IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.331 of 2008 RAM CHANDRA YADAV, SON OF LATE NANAD LAL YADAV, RESIDENT OF VILLAGE-KHUDIBAN, P.S. SURAJGARHA, PARGANA-ABHAIPUR, DISTRICT-LAKHISARAI, AT PRESENT VILLAGE-PIRI BAZAR, ABHAIPUR, P.S. SURAJGARHA, DISTRICT-LAKHISARAI. ………DEFENDANT IIND PARTY….APPELLANT…APPELLANT. Versus 1. BISHUN DEO SAH, SON OF LATE KHANTAR SAH, RESIDENT OF VILLAGE-KHUDIBAN, P.S. SURAJGARHA, DISTRICT- LAKHISARAI, AT PRESENT VILLAGE-PIRI BAZAR, P.S. SURAJGARHA, LAKHISARAI. …………….PLAINTIFF-RESPONDENT-RESPONDENT 1ST SET. 2. (A) MUNNIYA DEVI, WIFE OF LATE MAHRAJ MANJHI. 2. (B) SUNAINA DEVI, WIFE OF CHUNCHUN MANJHI. BOTH DAUGHTERS OF LATE KUTHAL MANJHI. RESIDENT OF VILLAGE-GOVINDPUR, P.S. DHARAHARA, DISTRICT-MUNGER. 2. (C) BHASO DEVI, WIFE OF TETAR MANJHI, DAUGHTER OF LATE KUTHAL MANJHI. RESIDENT OF VILLAGE-KAJARA MUSHARI, P.S. SURAJGARHA, LAKHISARAI. 2. (D)SANJITA KUMARI, DAUGHTER OF LATE KUTHAL MANJHI. RESIDENT OF VILLAGE-KHUDIBAN, P.S. SURAJGARHA, DISTRICT-LAKHISARAI-HEIRS OF DEFENDANTS-1ST PARTY APPELLANTS RESPONDENTS II SET. ----------- For the Appellant: M/s. Om Prakash Pandey and Jitendra Kumar Pandey, Advocates. ----------- 4. 6.7.2010. The defendant IInd party -appellant being aggrieved by the judgment and decree dated 16.6.2008 and 26.6.2008 respectively passed by the Additional District Judge, Fast Track 2 Court No.III, Lakhisarai, in Title Appeal No.10 of 2002, affirming the judgment and decree dated 11.3.2002 and 13.3.2002 respectively passed by the Munsif, Lakhisarai, in Title Appeal No.9 of 1998, has preferred this appeal. The plaintiff-respondent Ist set brought Title Suit No.9 of 1998 for specific performance of contract and for directing the defendant Ist party for executing the sale deed in his favour as agreed and also for declaration that the sale deed dated 23.2.1998 executed by the defendant Ist party in favour of the defendant IInd party-appellant is not binding upon the plaintiff. The plaintiff came up with the case that the defendant Ist party owned and possessed 12 decimals of lands appertaining to Khesra No.469/47 and Khata No.41 situated in Mauza Khudiban, Pargana-Abhyapur, Thana-Surajgarha, Hal Thana-Piri Bazar, District-Lakhisarai, Tauzi No.1452 and Revenue Thana No.60. Since the defendant no.1 was in need of money, after negotiation, a sum of Rs.3000/- was agreed upon consideration amount for the mortgage by conditional sale. The agreement was executed on 5.12.1994 and was for a period till 2.2.1998. Since the entire consideration money was paid to the mortgager defendant no.1, he was put in possession on the same day, i.e., 5.12.1994. Thereafter, it is the case of the plaintiff that 3 he remained continuously in physical possession of the suit land. Subsequently, as per the case of the plaintiff, the defendant no.1 again negotiated with the plaintiff and it was agreed that the land aforesaid upon payment of Rs.9000/- shall be sold to the plaintiff and out of the aforesaid consideration amount of Rs.9000/-, Rs.3000/- already given as consideration amount of the mortgage for conditional sale, shall be deducted and adjusted and Rs.3000/- shall further be paid as earnest money. The rest balance amount was payable at the time of execution of the sale deed on or before 15.3.1998. It is the case of the plaintiff that he had paid Rs.3000/- on 22.1.1997 after which the deed of agreement of sale was executed. The plaintiff remained in possession and was willing to perform the contract all along on his part, however, two legal notices were received by him by two different advocates on 20.12.1997 and 12.1.1998. The plaintiff in anticipation of some foul play offered the remaining amount Rs.3000/-, which was the balance of the consideration money already paid, but the defendant-Ist party refused on one pretext or the other. Thereafter, it is the case of the plaintiff, that by two money orders of Rs.1500/- each balance amount was paid to the defendant Ist party on 2.2.1998 which was received by him on 7.2.1998. However, the plaintiff 4 heard on 24.2.1998 that the suit land had been sold by the defendant Ist party to the defendant second party and on inquiry the same was found to be correct as the sale deed was executed on 23.2.1998 by the defendant Ist party in favour of the defendant IInd party. The claim of the plaintiff is that he had remained in possession of the suit land since 5.12.1994 when first deed of conditional sale was executed in his favour and subsequently he remained in possession on the basis of the deed of agreement dated 2.1.1997 described as above. Thus, the present Title Suit No.9 of 1998 was filed. Plaintiff claimed that the transaction was to the full knowledge of the defendant IInd party but subsequent transaction was made and the same was designed to dispossess the plaintiff. The defendant Ist party appeared and filed written statement claiming the suit barred by law under Sections 27 and 34 of the Specific Relief Act and it has been noticed in the trial court judgment that this defendant admitted the execution of deed of conditional sale. However, he denied the other allegations but this defendant has admitted to receive Rs.3000/- from the plaintiff as earnest money. However, subsequently, it is stated that since the remaining consideration amount of Rs.9000/- was not paid, the entire agreement became 5 meaningless. The defendant IInd party also appeared and filed written statement refuting the claim of the plaintiff regarding negotiation of sale between the plaintiff and defendant Ist party, however, he admitted the possession of the plaintiff as mortgagee. The subsequent deed of execution and the deed of agreement for sale have been denied by this defendant. It is also the case of this defendant that he being a bonafide purchaser should not be put to loss by directing the defendant no.1 to execute the sale deed in favour of the plaintiff. The trial court while appreciating the materials on record including the evidence led on behalf of the parties observed that since the defendant no.2 alleged fraud, he was duty bound to prove that the deed of agreement and documents produced on behalf of the plaintiff were forged and fabricated document and obtained by playing fraud upon the defendant Ist party. However, it has been noticed by the trial court that all the witnessed examined on behalf of the defendants are silent on the point of fraud and on appreciation of evidence the trial court has recorded a finding that the deed of agreement for sale dated 22.1.1997 is genuine document and the plaintiff was all along ready to perform his part of contract and in fact the plaintiff had 6 paid the entire consideration amount. The contract, thus, was specifically enforceable against the defendants. Further, finding has been recorded that the plaintiff admittedly remained in continuous physical possession of the suit land since 5.12.1994 and the same was admittedly known to the defendant IInd party, however, the defendant IInd party did not make any inquiry from the plaintiff regarding the same. Hence, it has been held that the sale deed executed in favour of the defendant IInd party dated 23.2.1998 has no binding effect upon the plaintiff and, thus, suit was decreed with costs on contest directing the defendant Ist party to execute the sale deed in favour of the plaintiff within one month from the date of this order. The defendant-appellant preferred an appeal bearing Title Appeal No.10 of 2002. The appellate court upon appreciation of materials on record including the documentary as well as oral evidence led on behalf of the parties has also recorded finding that the agreement of sale dated 22.1.1997 is valid and genuine and the plaintiff was always ready and willing to perform his part of the contract and, in fact, he has paid the entire consideration amount. It has also been held by the appellate court that at the time of execution of sale deed in favour of the defendant IInd party-appellant, the plaintiff was in 7 possession of the suit land but the defendant-appellant never inquired regarding the nature of possession from him before getting the sale deed executed in his favour, thus, it cannot be held that the sale deed executed in favour of the defendant IInd party by the defendant Ist party has been executed in good faith and the defendant IInd party is a bonafide purchaser. Learned counsel for the appellant submitted that very little evidence is required for discharging onus of the bonafide purchaser, which can be achieved in certain circumstances by a mere denial and want of knowledge of the contract. Thereafter, the onus stands discharged and shifts upon the plaintiffs. In support of his submission, learned counsel for the appellant has placed reliance upon a decision of this Court rendered in Rameshwar Singh Versus Hari Narayan Singh and others {(1984(7) BLJ 612}. I have heard the learned counsel for the appellant and also perused the records of the case. Learned counsel for the appellant made his endeavour to impress upon this Court that the courts below have come to the wrong conclusion that the deed of agreement of sale was a valid and genuine document, however, no reason could be put forward by the learned counsel for the appellant on this 8 point. Secondly, learned counsel for the appellant tried to impress upon this Court that since the plaintiff-respondent was already in possession as a mortgagee and since this fact was known to the defendant-appellant, he got the sale deed executed in his favour and was ready to redeem the mortgage by tendering the required amount. However, the fact that the agreement for sale has been entered upon was not known to him as the plaintiff was in possession as a mortgager. However, since admittedly, the deed of mortgage was executed on 5.12.1994 and the plaintiff was put in possession on the same date and admittedly such mortgage by conditional sale was valid till 2.2.1998 only, the defendant-appellant should have made enquiry regarding nature of possession of the plaintiff after 2.2.1998. Therefore, it was rightly held by the trial court as well as the appellate court that the factum of possession having been admittedly known to the defendant-appellant, the duty was cast upon him to inquire about the nature of possession from the plaintiff which he has not done. In the aforesaid background it cannot be held that onus had been discharged by the appellant. Lastly, learned counsel submitted that even the agreement for sale is taken as a valid document, the agreement 9 was to expire on or before 15.3.1998 and, thus, the suit filed prior to the expiry of the time given in the deed of agreement for sale, i.e., on 11.3.1998 was pre-mature and, thus, it should have been dismissed. Learned counsel placed reliance upon a decision of this Court rendered in Mir Salahuddin Vs. Kesho Agrawal and others {1998(1) BLJ 330)}. Learned counsel drew attention of this Court towards the paragraph-14 of that judgment, wherein the learned Single Judge of this Court has stated that apart from the facts discussed in the said decision, it was also found that the court below rightly held that the suit was pre-mature, having been filed on 1st April, 1967, as the agreement was to expire on 2nd of April, 1967. Apart from the fact that the aforesaid decision does not declare any law, the present suit has not having been filed only for specific performance of contract but also for declaration that the sale deed dated 23.2.1998 executed by the defendant Ist party in favour of the defendant IInd party was not binding upon the plaintiff, the plaintiff was free to file a suit immediately after execution of the subsequent sale deed. In the above view of the matter, learned counsel failed to point out any substantial error committed by the appellate court as well as trial court wherefrom any substantial 10 question of law may arise. The decision of both the courts below are concluded by the concurrent findings of facts and in the opinion of this Court no substantial question of law arises. As a result, this appeal, being devoid of merit, is dismissed. P.S. (Dr. Ravi Ranjan, J)