RSA No.1597 of 1983 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.1597 of 1983 Date of Decision: 10.12.2008 Bant Singh and others .....Appellants Vs. Ishar Singh and another ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. N.S. Pawar, Advocate for the appellants. Mr. Gur Rattan Pal Singh, Advocate for the respondents. .... RAJIVE BHALLA, J (Oral) The appellants lay challenge to a judgement and decree dated 31.1.1983, passed by the Additional District Judge, Ludhiana accepting the appeal filed by respondent no.1 and as a result, reversing the judgement and decree passed by the trial Court and decreeing the suit for specific performance filed by respondent no.1. Respondent no.1 filed a suit for possession by way of specific performance of agreement to sell dated 6.9.1976 executed by Nirmal Singh for a consideration of Rs.15000/- on the allegation that on the date stipulated in the agreement i.e. 15.5.1977, Nirmal Singh failed to come forward to execute the sale deed and instead executed two sale deeds dated 29.12.1976 and 21.1.1977, in favour of the appellants. In the alternative, it was prayed that a decree for recovery of Rs.9408/- i.e. the amount of earnest money alongwith liquidated damages be decreed alongwith interest @ 12% p.a. Nirmal Singh, respondent no.2 filed a written statement RSA No.1597 of 1983 2 admitting the execution of the agreement to sell, but contended that as the sale consideration was settled for a sum of Rs.18,000/- instead of Rs.15,000/-, mentioned in the agreement, he was not obliged to execute the sale deed. The appellants herein, who are vendees from Nirmal Singh, filed a written statement denying any knowledge of the agreement to sell and asserted that they are bonafide purchasers, without notice of the prior agreement to sell. On the basis of the pleadings, the learned trial Court framed the following issues :- “1.What was the sale price settled vide agreement of sale dated 6.9.1976 ? OPP. 2. Whether the plaintiff was always ready and willing to perform his part of the contract of sale ? OPP 3. Whether the plaintiff is entitled to the possession of suit land by way of specific performance of the contract of sale ? OPP 4. If the plaintiff is not found entitled to possession, to what amount the plaintiff is entitled to recover from defendant No.1 ? OPP. 5. Whether the plaintiff is entitled to recover interest ? If so, at what rate ? OPP. 6. Whether defendants No.2 to 4 are bonafide purchasers for consideration without notice of title (sic) of the plaintiff ? OPD (Defts.No.2 to 4)” 7. Relief.” The trial Court, after considering the case in its entirety declined the prayer for specific performance but decreed the alternative RSA No.1597 of 1983 3 prayer for damages. It, however, returned a specific finding that the appellants had failed to establish their submission that they were bonafide purchasers without prior notice of the agreement to sell. Aggrieved by the aforementioned judgement and decree, respondent no.1 filed an appeal. The District Judge, Ludhiana, accepted the appeal, set aside the judgement and decree passed by the trial Court and decreed the suit for specific performance. While doing so, the District Judge affirmed the finding that the appellants have failed to prove that they are bonafide purchasers, without notice of the prior agreement to sell. Counsel for the appellants i.e. vendees from Nirmal Singh submits that there is no evidence whether oral or documentary, on record that the appellants were ever informed by Nirmal Singh or by respondent no.1 of the prior agreement to sell dated 6.9.1976. The appellants believed the bonafides of the offer for sale, made by Nirmal Singh, paid valuable consideration and purchased the suit land by way of registered sale deeds. Their uncontroverted depositions have been rejected without assigning any cogent or valid reasons. It is, therefore, prayed that the judgements and decrees passed by the Courts below be set aside. Counsel for the respondent no.1, however, submits that both the trial Court and the first appellate Court have concurrently held that the appellants have failed to establish that they are bonafide purchasers, without notice of the prior agreement to sell. It is, therefore, submitted that pure findings of fact, duly supported by clear and cogent evidence on record cannot be set aside in second appeal, the appeal be dismissed. It is further submitted that Darshan Singh, PW-5, an attesting witness to the sale deeds executed in favour of the appellants, has deposed that he informed the RSA No.1597 of 1983 4 appellants of the execution of the prior agreement to sell. It is, therefore, submitted that as the appellants had prior knowledge of the agreement to sell, the findings returned by the Courts below be affirmed. I have heard learned counsel for the parties and perused the impugned judgements. The concurrent findings recorded by the Courts below that the appellants have failed to establish that they are bonafide purchasers without prior notice of the agreement to sell, do not suffer from any error of fact or of law, as would require interference. The onus to establish that they are bonafide purchasers without notice of the prior agreement lies upon the appellants. Section 19(b) of the Specific Relief Act, 1963 reads as follows :- “19. Relief against parties and persons claiming under them by subsequent title – Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against - (a) XXX XXX XXX (b) 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 onus, therefore, to establish the ingredients set out in Section 19(b) of the Act, lies upon the person who asserts that he is a bonafide purchaser. It would, therefore, be necessary to examine whether the Courts below committed any error of law while holding that the appellants have failed to establish that they are bonafide purchasers without RSA No.1597 of 1983 5 notice of the prior agreement to sell. As noticed herein above, both the trial Court, as also the first appellate Court have recorded concurrent opinions that the appellants have failed to prove that they are bonafide purchasers without notice of the prior agreement to sell. The Courts below have disbelieved the appellants as Darshan Singh PW-5 an attesting witness to their sale deed, has deposed that the appellants were informed of the execution of the agreement. The Courts below also noticed that the appellants did not produce Surjeet Singh, who represented them during the execution of the sale deed, but instead produced Harbans Singh, who was not even aware of the manner of payment of the consideration amount. It was also noticed by the trial Court that there was a mad race between Baldev Singh and the appellants to purchase the land. In order to place the conclusions recorded by the Courts below, in their correct perspective, it would be appropriate to reproduce relevant extracts from the judgement. While considering the plea of bonafide purchaser, the learned trial Court held as follows :- “Harbans Singh DW-4 emphatically denied about any one having informed him about the existence of the agreement of sale entered into between the vendor and Ishar Singh plaintiff. After stating about the pressing necessity for the execution of the sale deeds which Nirmal Singh vendor faced, he again stated that the factum of the execution of the agreement of sale was not brought to their notice by any one. Here it may be added that in this suit there appears to be a mad race between Baldev Singh PW3 and his brother Nirmal Singh PW4 RSA No.1597 of 1983 6 the special attorney of the plaintiff on one side and the subsequent vendees on the other side to grab the suit land and these parties happen to be closely related to each other and the plaintiff Ishar Singh is a resident of a village at a distance of over 11 miles from the village where the suit land is situated. Baldev Singh PW3 ventured to state that he had informed Harbans Singh about the existence of the previous agreement of sale and similarly Darshan Singh PW5 who happens to be one of the attesting witnesses of the sale deeds Ex.D1 and Ex.D2 executed in favour of the subsequent vendees, has come forward to state that the subsequent vendees were aware about the existence of the previous agreement. 9. The question which crops up for consideration is as to whether under the circumstances it can be held that the subsequent vendees have discharged the onus of this issue or not. The contention of Mr.Chhibber the learned counsel for the subsequent vendees is that the onus u/s 27 (b) of the Specific Relief Act, 1877 (hereinafter called the Old Act) which corresponds to the provisions of section 19(b) of the Specific Relief Act, 1963 (hereinafter called the Act) is very light and the onus is ordinarily discharged by denial. In this connection reliance has been placed on the decision in the case `Dhandi Dalai V. D.Satpathy AIR 1961 Orissa 129. Reliance has also been placed on the observations made RSA No.1597 of 1983 7 in Shankar Parshad V. Mst. Muneshwari and another. AIR 1969 Patna 304. Under Section 19(b) of the Act, four things are required to be established :- (i) That the transfer is for value; (ii) that the money has been paid; (iii) that the purchase was made in good faith and (iv)that the purchase including the payment of money was without notice of the original contract. The first two elements are positive and the last two are negative in character. No doubt the denial of notice can ordinarily discharge the onus. Never-the-less it would depend on the facts and circumstances of each case. In the instant case I am not attaching any value to the statements of Baldev Singh PW3 about his having informed Harbans Singh one of the subsequent vendees about the existence of the previous agreement of sale in as much as Nirmal Singh PW4 the special attorney of the plaintiff and the real brother of Baldev Singh has admitted that their relations with Harbans Singh were not cordial. Unfortunately for the subsequent vendees they did not care to examine Surjit Singh @ Sarabjit Singh who is shown to have represented the subsequent vendees at the time of the execution of both the sale deeds Ex.D1 and Ex.D2. There is not even an iota of evidence to show that Harbans Singh defendant DW4 was present in person RSA No.1597 of 1983 8 at the time of the execution of the two sale deeds. His bare denial about the notice of the previous agreement of sale therefore cannot suffice in discharging the onus of this issue.” The first appellate Court affirmed these findings by holding as follows :- “The facts and circumstances highlighted hereinbefore would thus clearly entitle the plaintiff-appellant to a decree of possession of the suit land through specific performance of the agreement dated 6.9.76 Ex.P1 and particularly so when defendant-respondents No.2 to 4, subsequent vendees, were found to be not bonafide purchasers for valuable consideration. Sarabjit Singh alias Surjit Singh, one of the subsequent vendees,who was shown to be present at the time the sale deeds Ex.D1 and Ex.D2 were executed was not put into the witness box. Harbans Singh defendant-respondent No.3 DW4 was however, put into the witness box. There is not any scintilla of evidence on the record to show that he was present at the time of the execution of the sale deeds Ex.D1 and Ex.D2. Thus his bare denial of the notice of the previous agreement of sale Ex.P1 between the plaintiff-appellant and defendant no.1 would be found to have not discharged the onus of proof placed on the subsequent vendees in respect of issue no.6. Harbans RSA No.1597 of 1983 9 Singh DW4 deposed that the payment of the sale price of the sale deed Ex.D2 was made by the subsequent vendees in a bank at village Mangat and some payment was made in the State Bank of India on 21.12.77 when Ex.D2 was executed. This sworn statement would be found to have squarely been contradicted and put to shame by no other person than Nirmal Singh vendor, defendant-respondent no.1 DW2 and also with the recitals in the sale deed Ex.D1 which shows that the vendor had already received the sale consideration. A amount of Rs.1660/- only would be found to have been paid against two sale deeds Ex.D1 and Ex.D2.” A perusal of the operative portion of the impugned judgements leaves no manner of doubt that the Courts below, appraised the pleadings, the evidence adduced and the arguments addressed and thereafter recorded clear and cogent reasons in support of their conclusion that the appellants have failed to establish that they are bonafide purchasers without notice of the prior agreement to sell. The findings of fact recorded by the Courts below do not suffer from any infirmity, whether of law or of fact and are, therefore, affirmed. In view of what has been noticed herein above. as the impugned judgements do not suffer from any error and as no question of law, much-less a substantial question of law, arises, the appeal is dismissed with no order as to costs. 10.12.2008 (RAJIVE BHALLA) GS JUDGE RSA No.1597 of 1983 10