R.S.A.No. 2877 of 2009 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2877 of 2009 Date of decision: 6.8.2009 Labh Singh and others ......Appellants Versus Sanjeev Kumar and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.H.R.Nohria, Advocate, for the appellants. **** SABINA, J. Plaintiff-respondent No.1 Sanjeev Kumar filed a suit for specific performance and for joint possession against defendants No. 5 to 7 (appellants) and respondents No. 2 to 5. The suit of the plaintiff was decreed by the Civil Judge (Jr.Divn.) Barnala vide judgment and decree dated 11.9.2007. In appeal, filed by defendant Nos. 5 to 7, the said judgment and decree were upheld by the Additional District Judge, Barnala vide judgment and decree dated 11.6.2009. Hence, the present appeal by defendants Nos. 5 to 7. Brief facts of the case, as noticed by the trial Court in para Nos. 1 to 4 of its judgment, are as under:- “ The plaintiff has filed the present suit for specific performance of the agreement to sell dated 3.12.2002 and suit for joint possession of the suit R.S.A.No. 2877 of 2009 2 property. In the plaint, it has been submitted that the defendant Nos. 1 and 2 were owner in possession of the suit property comprised of Khasra No.228//1(8-0), 2(8-0), 9 (8-0) situated at village Pakho Kalan to the extent of 2/3 share. The defendants No. 1 and 2 had agreed to sell 16 kanal of land of their share in the suit land @ Rs.1,67,000/- per acre to the plaintiff and had executed an agreement to sell dated 3.12.2002 and had also received Rs.2,30,000/- as earnest money. It has further been agreed that the balance amount of Rs.1,04,000/- shall be paid on 9.12.2002 i.e. date fixed for execution of the sale deed and had also agreed to deliver the possession of the land to the plaintiff. The defendants had executed the agreement to sell after hearing and understanding the contents of the same to be correct in the presence of the attesting witnesses. The plaintiff was present in the office of Joint Sub Registrar, Tapa on 9.12.2002, along with balance sale consideration amount, but the defendants no.1 and 2 did not turn up. The plaintiff in order to get his presence marked got prepared an affidavit and had got the same attested from the Joint Sub Registrar, Tapa in token of the proof of the plaintiff, on the date fixed. It has been further submitted in the plaint that the plaintiff has always been ready and willing R.S.A.No. 2877 of 2009 3 to perform his part of the agreement to sell by paying the balance sale consideration amount to the defendants no. 1 and 2 and the plaintiff is still ready and willing to perform his part of agreement to sell dated 3.12.2002. The plaintiff had verbally asked the defendants no. 1 and 2 to get the sale deed executed as per agreement to sell dated 3.12.2002, but the defendants had not shown their intention to execute the sale deed. As such, the defendants had violated the agreement to sell dated 3.12.2002 by executing the sale deed qua the suit property, along with other property in favour of the defendants No. 5 to 7. The said sale deed having been executed is against law and facts and is nullity in the eyes of law. Hence, the present suit has been filed. 2. Upon notice, the defendants No. 1 and 2 filed written statement, in which they have taken the legal objections that the plaintiff has got no locus standi to file the present suit; the agreement to sell dated 3.12.2002 is forged and fabricated document; the defendants no. 1 and 2 have not affixed thumb impressions on the agreement to sell dated 3.12.2002. On merits, all the averments as mentioned in the plaint have been denied by the defendants. It has been submitted that no agreement to sell dated 3.12.2002 R.S.A.No. 2877 of 2009 4 was executed by the defendants in favour of the plaintiff nor the defendants thumb marked the same, after understanding the same to be correct in the presence of the attesting witnesses. It has further been submitted that no such agreement to sell was executed by the defendants and the defendants have admitted that they had executed the sale deed for the suit property in favour of the defendants No. 5 to 7. 3. The defendant No.4 appeared and filed separate written statement, in which the defendant has taken legal objection that the suit of the plaintiff is not maintainable; the plaintiff has got no locus standi or cause of action to file the present suit against the defendant No. 4 State Bank of India. On merits, all the averments as stated in the written statement have been denied for want of knowledge. It has further been submitted that in case any agreement to sell has been executed by the defendants, then it has got effected upon the rights of the defendant No.4 State Bank of India. 4. The defendants No. 5 to 7 filed separate written statement, in which they have taken legal objections that the defendants No. 5 to 7 have purchased 20 kanal of land vide sale deed dated R.S.A.No. 2877 of 2009 5 6.12.2002 out of 37 kanal 4 marle, comprised Khasra no.228//1(8-0), 2(8-0), 9(8-0), 229//5/2(6-12), 6/1(6-12) and as such had purchased 400/744 share which comes to 20 kanal. The said land was purchased by the defendants for a consideration of Rs.five lac. The defendants as such are owners of the land measuring 20 kanal which they have purchased vide sale deed dated 6.12.2002. The defendant No.3 is a minor and suit has been wrongly filed against him. The present suit has been filed by the plaintiff inconnivance with defendants No.1 and 2. On merits, it has been submitted that defendants No. 5 to 7 have purchased the suit property from the defendants No.1 and 2 vide sale deed dated 6.12.2002. All the averments as stated in the plaint have been denied. The said agreement to sell dated 3.12.2002 has been got prepared by the plaintiff inconnivance with the defendants No. 1 and 2 with a view to cause loss to the defendants No. 5 to 7. The sale deed has been executed in favour of defendant Nos. 5 to 7 is legal which was executed for a consideration of Rs. Five lac. The defendants No. 5 to 7 are bonafide purchaser or consideration without notice.” R.S.A.No. 2877 of 2009 6 On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the defendants No. 1 and 2 entered into an agreement dated 3.12.2k2 with the plaintiff to sell the property in dispute by receiving amount of Rs.2,30,000/- in cash and also agreed to execute the sale deed on or before 9.12.2002 on receipt of balance sale consideration in favour of the plaintiff? OPP 2. Whether the plaintiff was ready and willing and is still ready and willing to perform his part of contract dated 3.12.2k2? OPP 3. Whether the sale deed No.2047 dated 6.12.2002 registered on 11.12.2002 executed by defendants No. 1 and 2 in favour of defendant Nos. 5 to 7 is null and void? OPD 4. Whether the plaintiff is entitled for specific performance of agreement to sell dated 3.12.2002 as prayed for? OPP 5. Whether the plaintiff has no locus-standi to file the present suit? OPD 6. Whether the agreement to sell dated 3.12.2002 is forged and fabricated documents? OPD 7. Whether the defendants No. 1 to 3 are entitled to special costs under Section 35-A of CPC? R.S.A.No. 2877 of 2009 7 OPD 8. Whether the defendants No. 5 to 7 are bonafide purchaser without any notice? OPD 9. Relief. ” After hearing learned counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed. Plaintiff Sanjeev Kumar has filed a suit for specific performance of agreement to sell dated 3.12.2002 and for joint possession of the suit property. In order to prove his case, he himself appeared in the witness box as PW-4 and deposed as per the contents of the plaint. PW-1 Suresh Kumar and PW-2 Joginder Singh, attesting witnesses of the agreement to sell, corroborated the statement of the plaintiff with regard to execution of the agreement to sell. On the other hand, defendants No. 1 and 2 denied the execution of the agreement to sell Ex.P-1. It was also averred that the agreement to sell was not thumb marked by them. However, defendants No. 1 and 2 did not appear in the witness box to substantiate their averments made in the written statement. In these circumstance, both the Courts below rightly came to the conclusion that the agreement to sell Ex.P-1 stood duly established. The appellants are the subsequent purchasers of the property in question. Their stand before the Courts below was that they were bona fide purchasers for consideration. The appellants based their R.S.A.No. 2877 of 2009 8 claim on the basis of sale deed Ex.D-1 executed in their favour by defendants No. 1 and 2. The sale deed in question Ex.D-1 was executed on 6.12.2002 and was got registered on 11.12.2002. The sale consideration was not paid to the vendor before the Sub Registrar at the time of execution of the sale deed. In fact, the case of the appellants was that the entire sale consideration had been paid to defendants No. 1 and 2 at their residence. In case the sale consideration had been paid on the day the sale deed was executed then there is no plausible explanation as to why the sale deed was not got registered on the same day and was rather got put up before the Sub Registrar on 11.12.2002 for registration. Moreover, the parties belong to the same village and in normal circumstances, they would have come to know about the execution of the agreement to sell by defendants No. 1 and 2 in favour of the plaintiff. Hence, the Courts below rightly came to the conclusion that Ex.D-1 appears to be a hasty transaction which was entered into in order to counter the agreement initially executed by defendants No. 1 and 2 in favour of the plaintiff. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE August 06, 2009 anita