Regular Second Appeal No. 909 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 909 of 2009. (O&M) Date of Decision: 18.3.2009 *** Smt. Suman Bala .. Appellant VS. Kuldeep Singh & Ors. .. Respondents. CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. Kanwaljit Singh, Sr. Advocate with Mr. Harmanjit Singh, Advocate for the appellant. *** ARVIND KUMAR, J. The instant regular second appeal has been preferred by the defendant-subsequent purchasers against the judgments and decrees passed by the Courts below holding that the sale-deed dated 28.9.1993 executed by respondent Balvir Kaur, in her favour, being the attorney of her husband Bagicha Singh, not binding upon the rights of the plaintiffs-respondents No.1 and 2 and her plea of being bonafide purchaser has been disbelieved by both the Courts below and she has been directed to join hands with other defendants to get the sale-deed executed in favour of the plaintiffs, the right which accrued in their favour by dint of agreement to sell dated 18.11.1992. Having heard learned counsel for the appellant, this Court is of the considered view that there is no merit in the instant appeal. It emerges out that the plaintiffs by producing over-whleming evidence on record, proved the due execution of agreement to sell dated 18.11.1992 executed by Bagicha Singh, in their favour after having received Rs.50,000/- as an earnest money, against the total price of Rs.2,50,000/- and also that they remained ready and will to perform their part of the contract. Even other Bagicha Singh, in his written statement admitted the due execution of the Regular Second Appeal No. 909 of 2009 2 agreement to sell dated 18.11.1992 in favour of the plaintiffs. The pleas of the appellant that she is bonafide purchasers for valuable consideration and without notice of the agreement dated 18.11.1992 in favour of the plaintiffs and that the said agreement dated 18.11.1992 was forged by the plaintiffs in collusion with Bagicha Singh and his wife Balvir Kaur to frustrate her rights and thus, her rights are protected by Section 41 of the Transfer of Property Act, have been disbelieved by the Courts below and it has been held that defendant No.3 is not a bonafide purchaser for valuable consideration and she has purchased the property in dispute having full knowledge about the agreement to sell dated 18.11.1992 executed by Bagicha Singh in favour of the plaintiffs. The findings returned by the learned first appellate Court below, while affirming that of the learned trial Court, in para No.13 of its judgment, clinches the whole issues and the same read as under:- “13. Having gone through the rival contentions of both the parties, I have gone through the file in detail and have found that the executant of the agreement to sell Ex.P2 has admitted the execution thereof whereas he has also stated that Adarsh Kumar, the husband of defendant No.3 Suman Bala was good friend of him and he was having the entire knowledge of the agreement to sell Ex.P2 in favour of the plaintiffs. It is also stated by the defendant no.3 in her written statement that when on 24.9.1993 the defendant no.1 came to the court to execute the sale deed in her favour as defendant no.1 was fragile in health so he executed the general power of attorney Ex.D4 in favour of defendant no.2 his wife who on 28.9.1993 executed the sale deed in her favour. If Ex.D4 is perused, it is attested by Adarsh Kumar and this is a registered document. If the registered document could have been executed on 24.9.1993 by defendant no.1 in favour of defendant no.2 whey the sale deed could not have been registered by the defendant no.1 in favour of the defendant no.3 and why this mode has been adopted to get the general power of attorney executed Regular Second Appeal No. 909 of 2009 3 from defendant no.1 in favour of defendant no.2 and then after four days of its execution to execute the sale deed Ex.D1 by defendant no.2 in favour of defendant no.3. It all shows that the connivance of the defendants no.1,2 and 3 to deprive the plaintiffs from the suits of Ex.P2 with which the defendant no.1 was bound. Defendant no.1 in order to evade his direct responsibility adopted this clever tactics to execute the general power of attorney in favour of his wife the defendant no.2 which facts findings further support from his own pleadings where he has stated that although he executed the agreement to sell in favour of the plaintiffs but he at the asking of Adarsh Kumar when executed the power of attorney in favour of his wife on 24.9.1993, his wife connived with the defendant no.3 and Adarsh Kumar and executed the sale deed in favour of defendant no.3. The mode and the manner of execution of the general power of attorney dated 24.9.1993 and sale deed dated 28.9.1993 prior to 15.12. 1993 the date fixed for execution of the sale deed in pursuance of Ex.P2 does not go to the root of the case and demolish the version of the appellant-defendant no.3. It has also come in the evidence of Adarsh Kumar DW6, who has filed the present appeal that they are residing in the same street where the plaintiffs are also residing. The appellant, who happened to be the defendant no.3, did not muster the courage to appear in the court to face the acid test of cross-examination in order to establish that how she was bonafide purchaser and protected under Section 41 of the Transfer of Property Act.” . The aforesaid findings returned by the learned appellate Court, lead to irresistible conclusion that the appellant was not the bonafide purchaser and the sale-deed in her favour was executed just to frustrate the rights of the Regular Second Appeal No. 909 of 2009 4 plaintiffs, with whom Bagicha Singh, the real owner entered into agreement to sell dated 18.11.1992. There is no room for interference in the concurrent findings returned by the Courts below. In view of the above, the instant appeal being devoid of any merit is dismissed in limine. (ARVIND KUMAR) JUDGE March 18,2009 Jiten