Rajnish Kumar S/o Late Bachchu Prasad vs Sona Devi W/o Damodar Prasad

The petitioner has filed this application for setting aside

the order dated 18.04.2013 passed by the Sub-Judge-I, Biharsharif,

Nalanda in Title Suit No. 278 of 2011 whereby and whereunder the

Court below rejected the petition filed under Order 1 Rule 10 and

Section 151 of Code of Civil Procedure.

The plaintiffs filed a Title Suit No. 278 of 2011 before

the Court below for passing a decree for specific performance of

contract on the basis of deed of agreement dated 05.07.2011. The

defendant executed the aforesaid deed of agreement agreeing therein

to execute the sale deed with respect to 6 katha, 6 dhur and 6 dhurki

land of plot no.2524 of khata no. 139 at the rate of Rs. 1,60,000/- per

katha. The defendant no. 1 received an amount of Rs.73,100/- as

earnest money and agreed to execute the sale deed on payment of

balance of consideration amount. The defendant did not execute the

sale deed and so after giving legal notice on 05.08.2011 and

15.10.2011, the plaintiff filed the suit for specific performance of

contract. The defendant during the pendency of the suit, transferred 3

katha land to Deo Nandan Yadav and so the plaintiff filed a petition

on 23.01.2013 under Order 1 Rule 10 of Code of Civil Procedure for

impleading the purchaser as defendant no. 2 to the suit in view of

provisions of section 19 (b) of the Specific Relief Act which after

hearing was rejected. The plaintiff filed a petition to review the said

order which was also rejected.

The contention of the learned counsel for the

petitioner is that the defendant malafide in order to frustrate the

contract, has executed the sale deed in favour of Deo Nandan Yadav.

The said document is collusive and not binding on the plaintiffs and

so the alleged transferee is necessary party to the said suit.

The learned counsel for the respondents on the other

hand, submitted that the said agreement deed is forged and fabricated

and the plaintiff has not acquired any right or title and so the

defendant in order to meet her necessity executed the sale deed in

favour of Deo Nandan Yadav.

Having heard the learned counsels for both sides, I

find that it is admitted fact that the defendant no. 1 executed the sale

deed in favour of Deo Nandan Yadav during the pendency of the suit.

The provisions of section 19 (b) of Specific Relief Act is explicit.

According to section 19 (a) of the Act, the contract may be enforced

against any person claiming under him by a title arising subsequently

to the contract except the transferee for valid who has paid his money

in good faith and without notice of the original contract. In the event

the plaintiff succeeds in proving his case, he will have to face another

lis against the purchaser.

The plaintiff asserts that the subsequent purchaser has

purchased the property having full knowledge of his contract and so

one of the most important issues for adjudication arises for

consideration is as to whether the subsequent transfer is in good faith

bonafide and without any notice of plaintiff''s contract.

In view of above facts, I find that the transferee from

the defendant is a necessary party and the plaintiff has legal right to

seek relief against him also by impleading him as party to the suit. As

such the impugned order is set aside and this application is allowed.

The transferee from defendant is ordered to be impleaded as defendant

2nd party to the suit.