1. This appeal has arisen in connexion with a suit for specific performance of a contract. Defendant 1, who is the appellant, executed Ex. 2 in favour of the plaintiff by which he contracted to sell a certain plot of land. Rs. 49 was paid by the plaintiff as earnest money, the price being fixed at Rs. 900. This was on the 27th Agrahayan 1341; two days later, the appellant sold part of the plot to defendant 2 for Rs. 600. Both the Courts below found that defendant 2 was a bona fide purchaser for value without notice of the contract between defendant 1 and the plaintiff. The Munsif gave the plaintiff a decree for a refund of the earnest money which he had paid. On appeal by the plaintiff, the Subordinate Judge passed a decree directing defendant 1 to convey the remainder of the property to the plaintiff for Rs. 450 minus Rs. 49 which had already been paid as earnest money. Defendant 1 has now appealed to this Court on the ground that Section 16, Specific Relief Act has no application to the facts of the case.
2. There is nothing in the contract, Ex. 2, to suggest that part of it stands on a separate and independent footing from another part. It is merely an agreement to sell a plot of land for a certain sum of money. There is no more reason for regarding that contract as two separate contracts to sell two portions of the plot than there is for regarding it as a hundred separate contracts each for selling a hundredth part of the plot. That being the case, it is very difficult to see how Section 16, Specific Belief Act, can have any application. It was however argued on behalf of the respondent that the effect of the sale of a part of the plot to defendant 2 is to make the original contract into two separate divisible contracts. I have already stated that in my opinion this is unsound, because there is nothing to support it in the original contract itself. But supposing this contention were accepted, the very difficulty that was pointed out by their Lordships of the Judicial Committee in Graham v. Krishna Chunder Dey , would arise. The agreement made by the appellant was that the whole plot of land would be sold for Rs. 900. There is absolutely no evidence to support a finding that the portion sold to defendant 2 and balance are of equal value. Indeed the reluctance of the appellant to accept the decree made in the lower Court strongly suggests that they are not. In that view of the case it is quite impossible to support the decree for specific performance of a part only of the contract.
3. Finally, no such case as this was ever made by the plaintiff at the trial. He instituted a perfectly straightforward case against both the defendants and he asked that the whole plot should be transferred to him for Rs. 900 in terms of the original contract. He never said that the balance which is now available is worth Rs. 450 in terms of the contract. That being the case, there are really no materials on which the learned Subordinate Judge could pass this decree Accordingly, this appeal must be allowed, the decree of the lower Appellate Court set aside and that of the Munsif restored. In view of the conduct of the appellant, he will have no costs either here or in the Court below.