IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 201 of 2001 Judgment reserved on : 22.6.2011 Date of decision: 13.7.2011 Bhajan …Appellant. Versus Dharam Parkash and others ..Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the appellant : Mr. Ramakant Sharma, Advocate. For the respondents : Mr. Sanjeev Kuthiala, Advocate, for respondents No.1 to 3. None for respondent No.4. Kuldip Singh , Judge The defendant No.2 having lost in both the Courts has come in second appeal against judgment, decree dated 27.12.2000 passed by learned Additional District Judge, Solan in Civil Appeal No. 40-NL/13 of 2000 affirming judgment, decree dated 27.3.2000 passed by learned Sub Judge, Nalagarh in Civil Suit No. 156 1 of 1996. 2. The facts, in brief, are that respondents No.1 to 3 had filed a suit for specific performance of contract against respondent No.4 and appellant. In the suit the possession was prayed, in alternative for pecuniary loss and damages. The suit was based upon agreement dated 29.11.1988 alleging therein that respondents No.1 to 3 entered into an 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 agreement with respondent No.4 for purchasing land described in the plaint for consideration of `16,050/-. It has been alleged that ` 5,000/- were paid in cash and another amount of Rs.3,000/- was paid on 3.7.1989. It was agreed that sale deed would be executed after the year 1997 as prior to that the respondent No.4 was not competent to execute the sale deed. 3. The further case of respondents No.1 to 3 is that appellant purchased the suit land vide sale deed dated 18.5.1996. The appellant was aware of the agreement between respondents No.1 to 3 and respondent No.4. A suit was earlier filed by appellant for declaration which was withdrawn. 4. The suit was contested by respondent No.4 by filing written statement and took preliminary objections of maintainability, lack of cause of action, vagueness and uncertainty of agreement, agreement was against the public policy of the State Government. The agreement was entered into between the parties by mistake that there was bar of executing sale deed within 10 years of allotment. The sale consideration was meager and unconscionable. The respondent No.4 approached respondents No.1 to 3 many times but they refused to perform their part. In these circumstances, the appellant entered into an agreement for purchasing the suit land for ` 80,000/-. A sum of ` 10,000/- was returned to respondent No.1. The agreement has no force of law. It has been alleged that after filing the previous suit, the respondents No.1 to 3 have received ` 15,000/- in addition to `10,000/- and, therefore, sale deed was executed on 18.5.1996. The respondent No.4 ultimately prayed for dismissal of the suit. 3 5. The appellant also contested the suit by filing separate written statement and took preliminary objections of maintainability, cause of action and void agreement. It was alleged that appellant had no knowledge of any agreement of respondents No.1 to 3 with respondent No.4. The appellant had paid ` 80,000/- and is bonafide purchaser for consideration. The appellant had withdrawn the previous suit and the attorney of respondent No.4 was paid ` 15,000/- on 17.5.1996. In these circumstances, the agreement on the basis of the suit has been filed stood discharged. The respondents No.1 to 3 filed replications and re- asserted their stand. 6. On the pleadings of the parties, the following issues were framed:- 1. Whether the defendant No.1 entered into legal sale agreement dated 29.11.1988 with the plaintiffs, as alleged? …OPP 2. If issue No.1 above is proved whether the plaintiff is ready and willing to perform his part of contract? ….OPP 3. If issue No.1 is proved, whether agreement dated 29.11.1988 is not subsisting and enforceable and is unconsionable bargain, as alleged? …..OPD-1 4. Whether this suit is not maintainable? …..OPD-1 5. Whether the plaintiff has no cause of action? …..OPD-1 6. Whether the defendant No.2 is bonafide purchaser of the suit land without notice for is valuable consideration? ….OPD-2 7. Relief. 4 7. The issues No. 1 and 2 were answered in affirmative and issues No.3 to 6 in negative and the suit was decreed as per operative part of the judgment on 27.3.2000. The appeal filed by the appellant and respondent No.4 was dismissed on 27.12.2000, hence second appeal which has been admitted on the following substantial questions of law:- 1. Whether an agreement to sell, which has been entered against a statutory bar can be enforced in a court of law? 2. Whether the discretionary relief of specific performance of contract should be granted in cases where the initial agreement to sell is opposed to public policy and is barred by statute? 3. Whether the discretionary relief of specific performance should be granted in a case where the property has been sold at a much higher price through a registered sale deed? In such cases should not the plaintiff be compensated by way of damages? 8. I have heard the learned counsel for the parties and have also gone through the record. It has been submitted on behalf of the appellant that the agreement dated 29.11.1988 Ex.PW-1/A is void inasmuch as it was executed within the prohibited period of 10 years from the date of allotment of the land. The agreement is against the public policy. It has also been submitted that the appellant is bonafide purchaser for consideration of the suit land vide sale deed dated 18.5.1996 Ex. DW-1/A without notice of the agreement. The appellant has purchased the suit land after paying much higher price and, therefore, instead of 5 specific performance at the most the respondents No.1 to 3 can be compensated by way of damages. 9. The learned counsel for the respondents No.1 to 3 has submitted that in the agreement itself it has been provided that the sale deed would be executed after the year 1997 and before that the land could not be transferred. Therefore, there is nothing wrong in the agreement which provides execution of the sale deed after the year 1997. The appellant was aware of the agreement Ex.PW-1/A between respondents No.1 to 3 and 4 but in order to defeat the rights of respondents No.1 to 3, the respondent No.4 and appellant got the sale deed executed vide sale deed dated 18.5.1996 Ex.DW-1/A. There is no equity in favour of the appellant and he cannot be heard to say that respondents No.1 to 3 be compensated by way of damages instead of specific performance of agreement dated 29.11.1988. 10. The substantial questions of law No.1 and 2 can be conveniently dealt with collectively, therefore, substantial questions of law No.1 and 2 are taken up together for determination. The agreement dated 29.11.1988 Ex.PW-1/A between respondents No.1 to 3 and respondent No.4 has been proved. It has not come on record when the suit land was allotted to respondent No.4, but there is no dispute between the parties that when agreement dated 29.11.1988 Ex.PW-1/A was executed at that time the suit land could not have been transferred by way of sale due to bar on such transfer. There is also no dispute that sale deed of the suit land could be executed after the year 1997 when the suit land was available for transfer by way of sale. 6 11. It has been contended that agreement dated 29.11.1988 Ex.PW-1/A itself is void inasmuch as it was executed during the period when there was bar for transferring the suit land. The agreement does not amount to transfer of the land. The bar was on the transfer of the land and not entering into an agreement to transfer the land after the expiry of bar period. The agreement gives a right to the proposed transferee to seek specific performance, it does not create title in favour of proposed transferee. In Ex.PW-1/A it has been provided that the suit land would be transferred after the year 1997 after the expiry of bar imposed for transferring the land. Thus, it cannot be said that the agreement Ex. PW- 1/A could not have been entered during the bar period for transferring the suit land nor it can be said that the agreement Ex.PW-1/A is against the public policy. It is nobody’s case that the agreement Ex.PW-1/A has been obtained by fraud or misrepresentation. Once agreement dated 29.11.1988 is found valid, then it can be specifically enforced after expiry of bar period through the court of law. The substantial questions of law No.1 and 2 are decided against the appellant. 12. The learned counsel for the appellant has submitted that the appellant has purchased the suit land for consideration of ` 80,000/- vide sale deed dated 18.5.1996 Ex.DW-1/A. The appellant had earlier filed a suit against respondent No.4 for declaration and a copy of plaint is Ex.P4. The suit was for declaration that appellant was owner in possession of the suit land. He projected ownership on the basis of adverse possession. This suit was withdrawn by him on 16.5.1996. DW-2 Bhajan has stated that on 16.5.1996 when his case was fixed for hearing, respondents No.1 to 3 filed application for impleadment and at that time he came to know 7 that there was an agreement in favour of respondents No.1 to 3. The sale deed Ex.DW-1/A is dated 18.5.1996. Thus, it is clear that on 16.5.1996, the appellant had come to know that there is an agreement to sell the suit land in favour of respondents No.1 to 3 but despite that the appellant got the sale deed Ex.DW-1/A of the suit land executed on 18.5.1996. In these circumstances, the appellant cannot be said to be bonafide purchaser without notice of the agreement Ex.PW-1/A nor there is an equity in favour of appellant that respondents No.1 to 3 should not be given the decree of specific performance of the contract on the basis of agreement dated 29.11.1988 Ex.PW-1/A and instead respondents No.1 to 3 should be compensated by way of damages. 13. It appears the appellant and respondent No.4 mixed up and tried to deprive the respondents No.1 to 3 of their right to purchase the suit land on the basis of agreement dated 29.11.1988. The appellant cannot be permitted to take benefit of his own maneuverings. The two Courts below after due appreciation of the material on record have passed a decree of specific performance in favour of respondents No.1 to 3. In second appeal, reappreciation of evidence is not possible, the impugned judgment and decree are not perverse. The appellant has failed to make out any case for interference. There is no merit in the appeal. The substantial question of law No.3 is decided against the appellant. 14. In view of the above discussion, there is no merit in the appeal and the same is accordingly dismissed with no order as to costs. July 13, 2011 ( Kuldip Singh) , (GR) Judge