REGULAR SECOND APPEAL No.1586 OF 2008(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1586 OF 2008 DATE OF DECISION: 3 rd March, 2011 Harchand Singh & others .... Appellants Versus Darshan Singh & others .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. Sanjay Majithia, Senior Advocate with Mr. Samarth Sagar, Advocate for the appellants. Mr. I. S. Brar, Advocate for Mr. S. S. Tiwana, Advocate for respondent No1. * * * * L.N. MITTAL, J. (ORAL) Defendants No.2 and 5 to 7 having lost in both the courts below have filed the instant second appeal. Respondent No.1-plaintiff Darshan Singh filed suit against Teja Singh respondent No.2/defendant No.1 and against appellants and proforma respondents No.3 to 7 as the remaining defendants. Case of the plaintiff is that defendant No.1 was owner of 55 Kanals 6 Marlas land i.e. 5/6th share of 66 Kanals 8 Marlas land. Defendant No.1 agreed to sell 24 Kanals land out of it to the plaintiff at the rate of Rs.50,000/- (Rupees fifty thousand only) per acre i.e. for total consideration of Rs.1,50,000/- (Rupees one lac fifty thousand only) and received Rs.80,000/- (Rupees eighty thousand only) as earnest money and executed impugned agreement dated 23.07.1991. Sale deed was agreed to be executed up to REGULAR SECOND APPEAL No.1586 OF 2008(O&M) -2- 30.12.1991. Defendant No.1 executed sale deed dated 27.11.1991 for 6 Kanals 14 Marlas land in favour of plaintiff's minor son Amandeep Singh defendant No.10 and adjusted Rs.22,333/- (Rupees twenty two thousand three hundred thirty three only) out of the earnest money towards sale consideration of this land. Prior to it, on 19.11.1991, defendant no.1 executed sale deed of 24 Kanals land out of total joint land in favour of defendants No.2 to 7. At the time registration of the said sale deed, plaintiff appeared before the Sub- Registrar and intimated the Sub-Registrar as well as defendants No.2 to 7 regarding the impugned agreement by moving application. Necessary endorsement to this effect was made on the said sale deed by the Sub- Registrar. Thus inspite of knowledge of the impugned agreement, defendants No.2 to 7 purchased 24 Kanals land from defendant No.1. Plaintiff alleged that he has always been ready and willing to perform his part of the contract, but defendant No.1 committed breach thereof. Accordingly, plaintiff sought the decree for joint possession of the remaining land in suit measuring 17 Kanals 6 Marlas by specific performance of the impugned agreement to sell. Defendant No.1 was proceeded ex parte. Defendants No.2 to 7 contested the suit and denied the impugned agreement. They also pleaded to be bonafide purchasers of the suit land for consideration without notice of the alleged agreement. Various other pleas were also raised. Learned Civil Judge (Junior Division), Ludhiana vide judgment and decree dated 14.12.2004 decreed the plaintiff's suit. Sale deed dated 19.11.1991 in favour of defendants No.2 to 7 was held to be null and void if and to the extent share of defendant No.1 in the joint land was less than 17 Kanals 6 Marlas. First appeal preferred by defendants No.2 and 5 to 7 has REGULAR SECOND APPEAL No.1586 OF 2008(O&M) -3- been dismissed by learned Additional District Judge, Fast Track Court, Ludhiana vide judgment and decree dated 20.09.2007. Feeling aggrieved, defendants No.2 and 5 to 7 have filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants vehemently contended that the suit was time barred as it was instituted on 24.12.1994 i.e. after expiry of more than three years from the date of the sale deed dated 19.11.1991 in favour of defendants No.2 to 7, because plaintiff had knowledge of the said sale deed on the date of its execution. The contention cannot be accepted. According to impugned agreement, sale deed was to be executed in favour of the plaintiff up to 30.12.1991. Consequently, cause of action for filing the suit for specific performance accrued to the plaintiff when defendant No.1 failed to execute the sale deed upto 30.12.1991 and therefore, the suit filed on 24.12.2004 i.e. within three years of the accrual of cause of action was filed within limitation and cannot be said to be time barred. Learned counsel for the appellants also contended that sale deed regarding 6 Kanals 14 Marlas land has also been executed in favour of plaintiff's son thereby depicting that the agreement stood annulled regarding the said land. The contention is meritless. As per agreement, sale deed could be executed either in favour of plaintiff or in favour of anybody else at the instance of plaintiff. Even otherwise, sale deed Exhibit P-10 dated 27.11.1991 for 6 Kanals 14 Marlas in favour of plaintiff's son depicts that the said sale deed was executed pursuant to the impugned agreement and even part earnest money paid through the agreement was adjusted towards sale consideration of the said sale deed. Consequently, the said sale deed did not have the fact of REGULAR SECOND APPEAL No.1586 OF 2008(O&M) -4- annulling the impugned agreement. On the contrary, the said sale deed rather strengthened the impugned agreement because defendant No.1-vendor admitted the existence of the impugned agreement by recital in the said sale deed Exhibit P-10. Impugned agreement has been duly proved by the plaintiff by leading cogent evidence. Defendant No.1 has not dared to enter the witness box. Defendant No.2 to 7 did not examine defendant No.1 to controvert the impugned agreement. In fact, no meaningful argument could be advanced on behalf of appellants relating to concurrent finding of the courts below that the impugned agreement stands proved. Appellants cannot be said to be bonafide purchasers of the suit land as pleaded by them. It is admitted case that at the time of execution and registration of the sale deed dated 19.11.1991 Exhibit P-1 in favour of defendants No.2 to 7 including the appellants, the plaintiff brought the impugned agreement to the notice of the said purchasers by moving application Exhibit P-2 before the Sub-Registrar, who made endorsement on the said application as well as on the sale deed. Thus defendants No.2 to 7 including the appellants were having knowledge of the impugned agreement, but inspite thereof, they opted to purchase the suit land from defendant No.1. Consequently, defendants No.2 to 7 cannot be said to be bonafide purchasers of the suit land. It may be added that defendant No.1 was said to be owner of 55 Kanals odd Marlas land being 5/6th share of 66 Kanals 8 Marlas land and, therefore, defendant No.1 could still possibly be owner of 17 Kanals 6 Marlas land out of the joint land as claimed by the plaintiff and right of defendants No.2 to 7 has been protected by the courts below by stipulating that sale deed REGULAR SECOND APPEAL No.1586 OF 2008(O&M) -5- dated 19.11.1991 in favour of defendants No.2 to 7 shall be null and void if and only to the extent that defendant No.1 did not have 17 Kanals 6 Marlas land in the joint land. In other words, if defendant No.1 was still left with 17 Kanals 6 Marlas land in the joint land, then the sale deed in favour of defendants No.2 to 7 would not be adversely affected. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly the appeal is dismissed. (L. N. MITTAL) JUDGE 3rd March, 2011 'raj'