RSA No.145 of 2010 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. RSA No.145 of 2010 Date of decision: 18.1.2010 Mahi Pal Rawat .....Appellant vs. Darshan Singh and another ....,.Respondent CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG. --- Present: Mr. Vijay Pal, Advocate, for the appellant. -- Rakesh Kumar Garg,J. The present appeal has been filed by the appellant (defendant No.2 in the civil suit) challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondent No.1 for possession by way of specific performance of the contract dated 14.5.1999, executed by respondent No.2 (defendant No.1 in the suit) in favour of respondent No.1 (plaintiff) for sale of the property in dispute was decreed, and the defendants were also directed to hand over the vacant possession of the suit property to the plaintiff-respondent. The brief facts leading to the present appeal are that plaintiff averred in his suit that respondent No.2 who was owner of the suit property entered into an agreement to sell with respondent No.1 on 14.5.1999 for a sale consideration of Rs.1,10,000/- and received a sum of Rs.70,000/- as earnest money. The sale deed was to be executed on or before 15.4.2000, which was later on extended upto 15.3.2001. Despite notice respondent No.2 did not turn up to execute the sale deed in favour of RSA No.145 of 2010 2 respondent No.1 as stipulated. It is further the case of respondent No.1 that he had performed his part of the contract and had kept intact the balance sale consideration whereas respondent No.2 had never been ready and willing to perform her part of the agreement. Respondent No.1 also sought permanent injunction restraining the defendants from dispossessing him from the suit property and from alienating the same to any other person except him. Upon notice defendant No.1 was proceeded against ex parte. The appellant was impleaded as a party (defendant No.2 in the suit) and in response to the notice issued , he filed written statement taking various preliminary objections. On merits, it was averred that he had not entered into any agreement of sale, therefore, he was not liable to pay any earnest money as alleged. It was further averred that he purchased the suit property vide sale deed dated 20.8.2001 for a valuable consideration. It was denied that the sale deed in his favour was null and void. It was however, admitted that after execution of the sale deed in his favour notice dated 29.9.2001 was received from the plaintiff. It was further submitted that plaintiff was not entitled to specific performance of the agreement to sell, and dismissal of the suit was prayed. From the pleadings of the parties, the following issues were framed by the trial Court:- 1. Whether the plaintiff is entitled to decree for possession as owner by specific performance of the contract dated 14.5.99 executed by the defendant in favour of the plaintiff on the grounds taken in the plaint ? OPP 2. If issue no.1 is proved, whether the plaintiff is entitled to decree for permanent injunction on the grounds taken in the RSA No.145 of 2010 3 plaint ? OPP 3. Whether the sale deed dated 20.8.2001 executed by defendant No.1 in favour of defendant No.2 is null and void ? OPP 4. Whether the suit of the plaintiff is not maintainable in the present form ? OPD 5. Whether the plaintiff has suppressed the material facts ? OPD 6. Relief. After concluding the evidence and hearing the arguments, the trial Court decided issues No. 1 to 3 in favour of plaintiff-respondentNo.1 and issues No.4 and 5 were decided against the defendants and the suit of respondent No.1 for specific performance of agreement dated 14.5.1999 was decreed,as aforesaid. Feeling aggrieved from the impugned judgment and decree dated 17.10.2006 of the trial Court, the appellant (defendant No.2) preferred an appeal before the lower Appellate Court. Before the Lower Appellate Court the appellant raised the ground of being bona fide purchaser and asserted that a decree for specific performance will cause hardship to him and the plaintiff-respondent No.1 can be compensated by decree of compensation and it will be inequitable to perform specific performance of the agreement. On the other hand the aforesaid pleas raised by the appellant were repelled. After considering the rival contentions advanced by the learned counsel for the parties, the plea of the appellant was not accepted by the lower Appellate Court on the ground that when respondent No.2 did not execute the sale deed on the stipulated date the suit for specific performance was filed against her and respondent No.1 had obtained injunction order on RSA No.145 of 2010 4 11.4.2001 restraining respondent No.2 from alienating the suit property while the sale deed dated 20.8.2001 in favour of the appellant was executed in violation of the aforesaid stay order during the pendency of the civil suit. It was asserted that the same was liable to be ignored and even after receipt of notice dated 29.1.2001 from respondent No.1 appellant did not initiate any action against respondent No.2 and it was held that appellant was not a bona fide purchaser and the appeal was dismissed. Still not satisfied the appellant has filed the present appeal challenging the judgment and decree of the Courts below. In support of his case, learned counsel for the appellant has vehemently argued that the appellant is a bona fide purchaser and after purchasing the same he has made improvements by renovating the suit property and the respondents in connivance with each other have cheated the appellant. Elaborating his argument, learned counsel for the appellant has submitted that appellant made his best efforts to know the status of the property in question and when he had satisfied himself that title of the property was clear only then he purchased the same vide sale deed dated 20.8.2001. As such, the judgment and decrees of the Courts below are liable to be set aside as sale in his favour vide sale deed dated 20.8.2001 was protected being bona fide purchaser and the specific performance of the agreement in question cannot be enforced, and therefore, the judgment and decree of the Courts below are liable to be set aside. On the basis of the aforesaid argument, learned counsel for the appellant has submitted that the following substantial questions of law arises in this appeal:- 1. Whether the judgment and decree dated 17.10.2006 of RSA No.145 of 2010 5 learned Civil Judge (Senior Division) Ambala and judgment and decree dated 31.7.2009 passed by learned Additional District Judge,Ambala are illegal and unsustainable in the eyes of law ? 2. Whether the evidence produced before the court is properly considered in the judgment ? 3. Whether the bona fide purchaser has right over the property ? 4. Whether the time extended on plain paper can be treated as part of agreement to sell ? 5. Whether the appellant is a bona fide purchaser ? I have heard the learned counsel for the appellant and has perused the judgment and decrees of the Courts below. The only point in issue in this appeal is “whether the appellant who purchased the suit property vide sale deed dated 20.8.2001 during the pendency of the suit and during the operation of the stay order of alienation of the suit property can be held to be a bona fide purchaser of the suit land.” From the perusal of the impugned judgment and decrees of the Courts below, it is clearly established that the parties are not at dispute with regard to the pendency of the case. Respondent No.2 who executed the agreement in question in favour of respondent No.1 has not contested the suit and was proceeded against ex parte. However, the appellant contested the suit by filing written statement denying execution of the agreement to sell. There is no evidence on behalf of the defendants to controvert the version of the plaintiff-respondents with regard to the execution of the agreement to sell in question and the same remained unrebutted. It has also been proved on record that despite there being a valid agreement to sell the suit property by respondent No.2 in favour of respondent No.1 and the fact RSA No.145 of 2010 6 that the civil Court vide its order dated 11.4.2001 had restrained respondent No.2 from alienating the suit property till the decision of the case, the sale deed dated 20.8.2001 was executed by respondent No.2 in favour of the appellant and, therefore, it cannot be held that the appellant was a bona fide purchaser of the suit property. This Court in Inderjeet Wadhwa vs. Jagjit and another 2005 (2)PLR 247, has held that whosoever purchased a property during the pendency of a suit is bound by the judgment that may be made against the person from whom he derived his title, even though such a purchaser was not a party to the action and had no notice of the pending litigation. Thus the defence of subsequent purchaser during the pendency of the suit that he is a bona fide purchaser for value without notice of earlier transaction is not available to such a transferee. Not only this the Courts below have also recorded a finding of fact that the appellant has failed to produce on record any evidence, to prove himself as a bona fide purchaser. The appellant has not come up himself to show that he had exercised all the possible diligence to find out as to whether the transaction which he was going to enter into with respondent No.2 was clean one or not. In fact, he has admitted that he did not find out as to whether any litigation regarding the suit property was pending or not. Therefore, even from his own admission he cannot be held to be a bona fide purchaser of the property in dispute. No substantial question of law arises. No other point has been argued by the learned counsel for the appellant. RSA No.145 of 2010 7 For the reasons recorded hereinabove, I find no merit in this appeal and the same is dismissed. January 18, 2010 (Rakesh Kuamar Garg) rk Judge