R.S.A. No. 79 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 79 of 2006 Date of Decision : 15.01.2009 Ram Kaur ....Appellant Versus Rai Singh.& others ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr. R.S.Mittal, Sr. Advocate with Mr. Atul Gaur, Advocate for the appellant. Mr. S.K.Garg Narwana, Advocate for respondent No.1. Mr. Tribhuvan Dahiya, Advocate for respondent No.2. ..... MAHESH GROVER, J. This appeal has been preferred by Ram Kaur who claimed to have purchased the suit property vide sale deed dated 2.12.1996 which was registered subsequently on 11.12.1996. The property belonged to one Tek Ram son of Sukh Lal, who initially executed an agreement with Rai Singh, respondent No.1 on 25.10.1996 and an earnest money of Rs.15,000/- was paid. The date for execution of the sale deed was settled as 25.11.1996 which happened to be a holiday. On 26.11.1996, respondent No.1 claimed R.S.A. No. 79 of 2006 -2- that he was present in the office of the Sub-Registrar to get the sale- deed registered but the vendor Tek Ram did not appear, although it was stated ultimately in the testimony that he had appeared and met the respondent No.1 Rai Singh, the prospective vendee, who was asked to get a photograph and thereafter it was stated in the evidence that he did not appear. A counter-version was also given by respondent No.1 that Tek Ram did come to the office of the Sub- Registrar and he asked him to get his photograph but he disappeared. Respondent No.1 Rai Singh initially filed a suit for injunction before the scheduled date for the execution of the sale deed seeking to restrain the defendant from alienating the property to anybody else and finding that vendor Tek Ram did not execute the sale deed on 26.11.1996 a suit for specific performance was filed on 3.12.1996. In the meantime, it appeared that on 2.12.1996 the vendor Tek Ram in order to defeat the claim of respondent No.1 executed a sale deed in favour of Ram Kaur which was subsequently got registered on 11.12.1996. The appellant herein pleaded that she is the bona fide purchaser and had no knowledge of the agreement in favour of respondent No.1. Tek Ram vendor appeared in the trial Court and filed a written statement to contend that the agreement was executed on 25.10.1996 but the respondent No.1 did not perform his part of the contract and did not appear before the Sub-Registrar on 26.11.1996. It was also pleaded that a Panchayat had been convened as a dispute had arisen on 28.11.1996 and it was agreed that vendor Tek Ram would R.S.A. No. 79 of 2006 -3- return the amount of earnest money to the plaintiff/respondent and accordingly a draft dated 29.11.1996 was got prepared and returned to the plaintiff/respondent indicating the termination of the agreement. The learned trial Court framed the following issues :- 1. Whether the defendant No.1 had entered into an agreement to sell the suit land with plaintiff on 25.10.1996? OPP 2. Whether plaintiff had paid Rs.15,000/- as earnest money to defendant No.1 under agreement to sell dated 25.10.96?OPP 3. Whether the plaintiff has always been and is still ready and willing to perform his part of agreement ? OPP 4. Whether plaintiff had received back the earnest money of Rs.15,000/- from defendant No.1 as alleged ?OPD 5. Whether defendants No.2 to 6 are bona fide purchasers for consideration?OPD 6. Whether sale deed dated 2.12.96 and 11.12.96 executed by defendant No.1 in favour of defendants No.2 to 6 is not binding on the rights of plaintiff on the grounds mentioned in the plaint? OPD 7. Relief. Upon appraisal of the evidence before it, the learned trial Court decreed the suit and directed that the sale deeds dated 2.12.1996 and 11.12.1996 stand cancelled and were not binding upon R.S.A. No. 79 of 2006 -4- the right of plaintiff/respondent No.1. A decree of specific performance was granted directing the vendor to execute the sale deed on the basis of agreement dated 25.10.1996 upon the payment of balance sale consideration within a period of one month from the date of passing of the judgment. In appeal, the findings of the trial Court affirmed. This second appeal has been preferred only by the subsequent vendee, namely Ram Kaur. It was contended by the learned counsel for the appellant that the draft had been returned to respondent No.1 and there is evidence to that effect in the shape of Ex.D-2 and the testimony of DW7 Jagdish Chand, who had testified that the draft had been returned and a registered letter was sent to respondent No.1. It was thus pleaded that in view of fact that in the Panchayat the matter had been settled, the agreement dated 25.10.1996 stood nullified and, therefore, the appellant being a bona fide purchaser could not have been put to such a loss. On the other hand, learned counsel appearing on behalf of respondent No.1 contended that there is overwhelming evidence on record to show that he was present in the office of the Sub-Registrar, which finding has also been returned by the Courts below and further that this finding of fact cannot be upset in this second appeal. It was then contended that the question whether the vendor was willing and ready to perform his part of contract is again a question of fact as determined by this Court in S.K.Nayar v. C.K.Anand and another 1998(1) S.L.J.689. It was contended that the appellant had complete knowledge of the agreement to sell and consequently any sale which R.S.A. No. 79 of 2006 -5- has been executed in her favour stood nullified. Besides, it was contended that the respondent No.1 never had forgone his right as even prior to the agreed date of execution of the sale deed he had filed a suit for permanent injunction and instantly thereafter he had filed a suit for specific performance from which it can be inferred that he was more anxious to get the sale deed executed. The following questions of law have been framed by the learned counsel for the appellant :- a) Whether the appellant and her co-purchasers are bona fide purchasers for consideration and they are saved by the provisions of Section 19(b) of the Specific Relief Act and Section 41 of the Transfer of Property Act? b) Whether the findings of the learned Courts below on issue No.5 are perverse and contrary to the record on account of ignoring from consideration the facts pertaining to the retention of the bank draft of the amount of earnest money by the plaintiff for almost two months (from 29.11.1996 to 25.1.1997)? c) Whether the findings of the learned Courts below on issues No.3 and 4 are also perverse and contrary to the record? The appellant herein is the subsequent vendee who claimed to be the bona fide purchaser. Concededly, the facts of the case reveal that the agreement dated 25.10.1996 in favour of respondent No.1 was executed. The respondent No.1 claimed that he R.S.A. No. 79 of 2006 -6- was present in the office of the Sub-Registrar which finding has also been returned by the courts below. No material or evidence has been shown by the appellant which could persuade this Court to hold contrary to the finding recorded by the courts below which has necessarily to be affirmed. The appellant, who claimed to be the subsequent vendee and bona fide purchaser was required to show that the previous agreement was not in her knowledge or that the same had been effectively nullified. The facts of the case reveal that no such material has been brought on record. A panchayat was stated to have been convened which fact is also not borne out from any conclusive evidence on record. There is no written agreement to show that the agreement dated 25.10.1996 was nullified. The plea that the draft had been returned by registered post is also not borne out. It has been held by both the Courts as a matter of fact that the plaintiff/respondent was willing and ready to perform his part of agreement. This finding of fact cannot be interfered with at this stage. In any eventuality this finding is of no consequence for the reason that the sale has been made in favour of the appellant and hence the only question that was required to be determined is as to whether he was the bona fide purchaser without notice. As observed earlier there is nothing to substantiate this plea of the appellant. That apart, the substantial questions of law which have been framed by the learned counsel for the appellant do not appear to have arisen in this backdrop of the facts. Consequently, the appeal is devoid of any merit and is R.S.A. No. 79 of 2006 -7- dismissed. 15.1.2009 (MAHESH GROVER) JUDGE dss