R.S.A.No.4198 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.4198 of 2008 (O&M) Date of Decision : 22.5.2009 Surat Singh and others ....Appellants Versus Satbir and others ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr.Bijender Dhankhar, Advocate for the appellants. ... MAHESH GROVER, J. Delay in re-filing the appeal is condoned. This appeal is directed by the plaintiffs against the judgments of the learned trial Court dated 15.6.2002 and that of the first appellate Court dated 30.11.2007. The plaintiff/appellants filed a suit for specific performance seeking to enforce the agreement to sell dated 11.10.1991 executed by Chander Bhan (defendant No.1 in the suit) in their favour pertaining to the suit property at the rate of Rs.1 lac per acre. Pursuant to said agreement to sell a sum of Rs.25,000/- was paid as earnest money. The date for execution of the sale deed was fixed as 15.6.1992. However, time for execution of the same was extended mutually by the parties till 18.6.1992. It is the case of the appellants R.S.A.No.4198 of 2008 (O&M) -2- that their father Chanda Singh was present in the office of the Sub- Registrar, Samalkha on 18.6.1992 and got his presence marked, but Chander Bhan, defendant No.1did not turn up and consequently the sale deed could not be executed. It is further averred that on 12.4.1993 the same land was sold by Chander Bhan to present respondents No.2 to 4 and he came to know about the existence of the sale deed in May 1995 and thereafter he filed the suit. The defendant No.1 – Chander Bhan, on he other hand, contended that the agreement to sell was not a valid document as it was a result of forgery. He also pleaded that various civil suits had been filed by the plaintiff/appellants on the basis of bogus agreements. He pleaded that an agreement was executed by Maha Singh, his brother on 11.10.1991 in favour of the plaintiff and no agreement was executed by him in his favour. He also pleaded that he had sold the land in favour of Mohinder Singh etc. and no agreement was executed by him with the plaintiff nor he received any money from him. The sale in favour of respondents No.2 to 4 was sought to be protected. Similarly, respondent/defendant Nos.2 to 4 filed a separate written statement and it was pleaded that the sale deed was perfectly valid and they were the bona fide purchasers of the suit property for consideration. The parties went to trial on the following issues :- 1. Whether the defendant No.1 entered into an agreement on 11.10.1991 to sell the suit land to the plaintiff and received a sum of Rs.25,000/-as an R.S.A.No.4198 of 2008 (O&M) -3- earnest money as alleged?OPP 2. Whether the possession of the suit land was handed over to the plaintiff by the defendant No.1 at the time of agreement, as alleged?OPP 3. Whether the plaintiff has been/is always ready and willing to perform his part of contract to get the sale deed executed and registered in his favour on payment of remaining sale consideration on his own expenses, as alleged?OPP 4. Whether the sale deeds dated 10.12.1993 and 12.4.1993 executed by the defendant No.1 in favour of the defendants No.2 to 4 are illegal and wrong, not binding on his rights and liable to be cancelled, as alleged?OPP 5. Whether the plaintiff is entitled to the relief of permanent injunction against the defendants No.2 to 4, as alleged ?OPP 6. Whether the plaint has been improperly verified, if so, to what effect?OPD 7. Whether the suit is time barred and is thus not maintainable?OPD 8. Whether the suit has been improperly valued for the purposes of court fee and jurisdiction, if so, to what effect?OPD 9. Whether the agreement dated 11.10.1991 is unenforceable?OPD R.S.A.No.4198 of 2008 (O&M) -4- 10. Whether the defendants No.2 to 4 are bona fide purchasers of the suit land and are, therefore, protected under the provisions of Transfer of Property Act?OPD 11. Whether the agreement dated 11.10.1991 is the result of fraud and misrepresentation and no consideration was passed to defendant No.1, as alleged?OPD 12. Whether the suit is without any cause of action?OPD 13. Relief. The trial Court as also the first Appellate Court before whom the proceedings were initiated returned concurrent findings to hold that the agreement to sell had been validly executed and so was the passing of earnest money. They also concluded that the plaintiff was present in the office of the Sub-Registrar on 18.6.1992, but still declined the prayer of the plaintiff/appellants on the ground that the sale deed in favour of respondents No.2 to 4 was a validly executed document and protected by the provisions of Section 41 of the Transfer of Property Act. It was categorically held that they were the bona fide purchasers of the suit property with consideration. The learned trial Court and the first appellate Court thereafter directed that the amount of Rs.25,000/- which was passed to the vendor Chander Bhan, be returned to the appellants along with interest @ 18% per annum. Aggrieved by the aforesaid findings, the plaintiff/appellants are in regular second appeal and it has been contended by the learned counsel for the appellants that once all the R.S.A.No.4198 of 2008 (O&M) -5- three essential ingredients which are necessary to be established in a suit for specific performance are in his favour, in that eventuality the only option left with the Courts was to decree the suit and direct the defendant/respondent to execute the sale deed, but the same has not been done. Rather a perverse finding has been recorded that respondents No.2 to 4 are bona fide purchasers for consideration and that further the sale in their favour is protected under the provisions of Section 41 of the Transfer of Property Act. I have heard the learned counsel for the appellant and have perused the impugned judgments. There is indeed no doubt that the agreement to sell in favour of the plaintiff/appellants has been held to be valid by both the Courts below and similarly passing of the sale consideration has been held in his/their favour and likewise the willingness and readiness of the plaintiff to perform his part of the agreement by being present on 18.6.1992 before the Sub-Registrar has also been established. But it is to be noticed that after 18.6.1992 the plaintiff/appellants did not make any efforts to get the sale deed executed in his/their favour. No notice was ever served upon the defendant which may not be necessary requirement and a mandatory exercise, yet it has to be independently inferred from the facts of the case whether the plaintiff was always willing and ready to perform his part of agreement or not. The sale in favour of respondents No.2 to 4 fructified in the year 1993. There is nothing on record to show as to what efforts the appellants made to get the sale executed. The willingness to perform has to be continuous and should manifest itself from the conduct of a R.S.A.No.4198 of 2008 (O&M) -6- person. Another contention, which has been raised by the learned counsel for the appellants was that respondents No.2 to 4 could not be held to be bona fide purchasers as they were aware of the earlier agreement. If the plaintiff himself came to know about the execution of sale deed in favour of respondents No.2 to 4 in the year 1993 and he chose to challenge the same in the year 1995 permitting a right to blossom in favour of respondents No.2 to 4, then it does not lie in his mouth to say that his right has been defeated especially when he made no effort to get the sale deed executed after 1992. It is further to be noticed that during all this period no visible attempts were made by the plaintiff/appellants to get the sale deed executed in his favour. In this view of the matter the Courts below have rightly concluded that the sale was protected under the provisions of Section 41 of the Transfer of Property Act. Besides, Section 20 of the Specific Relief Act gives ample discretion to the Court to consider the facts in their totality and to see that if the sale deed is not capable of being executed, then in such circumstances to resort to the grant of an alternate and discretionary relief as contemplated under the said provision of the Act. The question of law which arises for the consideration of this Court is as to whether the discretion under Section 20 of the Specific Act has been rightly exercised or not? The said question has been held to be a question of law by the Supreme Court in Rajeshwari v. Puran Indoria 2005(7) SCC 60. Consequently, the same is answered to hold that in view of the prevailing circumstances when R.S.A.No.4198 of 2008 (O&M) -7- the plaintiff himself failed to establish that he was ready and willing to perform his part of the agreement and further that the sale deed in favour of respondents No.2 to 4 was challenged belatedly, I am of the opinion that the facts rendered the grant of relief of specific performance of the agreement dated 11.10.1991 in favour of the appellants impossible and therefore the Courts below have rightly granted the relief under Section 20 of the Specific Relief Act. Consequently, the present appeal being devoid of any merit is dismissed. 22.5.2009 (MAHESH GROVER) JUDGE dss