly thrown the onus, in the instant case, upon the plaintiff.
9. The learned counsel for the plaintiff-appellant placed paragraph 7 of the plaint in support of his contention that the plaintiff pleaded knowledge on the part of the contesting defendants of the plaintiff’s prior contract. Omitting other line in paragraph 7 of the plaint the relevant line to which the learned counsel for the plaintiff-appellant drew my attention is as follows:
“Mudalah No. 3 ma bed ke bedar bahalam mahada man mudai ke hai”. And also placed paragraph 12 of the written statement in order to persuade me to accept that the knowledge to the contesting defendant of the plaintiff’s prior contract, as alleged in paragraph 7 of the plaint, has not been denied by the contesting defendant. It is relevant to quote paragraph 12:
“Yah ke beyan mudal mundarje dafa 7 araji nalis sarihan jhutha wo mangadhant hai. Mudai ne kabhi kee takaja Ramyaad Singh se waste taharir karane bainama nahi kee aaur na kabhi isaki naubat aayi. Lihaja Ramyaad Singh ke tal matol ya inakar karne ka koi sabhb hee nahi thata Mudai ke man mudalah ke benama ka ilam shuru se the wo hai. Hargij wosijat bainama banam man
mudalah pharji wo bela dadsidal ka nahi hai; balik aasali, jayaj wo sath dadsidat ke hai. Man mudalah hargij Ramyaad Singh ke biradar hakiki ke sale nahi hai. Man mudalah aarsa karib 24 warsh se mauja kasaba maker tola Shiba Singh ke rahate chali aaye.” In the ends of justice, I have looked into the written statement filed by the contesting defendant. It is not correct on the part of the learned counsel for the plaintiff appellant to submit that the contesting defendant has not denied knowledge of the prior contract on his part. It is pertinent to quote the relevant lines from paras 6 and 9 of the written statement:
“6. Mudai ne kabhi koi jayadad mauja kasba Maker me hasil nahi kiya hai wo ne koi jarpesagi hee mauja kasba maker se likhawaya hai. Tahat ilam man mudalah mudai ko koi bhi aawakat baya ya jarpesagi likhane ka nahi hai”,
“9. Dapha majkur me kathit mahadanama ke tahrir ka wakhat man mudalah ki mawjudgai ka jhutha beyan sirph man mudalah par kathit mahadanama ka knowledge fasten karna ke Jiye kiya gaya hai”.
The contesting defendant has examined himself as D. W. 4 and has categorically denied knowledge of the alleged Mahadnama and has deposed as follows :
“Aisi baat sachcha nahi hai ki kathit mahda mere hee samakch likha gaya tha”.
10. It is thus apparent that the contesting defendant pleaded want of knowledge of the plaintiff’s prior contract. Thus though the settled law is that the onus was upon the contesting defendant to prove that he was a bona fide purchaser for value without notice of the prior contract yet in view of the denial regarding want of knowledge of the plaintiff’s prior contract by the defendants, the onus shifted on the plaintiff. In this view of law the two Courts below, in my opinion, very correctly threw the onus upon the plaintiff to prove the knowledge of prior contract on the contesting defendant. I hold that the Courts below, in the facts of the present case, have not taken any erroneous view of law and thus the first and the second submissions of the learned counsel for the plaintiff-appellant fail. I further hold that the concurrent finding to the effect that defendant 3 had no knowledge, whatsoever, of the Mahadnama in question before he purchased the lands in
suit along with other lands, is neither unreasonable nor perverse and I hold that the findings are based upon a proper appraisal of the materials on the record.
11. Then remains the last submission of the learned counsel for the plaintiff-appellant to be considered regarding the delay of two years in filing the suit being also a factor against the plaintiff-appellant. According to the learned counsel for the appellant, the Court of appeal below was erroneous in taking this delay factor also in non-suiting him. In the present case, the Mahadnama in question was executed on 16-6-1969 and the sale deeds in favour of the contesting defendants are dated 11-8-1969 and the suit has been filed by the plaintiff-appellant on 3-8-1971. The learned counsel for the plaintiff-appellant has drawn my attention to Article 54, Limitation Act, which prescribes three years for a suit for specific performance of a contract. According to Article 54, Limitation-Act, the suit can be filed within three years from the date fixed for the performance, or, if no such date is fixed, when the plaintiff has noticed that performance is refused. In the present case, admittedly there is no date fixed for performance of a contract and hence the suit for specific performance of a contract could be filed when the plaintiff had noticed that performance was refused. The period of three years had not lapsed from the date of the alleged Mahadnama or even from the date of the sale deeds in favour of the contesting defendant; much less from the date when the performance was refused by the heir of Ramyaad. Singh. In my opinion, the Court of appeal below took an erroneous view that the delay of two years in seeking specific performance of a contract in question was also a factor against the plaintiff appellant. It is well settled that under rule of law so long as the period prescribed by the Limitation Act does not expire there is no question of waiver or acquiescence on the part of a person claiming specific performance of a contract. Even though the Court of appeal below took erroneous view on this point, this delay factor has been taken by the Court of appeal below as only one of the factors and hence even though the view taken by the Court of appeal below on this matter is erroneous. It does not help the plaintiff at all, as on
the main legal aspect of the matter. I have already held above that the Courts below have, on the facts of the instant case, properly thrown the onus upon the plaintiff to prove that the contesting defendant had knowledge of the prior contract.
12. In the result, the appeal is dismissed but, in the circumstances of the case, there will be no order as to costs.