Regular Second Appeal No. 810 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 810 of 2009. (O&M) Date of Decision: 24.2.2009 *** Rajesh Kumar & Anr. .. Appellants VS. Mukesh Yadav & Ors. .. Respondents. CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. Bahadur Singh, Advocate for the appellants. *** ARVIND KUMAR, J. The present appellants are the subsequent vendees of the land in respect of which a suit for specific performance of agreement to sell dated 11.12.1996 executed by defendant Umed Singh (respondent No.3 herein) in favour of Mukesh Yadav plaintiff (respondent No.1 herein) and Sanwat Singh defendant No.3 (respondent No.4 herein) was filed. They are aggrieved with the judgment and decree dated 12.12.2008 passed by the learned First Appellate Court below by dint of which the sale transaction made between Umed Singh and Bhai Ram and then interse Bhai Ram and present appellants has been held to be a sham transaction and not binding upon the rights of the plaintiff and Sanwat Singh accrued in their favour by virtue of agreement to sell dated 11.12.1996. It goes undisputed on record that the said agreement dated 11.12.1996 was executed by defendant Umed Singh in favour of plaintiff vide which he agreed to sell the land for an amount of Rs.4,90,000/- and received Rs.2,15,000/- as an earnest money. The sale-deed was to be executed on or before 30.6.1997. It emerges out from the records that on 7.2.1997 Umed Singh executed a sale-deed of the land, the subject matter of agreement dated 11.12.1996, in favour of Bhai Ram, despite of his Regular Second Appeal No. 810 of 2009 2 undertaking given in the Court on 7.1.1997 in a suit filed by Mukesh Yadav for restraining Umed Singh from selling or alienating the suit land to anybody. Bhai Ram further sold the suit land to the present appellants vide registered sale-deed dated 16.5.1997. The stand of defendant Umed Singh was of admission to the extent of execution of agreement to sell dated 11.12.1996 and suffering of statement in the Court not to alienate the suit land in favour of anybody, except the plaintiff. With regard to execution of sale-deed in favour of Bhai Ram, it was stated that the latter obtained his thumb impression on some blank papers and lateron converted the same into the sale-deed for which in fact no sale consideration had been passed on to him. The stand of Bhai Ram and the present appellants was of bonafide purchasers, with no notice of agreement to sell dated 11.12.1996. The learned trial court on the basis of admission of defendant Umed Singh, coupled with the evidence produced by the plaintiff in the shape of scribe and attesting witness of the said agreement to sell and the testimony of plaintiff himself held the due execution thereof by Umed Singh in favour of plaintiff on receiving the earnest money of Rs.2,15,000/-. But holding the subsequent vendees i.e. Bhai Ram and the present appellants as bonafide purchasers without notice of agreement to sell dated 11.12.1996, granted the alternative relief to the plaintiff and proforma defendant for recovery of an amount of Rs.2,15,000/- along with damages of equal amount of Rs.2,15,000/- along with interest @ 12% per annum upon the amount of earnest money from the date of payment till the realization of the decretal amount. Dis-satisfied with the same, the plaintiff filed an appeal before the learned First Appellate Court below and as noticed above, the subsequent sale transaction were held illegal and not binding upon the rights of the plaintiff. The circumstances, which prompted the learned first Appellate Court below to arrive at the aforesaid conclusion have been thoroughly discussed in in paras No.18 and 19 of the impugned judgment, which read thus:- “18. Learned trial court has held defendants Bhai Ram, Rajesh Kumar and Manjeet Singh to be bonafide purchasers. I cannot agree with this finding of Regular Second Appeal No. 810 of 2009 3 learned trial court. Although, the admission of Bhai Ram about a girl of the village Umed Singh having been married in the village of Bhai Ram is not sufficient to prove a relationship between Umed Singh and Bhai Ram, yet such relationship has to be inferred from the attending circumstances. One of those circumstances is that Umed Singh went to Bhai Ram at village Jharsa, District Gurgaon to offer him the suit land for sale at a price nearly half of the price at which it was agreed to be sold to the plaintiff. The other circumstance is that a person of village Jharsa, District gurgaon purchases the land of village Dohkia, Tehsil and District Rewari without caring to go to village Dohkia to enquire about any loan having been there on the land as also about any agreement to sale with regard to the same. This admission of Bhai Ram goes against his claim of being bonafide purchaser for value and without notice also. Last but not the least is the circumstance that after purchasing the land without making any enquiries on 7.2.1997 he sold the same to Rajesh Kumar and Manjeet Singh on 15.5.1997. I could not comprehend as to what was the purpose of Bhai Ram to purchase this land if he was to sell this land in such a haste to Rajesh Kumar and Manjeet Singh. These Rajesh Kumar and Manjeet Singh, the purchasers from Bhai Ram are admitted by Bhai Ram DW1 to be the sons of brothers of Umed Singh. 19. None from defendants No.4 and 5 or their fathers have appeared in the witness box. Even Umed Singh has not made appearance in the witness box. Therefore, there is no evidence to deny this relationship of Umed Singh with Rajesh Kumar and Manjeet Singh. The course of events, as discussed above, shows that Umed Singh and Bhai Ram had been colluding with each other and the sale deed by Umed Singh in favour of Bhai Regular Second Appeal No. 810 of 2009 4 Ram was got executed with a view to defeat the claim of the plaintiff to the suit land under the agreement to sale dated 11.12.1996. All these circumstances clearly show that Bhai Ram is not a bonafide purchaser of the suit land for value without notice of the agreement of sale in favour of the plaintiff. Therefore, I cannot affirm the findings of learned trial court recorded on issues No.2,3 and 6-A and hold under them that defendants No.2,4 and 5 are not the bonafide purchasers of the suit land for value without notice of the agreement to sale. In view this finding, the relief that is available to the plaintiff is of specific performance of the contract of sale.” From the above discussion, it is abundantly clear that the circumstances which the learned Trial Court lost sight of, while not granting the relief of specific performance of agreement to sell dated 11.12.1996, have rightly been taken into consideration by the learned First Appellate Court below and rightly directed Umed Singh and other defendants to execute the sale- deed in favour of the plaintiff on receipt of remaining sale amount. Thus, in the facts and circumstances of the case, it cannot be said that the approach of learned First Appellate Court below is either illegal or perverse. Nothing has been shown to take a contrary view. No substantial question of law, which is sine qua non for admission of appeal is made out. The appeal is wholly without merits and the same is accordingly dismissed in limine. (ARVIND KUMAR) JUDGE February 24,2009 Jiten