1. The facts of the case, according to the judgments of the Courts below, seem to be that in December the defendant No. 2 agreed to sell the property in gait to the defendant No. 1 and pat him in possession of it. He did not, however, sell the property to him. Two months later, he executed a conveyance in favour of the plaintiff, the plaintiff at that time being well aware of the contract with the defendant No. 1. The plaintiff sued for recovery of possession and the learned Subordinate Judge found that the plaintiff's conveyance was not a valid document and that the plaintiff had not acquired any valid right to the property on the strength of it.
2. I find it very difficult to understand precisely what the learned Subordinate Judge thought that the nature of the transaction in favour of the plaintiff really was. He apparently accepted the fact that the sum of Rs. 75 was paid by the plaintiff to the defendant No. 2, but he said this was not the consideration-money for the documents but more in the nature of the price paid for purchasing over the defendant No. 2 to his side.' I find it difficult to understand what practical difference there is between these two suppositions. It is true that the learned Subordinate Judge said that, considering everything, he was of opinion that there was no valid consideration for the conveyance. If he really meant that, as a matter of fact, the, defendant No. 2 never intended to sell the property to the plaintiff at all but that the intention of the parties was that the defendant No. 2 should remain the owner himself and that these documents should be executed for no consideration in order that defendant No. 1 might be ousted, that, of course, would be a finding of fact which would be binding on me under the decision in Durga Chowdhrani v. Jawahir Singh 18 C. 23 : 17 I.A. 122 I find it, however, difficult to believe that this is what the learned Subordinate Judge intended. I cannot understand why he should have thought that the plaintiff would pay the defendant No. 2 Rs. 75 to bring him over to his side in order to secure the dispossession of the defendant No. 1 if the plaintiff bad no intention of purchasing the property himself; nor can 1 understand why the defendant No. 2 should engage in this roundabout conspiracy if it was the intention of the parties that he should remain the owner of the property. I am more inclined to think that what the learned Subordinate Judge meant was that the plaintiff, although he did intend to purchase the property, yet was not entitled to succeed because he knowingly and wilfully assisted the second defendant in his dishonesty towards the first defendant. If that be the view of the learned Subordinate Judge, it cannot be sustained. If the property, as a matter of fact, belonged to the defendant No. 2 at the time of the plaintiff's purchase, the fact that the plaintiff was aware of the contract with the defendant No. 1 and knew that he was being badly treated would not debar him from purchasing the property.
3. I may add that the genuineness of the plaintiff's purchase was not seriously contested in the Munsif's Court.
4. Of course, if the learned Subordinate Judge believes that there was no sale to the plaintiff at all, that the parties intended that the title of the defendant No. 2 should continue and no interest should pass to the plaintiff, then in that case his decision would have to be supported; but if he believes that part of the purchase-money was paid and that the purchase, although a dishonest one, was a real purchase, it would not be open to the defendant to say that the consideration had not been paid in full vide Achal Ram v. Kazim Hussain Khan 27 A. 271 : 9 C.W.N. 477 : 8 O.C. 155 : 15 M.L.J. 197.
5. The second point taken is, that the plaintiff was entitled to a lease of the land which was granted to him by the defendant No. 2. It is clear, however, that both the Courts below accepted the admission of the defendant No. 2, which was to the effect that he was the owner in shebait right of the debutter land and so held that a permanent lease could not be granted. It has been' argued, however, that the plaintiff is entitled to a lease during the continuance of the second defendant's interest and reliance has been placed on the case of Arruth Misser v. Juggurnath 18 W.R. 439 which has been followed in Hum Chandra Skankarbava Bravid v. Kashi Nath Narayan Dravid 19 B. 271. This contention seems to be supported by authority and must be upheld.
6. I think, therefore, that the proper order to pass in this appeal is that the case shall go back to the learned Subordinate Judge for a distinct finding whether, in his opinion, it was the intention of the parties, at the time of the alleged sale to the plaintiff, that no sale should really take place, that the house should continue to belong to the defendant No. 2 and that the plaintiff should have no rights in it. If that was the intention then the plaintiff's suit must be dismissed. If, on the other hand, he finds that it was the intention of the second defendant and the plaintiff that the house should be sold to the plaintiff, even though the sale injured the first defendant to the knowledge of the plaintiff, then the plaintiff will be entitled to a decree.
7. As regards the lease, the plaintiff will be entitled to a decree for a lease during the subsistence of the second defendant's interest.
8. Costs will abide the result.