RSA No. 4063 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 4063 of 2011 (O&M) Date of decision:- 14.10.2011 Haroon ....Appellant Vs. Ismail and others ....Respondents CORAM: HON'BLE MR. JUSTICE A.N. JINDAL ****** Present:- Mr. J.S. Cooner, Advocate, for the appellant. Mr. S.K. Bawa, Advocate, for the caveator. A.N. JINDAL, J (ORAL) Suit for possession by way of specific performance in respect of 1/16th share out of land measuring 77 Kanals 15 Marlas, was decreed in favour of the plaintiff-respondent No.1 (hereinafter referred as 'the plaintiff') and the sale deed dated 09.06.2006 executed by defendant No.1 in favour of defendant No.3-appellant (hereinafter referred as 'defendant No.3') was declared as null and void. The appeal preferred by the defendants-appellants (hereinafter referred as the 'defendants') was dismissed. In nutshell, the facts necessary for disposal of the appeal are that on 26.09.2005, defendant No.1 had entered into an agreement to sell the suit land with the plaintiff regarding 15 RSA No. 4063 of 2011 (O&M) 2 Kanals of land, as fully detailed in the heading of the plaint and the stipulated date for registration of the sale deed was fixed as 30.05.2006. Sale consideration was fixed as Rs.5,50,000/-. The entire amount was received by defendant No.1, except a sum of Rs.48,000/-, which was to be paid at the time of registration of the sale deed. The plaintiff had always been ready and willing to perform his part of the contract, but on failure to perform the said contract by defendant No.1, he had to file a suit for possession by way of specific performance of agreement to sell. Defendant No.3 contested the suit by taking preliminary objections inter alia that the suit is not maintainable; the plaintiff has no locus standi to file the suit; the suit suffers from the principles of estoppel and res judicata and from Order 2 Rule 2 CPC. Defendant No.3 is bonafide purchaser of the suit land vide sale deed dated 09.06.2006, executed pursuant to the agreement to sell executed by defendant No.1 in his favour on 19.04.2005. Defendant No.2 was proceeded against exparte and did not contest the suit. From the pleadings of the parties, following issues were framed:- 1. Whether the agreement to sell dated 26.09.2005 is legal and binding? OPP 2. Whether plaintiff was/is ready and willing to perform his part of contract? OPP 3. Whether the suit of plaintiff is not maintainable? OPD 4. Whether the plaintiff has no locus standi to file the present suit? OPD 5. Whether plaintiff is estopped from filing the present suit by his own act and conduct? OPD 5-A. Whether agreement to sell dated 19.04.2005 is legal and valid and defendant No.3 is bonafide purchaser? RSA No. 4063 of 2011 (O&M) 3 OPD 3 6. Relief. Both the parties led evidence. The trial Court decided issues No.1 and 2 in favour of the plaintiff and against defendant No.1, while issue No.5-A was decided against defendant No.3. Similarly, issues No.3 and 4 were also decided against the defendants. The first Appellate Court while affirming the findings returned by the trial Court had dismissed the appeal preferred by defendant No.3 (a subsequent vendee). Heard, admittedly, the suit was filed on 05.06.2006, whereas, the sale deed is stated to have been executed on 09.06.2006 in favour of defendant No.3, allegedly on the basis of the agreement dated 19.04.2005. The appellant has resisted his claim on two counts; firstly that sale deed being executed on the basis of the agreement dated 19.04.2005 i.e. prior to the second agreement, as such, it is quite valid. Secondly, he is a bonafide purchaser for valuable consideration; he had no notice of the second agreement as well about the filing of suit at the time of execution of the sale deed. On the other hand, learned counsel for the respondents states that the agreement having been executed antedated in connivance with defendant No.1, has no value and the same has been executed to make the transaction of sale prior in time. The said agreement is a forged and fabricated document. Secondly, the sale effected during the pendency of the suit, is not binding upon the rights of the plaintiff. Thus, from the material placed on the record, two questions of law arise for determination of this case, which are as RSA No. 4063 of 2011 (O&M) 4 under:- 1. Whether the agreement dated 19.04.2005 is the result of collusion and has been manipulated just to show the subsequent sale being prior in time to the agreement executed by defendant No.1 on 26.09.2005? 2. Whether the appellant is bonafide purchaser for valuable consideration without notice? While dealing with the first question, it may be observed that having seen the alleged agreement at the face of it, the same appears to be concocted in order to project that the same was executed prior in time. The agreement dated 26.09.2005 is a registered document. Had there been any intention of defendant No.1 to execute the agreement in favour of defendant No.3 on 19.04.2005, then he would have also entered into a similar type of transaction i.e. through a registered deed of agreement. The alleged agreement is neither registered nor scribed by a regular deed writer. Land in dispute is situated within the revenue estate of village Godhula, Tehsil Punhana, therefore, in the ordinary course, the agreement should have been scribed either at village Godhula or in the Tehsil Office. But in the present case, the stamp paper was purchased from village Tauru, whereas the agreement was executed at Nuh. No proper explanation is coming forth as to why defendant No.3 entered into a transaction while deviating from the normal course, when he was to part with such a huge amount. Why it was not got recorded from the deed writer and presented before the Sub Registrar for its registration. On perusal of the document, it appears that it is a typed document, but the scribe of the RSA No. 4063 of 2011 (O&M) 5 document has not been examined. The stamp, so purchased, also does not bear the signatures of defendant No.1, who in the normal course would have purchased the same for execution of the document. Even the Stamp Vendor has not been examined to explain as to whom, he had sold the stamp. It would also be significant to mention here that earlier to the filing of the present suit for specific performance, the plaintiff had filed a suit for permanent injunction, in which the defendants had appeared and moved an application under Order 7 Rule 11 CPC. But in that case, defendant No.1 did not take such plea that he had already sold the suit land to defendant No.3. Had he already sold the land at the time of moving the application in the said suit for permanent injunction, then he would not have appeared in the case to contest the same or that he would have disclosed about the previous agreement with defendant No.3. It is also a significant that at the time of filing the written statement, defendant No.3 did not produce the agreement dated 19.04.2005, as alleged by him. On the application filed by the plaintiff, defendant No.3 replied that the original agreement was not traceable and he had handed over the original agreement to his counsel, but to the contrary when his counsel appeared in the Court, he stated that no original agreement is with him. When defendant No.3 himself appeared in the witness box and admitted that he had taken away the agreement after execution and registration of the sale deed. Had he taken away the said agreement after the execution of the sale deed, then why he concealed the true facts and did not mention the same in reply to the application filed by the plaintiff for producing the original agreement. Thus, the inference would be RSA No. 4063 of 2011 (O&M) 6 drawn that the agreement was manipulated later on by defendant No.3 in connivance with defendant No.1 with an intention to protect the subsequent sale made by defendant No.1 in favour of defendant No.3 and to grab the money paid by the plaintiff to defendant No.1. When once, it is held that the conduct of defendant No.1 was suspicious and he suppressed the true facts and concocted the agreement, in that situation, he cannot be said to be a bonafide purchaser for value and without notice. The suit was filed on 05.06.2006, whereas the sale was effected by defendant No.1 in favour of defendant No.3 subsequently i.e. On 09.06.2006 i.e. during the pendency of litigation, as such same suffers from the principle of lis pendence. In the light of the fact that the agreement dated 19.04.2005 is found to be forged and antedated, the said sale cannot be said to have been effected pursuant to the said agreement and as such, it would have to be held that the said agreement was antedated just to project that subsequent sale during the pendency of the suit was pursuant to the agreement prior in time to the agreement executed by defendant No.1 in favour of defendant No.3. Consequently, both the questions would be answered against the appellant. Resultantly, finding no merit in the appeal, the same is hereby dismissed. (A.N.JINDAL) October 14, 2011 JUDGE ajp