Regular Second Appeal No. 3721 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 3721 of 2009 Date of decision : June 30, 2010 Prithvi Singh ....Appellant versus Sheotaj Singh and another ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. ND Achint, Advocate, for the appellant L.N. Mittal, J. (Oral) This is second appeal by Prithvi Singh plaintiff whose prayer for specific performance of the agreement to sell has been declined by the courts below but the suit has been decreed for alternative relief of recovery of earnest money of Rs 2 lacs along with compensation of Rs 2 lacs. Plaintiff alleged that defendant no. 1 vide agreement dated 3.3.1998 agreed to sell the suit land measuring 27 kanals 9 marlas to the plaintiff for Rs 3,43,125/- at the rate of Rs 1 lac per acre and received Rs 2 lacs as earnest money. Plaintiff always remained ready and willing to perform his part of the contract but defendant no. 1 committed breach thereof. The plaintiff also learnt from the written statement filed by defendant no. 1 that he had sold the suit land to defendant no. 2 vide Regular Second Appeal No. 3721 of 2009 -2- registered sale deed dated 19.6.1998. The plaintiff, therefore, also challenged the said sale deed claiming it to be sham transaction without consideration. Defendant no. 1 in his written statement admitted execution of agreement dated 3.3.1998 in favour of the plaintiff but pleaded that the plaintiff did not have sufficient money to pay the balance sale price to defendant no. 1. It was also pleaded that defendant no. 1 was in dire need of money for operation of his wife and therefore, defendant no. 1 sold the suit land to defendant no. 2 vide sale deed dated 19.6.1998. Defendant no. 2 controverted the plaint allegations and denied execution of agreement dated 3.3.1998 by defendant no. 1 in favour of plaintiff. It was pleaded that the said agreement has been fabricated as a result of collusion between the plaintiff and defendant no. 1 because defendant no. 1 is maternal uncle of the plaintiff. It was pleaded that defendant no. 2 has purchased the suit land for valuable consideration without notice of the alleged agreement. Learned Civil Judge (Junior Division), Rewari vide judgment and decree dated 23.8.2006 held defendant no. 2 to be bonafide purchaser of the suit land for valuable consideration and therefore, the plaintiff was held not entitled to specific performance of the agreement to sell dated 3.3.1998 which was, however, held to have been executed by defendant no. 1 in favour of plaintiff. Accordingly, the trial court decreed the suit for alternative relief of refund of Rs 2 lacs paid as earnest money and also for recovery of Rs 2 lacs as compensation against defendant no. 1. First appeal preferred by the plaintiff has been dismissed by learned Additional Regular Second Appeal No. 3721 of 2009 -3- District Judge, Rewari vide judgment and decree dated 28.7.2008. Feeling aggrieved, the plaintiff has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant contended that the agreement to sell having been proved in favour of the plaintiff, the relief of specific performance should have been granted. The contention cannot be accepted. There is sufficient evidence led by defendant no. 2 to prove that he is bonafide purchaser of the suit land for valuable consideration without notice of the alleged agreement to sell in favour of the plaintiff. There is concurrent finding by both the courts below to this effect. The said finding is based on proper appreciation of evidence and is not shown to be perverse or illegal so as to warrant interference in second appeal. On the other hand, even the plaintiff himself did not depose that defendant no. 2 was not bonafide purchaser of the suit land. There is also no evidence to depict that defendant no. 2 had knowledge or notice of the alleged agreement to sell dated 3.3.1998 in favour of the plaintiff. In addition thereto, defendant no. 1 is maternal uncle of the plaintiff and therefore collusion between them to harm the interest of defendant no. 2 who purchased the suit land for valuable consideration from defendant no. 1 cannot be reasonably ruled out. For the reasons recorded herein above, I find no infirmity much less illegality or perversity in the concurrent finding recorded by both the courts below against the plaintiff-appellant so as to warrant interference in second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. It is pure finding of Regular Second Appeal No. 3721 of 2009 -4- fact that defendant no. 2 is bonafide purchaser of the suit land for valuable consideration without notice of alleged agreement to sell dated 3.3.1998. The said finding of fact cannot be assailed in second appeal. The instant appeal is, thus, found to be bereft of any merit and is accordingly dismissed in limine. ( L.N. Mittal ) June 30, 2010 Judge 'dalbir'