RSA Nos. 2683 of 1993 & 629 of 1994 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A No. 2683 of 1993 Date of Decision: 18.03.2011. Smt. Chinto and others .......Appellants Vs. Sadhu and others ......Respondents R.S.A No. 629 of 1994 Date of Decision: 18.03.2011. Mihan Singh and others .......Appellants Vs. Sadhu and others ......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Arvind Singh, Advocate for the appellants (in RSA No. 2683 of 1993) and for the respondents No. 2 to 4 (in RSA No. 629 of 1994) Mr. C.B.Goel, Advocate for the appellants (in RSA No. 629 of 1994) and for the respondents No. 2 to 6 (in RSA No. 2683 of 1993) Mr. O.P.S.Tanwar, Advocate for the legal representatives of respondent No.1. ..... SABINA, J. Vide this judgment above mentioned two appeals will RSA Nos. 2683 of 1993 & 629 of 1994 -2- be disposed of as these have arisen out of the same suit. Plaintiff Sadhu Singh had filed a suit for possession by way of specific performance of agreement to sell dated 10.7.1980. The case of the plaintiff in brief was that defendant No.1 was owner to the extent of 752/6933 share out of land measuring 349 Kanals 13 Marlas situated in village Kirmach. On 10.7.1980, defendant No.1 entered into an agreement with the plaintiff to sell his 320/6933 share, out of his share, for a consideration of ` 34,000/-. ` 12,500/- were paid by the plaintiff to defendant No.1 towards earnest money at the time of execution of the agreement to sell. The sale deed was to be executed on or before 15.11.1980. Defendant No.1 was to deliver the physical possession of the land, agreed to be sold by him, at the time of registration of the sale deed. However, defendant No.1 had failed to perform his part of the contract. Plaintiff came to know that defendant No.1 had executed a sale deed in favour of defendants No. 2 to 6 on 1.8.1980. Hence, the suit for possession by way of specific performance was filed by the plaintiff. Defendant No.1, in his written statement admitted the fact that he was owner of the land described in the plaint but denied the other contentions in the plaint. It was averred that no agreement had been entered into between the parties as alleged by the plaintiff. The execution of the sale deed by defendant No.1 in favour of defendants No. 2 to 6 was admitted. Defendants No. 2 to 6, in their written statement, admitted that defendant No.1 was owner of the land described in RSA Nos. 2683 of 1993 & 629 of 1994 -3- the plaint. The execution of the agreement to sell in question by defendant No.1 in favour of plaintiff was denied. It was averred that defendant No.1 had executed a valid sale deed in favour of the answering defendants for consideration. The answering defendants were bonafide purchasers for consideration. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the defendant Nasib Singh entered into an agreement to sell for sale of the land in dispute to the plaintiff and executed an agreement accordingly on 10.7.1980 on receipt of Rs.12,500/- as advance money as stated in the plaint, if so to what effect? OPP 2. Whether the plaintiff was always ready and is ready to perform his part of contract? OPP 3. Whether the defendant committed breach of terms and conditions of the contract, if so to what effect? OPP 4. Whether the plaintiff has no locus standi? OPD 5. Whether the suit is not maintainable? OPD 6. Whether the suit is bad for mis-joinder of the parties and cause of action? OPD 7. Whether the plaintiff is estopped from filing the suit? OPD 8. Whether the defendant No.5 and 6 are majors and have been wrongly shown as minors, if so to what effect? OPD 9. Whether the suit is time barred? OPD RSA Nos. 2683 of 1993 & 629 of 1994 -4- 10. Whether the suit has not been valued properly for the purposes of court fee and jurisdiction? OPD 11. Whether the suit has been filed by the plaintiff at the instance of defendant Nos. 2 to 6, if so to what effect? OPD 12. Whether the defendant Nos. 2 to 6 are bona fide transferees of the land in dispute for value and without notice, if so to what effect? OPD 13. Relief.” On 13.6.1994, following additional issue was framed: “Whether the written statement filed by defendants on 19.4.1984 is without any permission or authority and if so to what effect? OPP” Vide judgment and decree dated 7.12.1990, trial court decreed the suit of the plaintiff for recovery of the earnest money along with interest @ 12% per annum. The relief of specific performance of agreement to sell in question was declined on the ground that defendants No. 2 to 6 were bonafide purchasers for consideration. Aggrieved by the said judgment and decree, plaintiff preferred an appeal. Vide judgment and decree dated 29.7.1993, Additional District Judge allowed the appeal, filed by the plaintiff and it was held as under:- “Consequently, accepting the present appeal with costs, judgment/decree dated 7.12.1990 of the learned trial court is set aside. The suit of the appellant/plaintiff for specific performance of the agreement (Ex. P-1) is decreed with costs. The RSA Nos. 2683 of 1993 & 629 of 1994 -5- appellant/plaintiff would make payment of the remaining sale consideration (Rs. 34,000/- less Rs. 12,500/- = Rs. 21,500/-) by 30.8.1993 and the respondent/defendant No.1 (through his legal representatives) would execute the sale deed in terms of agreement Ex. P1 in favour of the appellant/plaintiff. If the agreement to sell (Ex.P1) can survive independently & respondent/defendant No.1 (through his legal representatives) is still remaining to be owner of the share of the land i.e. 320/6993th share. The respondent/defendant No.1 (through his legal-representatives would execute the sale-deed in favour of the appellant/plaintiff. However, if he does not remain to be owner of such share any more than vendees/defendant Nos. 2 to 6, would join with respondent/defendant Nos. 1 though his legal-representatives) in the conveyance of the sale deed so as to pass on the title of share i.e. 320/6993th share in faouvr of the appellant/plaintiff in terms of authority reported as Dalbir Singh versus Kuljit Singh, 1993(2) RRR (PB & HR) 319-Sale deed (Ex.DW2/3) of 640/6993th share would survive it at all only if agreement Ex.P1 taking precedence is complied with by the respondent/defendant No.1 through his legal-representatives.” Hence, the present appeal by the defendants. Learned counsel for the legal heirs of defendant No.1 has argued that the first appellate court had erred in passing a RSA Nos. 2683 of 1993 & 629 of 1994 -6- decree to the extent that the sale deed be executed in favour of the plaintiff qua other land, which has been inherited by the legal representatives of the defendant No.1 apart from the khasra numbers, mentioned in the agreement to sell in question. Learned counsel for the subsequent purchasers i.e. defendants No. 2 to 6 has submitted that the said defendants were bonafide purchasers for consideration. Hence, the suit of the plaintiff could not be decreed for specific performance of agreement to sell in question. Learned counsel for the plaintiff has submitted that at the time of admission of the appeal filed by the vendor, it was ordered that in so far as the relief granted by the first appellate court to the plaintiff for specific performance is concerned, no exception can be had in the matter and the same called for no interference. The appeal was admitted only to settle the rights of the defendants inter se. Learned counsel for the plaintiff has further submitted that the plaintiff had been successful in proving the due execution of the agreement to sell in question. Moreover, the defendants No. 2 to 6 could not be descried to be bonafide purchases qua the suit property. After hearing the learned counsel for the parties, I am of the opinion that the instant appeals deserve dismissal. Plaintiff in order to establish the due execution of the agreement to sell in question, examined PW-4 Datta Ram, attesting witness to the agreement to sell (Ex. P-1), PW-3 Munshi Ram Gulati, scribe of the agreement to sell. Plaintiff himself appeared in the witness box as PW-1. Plaintiff also examined Ram Singh, Finger Prints Expert as PW-5, who opined that the RSA Nos. 2683 of 1993 & 629 of 1994 -7- thumb impressions of Nasib Singh defendant No.1 on the agreement to sell (Ex. P1) matched with his standard thumb impressions. The said witnesses, thus, had proved the due execution of the agreement to sell in question. The question that requires consideration is, as to whether the defendants No. 2 to 6 were bonafide purchasers for consideration. The agreement to sell in question was executed on 10.7.1980 and the date for execution of the sale deed was fixed as 15.12.1980. However, on 1.8.1980, defendant no.1 Nasib Singh executed the sale deed in favour of defendants No. 2 to 6. Admittedly, plaintiff and all the defendants were already joint owners of the suit land. In these circumstances, the learned first appellate court rightly held that it could not be believed that defendants No. 2 to 6 had no knowledge qua the agreement to sell, executed by defendant No.1, in favour of the plaintiff. The defendants had, thus, acted in haste to get the sale deed executed to defeat the right of the plaintiff. The land in question was under mortgage with Ram Kishan. DW-2 Mihan Singh, in his cross examination, deposed that he had got the land redeemed from Ram Kishan after 8-9 months of the execution of the sale deed in their favour. Thus, the possession of the suit land was not handed over to the defendants No. 2 to 6 at the time of execution of the sale deed as at that time land in question was under mortgage with Ram Kishan. The learned first appellate court has rightly come to the conclusion that the defendants No. 2 to 6 cannot be described as bonafide purchasers for consideration as they were also co-sharers with the plaintiff and defendant No.1 and were bound to know about RSA Nos. 2683 of 1993 & 629 of 1994 -8- the execution of the agreement to sell by defendant No.1 in favour of the plaintiff. In these circumstances, the suit of the plaintiff was liable to be decreed for specific performance of agreement to sell. The learned first appellate court, while passing the decree, has taken in account a justice oriented approach. Learned first appellate court has held that the suit of the plaintiff for specific performance of agreement to sell (Ex.P-1) is decreed and the legal representatives of defendant No.1 would execute a sale deed in terms of agreement (Ex.P-1). In order to impart justice between the parties, it was further ordered that in case the agreement to sell (Ex.P-1) can survive independently as the legal representatives of defendant No.1 might be having in their possession share out of the land i.e. 320/6993 share, then they might execute the sale deed in favour of the plaintiff qua that land. However, in case the legal representatives of defendant No.1 have no share left with them, of the land belonging to defendant No.1, then defendants No. 2 to 6 would also join with the legal representatives of defendant No.1 to execute the sale deed in favour of the plaintiff. The said approach adopted by learned first appellate court calls for no interference. No substantial question of law arises in these appeals. Dismissed. (SABINA) JUDGE March 18, 2011 Gurpreet