Regular Second Appeal No. 1329 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 1329 of 2009. (O&M) Date of Decision: 25.3.2009 *** Jagir Singh & Ors. .. Appellants VS. Kuldeep Chand & Ors. .. Respondents. CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. S.K. Sandhir, Advocate for the appellants. *** ARVIND KUMAR, J. The instant regular second appeal has been preferred by the defendants-subsequent purchasers against the judgments and decrees passed by the Courts below holding that the sale-deed dated 15.6.1987 executed by respondent Shamsher Singh in their favour, being the attorney of his grand- father Bakhtawar Singh, not binding upon the rights of the plaintiffs- respondents No.1 and 2 and their plea of being bonafide purchaser has been disbelieved by both the Courts below and they have been directed to join hands with Bakhtawar Singh to get the sale-deed executed in favour of the plaintiffs, the right which accrued in their favour by dint of agreement to sell dated 14.7.1984. Having heard learned counsel for the appellants, this Court is of the considered view that there is no merit in the instant appeal. It emerges out that the plaintiffs by producing over-whleming evidence on record, proved the due execution of agreement to sell dated 14.7.1984 executed by Amrik Singh, father of respondent Shamsher Singh, in their favour being attorney of his father Bakhtawar Singh and also that they remained ready and will to perform their part of the contract. The plea of the appellants that they are bonafide purchasers for valuable consideration and without notice Regular Second Appeal No. 1329 of 2009 2 of the agreement dated 14.7.1984 in favour of the plaintiffs and thus, their rights are protected by Section 41 of the Transfer of Property Act, has been disbelieved by the Courts below. Admittedly, prior to the said sale-deed, no agreement to sell was entered into between the parties and straightway sale- deed was executed in favour of the appellants; admittedly the appellants and the sellers hail from the same village, leading to the inference by the Courts below that it is not possible for them to have no knowledge of the agreement to sell dated 14.7.1984 in favour of the plaintiffs and some admissions made by respondent Shamsher Singh and the appellant Rajender Singh, led the Courts below to conclude that the conduct of the appellants is not bonafide and the agreement dated 14.7.1984 in favour of the plaintiffs was well within their knowledge. The above-said findings are discernible from paras No.21, 22 and 23 of the judgment passed by the learned Appellate Court, which are reproduced below:- “21. The learned counsel for the respondents have alleged that the unusal haste have been shown by the defendants for getting the sale deed in their favour. They have relied upon 1997 (supplementary) CCC 111 Punjab and Haryana in case titled as Nirmal Singh and others Vs. Gejo in which it has been held by the Hon'ble High Court that, “subsequent purchaser vendees did not entered into the agreement. Unusual haste with which the sale deed was executed and registered and other circumstances point out towards only one conclusion that the vendees had the notice of the previous agreement to sell”. The law laid down in this citation is fully applicable to the facts of the case in hand. Defendant/ appellants have failed to rebut the law laid down in this citation, as in the instant case also there is no prior agreement between the subsequent vendees and the vendor regarding the sale of the property in dispute. Although in their written arguments the appellants have alleged that there was oral agreement and subsequently sale deed was executed. Even this contention is devoid of Regular Second Appeal No. 1329 of 2009 3 any merits. There is not an iota of evidence on the file to prove this fact. Rather acts of the appellant clearly shows that they have shown undue haste in getting executed the sale deed in their favour which clearly shows that they were fully aware about the prior agreement to sell in favour of the plaintiff/ respondent. 22. Defendant Shamsher Singh has admitted in his cross examination that when he came to know about the agreement executed of Bakhtawar Singh, he assumed same to be forged document, so he entered into sale deed dated 15.6.1987 with defendant No.4 to 7. He further admitted that sale deed was execute to frustrate the agreement in question in favour of the plaintiffs. He further admitted at that time Amrik Singh and Bakhtawar Singh used to reside together and after the death of Bakhtawar Singh he and Amrik Singh are residing together. Meaning thereby from whom the subsequent purchasers have purchased the property was fully knowing about the previous agreement to sell in favour of the plaintiffs and he intentionally executed sale deed to frustrate the prior agreement to sell executed by Amrik Singh in favour of the plaintiffs. The learned counsel for the respondents/ plaintiffs has relied upon 2008(1) RCR 649 in case titled as Moti Ram Vs. Mohinder Singh in which it has been held by the Hon'ble High Court in para no.14 “In order to succeed under section 19(b) of the Act two conditions were required to be fulfilled i.e. the payment was made in good faith and the alienation was made without notice of the original contract. In this regard it is relevant to notice that in the plaint a specific plea was taken that the agreement to sell dated 3.6.1998 was well within the knowledge of defendant No.2. It was further pleaded that the sale deed was executed in favour of defendant No.2 in order to create or cause wrongful loss to the plaintiff. This Regular Second Appeal No. 1329 of 2009 4 specific plea was supported by the evidence led by the plaintiff whereas defendants after denying the same chose not to appear in the witness box. In view of what has been stated above, the appellant cannot drive any benefit from the provisions of Section 19(b) of the Specific Relief Act as he has failed to prove on record that the sale consideration was made without notice of agreement. Rather the evidence led by the plaintiff respondent that the sale deed was executed to defeat his right went unrebutted as the appellant chose not to appear in support of the case set up by him. The authorities relied upon by the appellant, therefore, does not in any way advance the case sought to be pleaded by the learned counsel for the appellant. The plaintiff respondent had taken a specific plea that the sale deed was not bonafie”. Although in the written arguments the appellants have alleged that they are not bound by the statement made by DW-4 Shamsher Singh but this contention is devoid of any merits. It clearly shows that appellants are trying to wriggle out of the statement made by Shamsher singh. Rather evidence of Shamsher Singh makes it clear that he was fully aware about the prior agrerement to sell and he intentionally executed the sale deed in connivance with defendant no.4 to 7 just to frustrate the prior agreement to sell. As such defendant no.4 to 7 cannot be termed as bonafide purchasers and their rights are not protected under Section 41 of Transfer of Property Act. 23.Defendants/ appellants have not made proper inquiry before getting the sale deed executed in their favour and thus their rights are not protected under Section 41 of the Transfer of Property Act. Consequently I do not find any illegality or irregularity in the findings recorded by learned trial Court....... “ Regular Second Appeal No. 1329 of 2009 5 The aforesaid findings returned by the learned appellate Court while affirming that of learned trial Court, lead to irresistible conclusion that there is no room for interference in the concurrent findings returned by the Courts below. In view of the above, the instant appeal being devoid of any merit is dismissed in limine. (ARVIND KUMAR) JUDGE March 25,2009 Jiten