RSA No.2504 of 2008 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: 10.9.2009 (i) RSA No.2504 of 2008 Ishri and others .......Appellants Versus Mohan Lal and others .......Respondents Present: Shri Raj Mohan Singh, Advocate, for the appellants. Shri Adarsh Jain, Advocate, for the respondents. (ii) RSA No.2730 of 2008. Jagdish Chand Verma and another ......Appellants Versus Mohan Lal and others .......Respondents Present: Shri Kulbhushan Sharma, Advocate, for the appellants. Shri Adarsh Jain, Advocate, for the respondents. CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? HEMANT GUPTA, J. (Oral). This order shall dispose of Regular Second Appeal No. 2504 of 2008 filed by defendant Nos. 1 to 3 and Regular Second RSA No.2504 of 2008 (2) Appeal No. 2730 of 2008 filed by defendant Nos. 4 and 5 arising out of suit for specific performance of the agreement dated 2.6.1995. Vide the aforesaid agreement, defendant Nos. 1 to 3 agreed to sell the land measuring 7 kanals 5 marlas to the plaintiff for a total sale consideration of Rs.1.00 lac. A sum of Rs.70,000/- was allegedly paid as earnest money, whereas the balance sale consideration was to be paid on or before 2.12.1995 on which date the parties agreed to execute and register the sale deed. Since the vendors did not execute the sale deed, the present suit for specific performance was filed on 4.1.1996. However, during the pendency of the suit, the land was sold in favour of defendant Nos. 4 and 5 vide sale deeds dated 29.6.1998 and 6.7.1998. Thus, the vendees pendente-lite were impleaded as defendant Nos. 4 and 5. Both the Courts have found that the agreement Exhibit PW4/A is proved to be executed. Such finding is recorded on the basis of the testimony of the attesting witness of the agreement, PW4- Mahender Kalra and also the fact that an amount of Rs.61,000/- out of the earnest money was deposited by defendant Nos. 1 to 3 in the Bank account on 5.6.1995 vide Exhibits PW3/1 to PW3/7 and PW4/2. The Courts also found that the plaintiff was ready and willing to perform his part of the contract and consequently granted decree for specific performance of the aforesaid agreement. The pleas of defendant Nos. 4 and 5, transferees pendente lite, as that of a bona-fide purchaser, was RSA No.2504 of 2008 (3) negated for the reason that they are transferees during the pendency of the suit. Learned counsel for the appellants have vehemently argued that 2.6.1995 was the date when the parties, who are co-sharers entered into an agreement of private partition. Under the guise of executing a document for the purpose of private partition, the plaintiff has obtained signatures and thumb impressions of defendant Nos. 1 to 3, which have been used for preparing a receipt. It is also argued that defendant No.4 and 5 are purchaser for value and consideration without notice of the litigation and that the present suit is collusive between the co-sharers so as to deprive the interests of the vendees in the suit land. It is thus argued that defendants No. 4 and 5, being the bona-fide purchasers, are entitled to be protected under Section 43 of the Transfer of Property Act, 1872. There is no document of private partition produced on record which could show that in fact, some document(s) was executed on 2.6.1995 in respect of the alleged private partition. A perusal of the agreement Exhibit PW4/1 and receipt Exhibit PW4/2, does not show that the agreement and the receipt are manipulated documents. On receipt Exhibit P.2, the thumb impressions of Ishri appear partly on revenue stamp and partly on the paper. Mere fact that the receipt is typed with double space as against the agreement the contents whereof are typed with 1-1/2 space, does not lead to an inference that the RSA No.2504 of 2008 (4) document is forged one. Since the typed contents of the receipt are much less, the typist has rightly used double space in typing of the contents of the receipt. The thumb impressions and the signatures are not at the same place in both the documents. Mahender Kalra has appeared as PW4 and deposed in respect of the signing and putting thumb impressions on the document by defendant Nos. 1 to 3. Both the Courts have recorded a concurrent finding of fact to the effect that the agreement Exhibit PW4/1 stands proved to be executed as also the receipt of sale consideration by the defendants. A sum of Rs.61,000/- was deposited on 6.2.1995 in the Bank Account of defendant Nos. 1 to 3 after the the agreement was arrived at on 2.6.1995. The contention that the plaintiff has used blank papers obtained for the performance of the private partition for preparation of the agreement in question, was found to be wholly untenable. The stand of defendant Nos. 4 and 5 that the proceedings are collusive between the plaintiff and defendant Nos. 1 to 3 is wholly untenable. It is not the plea of the purchasers that there is a collusion between the plaintiff and defendant Nos. 1 to 3. The issue claimed by defendant Nos. 4 and 5 is that they are bona-fide purchasers for valuable consideration without notice. In the absence of any plea and evidence of collusion between the parties, the argument raised is only an argument raised in desperation. RSA No.2504 of 2008 (5) Consequently, I do not find any patent illegality or material irregularity in the finding recorded or that the finding recorded gives rise to any substantial question of law in the present second appeal. Hence, the present appeal is dismissed. [ HEMANT GUPTA ] JUDGE 10-09-2009 ds