Short Note : Brief facts leading to the present appeal are that the plaintiffs filed the present suit for specific performance of a contract against defendant No. I, Smt. Kouleshiya Bai with reference to the agreement for sale of the suit lands. 2. Defendant No.1 contested the suit denying the allegation of the plaintiffs and asserted that only four acres of land were settled to be alienated in favour of the plaintiffs and they were also put in possession of the same in pursuance of the agreement (Ex. P-1). She expressed her willingness to perform her part of the contract by executing the sale-deed for that much of land in favour of the plaintiffs. As regards defendants 2, 3 and 4, they also denied the plaint allegations. According to defendants 3 and 4 they claimed 'to be bona fide purchasers for value without notice of the agreement (Ex.P-I) between the plaintiffs and defendant No. 1. 3. The trial Court dismissed the suit of the plaintiffs on the ground that they failed to prove their agreement for the sale of 20.31 acres of land described in the plaint and it was void for uncertainty. It also held that defendants 2, 3 and 4 had no notice of the agreement (Ex. P-I) between the plaintiffs and defendant No. I and the sales in their favour by defendant No.1 were not affected by the said agreement. It accordingly declined the relief to the plaintiffs for specific performance of the contract. The appeal preferred by the plaintiffs was dismissed by the lower appellate Court who affirmed the judgment and decree of the trial Court. Hence this appeal by the plaintiffs. 3. Held: Having heard learned counsel of the parties, I am of opinion that there is no merit in this appeal and it must be dismissed. The only point that arose for consideration in the present appeal was whether the agreement (Ex. P-1) entered into between the plaintiffs and defendant No.1 related to sale of 20.31 acres of land or 4 acres of land as alleged by defendant No. 1. It is not in dispute that defendant No. 1 owned large extent of land and the plaintiffs are in possession of four acres of land belonging to her. It is also not in dispute that defendant No.1 had agreed to sell some land to the plaintiffs in pursuance of the agreement dated 14-7-1961 (Ex.
It is not in dispute that defendant No. 1 owned large extent of land and the plaintiffs are in possession of four acres of land belonging to her. It is also not in dispute that defendant No.1 had agreed to sell some land to the plaintiffs in pursuance of the agreement dated 14-7-1961 (Ex. P-I). But the details of the Khasra numbers and the area do not find mention in the agreement. Therefore, the matter rested on the oral evidence adduced by the parties to prove their respective assertions as to how much land was agreed to be alienated. According to the plaintiffs, the agreement was for 20.31 acres of land while according to defendant No. I the said agreement related to• the sale of four acres of land and the plaintiffs were also put in possession of that much area out of the lands owned by her. In these circumstances, I am not in •agreement with the view of the lower appellate Court that the agreement was void for uncertainty. It is well settled that If an agreement is silent with regard to the area of land to be alienated in pursuance thereof, the parties are entitled to lead oral evidence to prove the definite area of land intended to be conveyed through that agreement. Both the parties led evidence in support of their respective claims. But the lower appellate Court in its judgment has discussed the evidence of the parties for finding out the truth about the area of the land contracted to be sold in pursuance of the agreement. That Court held, on the basis of the evidence on record, that only four acres of land was agreed upon between the parties to be sold. On a perusal of the agreement (Ex. P-l). I find that the said agreement is undoubtedly silent about the measurement of the land agreed to be sold by defendant in favour of the plaintiffs. 4. As regards t he oral evidence of the parties, out of the plaintiffs only Sheikh Ahmad Hussain (plaintiff No.2) examined himself before the trial Court. A perusal of his testimony goes to show that it is wholly inconsistent with regard to the area of land agreed upon to be alienated in his favour vide agreement (Ex. P-l).
4. As regards t he oral evidence of the parties, out of the plaintiffs only Sheikh Ahmad Hussain (plaintiff No.2) examined himself before the trial Court. A perusal of his testimony goes to show that it is wholly inconsistent with regard to the area of land agreed upon to be alienated in his favour vide agreement (Ex. P-l). The lower appellate Court has discussed that aspect of his evidence in para 8 of its judgment and discarded the same. I am in full agreement with the reasoning advanced in that regard. There is no satisfactory explanation an the part of the plaintiffs as to why they only secured possession of four acres of land and not mare in pursuance of the agreement (Ex. P-1). That possession they had secured in the year 1961 and still continue to be in possession of the same. According to Sheikh Ahmad Hussain (plaintiff No. 2-P.W. 2) the price of 20.31 acres of land settled with defendant No. 1 was at Rs. 1000, which, in my Opinion, was a ridiculous price as the rate would then be Rs. 25 per acre. It is unthinkable that in the year 1961 the price of land would be that. Therefore, the sale consideration of Rs. 1,000 mentioned to the agreement (Ex. P-1) would never be for the sale of 20.31 acres of land. In this view of the matter, I am clearly of opinion that the plaintiffs have failed to prove that the agreement (Ex. P-l) related to sale of 20.31 acres of land. That being so, they could only be entitled to get the relief far specific performance of the contract relating to four acres of land only. Since they refused to accept that much of land for the agreed consideration, their suit was rightly dismissed by the Courts below. So far as the direction with regard of the refund of the earnest money given by the lower appellate Court, I am of opinion that that paint has to be left open to be settled between the parties in a suit if filed by defendant No. I far declaration and possession of four acres of land now in possession of the plaintiffs. Appeal dismissed.