Gurusharan Sharma, J.
1. By the impugned judgment and decree, the suit for specific performance of contract filed by the plaintiff appellant has been dismissed.
2. According to the plaintiff, the, defendant No. 1 entered into an agreement for sale with him on 5.5.1972 in respect of the shop premises in holding No. 12, J. Road, Bistupur, Jamshedpur for consideration of Rs. 20,000/-. A sum of Rs. 18,000/- was given as advance and the sale deed was agreed to be executed within on year and the balance amount of consideration of Rs. 2,000/- was to be paid at the time of execution and registration of the transfer deed.
3. The plaintiff was always ready and willing to pay the balance consideration amount and made repeated requests and demands to the defendant No. 1, but he did not execute the deed.
4. On 15.7.1974 the plaintiff, therefore, filed the suit for a decree to enforce the contract for sale of the premises described in the schedule to the plaint/directing the defendant to execute and register a sale deed in his favour conveying the suit property and/or in alternative for a decree for Rs. 18,000/-with costs and interest till realization.
5. In his written statement filed on 4.3.1975 the defendant No. 1 completely denied to have entered into any agreement with the plaintiff to transfer the suit property. He neither negotiated for executed any agreement for sale nor received any amount, much less Rs. 18000/- by way of part consideration amount. The plaintiff's case as such was concocted and false.
6. By way of amendment to the written statement, the defendant No. 1 pleaded that he was carrying on hotel business in the suit premises and had allowed the plaintiff to run a betel shop in a gumti on the Western portion of the front courtyard as a licensee under him. Later on when the Tisco authority asked the defendant No. 1 not to allow any other shop within the premises, the plaintiff was asked to vacate the land and shift his betel shop gumti to some other place. The plaintiff was, therefore, annoyed and might have created forged and fabricated papers of alleged agreement for sale with a view to grab the suit premises.
7. On 9.6.1976 the defendant No. 1 filed another petition for amendment of written statement to the following effect:
As a matter of fact the defendant is not entitled to sell the house or land in question as the same belong to Tisco Ltd. and the defendant was allowed to occupy the same on monthly rent.
It was rejected on 17.6.1976 and Civil Revision No. 118 of 1976 against the said order was also dismissed by this Court.
8. On 1.7.1976, the plaintiff filed a petition for amendment in plaint on the ground that he recently came to know that with intent to deprive him from the suit property the defendant executed a collusive sale deed dated 28.3.1974 with respect to the same in favour of his friend, Sohan Lal Sharma of Jugsalal. The alleged purchaser was aware of the agreement for sale in question dated 5.5.1972. In such circumstances, in order to avoid future complication, it was necessary to make the said Sohan Lal Sharma also a party-defendant in the suit as also to add paragraph 7(a) in the plaint. The trial Court rejected the said petition on 28.5.1977. However, this Court on 21.12.1977 in Civil Revision No. 142 of 1977 (R) was pleased to set aside the said order refusing to allow the proposed amendment in the plaint and allowed the same. Accordingly, Sohan Lal Sharma was added as defendant No. 2.
9. On 18.3.1978 the said defendant No. 2 appeared and on 20th April, 1978 a written statement on his behalf was filed.
10. The defendant No. 2, in his written statement, stated, inter alia, that on 15.2.1972, the defendant No. 1 had entered into an agreement for sale with him in respect of the suit property for a consideration of Rs. 25000/-, out of which a sum of Rs. 1000/- was paid on the same day as earnest money. The defendant No. 1 executed the deed of sale on 28.3.1974 and the entire consideration amount was paid and he was put into possession. He was never aware about any agreement for sale dated 5,5.1972 in favour of the plaintiff. He was a bonafide purchaser for value, without any prior notice of the plaintiff's agreement, if any, and the plaintiff did not take any step to get the sale deed executed in favour of the defendant No. 2 to be set aside by a competent Court of law within the period prescribed by law.
11. On 24.5.1978 the defendant No. 1 filed a petition to permit him to file additional written statement, which was allowed.
12. In his additional written statement, the defendant No. 1 pleaded that the plaintiff was aware of the agreement for sale dated 15.2.1972 executed by him in favour of the defendant No. 2 and payment of a sum of Rs. 1000/- as advance for the said sale. Pursuant to the said agreement, the defendant No. 1 sold the suit property to the defendant No. 2 by a registered sale deed dated 28.3.1974. The plaintiff thereafter caused to manufacture the alleged agreement dated 5.5.1972. The said agreement did not bear his signature.
13. P.W. 6 was a witness on the agreement for sale dated 5.5.1972. He proved the said agreement and the money receipt, which were marked as Exts. 7 and 8 respectively. According to this witness, in his presence the agreement in question was executed and payment of a sum of Rs. 18,000/- as earnest money, a separate money receipt was also granted by the defendant No. 1 to the plaintiff. Another witness on the said agreement was examined as P.W. 8. He corroborated the evidence of P.W. 6. The plaintiff got himself examined as P.W. 7. He stated to have paid a sum of Rs. 18,000/- to the defendant No. 1 at the time of execution of the agreement, who had also granted a money receipt therefore.
14. On behalf of the plaintiff, a hand writing and finger print expert was examined as P.W. 1, who proved his report, which was marked as Ext. 3. The said expert compared the signatures of the defendant No. 1 on the written statement and the vakalatnama filed in Title Suit No. 38 of 1974 and his specimen signatures taken in Court, with the disputed signatures on the agreement dated 5.5.1972 (Ext.7) and the money receipt dated 5.5.1972 (Ext.8) and opined that those signatures were of the same person.
15. The defendant No. 1, on the other hand examined himself as D.W. 1 and denied his signatures on Exts. 7 and 8 and/or receipt of any amount as earnest money from the plaintiff. He admitted to have executed agreement for sale dated 15.2.1972 in favour of the defendant No. 2 and receipt of a sum of Rs. 1000/- as earnest money, out of the total consideration amount of Rs. 25,000/-. He also admitted that in his written statement filed on 4.3.1975, neither execution of agreement for sale dated 15.2.1972 nor execution of sale deed dated 28.3.1974 was mentioned as at the time of filing of the said written statement he had forgotten the same. He also admitted that in the sale deed dated 28.3.1974, there was no mention of either the agreement for sale dated 15.2.1972 or payment of a sum of Rs. 1000/- as earnest money, out of Rs. 25,000/-, the total amount of consideration. He admitted that in accordance with the said agreement only a sum of Rs. 24,000/- was due with the defendant No. 2.
16. The defendant No. 2 examined altogether five witnesses, including himself as D.W. 5, D.Ws. 1 and 2 were the witnesses on the agreement for sale. The agreement for sale dated 15.2.1972 and the registered sale deed dated 28.3.1974 were marked as Exts. B and C respectively.
17. It appears that one Rajendra Prasad had typed the agreement for sale, Ext. B and the sale deed Ext. C and was also a witness on the sale deed. He was thereafter enrolled as an Advocate and was the Counsel for the defendant No. 1 in the suit.
18. In my opinion, in absence of any reference of the alleged agreement for sale, Ext. B. as well as the payment of earnest money in the body of the sale deed, Ext. C and thereafter payment of the entire amount of consideration of Rs. 25,000/- before the Registration Officer, Jamshedpur without deducting a sum of Rs. 1000/-, already paid as earnest money on the day (15.2.1972) the agreement for sale, Ext. B was executed created a grave doubt on the genuiness and authenticity of Ext. B.
19. Further suppression of the material fact by the defendant No. 1 in his written statement filed on 4.3.1975 about execution of an agreement earlier to the agreement in question in favour of the plaintiff, by the defendant No. 1 in favour of the defendant No. 2 as also execution of sale deed, Ext, C and the statement of the defendant No. 1 in his deposition as D.W. 1 in the suit that at the time of filing of the said written statement he had forgotten about the said agreement and sale in favour of the defendant No. 2, in my opinion, was not believable. Rather it supports the conclusion that there was no such agreement (Ext.B) between the defendants 1 and 2,
20. It appears that the defendant No. 1 filed petitions for amendment of the written statement twice, but in none of those petitions statement of execution of either the agreement for sale dated 15.2.1972 or that of sale deed dated 28.3.1974 was made.
21. On behalf of the defendants no explanation has been given as to why mention of the agreement Ext. B was not made in the sale deed, Ext. C specially when the two documents were typed by the same typist, Rajendara Prasad and again those facts were missing in the written statement dated 4.3.1975, which was also drafted by the same person, now as the Counsel for the defendant No. 1
22. In my view, even if the stamp of Rs. 1.50 paise, on which the agreement, Ext. B was typed was found to have been, purchased in the name of R.C. Krishnan, the defendant No. 1 on 15.2.1972, on the date on which the agreement in said to have been executed, it could not be a basis to hold the same to be genuine, in view of the circumstances stated above.
23. The trial Court has not recorded any, reason for * the expert's report, Ext. 3, whereby it was opined that the defendant No. 1 had affixed, his signatures on the agreement for sale, Ext. 7 and the money receipt Ext. 8.
24. In the present case evidence was adduced by the respective parties in support of their conflicting contentions and circumstances. In such situation it was the duty of the trial Court to consider the evidence objectively and dispassionately and examine the same in the light of the probabilities and decide in which way the truth lay.
25. As per Ext. 7, the sale deed was to be executed by 5th May 1973. The suit was filed on 15.7.1974 i.e. within the period of limitation prescribed by Article 54 of the Limitation Act, 1963. Therefore on 1.7.1976 a petition was filed to add Sohan Lai Sharma as defendant No. 2, which was allowed on 21.12.1977. According to the defendant No. 2, therefore, the suit, as against him, was barred by time. The trial Court held that taking 28.3.1974, the date on which the sale deed was executed in favour of the defendant No. 2, as the date when the plaintiff had notice that performance was refused, the addition of defendant No. 2 was within 3 years and, therefore, the suit was not barred by time. The defendants have not filed any cross-objection against said finding. 1 do not find any reason to interfere with the said finding in this appeal.
26. In my view, the finding of the trial Court in respect of the genuineness of the agreement, Ext. B was not based on proper consideration of the facts and circumstances of the case and the evidence on record. It was an unregistered deed of agreement. Neither any explanation was given for non-mentioning about it nor about advance of Rs. 1000/- in the sale deed non the amount of advance was even deducted in the consideration amount. The typist who was said to have typed both the agreement for sale and the sale deed, was also not examined. In such circumstances, I hold that the defendants failed to prove that Ext. B was in fact executed between the defenants 1 and 2.
27. In Gobind Prasad Chaturvedi v. Haridutta Shashtri and Anr. : [1977]2SCR877 , it was held that the fixation of the period within which the contract was to be performed, did not make the stipulation as to time the essence of contract. When the contract related to sale of immovable property, it would normally be presumed that the time was not the essence of the contract. The intention to treat time as the essence of the contract may be evidenced by circumstances, which should be sufficiently strong to displace the normal presumption that in a contract for sale of land, stipulation as to time was not the essence of the contract.
28. In the present case the language used in the agreement, Ext. 7, in my view, was not such as to indicate in unmistakable terms that the time was of the essence of the contract. Further there was no specific pleadings or issues raised by the defendants before the trial Court and no case of time being the essence of the contract was put forward by them. Apart from the absence of such pleadings, I do not find any basis for the plea of the defendants-respondents that the time was the essence of the contract and. therefore, the suit was barred by time.
29. So far as the burden of proof in a suit, for specific performance of contract for sale was concerned, in Ram chandra Singh v. Bibi Asghari Begum A.I.R. 1957 Patna 224, it was held that the plaintiff in a suit for specific performance of contract for sale has to establish the contract of sale between him and the vendor, but as soon as the plaintiff established the prior contract, the onus of proof that a third party has subsequently purchased the property bona fide and without notice was on the party, who claimed to be such purchaser. It was not for the plaintiff to show that the subsequent purchaser had notice of the previous contract in favour of the plaintiff. The onus of such negative issue of proving that the subsequent purchaser had no notice of a prior claims was ordinarily discharged by a denial and by a negative evidence. However, under no circumstance, the initial onus, which was on the subsequent transferee, would shift on the plaintiff at the first stage, even when the plaintiff mentioned in the plaint the reason why he was making the subsequent purchaser a party and how he came to know that the person concerned was a subsequent purchaser.
30. When the exception mentioned in the Clause (b) of Section 27 of the Specific Relief Act 1877, normally imputed a notice to the subsequent transferee of the prior contract of sale, it could not be said, unless the plaintiff admitted that the subsequent transferee had no notice, that the onus lay on the plaintiff to prove that the transfer in favour of the subsequent purchaser was without notice. This process would obviously negative the law which enjoined the subsequent purchaser to prove that he or she was a purchaser for value and with consideration and without notice.
31. Rather in the present case, the plaintiff in his deposition asserted that the defendant No. 2 had knowledge of the contract, Ext. 7 and the defendant No. 2 in his cross-examination failed to demolish the plaintiff's assertion. On the other hand, the defendant No. 2 i.e. subsequent purchaser failed to prove that he was a purchaser for value and without notice.
32. The plaintiff, in view of the evidence of P.Ws. 6 and 8, who were the witnesses on Ext. 7 and the evidence of the expert, P.W. 1 and his report, Ext. 3 in my opinion, succeeded in proving the genuineness and validity of the agreement for sale Ext. 7, executed by the defendant No. 1 in his favour and as such the finding of the trial Court that the genuineness of Ext. 7 was not proved by the plaintiff beyond doubt is set aside.
33. In my opinion, since the defendant No. 2 failed to prove that there was any agreement for sale on 15.2.1972 between him and the defendant No. 1 and that he was a bona fide purchaser without notice, his purchase can not override the previous, contract dated 5.5.1972 (Ext. 7) entered into by the defendant No. 1 with the plaintiff. It was for the defendant No. 2 to establish that he was a bona fide transferee without notice as he was claiming, validity of the subsequent purchase.
34. when the suit for specific performance was filed the right of possession was not vested in the plaintiff because such right would arise only on execution of the deed of conveyance. Moreover, the plaintiff may reasonably expect that on a decree for specific performance being passed, the defendant would execute the deed and deliver possession, so he not consider expedient to pray for possession in suit for specific performance.
35. However, in my view, the cause of action, namely, to obtain a sale deed and possession of the property purchased concerned both the vendor (the defendant No. 1) and the subsequent transferee (the defendant No. 2) and entitled the plaintiff to get relief against both.
36. In the facts and circumstances of the case, the plaintiff is entitled to obtain specific performance of contract against both the defendant Nos. 1 and 2 and both of them are directed to execute sale deed to the plaintiff and deliver possession of the suit property after getting the balance of consideration amount.
37. The plaintiff-appellant is, here fore, directed to pay the balance amount of consideration and the defendants-respondents are accordingly directed to execute sale deed in respect of the suit property in his favour and deliver possession thereof to him within two months, failing which the plaintiff-appellant shall deposit the balance amount of consideration to the tune of Rs. 2000/- to the credit of the heirs of the original deceased defendant No. 1 in the Court concerned and the sale deed in his favour shall be executed by the processes of the Court.
38. The impugned judgment and decree is, therefore, set aside and this appeal is allowed, but without costs.