R.S.A. No. 3990 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3990 of 2007 Date of Decision: 11.08.2009 1. Rajbir; 2. Raj Kumar; sons of Ram Narain, r/o Madana Kalan, Tehsil Beri, District Jhajjar. ... Appellants Versus 1. Umed Singh; 2. Balraj Singh; sons of Raghbir Singh son of Chet Ram, r/o village Madana Kalan, Tehsil Beri, District Jhajjar. 3. Inder Singh; 4. Phool Kanwar; both minor sons of Dharam Pal son of Desh Ram r/o village Madana Kalan, Tehsil Beri, District Jhajjar, through Sh. Dharam Pal son of Desh Ram their father and next friend and guardian ad-litem. 5. Dharam Pal son of Desh Ram son of Mahaya r/o village Madana Kalan, Tehsil Beri, District Jhajjar. ..Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Sudhir Mittal, Advocate, for the appellants. Mr. Rakesh Nehra, Advocate, for the respondents. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree, dated 22.03.06, rendered by the Court of Additional Civil Judge R.S.A. No. 3990 of 2007 2 (Senior Division), Jhajjar, vide which, it partly decreed the suit of the plaintiffs, and the judgement and decree dated 19.11.07, rendered by the Court of Additional District Judge, Jhajjar, vide which, it accepted the appeal, filed by the plaintiffs/respondents (Umed Singh and Balraj Singh), and dismissed the appeal, filed by the defendants/appellants (Inder Singh etc.), resulting into decreeing the suit for specific performance. 2. Defendants No. 1 and 2 (now respondents No. 3 and 4), who were minors, at the relevant time, were the owners in possession of the land, measuring 16 kanals 7 marlas, being 327/1876 share, out of the total land, measuring 93 kanals 16 marlas, situated within the revenue estate of village Madana Kalan, Tehsil Beri, District Jhajjar. It was stated that defendant No. 3 (now respondent No. 5), being the father and guardian of minor defendants No. 1 and 2, entered into an agreement to sell the land, in dispute, with the plaintiffs (now respondents No. 1 and 2) for a sale consideration of Rs. 2,50,000/-, on 18.11.96. Out of the said amount of sale consideration, a sum of Rs. 1 lac, was also received by defendant No. 3, as earnest money. The sale deed was to be executed and got registered after obtaining the necessary permission, from the Guardian Judge, i.e. the District Judge, Rohtak, under Section 8 of the Guardianship and Minority Act. Defendant No. 3, after obtaining the said permission, was to give notice to this effect, to the prospective vendees, and thereafter, the defendants were to execute the necessary sale deed, after the receipt of the remaining amount of sale consideration i.e. Rs. 1,50,000/-. In default, the plaintiffs were at liberty to get the sale deed executed and registered by filing a suit in the Civil Court. It was further stated that, in case, the default was committed by the plaintiffs, earnest money of Rs. 1 lac was to be forfeited. Defendant No. R.S.A. No. 3990 of 2007 3 3, obtained the necessary permission of the Guardian Judge, on 05.05.98, and, therefore, he was liable to give notice of this fact to the plaintiffs but he did not do so. However, defendants No. 1 to 3, executed a sale deed of the suit land, in favour of defendants No. 4 and 5 (now appellants) on 25.05.98. It was further stated that the sale deed was illegal, null and void, and not binding against the rights of the plaintiffs. The plaintiffs remained ever ready and willing to perform their part of the contract. The defendants were many a time, asked to get the sale deed executed and registered in favour of the plaintiffs, but to no avail. On their final refusal to do so, left with no other alternative, a suit for possession by way of specific performance was filed. 3. Defendants No. 1 and 2, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was pleaded that the suit was not maintainable. It was further pleaded that the plaintiffs were estopped from filing the suit, by their own act and conduct. It was further pleaded that the suit was bad for non-joinder of necessary parties. It was further pleaded that the plaintiffs had no locus- standi to file the suit. It was stated that defendants No. 1 and 2, were minors at the relevant time, and they were residing with their father i.e. defendant No. 3. It was admitted that defendants No. 1 and 2, were owners in possession of the suit land and defendant No. 3, being their guardian, sold the property, in dispute, to Rajbir and Raj Kumar, defendants No. 4 and 5, on 25.05.98. It was denied that defendants No. 1 and 2, through their father defendant No. 3, had agreed to sell the suit land, to the plaintiffs, vide the agreement to sell dated 18.11.96. It was further stated that defendant No. 3, had taken a loan of Rs. 40,000/-, from the father of the plaintiffs, and the R.S.A. No. 3990 of 2007 4 said amount was returned by him. It was further stated that it could be possible that the father of the plaintiffs in collusion with the deed writer, might have obtained the thumb impressions of defendant No. 3, on some paper, and later on converted the same into an agreement to sell. 4. Defendant No. 3, filed a separate written statement, reiterating the similar pleas, as were taken up by defendants No. 1 and 2. 5. Defendants No. 4 and 5, filed a separate written statement, claiming therein, that they were the owners in possession of the suit land, on the basis of the registered sale deed dated 25.05.98. It was denied that defendants No. 1 and 2 had ever executed any agreement to sell the suit land through defendant No. 3, in favour of the plaintiffs on 18.11.96. It was stated that defendants No. 4 and 5, were serving in the Border Security Force, and it was defendant No. 3, who had come to their house and showed a certificate of the Guardian Judge and also expressed his desire to sell the land of the minors. Therefore, they purchased the same in good faith. The remaining averments, were denied, being wrong. 6. On the pleadings of the parties, the following issues, were struck:- (i) Whether the plaintiffs are entitled to the possession of the suit land as detailed in para No. 2 of the plaint by way of specific performance of agreement to sell dated 18.11.96 in respect thereof on payment of the balance sale consideration alongwith other stamps, registration and incidental charges? OPP (ii) Whether the plaintiffs in alternative are entitled to the recovery of Rs. 1 lac paid by him as earnest money plus Rs. 1 lac as damages on interest at the rate of 24% per annum from the date of agreement till the date of the realization of the decretal R.S.A. No. 3990 of 2007 5 amount? OPP (iii) Whether the sale deed dated 25.05.98 executed by defendant No. 3 on behalf of the defendants No. 1 and 2 in favour of defendant No. 4 and 5 regarding the suit land is illegal, null and void etc. and not binding on the rights of the plaintiffs? OPP (iv) Whether the plaintiff has no locus-standi to file the present suit? OPD (v) Whether the suit is not maintainable in the present form? OPD (vi) Whether the plaintiffs are estopped from filing the present suit by their own act and conduct? OPD (vii) Whether the defendants are entitled to special costs under Section 35-A CPC? OPD (viii) Relief. 7. After hearing the Counsel for the parties, and, on going through the record of the case, the trial Court, partly decreed the suit of the plaintiffs. 8. Feeling aggrieved, an appeal, was preferred by the plaintiffs/respondents, which was accepted, and the appeal, preferred by the defendants/appellants, was dismissed, by the Court of Additional District Judge, Jhajjar, vide judgement and decree dated 19.11.07. 9. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the appellants/defendants No. 4 and 5. 10. I have heard the Counsel for the parties, and have gone through the evidence, on record, carefully. 11. The following substantial questions of law, arise in this appeal, for the determination of this Court:- (i) Whether the first Appellate Court, on misreading and R.S.A. No. 3990 of 2007 6 misappreciation of evidence recorded perverse findings that defendants No. 4 and 5/appellants, were not the bonafide purchasers for valuable consideration in good faith and without notice of the previous agreement to sell, in respect of the land, in dispute? (ii) Whether the findings, recorded by the first Appellate Court, that the plea taken up by defendants No. 4 and 5 in para No. 8(a) of their written statement was not sufficient for seeking the protection of Section 41 of the Transfer of Property Act, 1882, were perverse? 12. The Counsel for the appellants, submitted that in para No. 8(a) of the written statement, defendants No. 4 and 5/appellants, took up the plea, that defendant No. 3 showed the certificate granting permission by the Court to him to sell the land, in dispute, at their house and expressed his intention to sell the same. He further submitted that, on such assurance, defendants No. 4 and 5/appellants, purchased the land on 25.05.98. He further submitted that the averments contained in para No. 8(a) of the written statement, were sufficient to seek the protection of Section 41 of the Transfer of Property Act, 1882, and the Courts below, were wrong, in holding otherwise. He further submitted that the agreement to sell allegedly executed, in favour of the plaintiffs, was not a public document, and, as such, the defendants/appellants, could not come to know of it, before the execution of the sale deed in their favour, by defendant No. 3. He further submitted that the first Appellate Court, thus, recorded perverse findings, in holding that the defendants/appellants, were not the bonafide purchasers, for valuable consideration, in good faith, and without notice of the previous agreement, in favour of the plaintiffs, in respect of the land in dispute. He further submitted that the judgement and decree of the first Appellate Court, R.S.A. No. 3990 of 2007 7 being illegal, were liable to be set aside. 13. On the other hand, the Counsel for the respondents submitted that the the defendants/appellants, were required to specifically plead, in the written statement, that they made enquiries like a prudent person from every source, and then came to know, that the property, in dispute, was unencumbered and that no agreement to sell, in respect thereof, had already been executed by defendant No. 3, in favour of the plaintiffs. He further submitted that only thereafter it could be said that they purchased the property, in dispute, in good faith for valuable consideration, and without notice of the said agreement. He further submitted that no such plea was taken in the written statement, and, as such, defendants No. 4 and 5/appellants, could not claim that they were the bonafide purchasers. He further submitted that defendants No. 4 and 5/appellants, were very much, in knowledge of the agreement to sell, in respect of the property, in dispute, having been already executed, in favour of the plaintiffs, but despite that, they purchased the same, and, as such, they were not the bonafide purchasers for valuable consideration, and in good faith. He further submitted that the first Appellate Court was right in coming to such a conclusion. He further submitted that the judgement and decree of the first Appellate Court, being legal and valid, were liable to be upheld. 14. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal deserves to be dismissed, for the reasons to be recorded, hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and R.S.A. No. 3990 of 2007 8 others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the trial Court, and the first Appellate Court, even if the same are grossly erroneous as the legislative intention was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgements of the Courts below, is confined only to the hearing of substantial questions of law. Defendants No. 4 and 5/appellants, were required to specifically plead, in the written statement, that they made bonafide enquiries, like a prudent person and after satisfying themselves, that the property, in dispute, was unencumbered and that no agreement to sell had been executed, in respect thereof, purchased the same, for valuable consideration, and in good faith. No such specific plea, was taken by them, in the written statement. The plea taken up by them, in para No. 8(a) of the written statement, did not satisfy the requirements, aforesaid. Even if, it is assumed, for the sake of arguments, that such a plea was taken by them, in the written statement, the same was not sufficient in the absence of substantiation thereof, through cogent and convincing evidence. Raj Kumar, one of the defendants, when appeared as, DW2, during the course of his cross-examination, stated that before purchasing the land, in dispute, vide sale deed D1, they did not satisfy themselves, from any source that Dharam Pal, defendant No. 3, had already executed an agreement to sell, in respect of the same. He further stated, during the course of his cross-examination, that they were told by Dharam Pal, defendant No. 3 that he was happy to sell his land. He further stated that R.S.A. No. 3990 of 2007 9 he did not satisfy himself, by making enquiries, from the Patwari, or from any office, that Dharam Pal, defendant No. 3, had already executed an agreement to sell, in favour of anybody else, in respect of the land, in dispute. He further stated that he did not satisfy himself, as to whether, Dharam Pal, was competent to sell the land, in dispute, or not. Under these circumstances, from the statement of Raj Kumar, DW1, one of the defendants/appellants, it was proved that, what to speak of bonafide enquiries, even no enquiries, whatsoever, were made by him, and the other vendee from any source, as to whether, any agreement to sell, in respect of the land, in dispute, had already been executed, in favour of the plaintiffs or not. 15. Not only this, even Dharam Pal, the vendor, when appeared, as DW1, stated that the village in which the parties are residing is a small one. He further stated that the distance between his house and the houses of defendants No. 4 and 5/appellants, is about 400/500 yards. Raj Kumar, DW2, one of the defendants, also stated that if there is any transaction, with regard to the sale or purchase of property, in the village, the people residing therein come to know of the same. Since the village, in which the parties were residing, at the relevant time, is a small one, it could not be expected that defendants No. 4 and 5, did not come to know of the agreement to sell, in favour of the plaintiffs. On the other hand, the inference, could be drawn that they came to know of the agreement to sell, in favour of the plaintiffs, in respect of the land, in dispute, yet they ventured to purchase the same, at their own risk, without making any bonafide enquiries. The first Appellate Court, was right, in holding so. The findings of fact, recorded by the first Appellate Court, on the aforesaid points, being based on the correct R.S.A. No. 3990 of 2007 10 appreciation of evidence, and law, on the point, do not suffer from any illegality or perversity, and warrant no interference, by this Court. The judgements and decrees of the Courts below, are liable to be upheld. The submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. The substantial questions of law, depicted above, are, answered against the appellants. 16. For the reasons recorded above, the instant Regular Second Appeal, being devoid of merit, must fail, and the same is dismissed, with costs. 11.08.2009 (SHAM SUNDER) Amodh JUDGE