Regular Second Appeal No. 1749 of 2011 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 1749 of 2011 Date of decision : April 19, 2011 Paramjeet Singh ....Appellant versus Narinder Singh and another ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Y.K. Sharma, Advocate, for the appellant L.N. Mittal, J. (Oral) Defendant no. 2 Paramjeet Singh who was successful in the trial court but has been unsuccessful in the lower appellate court has filed the instant second appeal. Respondent no. 1/plaintiff Narinder Singh filed suit against defendant no. 1 Avtar Singh (proforma respondent no. 2) and against defendant no. 2 – appellant Paramjeet Singh for possession of suit property measuring 400 square yards by specific performance of agreement to sell dated 10.12.1999. Plaintiff alleged that defendant no. 1 being owner in possession of the suit property agreed to sell the same to the plaintiff for Rs 1,50,000/- and received Rs 30,000/- as earnest money and executed Regular Second Appeal No. 1749 of 2011 -2- impugned agreement dated 10.12.1999. Separate receipt for earnest money of Rs 30,000/- was also executed. Sale deed was to be executed upto 7.1.2002. Accordingly in first week of December, 2001 plaintiff approached defendant no. 1 and offered him the balance sale consideration and requested him to execute the sale deed in terms of the agreement. Defendant no. 2 and one Inder Singh and some other persons were also present there at that time. Plaintiff informed defendant no. 2 also about the agreement and even showed the agreement to him. Defendant no. 2 was negotiating for purchasing suit property from defendant no. 1 but after the plaintiff showed the impugned agreement, defendant no. 2 promised not to purchase the suit property. The plaintiff although felt assured by the promise but was also apprehensive and accordingly plaintiff sent notice dated 14.12.2001 to both the defendants. However, in spite thereof defendant no.1 sold 320 square yards out of the suit property to defendant no. 2 vide sale deed dated 21.12.2001. The said sale deed has also been challenged in the suit being in violation of the impugned agreement of which defendant no. 2 was aware. Defendant no. 1 did not contest the suit. However, defendant no. 2 contested the suit and alleged that plaintiff is close relative of defendant no. 1 because the plaintiff's two daughters are married to two sons of defendant no. 1. The impugned agreement is forged and fabricated being result of collusion between plaintiff and defendant no. 1. The agreement has been ante-dated. Defendant no. 2 claimed to be bonafide purchaser of 320 square yards out of the suit property for valuable consideration and Regular Second Appeal No. 1749 of 2011 -3- therefore, claimed to be owner in possession thereof. Defendant no. 2 denied receipt of notice dated 14.12.2001. It was alleged that sale deed in his favour is legal and valid. Defendant no. 2 also claimed to have raised boundary wall of the suit land. Various other pleas were also raised. Learned Civil Judge (Junior Division), Yamuna Nagar vide judgment and decree dated 17.12.2008 accepted claim of defendant no. 2 and therefore, partly decreed the plaintiff's suit for the remaining 80 square yards area out of the suit property keeping intact the sale deed of the remaining 320 square yards executed by defendant no. 1 in favour of defendant no. 2. However, first appeal preferred by plaintiff has been allowed by learned District Judge, Yamuna Nagar vide judgment and decree dated 31.1.2011 and thereby plaintiff's suit has been decreed in toto regarding the suit entire property holding that defendant no. 2 is not proved to be bonafide purchaser of the part of the suit property. Feeling aggrieved, defendant no. 2 has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Plaintiff has led sufficient evidence to prove execution of the impugned agreement by defendant no. 1 in favour of the plaintiff regarding the suit property and payment of earnest money of Rs 30,000/- by plaintiff to defendant no. 1. Plaintiff's evidence in this regard practically stands unrebutted. Defendant no. 1 has not contested the suit. Defendant no. 2 was not privy or party to the impugned agreement and therefore, defendant no. 2 could possibly have no knowledge about valid execution of the Regular Second Appeal No. 1749 of 2011 -4- impugned agreement. Defendant no. 2 has not led any evidence to depict that the impugned agreement was not executed by defendant no. 1 or that the impugned agreement has been ante-dated. Defendant no. 2 alleged that the plaintiff is close relative of defendant no. 1. However, defendant no 2 miserably failed to substantiate the said plea. There was, therefore, no occasion for alleged fabrication of the impugned agreement by collusion between plaintiff and defendant no. 1. On the contrary, both the courts below have found plaintiff's evidence to be cogent and reliable to prove the execution of impugned agreement and receipt. The solitary and substantial question that arises for determination in the lis is regarding defendant no. 2 – appellant being bonafide purchaser of the part of the suit property. Onus to prove the same was on appellant-defendant no. 2. However, he has failed to prove the same. He stated that he had checked sale deeds of the suit property in favour of defendant no. 1 and was satisfied about its title. However, mere checking of the sale deeds would not make defendant no. 2 to be bonafide purchaser of the part of the suit property. Defendant no. 2 did not even inspect the record of the suit property with Municipal Committee. Defendant no. 2 also failed to prove payment of the sale consideration. Defendant no. 2 also failed to prove relationship of plaintiff with defendant no. 1. Plaintiff's version that he had shown the impugned agreement to defendant no. 2 in first week of December, 2001 was not specifically Regular Second Appeal No. 1749 of 2011 -5- denied by defendant no. 2 in the written statement and therefore, is deemed to have been admitted. The plaintiff appearing as PW2 was also not cross- examined regarding the fact that he had brought the impugned agreement to the notice of defendant no. 2 at the house of defendant no. 1 in first week of December, 2001 and therefore, said fact stated by the plaintiff in his examination-in-chief is deemed to have been admitted and it depicts that defendant no. 2 had knowledge of the impugned agreement before purchasing the part of the suit property vide sale deed dated 21.12.2001. Defendant no. 2 admitted that payment of the sale consideration has not been depicted by him in his income tax returns. No part of the sale consideration was paid before the Sub Registrar at the time of registration of the sale deed. It, thus, becomes manifest that the payment of sale consideration by defendant no. 2 to defendant no. 1 is also not established. If the sale consideration had been paid, it would have been depicted in the income tax return filed by defendant no. 2. In addition to the aforesaid, learned appellate court has recorded various other reasons also to hold that defendant no. 2 is not proved to be bonafide purchaser of part of the suit property. For all these reasons the finding to this effect recorded by the lower appellate court is fully justified and does not warrant interference in this second appeal. Learned counsel for the appellant emphasised that plaintiff even after having apprehension that defendant no. 1 could sell suit property to defendant no. 2 did not file any injunction suit to injunct defendant no. 1 from doing so. This contention does not help the appellant because the Regular Second Appeal No. 1749 of 2011 -6- plaintiff was not obliged to file any such injunction suit particularly because defendant no. 2 had assured the plaintiff that he i.e. defendant no. 2 would not purchase the suit property from defendant no. 1 in view of the impugned agreement. Moreover, there was not much time left to file the injunction suit because defendant no. 2 purchased part of the suit property vide sale deed dated 21.12.2001. The plaintiff immediately thereafter filed the instant suit on 25.2.2002. Consequently, merely because the plaintiff did not file injunction suit would not depict that defendant no. 2 is bonafide purchaser of the suit property. Learned counsel for the appellant also contended that Inder Singh who was allegedly present when plaintiff showed impugned agreement to defendant no. 2 has not been examined as witness by the plaintiff. However, merely because of this omission, the plaintiff cannot be non-suited when evidence led by the plaintiff is sufficient to prove his case. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. Finding recorded by the lower appellate court does not warrant interference in exercise of second appellate jurisdiction as the said finding is not shown to be perverse or illegal nor it is based on misreading or misappreication of evidence. Accordingly, the appeal is dismissed being devoid of merit. ( L.N. Mittal ) April 19, 2011 Judge Regular Second Appeal No. 1749 of 2011 -7- 'dalbir'