R.S.A. No. 1871 of 2007 1 R.S.A. No. 2761 of 2007 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1871 of 2007 Date of Decision: 13.07.2009 Balwant Singh son of Phoola Ram, r/o village Gagsina, District Karnal. ... Appellant Versus 1. Buta Ram son of Shankar Dass, r/o village Munak, Tehsil and District Karnal. ...Respondent 2. Shingara Ram son of Mangat Ram, r/o Shadipur Sahidon, Tehsil and District Kurukshetra. 3. Mela Ram; 4. Pyare Lal; both sons of Shri Sardari Lal; 5. Kali Devi widow of Sardari Lal; 6. Rango; 7. Mohindro; 8. Sindho; 9. Gudi; daughters of Late Sardari Lal, all residents of village Rair, Tehsil Assandh, District Karnal. ...Proforma Respondents R.S.A. No. 1871 of 2007 2 R.S.A. No. 2761 of 2007 R.S.A. No. 2761 of 2007 Date of Decision: 13.07.2009 Shingara Ram son of Mangat Ram, resident of village Shadipur Sahidon, Tehsil and District Kurukshetra. ...Appellant Versus 1. Boota Ram son of Shankar Dass, resident of village Moonak, Tehsil and District Karnal. ...Respondent 2. Kali Devi widow of Sardari Lal; 3. Mela Ram; 4. Piare Lal; sons of Sardari Lal; 5. Rango; 6. Mohindro; 7. Sindho; 8. Guddi; daughters of Sardali Lal, all residents of village Rair, Tehsil Assandh, District Karnal. 9. Balwant Singh son of Phoola Ram, resident of village Gagsina, Tehsil and District Karnal. ... Proforma Respondents R.S.A. No. 1871 of 2007 3 R.S.A. No. 2761 of 2007 CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Arun Jain, Senior Advocate, for the appellant, in R.S.A. No. 1871 of 2007. Mr. B.S. Bedi, Advocate, for respondent No. 1 (contesting). Mr. Aashish Aggarwal, Advocate, for the appellant, in R.S.A. No. 2761 of 2007. Mr. B.S. Bedi, Advocate, for respondent No. 1 (contesting). The remaining respondents in both the appeals are proforma-respondents. SHAM SUNDER, J. * * * * This judgement, shall dispose of R.S.A. No. 1871 of 2007, filed by Balwant Singh, appellant, titled as 'Balwant Singh Vs. Buta Ram and others', and R.S.A No. 2761 of 2007, filed by Shingara Ram titled as 'Shingara Ram Vs. Boota Ram others', against the judgement and decree dated 03.03.2006, rendered by the Court of Civil Judge (Junior Division), Karnal, vide which, it decreed the suit of the plaintiff, for specific performance, and the judgement and decree, dated 31.01.2007, rendered by the Court of Additional District Judge, Karnal, vide which, it dismissed the appeal. 2. On 14.09.1981, Shingara Ram, and Sardari Lal (deceased), executed an agreement to sell, in respect of the land, in dispute, in favour of the plaintiff/respondent, for a sale consideration of Rs. 1,25,000/-. At that time, a sum of Rs. 36,000/-, as earnest money, was received, by them. The disputed property had been purchased by the vendors, from the R.S.A. No. 1871 of 2007 4 R.S.A. No. 2761 of 2007 Rehabilitation Department, on payment of instalments. The plaintiff/respondent, was required to pay the balance instalments, to the Rehabilitation Department. It was further agreed, between the parties, that as soon as, the vendors, were held entitled, to sell the land, they would get the sale deed executed, and registered, in favour of the plaintiff/respondent. The possession of the disputed land, was delivered, to the plaintiff, as part performance of the agreement to sell. It was further stated that the plaintiff/respondent, got constructed a farm house, and installed two tube- wells, in the disputed land. According to the plaintiff/respondent, he paid the amount of instalments, towards the price of the land, in dispute, to the Rehabilitation Department, and, as such, performed his part of the contract, dated 14.09.1981. The sale deed, in favour of the defendants (vendors), was executed, on 28.01.1994, by the Rehabilitation Department. It was further stated that the plaintiff/respondent, had ever been ready, and willing to perform his own part of the contract, but the defendants, breached the terms and conditions thereof. On the final refusal of the defendants, to get the sale deed executed and registered, in favour of the plaintiff/respondent, the suit for specific performance, and permanent injunction, was filed. 3. The defendants, put in appearance, and filed written statement, wherein, they took up various objections and contested the suit. It was pleaded that the suit was not maintainable. It was further pleaded that the plaintiff had no locus standi to file the suit. It was further pleaded that the suit was bad for mis-joinder and non-joinder of parties. It was further pleaded that the plaintiff/respondent, had not come to the Court, with clean hands, and, as such, was not entitled to the relief prayed for. It was further pleaded that the suit, was barred by the principles of res-judicata. It was R.S.A. No. 1871 of 2007 5 R.S.A. No. 2761 of 2007 admitted that Shingara Ram, and Sardara Lal (since deceased), represented by his legal representatives, purchased the suit land, from Rehabilitation Department, in an open auction, on 26.10.1978. The sale consideration, was to be paid, in instalments. The sale was confirmed by the competent authority, on 20.12.1978. After the purchase of the suit land, Shingara Ram, and Sardari Lal, allowed the plaintiff/respondent, and his brother Harbans Lal, to cultivate the same, on the condition, that they should pay the balance instalments. They were further told that, after the completion of the instalments, the possession of the land, would be handed over to the defendants. It was further stated that, the plaintiff/respondent, and his brother, however, stopped the payment of the instalments, and, resultantly, the sale deed, was cancelled, by the Rehabilitation Department. However, after much persuasion of the defendants, the sale was restored, in their (defendants') favour. Consequently, the sale deed, in favour of the defendants, was executed, on 28.01.1994, by Tehsildar Karnal. It was further stated that the plaintiff/respondent, and his brother, failed to hand over the possession of the suit land, but due to intervention of the respectable members of the village community, they agreed to hand over the possession to the defendants, in the month of April, 1996. On the pretext of executing a writing, regarding the delivery of possession, the plaintiff/respondent, had fraudulently got written an agreement from them, on 08.04.1996, without explaining the terms and conditions thereof. It was further stated that, under these circumstances, no legal agreement to sell, referred to above, was executed by Shingara Ram, and Sardari Lal, in favour of the plaintiff/respondent, in respect of the land, in dispute, nor any amount was received. The remaining averments were denied. R.S.A. No. 1871 of 2007 6 R.S.A. No. 2761 of 2007 4. Defendant No. 3, who was impleaded, during the pendency of the suit, being a subsequent vendee, having purchased the land, in dispute, from Shingara Ram etc., stated that, he was the bonafide purchaser, for valuable consideration, and without any notice, of the land, in dispute, in the sum of Rs. 21,84,500/-, vide registered sale deed dated 18.12.2003. 5. On the pleadings of the parties, the following issues were struck:- i) Whether the plaintiff entered in valid agreement to purchase the suit property on 14.09.1981 and paid Rs. 36,000/- as earnest money to the defendants as alleged in the plaint? OPP ii) If issue No. 1 is decided in favour of the plaintiff, whether he is entitled for a decree for specific performance of the abovesaid agreement? OPP iii) Whether the possession of the plaintiff can be protected under Section 53A of the Transfer of Property Act? OPP iv) Whether the suit of the plaintiff is not maintainable in the present form? OPD v) Whether the suit of the plaintiff is bad for mis-joinder and non-joinder of necessary parties? OPD vi) Whether the plaintiff has not come to the Court with clean hands? OPD vi - a) Whether the plaintiff has no locus standi to file and maintain the present suit? OPD vi - b) Whether the suit is barred by Order 2 Rule 2 CPC? OPD vi - c) Whether the suit is barred by limitation? OPD vi - d) Whether the suit is bad misjoinder and nonjoinder of necessary parties? OPD R.S.A. No. 1871 of 2007 7 R.S.A. No. 2761 of 2007 vi - e) Whether the plaintiff has no cause of action against the defendant? OPD vi - f) Whether the defendant Balwant is a bonafide purchaser, if so, to what effect? OPD vii) Relief. 6. The parties led oral, as well as documentary evidence, in support of their case. 7. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, decreed the suit of the plaintiff/respondent, for specific performance of the agreement to sell. 8. Feeling aggrieved, an appeal was preferred by the appellants, which was dismissed, by the Court of Additional District Judge, Karnal, vide judgement and decree dated 31.01.2007. 9. Still feeling dissatisfied, the aforesaid Regular Second Appeals, have been filed by the appellants. 10. I have heard the Counsel for the parties, and have gone through the documents, on record, carefully. 11. The Counsel for the appellants, submitted that the Courts below, were wrong, in holding, that the execution, legality, and validity of the agreement to sell, was proved. They further submitted that, even the findings of the Courts below, to the effect, that the plaintiff/respondent, was ready and willing to perform his own part of the contract, are also incorrect. They further submitted that the title, in respect of the land, in dispute, passed, in favour of the vendors, as soon as the last instalment, was paid, and not from the date, when the conveyance deed, was executed, in their favour. They further submitted that the suit having not been filed, within a R.S.A. No. 1871 of 2007 8 R.S.A. No. 2761 of 2007 period of three years, when the last instalment, was paid, was barred by limitation, but the Courts below, were completely wrong, in holding otherwise. They further submitted that, even the suit was barred by the provisions of Order 2, Rule 2 of the Code of Civil Procedure, but the Courts below, were wrong, in holding otherwise. They further submitted that, Balwant Singh, was the bonafide purchaser, for valuable consideration, without any notice, but the Courts below, were wrong, in holding otherwise. They further submitted that the judgements and decrees of the Courts below, being completely illegal, are liable to be set aside. 12. On the other hand, the Counsel for respondent submitted that the concurrent findings of fact recorded by the Courts below, regarding the proof of execution, legality, and validity of the agreement to sell; that the suit was within limitation; that the suit was not barred by the provisions of Order 2, Rule 2 of the Code of Civil Procedure; that the plaintiff/respondent, had always been ready, and willing, to perform his own part of the contract; and that Balwant Singh, was not the bonafide purchaser, for valuable consideration, as he had purchased the land, during the pendency of the suit, are correct. He further submitted that the judgements and decrees of the Courts below, are liable to be upheld. 13. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, both the appeals, deserve to be dismissed, for the reasons to be recorded, hereinafter. In Madvan Nair Vs. Bhaskar Pillai (2005) 10, SCC, 533, Harjeet Singh Vs. Amrik Singh (2005) 12, SCC, 270, H.P. Pyarejan Vs. Dasappa, JT 2006(2), SC, 228, and Gurdev Kaur and others Vs. Kaki and others (JT 2006 (5) SC, 72, while interpreting the scope of Section 100 of R.S.A. No. 1871 of 2007 9 R.S.A. No. 2761 of 2007 the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the trial Court, and first Appellate Court, even if the same are grossly erroneous as the legislative intention was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgements of the Courts below, is confined only to hearing of substantial questions of law. P1 is the agreement to sell. Ram Parkash Gulati, PW1, is the scribe of the agreement to sell. He proved the execution of the said document. Buta Ram, plaintiff/respondent, when appeared, in the witness box, as his own witness, also corroborated the statement of Ram Parkash Gulati. Yashpal Chand Jain, Handwriting and Finger Prints Expert, PW4, compared the questioned thumb impressions of Shingara Ram, on the agreement to sell P1, with his specimen thumb impressions, on the Vakalatnama, in favour of Raj Pal Singh, Advocate, and came to the conclusion, that the questioned thumb impressions, on the agreement to sell, were affixed by the person, who affixed the same, on the Vakalatnama, referred to above. The science, with regard to the identification of thumb impressions, is conclusive, and admits of no doubt. Once the thumb impression of Shingara Ram, was found, in existence, on the agreement to sell, it was for the defendants, to explain, as to how, the same came into existence, on the said document. A plea was taken up by the defendants that, on the pretext of handing over the possession, their signatures/thumb impressions were taken, on a blank paper, which were, later on, converted into an agreement to sell. But no reliable evidence, was produced in that regard, and hence, that plea, was rightly rejected by the R.S.A. No. 1871 of 2007 10 R.S.A. No. 2761 of 2007 Courts below. No doubt, Kulwant Rai, DW1, an attesting witness of the agreement to sell, was examined, by the defendants, and he denied the execution of the said agreement to sell, by them, in favour of the plaintiff/respondent. However, the trial Court, in my opinion, rightly discarded his statement, on the ground, that he must have been won over by them (defendants). The Courts below, were, thus, right in holding, that the execution, legality, and validity of the agreement to sell stood proved. The Courts below, were also, right in holding, that the agreement to sell, was not the result of fraud. 14. From the perusal of the judgements of the Courts below, it is also evident, that they were right, in coming to the conclusion, that the plaintiff/respondent, was always ready and willing to perform his own part of the contract, but it were the defendants, who breached the terms and conditions thereof. As such, the concurrent finding of fact of the Courts below, in this regard, is based, on the correct appreciation of evidence, and law on the point. 15. The perusal of the judgements of the Courts below, also clearly goes to show, that the suit was not barred by the provisions of Order 2, Rule 2 of the Code of Civil Procedure. Earlier, in the year 1988, a suit for permanent injunction, was filed by the plaintiff/respondent, which was dismissed in default, and again, in the year 1994, a suit for permanent injunction, was filed by the plaintiff/respondent, which was got dismissed as withdrawn. By that time, no cause of action had accrued, in favour of the plaintiff/respondent, to file a suit for specific performance, as no conveyance deed had been executed, in favour of his vendors. The suit for specific performance, out of the decision whereof, the instant appeal, has R.S.A. No. 1871 of 2007 11 R.S.A. No. 2761 of 2007 arisen, was not filed, on the basis of the same cause of action, on the basis whereof, the earlier suits, were filed. First of all, those suits, were filed, on different causes of action, as also, the same were not decided, on merits, and secondly, the suit out of the decision whereof, the instant appeal, has arisen, was filed, on a different and distinct cause of action. The same, thus, was not at all barred, under Order 2, Rule 2 of the Code of Civil Procedure. The Courts below, were right, in holding so, and the submission of the Counsel for the appellants, thus, being without merit, must fail, and the same stands rejected. 16. Now coming to the factum, as to whether, the suit, was within limitation, or not, it may be stated here, that the Courts below, were right, in coming to the conclusion, that the same, was filed, within the period of limitation. It was the essence of the contract, that the plaintiff/respondent, had to approach the defendants, for execution of the sale deed, after one month, from the date of passing the title. The title, in this case, passed on to the defendants, on 28.01.1994 i.e. when the conveyance deed was executed, in their favour. The suit, having been filed, on 12.10.1996, i.e. within three years, was, thus, within the period of limitation. The parties, were governed by the terms and conditions of the contract. The intention of the parties, as to when the period of limitation, was to start running, was required to be gathered, from the terms and conditions of the agreement to sell P1. Once the intention of the parties, from the terms and conditions of the agreement to sell, is gathered, then only one and one conclusion, that can be arrived at, is that, the period of limitation started running after one month of 28.01.1994, when the conveyance deed was executed, in favour of the defendants. Reliance was placed by the Counsel for the appellants, on R.S.A. No. 1871 of 2007 12 R.S.A. No. 2761 of 2007 Bishan Paul Vs. Mothu Ram, AIR 1965 (SC), 1994, and Gurbax Singh Vs. The Financial Commissioner and another, 1991 PLJ (SC), 192, to contend that the title in the property passed on to the defendants, on the date of confirmation, the sale of the same, could not be kept in abeyance, till the issue of the certificate, and when the certificate is issued, that relates back to the date, when the sale becomes absolute. Both the aforesaid cases, were decided, on the peculiar facts and circumstances, prevailing therein. Both the aforesaid cases, were not for specific performance. Bishan Paul's case (supra), related to the interpretation of Rules 90 and 92 of Displaced Persons (Compensation and Rehabilitation) Rules, 1955, and Gurbax Singh's case (supra), also related to the interpretation of Rule 90 of the aforesaid rules. The instant case, does not relate to the interpretation of Rule 90 of the aforesaid Rules. In the instant case, the intention of the parties, as to when the period of limitation, was to commence, was required to be gathered, from the terms and conditions of the contract. The intention of the parties, if gathered, from the terms and conditions of the contract, was that after the execution of the sale deed, in favour of the vendors, the prospective vendee, shall approach them, within one month, for the execution of the sale deed. Until and unless, the sale deed/conveyance deed, had been executed, in favour of the vendors, they could not be said to be legally competent, to execute the sale deed, in favour of the plaintiff/respondent/prospective vendee, on the basis of the agreement to sell. In this view of the matter, no help, can be drawn, by the Counsel for the appellants, from the ratio of law, laid down, in the aforesaid cases as the facts thereof are distinguishable from the facts of the instant case. The Courts below, were, thus, right in coming to the conclusion, that the suit R.S.A. No. 1871 of 2007 13 R.S.A. No. 2761 of 2007 was well within limitation. The submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 17. Now coming to the question, as to whether, Balwant Singh, who admittedly purchased the land, in dispute, during the pendency of the suit, could be said to be a bonafide purchaser for valuable consideration, in good faith, without any notice, the Counsel for Balwant Singh, appellant, submitted that, the appellant, was the bonafide purchaser, and, as such, protection of Section 41 of the Transfer of Property Act, was available to him. The submission of the Counsel for Balwant Singh, appellant, in this regard, is legally incorrect. A person who purchases the property, during the pendency of lis, is governed by the provisions of Section 52 of the Transfer of Property Act. He purchases the property, at his own risk and cost, and is to be ultimately bound, by the decree, which may be passed, in the suit. No protection, to such a vendee, under Section 41 of the Transfer of Property Act, is available. In Kanshi Ram and others Vs. Kesho Ram Bahra and others (AIR 1961 Punjab 299), the principle of law, laid down, was to the effect that the principle of estoppel, contained in Section 41, must yield to the doctrine of list pendes contained in Section 52 of the Transfer of Property Act, under which no title, in the property can be validly transferred during the pendency of litigation, in respect of it. The principle of law, laid down, in the said case, is fully applicable to the facts of the instant case. Under these circumstances, the Courts below, were right, in coming to the conclusion, that Balwant Singh, appellant, was not entitled, to the protection, under Section 41 of the Transfer of Property Act, as the property was transferred, in his favour during the pendency of litigation, in respect thereof. The submission of the Counsel for Balwant Singh, appellant, thus, R.S.A. No. 1871 of 2007 14 R.S.A. No. 2761 of 2007 being without merit, must fail, and the same stands rejected. 18. The concurrent findings of the fact, recorded by the Courts below, on the aforesaid discussed points/issues, cannot by any stretch of imagination, be said to be perverse or illegal, and, therefore, warrant no interference. 19. No substantial question of law, has arisen, in this appeal, for the determination of this Court. 20. For the reasons recorded above, R.S.A. No. 1871 of 2007, filed by Balwant Singh, and R.S.A No. 2761 of 2007, filed by Shingara Ram, appellants, being devoid of merit, must fail, and the same, are dismissed, with costs. 13.07.2009 (SHAM SUNDER) Amodh JUDGE