Lal Miah (Hajee) Vs. Nurul Amin and others, 57 DLR (AD) (2005) 64

Case No: Civil Appeal No. 45 of 1998

Judge: Md. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Mr. Mahbubey Alam,A J Mohammad Ali,,

Citation: 57 DLR (AD) (2005) 64

Case Year: 2005

Appellant: Lal Miah (Hajee)

Respondent: Nurul Amin and others

Subject: Law of Evidence, Procedural Law,

Delivery Date: 2005-1-5

 
Supreme Court 
Appellate Division
(Civil) 
 
Present:
Md. Ruhul Amin J
Md. Tofazzul Islam J
Amirul Kabir Chowdhury J  
 
Lal Miah (Hajee)
…………..…..Appellant
Vs.
Nurul Amin and others
………….......Respondents  
 
Judgment
January 5, 2005. 
 
The Evidence Act, 1872 (I of 1872)
Section 120
Competency of a witness to prove facts in issue-
Facts which are within the knowledge of suitors if they did not depose in a case their case remains unestablished since any other person deposing on their behalf in respect of the said exclusively known matter as to which the suitors had only personal knowledge about the particular matter is not the competent witness about the said matter. …………….(19)
 
The Specific Relief Act, 1877 (I of 1877)
Section 27
In view of the provisions of section 27 as the defendant no. 2 had acquired title to the property regarding which defendant no. 1 earlier entered into an agreement for sale with the plaintiffs and as the defendant no. 2 failed to establish that he purchased the property in question in good faith without notice of the original contract there is no illegality in decreeing the suit and directing defendant no. 2 to execute and register the Kabala in favour of the plaintiffs ………………(24)
 
Cases referred to:  
Pandurang Jivaji Apte vs Ramchandra Gangadhar Ashtekar AIR 1981 SC 2235; Shahani Bibi being dead her heirs Mohammad Azim and others vs Nur Islam being dead his heirs Doly Islam and others 4 BLC 195; Musammat Lal Kunwar vs Chiranji Lal 37 Indian Appeals) and Sardar Gurbakhsh Singh vs Gurdial Singh and another AIR 1937 PC 230; Shankarlal Narayandas Mundade vs The New Mofussil Co. Ltd. and others AIR 1946 PC 97; Bhup Narain Singh vs Gokul Chand Mahton and others AIR 1934 PC 68. 
 
Lawyers Involved:
Mahbubey Alam, Senior Advocate, instructed by Md. Sajjadul Huq, Advocate‑on‑Record‑For the Appellant.
AJ Mohammad Ali, Senior Advocate, instructed by Mvi. Md. Wahidullah, Advocate‑on‑Record Md. Aftab Hossain, Advocate‑on Record for- Respondent Nos. 1‑ 7.
Not represented‑Respondent Nos. 8 and 9. 
 
Civil Appeal No. 45 of 1998.
(From the Judgment and decree dated August 21, 1996 passed by the High Court Division In First Appeal No. 82 of 1987). 
 
JUDGMENT
 
Md. Ruhul Amin J.
 
This is a defendant's appeal, defendant No. 2 by leave against' the judgment and decree dated August 21, 1996 of a Division Bench office High Court Division in First Appeal No. 82 of 1987 allowing the appeal upon reversing the judgment and decree dated February 25, 1987 of the Court of Subordinate" Judge (now Joint District Judge), Narayanganj passed in Title Suit No.72 of 1992 dismissing the same. The suit was filed for specific performance of the contract for sale of land for further relief by way of declaration that the sale deeds by the defendant No. 1 in favour of the defendant No. 2 are fraudulent, void, and collusive and not binding upon the plaintiffs. 
 
2. Plaintiff‑respondent Nos. 1 and 2 and the predecessor of the plaintiff‑respondent Nos. 3‑7 filed the suit stating, inter alia, that the defendant No. 1 (herein respondent No. 8) was the owner of the property described in schedules A, B, and C to the plaint, He entered into an agreement with the plaintiffs on January 22, 1981 to sell the said property for a total consideration of taka 1,00,000. In terms of the contract each of the purchasers has paid Taka 5,000 as earnest money and the defendant No 1 upon receiving the said earnest money executed bainapatra with the stipulation that, he would execute the deed of sale within 6 months from the date of agreement but the defendant No. 1 did not execute and register the kabala in spite of tender of the balance consideration money. The plaintiff subsequently, came to know that the defendant No. 1 had executed and registered two sale deeds dated September 3, 1981 and September 4, 1981 purporting to transfer the self‑same property in favour of the defendant No. 2 who had full knowledge of the agreement with the plaintiffs and that the transfer was collusively made beyond the knowledge of the plaintiffs. In the plaint it was further, stated that, Khurshed Ali Master, father of the 1st and 2nd plaintiffs was the monthly tenant under the defendant No. 1 in respect of two suit shop rooms of the eastern part of the tin shed and the third plaintiff was the tenant in respect of the other suit shop room on the western part. 
 
3. The defendant No. 1 contested the suit denying the contention of the plaintiffs as to execution of the bainapatra by him and alleging that he instituted SCC Suit No. 88 of 1980 for the ejectment of Khurshed Ali Master as he became defaulter in the payment of rents, that during the pendency of the SCC  suit there was a 'salish' in August, 1981 where Khurshed Ali Master agreed to enhance the rent, that one or two days thereafter Khurshed Ali came to him with one blank stamp and some blank cartridge papers and stated that his son previously purchased the stamp paper and in good faith he (defendant No. 1) put his signature in the blank papers for drawing up a monthly tenancy deed, that subsequently the compromise was not materialised and then he sold the suit property to the defendant No. 2 (appellant) and that the bainapatra was created by using the blank papers signed previously by him. 
 
4. The suit was also contested by the defendant No. 2 (appellant) by filing written statement similar to the written statement of defendant No. 1 and taking further plea that he was a bonafide purchaser for value without notice of the agreement for sale in respect of the disputed property. 
 
5. The trial Court dismissed the suit on the finding that from the consideration of the evidence on record it appears that there was a 'salish' while the SCC Suit No. 88 of 1980 was pending between the defendant No. 1 and Khurshed Ali Master, father of the plaintiff Nos. 1 and 2 and in the said 'salish' decision was made for payment of enhanced rent Taka 280 per month and also, for execution of tenancy agreement, that it further appears after the said compromise defendant No. 1 signed one blank stamp paper and some blank cartridge papers for the purpose of drawing up tenancy agreement and handed over the same to Khurshed Ali Master, that no explanation has been offered for not deposing in the case by any of the plaintiffs, that although it was the case of the plaintiffs that defendant No. 1 received from each of them Taka 5,000 and thereupon executed the bainapatra but none of the plaintiffs has deposed in support of their said case, that although plaintiffs, ‘‘karjakarak', PW 1, father of the plaintiff Nos. 1 and 2 deposed that at the time of bainapatra defendant No. 2 (appellant) was present but other PWs have not supported the PW 1 as regard that, that PW 1 stated that his son (plaintiff No. 2) was present in Court but in spite of that he has not deposed in the case and that PW 4 stated that plaintiff No. 3 is hale and hearty but he also did not depose in support of the case of the plaintiffs, that plaintiff No. 3 filed House Rent Control Case No. 151 of 1981 on 13‑10‑1981 and on that very day father of the plaintiff Nos. 1 and 2 filed House Rent Control Case No. 152 of 1981 and the plaintiff No. 2 on behalf of his son filed House Rent Control Case No. 150 of 1981 against the defendant No. 1 but in the plaint of the House Rent Control Cases there is no mention of bainapatra although the House Rent Control Cases were filed one month after the execution of the bainapatra, that there was no reason for non‑mentioning of the bainapatra in the plaint of the House Rent Control Case, that it is difficult to understand why the House Rent Control Cases were filed instead of taking steps for obtaining the kabala on payment of balance of the consideration money, that from the discussion of the evidence it appears plaintiffs failed to prove execution of the bainapatra by the defendant No. 1 on receiving earnest money out of the total consideration money, that defendant No. 2 purchased the land in suit from the defendant No. 1 for valuable consideration money and thereby has acquired right, title and interest in the land so purchased, that plaintiffs failed to prove their case.  
 
6. Thereupon, the plaintiffs went on appeal. The High Court Division set aside the judgment of the trial Court on the finding that trial Court was not correct in drawing adverse presumption for non­-deposing by the plaintiffs as the case of the plaintiffs was not such that for anyone of them not being in the witness box an adverse presumption as to the genuineness of the contract entered into by the defendant No.1 with the plaintiffs can be drawn, that the case of the plaintiffs being that PW 1 Khurshed Ali Master, father of the plaintiff Nos. 1 and 2, played a key role in the negotiation for the purchase of the suit property and, as such, for non-­deposing by anyone of the plaintiffs the trial Court was not well founded in drawing adverse presumption as to the genuineness of the contract for sale, that it being the case of the defendant No. 1 that agreement for enhancement of the rent that was arrived at during the pendency of the SCC Suit No. 88 of 1980 was not materialised but in spite of that allowing the said SCC Suit to be dismissed for default "leads to nothing except that the parties on or about 24‑11‑1981 compromised their dispute, but which is and for what reason we do not know", that discrepancy about the fifty taka note is a normal discrepancy obviously due to error of memory by lapse of three years, that it being in the deposition of the PW 1 that at the time of drafting the petition in the House Rent Control Case he told his lawyer about the bainapatra and, as such, in the background of the said statement of the PW 1 non‑mentioning of the bainapatra in the said petitions are not so weighty as against the probabilities of having an agreement for sale of the said property between the plaintiffs and the defendant No. 1, that "considering the evidence and the probabilities we now came to the conclusion that the execution of the bainapatra' and the payment of earnest money are the facts proved in this suit". The High Court Division on consideration of the evidence on record arrived at the finding that Lal Mia (defendant No. 2) is not a stranger to the parties, rather has intimacy with the parties and that in the background of the circumstances Lal Mia cannot be a purchaser without the knowledge of the bainapatra. 
 
7. Leave was granted to consider the contentions that the judgment of the High Court Division is not a proper judgment of reversal inasmuch as the facts, circumstances and evidence considered and relied upon by the trial Court have not been considered and its reasoning  have not been properly adverted to by the High Court Division in deciding the appeal before it and the High Court Division having relied upon certain extraneous facts and circumstances instead of considering relevant evidence on record on the question of defendant No. 2 being a bonafide purchaser of the suit property without notice of the plaintiffs' bainapatra its decision on the point cannot be legally sustained and, as such, the decree passed on appeal is liable to be set aside even if the first point as to genuineness of the bainapatra is held to sufficiently show that the bainapatra was not a have been correctly decided by it. 
 
8. The learned Counsel for the appellant submits that definite case of the defendant No. 1 was that there was a salish for the compromise of the ejectment suit filed against Khurshed Ali Master (PW 1) and therein it was decided that Khurshed Ali Master would pay rent at enhanced rate and an agreement of tenancy would be drawn up and pursuant to the decision in the 'salish' Khurshed Ali Master came to the defendant No. 1 with blank stamp paper and some cartridge papers for the purpose of drawing up of the tenancy agreement and the defendant No. 1 signed the blank stamp paper and the cartridge papers and the settlement arrived at the salish having not been materialised then he sold the land in suit to the defendant No.1 and that he asked Khurshed Ali Master to return the signed blank stamp paper and the cartridge papers but he did not return those papers. It may be mentioned DW 1 alone has deposed about his contention that he signed the blank stamp paper and some cartridge papers although he stated in his deposition that while he was signing the blank stamp paper and some cartridge papers one Latif was present there. From the side of the defendant No.1 no explanation has been offered why the said Latif was not examined. Thus the defendant's contention of signing blank stamp paper and some cartridge papers in connection with tenancy agreement remained uncorroborated. 
 
9. The learned Counsel for the appellant submits that facts like, first holding of salish in connection with the ejectment suit as deposed by the DWs 1, 3 and 4; second, absence of the fact like bainapatra in the petitions, filed by PW 1, upon which as many as three House Rent Control Cases were registered; third, non‑examination of any of the plaintiffs in support of the case of entering into an agreement by the defendant No.1 with the plaintiffs for selling the property in suit and lastly, had there been an agreement for sale between the plaintiffs and the defendant No.1 there was no necessity of filing House Rent Control Cases and to proceed with the ejectment suit filed against Khurshed Ali Master (PW 1) by the defendant No.1 genuine one. 
 
10. It has already been mentioned that signing of blank stamp papers by the defendant No. 1 to materialise the decision said to have been made in the salish held to settle the ejectment suit filed by the defendant No. 1 against Khurshed Ali Master has not been established by any independent witness. PWs 3 and 4 although deposed about holding of a salish for the settlement of the eviction suit and arriving at a settlement in the salish but DW 1 is silent about the presence of the said two PWs in the salish. Had PWs 3 and 4 been present in the salish as said to have been taken place in connection with the ejectment suit filed by the defendant No.1 against Khurshed Ali Master, father of the plaintiff Nos. 1 and 2, that would have certainly been mentioned by DW 1 in his deposition. In the aforestate of the matter it is difficult to hold‑the defendant No. 1's contention that there was a Salish to arrive at a settlement as to the eviction suit filed by him to have been proved. The other contention that had there been an agreement for sale between the defendant No.1 and the plaintiffs that would have found place in the petitions upon which as many as three House Rent Control Cases were registered also appears to be not merited one since it is seen from the evidence of PW 1 that at the time of drafting the petitions for filing before the House Rent Controller the said fact was stated to the learned Advocate. The High Court Division upon consideration of the evidence of PW 1 has in our view correctly held that the fact of non‑mentioning of the agreement for sale "in the said petitions are not so weighty" a matter to consider the bainapatra as not genuine. The contention that had there been a bainapatra there was no necessity for filing the House Rent Control Cases and to proceed with the eviction suit also appears to be not well founded since title did not vest in the plaintiffs on the basis of bainapatra and consequently, they remained tenant of the defendant No.1 and, as such, to protect the tenancy filing of House Rent Control Case and of taking step in the eviction suit was quite necessary as well as was a compelling matter and for the same it can in no way be said that the bainapatra was not genuine. In our opinion, non mentioning about the bainapatra in the petitions filed before the House Rent Controller did in no way establish non‑genuineness of the bainapatra since in the House Rent Control cases bainapatra was not at all a relevant fact and in no way being the subject‑matter of the House Rent Control Cases, as such, it was not necessary to make statement about the bainapatra in the petitions filed before the House Rent Controller and upon which the House Rent Control cases were registered. 
 
11. The learned Counsel for the appellant upon referring to the provision of section 120 of the Evidence Act has submitted that PW 1 was not the competent witness to depose about the agreement for sale which was entered into between the plaintiffs and the defendant No.1 and as such, plaintiffs' case as to entering into an agreement by the defendant No. 1 with them for selling the property in suit as remained un‑established the High Court Division was in error in not leaving the evidence of PW 1 out of consideration and thereupon in dismissing the suit. The contention made as noted hereinbefore upon placing reliance on the provision of section 120 of the Evidence Act is not well founded since the law as to competency of a person to depose on behalf of the parties in the suit is otherwise. At one point of time parties to a civil proceeding were deemed to be incompetent to testify and the said rule was founded solely on the interest which the parties to the suit were supposed to have. This disability to testify by the parties to the suit was, however, gradually removed by the legislature and the provisions of section 120 of the Evidence Act declare that the parties to the suit and their husbands or wives are competent witnesses in all civil proceedings and that in criminal proceeding against any person the husband and wife of such person is a competent witness whether for or against. So, it is seen from the provisions of section 120 of the Evidence Act that disability of the parties as well as their husbands and wives to testify in the suit and criminal proceeding has been removed or, in other words, they have been made competent witness. The competency of a person to be a, witness in a case to depose about the fact of the case is, dealt with in section 118 of the Evidence Act. Admittedly PW 1 did not suffer from any disability as in section 118 of the Evidence Act and, as such, PW 1 was a competent witness to depose before the Court. 
 
12. Now, the question, are the facts of the case of the plaintiffs of such nature that the same were within the exclusive knowledge of the plaintiffs. From the pleading of the plaintiffs it is seen that the contract between the plaintiffs and the defendant No. 1 was entered into in presence of the defendant No. 2 and others and that defendant No. 2 was a mediator in the finalisation of the contract for sale. PW 1 has deposed that defendant No. 2 played role of mediator in fixing the value of the land in suit. This witness has also stated the names of the persons who were present at the time of execution of the bainapatra between the plaintiffs and the defendant No. 1. Of the persons named by the PW 1, PWs 2 and 3 were amongst them. The plaintiffs have tried to establish, their case through the evidence of PWs 1‑4. PW 1 was material person in the materialization of the contract for the sale of the land in suit and his active participation in the materialization of sale is quite natural and probable as plaintiff Nos. 1 and 2 are his sons. PW 1's knowledge about the contract in the background of the facts of the case is natural and probable and, as such, he was competent to depose about the facts of the case and materialization of the contract for sale and execution of agreement by defendant No. 1. In the facts and circumstances of the case it is natural for PW 1 to be conversant with the facts leading to entering into the contract for the sale of the property in question with the plaintiffs by the defendant No. 1 upon execution of bainapatra. PW 2 is the scribe of the bainapatra and PWs. 3 and 4 are the attesting witnesses of the bainapatra. The evidence of those 3 witnesses has established the fact of execution of the bainapatra by the defendant No. 1, and the genuineness of the bainapatra. 
 
13. The adverse presumption in the background of illustration (g) of section 114 of the Evidence Act can be drawn against the party or the parties in the suit if he or they do not depose about a fact when he or they personally know the whole circumstances of the case is not deposing in the case or that in a situation when particular thing being exclusively known to or within the knowledge of a party he ought to, have appeared before the Court to explain the same or a party who had personal knowledge of the case, then there was necessity to go into the witness box to depose about the fact which was within the exclusive knowledge or matters about which suitor(s) alone has actual knowledge and he alone is competent to state about the matter at the relevant time or that the suitor(s) who is a material witness as regard particular matter then if does not give evidence or a party whose evidence is material does not go into witness box the Court in such a situation can draw up an adverse presumption against such person(s) or suitor(s). 
 
14. In the case of Pandurang Jivaji Apte vs. Ramchandra Gangadhar Ashtekar reported in AIR 1981 SC 2235 it has been observed that the question of drawing an adverse inference against a party by his failure to appear in Court would arise only when there is no evidence on record. It has further been observed in the very same case that the question of drawing up adverse inference against a suitor. On account of his absence in the Court would arise, only when there is no other evidence on record on the point in issue. 
 
15. In the instant case, the facts were not of such category that plaintiffs were the necessary and essential witness since they knew the whole circumstances of the case nor the facts of the case were such that plaintiffs were the material witness to prove the said facts and, as such, they should have given evidence in the case and not the PW 1 to depose about the fact of the case. In that state of the matter, the contention of the learned Counsel for the appellant that PW 1 was not a competent witness to depose about the case of the plaintiffs is not well founded. 
 
16. Learned Counsel for the appellant submits that PW 1, father of the plaintiff Nos. 1 and 2, was not a competent witness to depose about the agreement for sale as claimed to have been entered into between the plaintiffs and the defendant No. 1 and consequently  his evidence being not the evidence of a competent witness the case of the plaintiff was not established and in support thereof the learned Counsel, has placed reliance upon the decision in the case of Shahani Bibi being dead her heirs Mohammad Azim and others vs. Nur Islam being dead his heirs Doly Islam and others reported in 4 BLC 195 wherein it has been observed "section 120 under Chapter IX of the Evidence Act enjoins that in all Civil Proceedings, the parties to the suit, and the husband or wife to the suit, shall be competent witnesses. The Golden Maxim of "Husband and Wife" who are spouses has been enshrined in this section. There is no provision in Chapter IX wherein the son has been authorised to give testimony in favour of his mother". In the aforementioned case, plaintiff did not depose in support of the plaint case and on her behalf PW 1, son of plaintiff, deposed in support of the plaint case. 
 
17. With all due respect to the learned Judges, we are of the opinion that the view expressed by the learned Judges that provision of chapter IX of the Evidence Act does not authorise the son or, in other words, somebody else on behalf of the plaintiff to give testimony in support of the plaintiffs case is too general in nature and in the facts of the reported case was also not correct. As already stated hereinabove that provision of section 120 of the Evidence Act has removed the disability of the parties to the suit and the husband or wife of any party to the suit to testify in all civil proceedings and that in criminal proceeding against any person the husband or wife of such person shall be a competent witness. 
 
18. There is nothing in the said section that in civil proceeding the parties thereto shall have to come in the witness box to establish their respective case and that testimony of a witness examined on behalf of the parties to prove their respective case would not be the testimony of the competent witness. There may be special category of case where parties to the suit are material witness or that parties to the suit alone know certain circumstances of the case or that certain matter in the suit is exclusively known to or within the knowledge of the parties to the suit and that the said fact or matter could only be explained by the parties to the suit or that the matter about which parties to the suit alone have actual knowledge or that the parties to the suit are the material witnesses as regard the particular matter and that, as such, party or parties because of the personal knowledge of the matter would have been the material witness then only it can be said that parties to the suit ought to have been in the witness box and that if some other else comes in the witness box to depose about the fact or matter which exclusively and only is within the knowledge or entirely known to the suitors then the evidence of such witness is no evidence to substantiate the case of the parties to the suit or, in other words, the evidence of such witness does not establish or prove the case of the parties to the suit. 
 
19. In the background of the existence or presence of factor(s) as stated hereinbefore it has been observed in the case of Kishori Lal vs Chunni Lal reported in 36 Indian Appeals 9, Musammat Lal Kunwar vs Chiranji Lal reported in 37 Indian Appeals and Sardar Gurbakhsh Singh vs Gurdial Singh and another reported in AIR 1937 PC 230 it has been observed that facts which are specially or exclusively within the knowledge of the suitors if they did not depose in a case their case remains unestablished since any other person deposed on their behalf in respect of the said exclusively known about the matter as to which suitors had only the personal knowledge about the particular matter is not the witness or a competent witness about the said matter. 
 
20. Now there remains the case of the respondent No. 2 who purchased the property in suit subsequent to the agreement entered into by the defendant No. 1 with the plaintiffs to sell the property in suit. The defendant No. 2 has figured as DW 2. His case in the Court was that before purchasing the property he talked to plaintiff No. 2 and he advised him to purchase the property and that he had no knowledge that defendant No. 1 entered into an agreement for sale of the property to the plaintiffs previously and that he has purchased the property for valuable consideration in good faith and without notice of the agreement for sale. This defendant has not examined any other witness to corroborate him. 
 
21. It was the case of the plaintiffs that agreement for sale between them and the defendant No. 1 was entered into at the mediation of the defendant No. 2 and PW 1 has deposed that defendant No. 2 played role of mediator for fixing the value of the land in suit. It is seen from the materials on record that PW 1, father of the plaintiff Nos. 1 and 2, and the DW 2 (defendant No. 2) are close to each other and from the evidence of DW 2 it appears that he is considered by the PW 1 a reliable and dependable person in the management of different matters of the PW 1. It is the definite case of the plaintiffs that defendant No. 2 purchased the property in suit with the full knowledge of the agreement for sale of the property in question entered into by defendant No. 1 with the plaintiffs. The learned Advocate for the appellant has submitted that evidence of PW 1 as to that DW 2 played the role of mediator for fixing the value of the suit land is not corroborated by any other independent witness. It has also been submitted by the learned Counsel that PW 1 has not stated that at the time of execution of bainapatra defendant No. 2 was present and, as such, the contention of the plaintiffs that defendant No. 2 purchased the land in suit with the knowledge of the agreement for sale of the property in suit between the plaintiffs and the defendant No. 1 remained un‑established. In the background of the aforesaid contention of the learned Counsel of the appellant suffice it to say that the learned Counsel could not point out any infirmity of the kind in the evidence of PW 1 to consider him unreliable witness about the matters deposed by him. 
 
22. The High Court Division on consideration of the evidence on record held that defendant No. 2 was not a stranger to the plaintiffs and to the PW 1, father of the plaintiff Nos. 1 and 2, rather he had intimacy with the parties and thereupon held that defendant No. 2 "cannot be a purchaser without the knowledge of the bainapatra". The aforesaid finding of the High Court Division in the background of the materials on record is quite sustainable. 
 
23. The learned Counsel for the plaintiff-­respondents submits that as the plaintiffs have proved the agreement for sale by the evidence of PWs 2‑4 and as has also established the fact that defendant No. 2 had the knowledge of the agreement for sale between the plaintiffs and the defendant No. 1 and as the defendant No. 2 has not discharged the onus that was upon him i.e. has not established that he had no knowledge about the contract for sale between the plaintiffs and the defendant No.1, the High Court Division has committed no error in decreeing the suit of the plaintiffs. The learned Counsel has further submitted that law enjoins upon the defendant No. 2 since he acquired title subsequent to the contract between the plaintiffs and the defendant No. 1 to establish his good faith and lack of notice of the contract. In support of the aforesaid submission the learned Counsel has referred to the case of Shankarlal Narayandas Mundade vs. The New Mofussil Co. Ltd. and others reported in AIR 1946 PC 97, and the case of Bhup Narain Singh vs. Gokul Chand Mahton and others reported in AIR 1934 PC 68. In the aforesaid cases it has been held that "the burden of proving good faith and lack of notice lay upon the defendants". 
 
24. The learned Counsel for the appellant lastly, has submitted that the High Court was in error in passing the decree against the defendant No. 2 and making direction to the defendant No. 2 to register the sale deed in favour of the plaintiffs. The submissions so made is not sustainable in law since clause (b) of section 27 of the Specific Relief Act clearly provides that specific performance of a contract may be enforced against "any other person 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". The expression "under him" is referable to clause (a) of section 27 i.e. either party to the contract. In view of the aforesaid provision of law as the defendant No. 2 had acquired title to the property as regard which defendant No. 1 earlier entered into an agreement  for sale with the plaintiffs and as we have already held that defendant No. 2 failed to establish that he has purchased the property in question in good faith without notice of the original contract, the High Court Division was quite correct in decreeing the suit against the defendants and in making direction to the defendant No. 2 to execute and register theKabala in favour of the plaintiffs. 
 
25. In the background of the discussions made hereinabove the appeal is dismissed with the modification of the judgment of the High Court Division judgment to the extent that plaintiffs shall pay an amount of Taka 2, 00,000, to the defendant No. 2 besides the earnest money of Taka 15,000 paid to the defendant No. 1. The other part of the ordering portion of the judgment of the High Court Division is maintained.
 
There is no order as to cost.
 
Ed.