IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.4238 of 2009 (O&M) Date of Decision : 6.5.2010 Karma ....Appellant Versus Bala alias Pyari and others ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr.Ashwani Talwar, Advocate for the appellant. ..... MAHESH GROVER, J. C.M.No.12836-C of 2009 Delay of 169 days in re-filing the appeal is condoned for the reasons mentioned in the application. C.M. stands allowed. C.M.Nos.12837 & 12838-C of 2009 Allowed as prayed for. R.S.A.No.4238 of 2009 The plaintiff is in second appeal questioning the findings of the Courts below. He filed a suit for specific performance on the basis of an agreement to sell dated 8.12.1998. He pleaded that the agreement to sell was to be converted into a sale deed on or before 25.8.2001 but the suit property was sold to respondents No.2 to 11 in the year 1999. The suit was filed in June 2001 with the aforesaid R.S.A.No.4238 of 2009 (O&M) -2- prayer for possession by way of specific performance. The respondent No.1, who was the vendor, did not appear and chose not to contest the suit. Respondents No. 2 to 11 pleaded that they were the bona fide purchasers of the suit land and denied the existence of any agreement to sell in favour of the appellant. They pleaded themselves to be owners in possession of the suit property ever since 17.6.1999 when the sale was effected in their favour. The parties went to trial on the following issues :- 1. Whether the defendant No.1 was owner in possession of suit land as mentioned and described in the head- note of the plaint?OPP 2. Whether the the defendant No.1 entered into an agreement to sell dated 8.12.98 with the plaintiff for selling the suit land situated in village Nanhera as mentioned and described in the head-note of the plaint for Rs.2,00,000/- and whether she also accepted Rs.50,000/- as earnest money from the plaintiff?OPP 3. Whether the plaintiff was always ready and willing to perform his part of the agreement dated 8.12.1998?OPP 4. Whether the sale deed dated 17.6.99 bearing Vasika no.378/1 and 377/1 executed by defendant No.1 in favour of defendants no.2 to 11 are wrong, illegal, arbitrary, null and void and not binding upon the rights of the plaintiff? OPP 5. In case issues No.1 to 4 are decided in favour of R.S.A.No.4238 of 2009 (O&M) -3- plaintiff then whether the plaintiff is also entitled to possession of the suit land by way of specific performance of agreement dated 8.12.1998?OPP 6. Whether the plaintiff is also entitled to injunction, as prayed for?OPP 7. Whether the suit filed by the plaintiff is not maintainable in the present form?OPD 8. Whether the plaintiff has not approached the court with clean hands?OPD 9. Relief. Both the Courts determined that the agreement to sell was a fabricated document. They also held the respondents No.2 to 11 to be the bona fide purchasers of the suit land and dismissed the suit of the appellant/plaintiff which has resulted in filing of this regular second appeal in which learned counsel for the appellant contended that the findings recorded by the Courts below are erroneous and liable to be set aside. He pleaded that there was a valid agreement to sell in his favour which could not be defeated. After hearing the learned counsel for the appellant and perusing the impugned judgments, I am of the opinion that the instant appeal is totally without any merit. Both the Courts have rightly held that a prudent person would not normally choose a date of three years for execution of the sale deed after entering into an agreement to sell. Besides the evidence on record shows that the stamp papers which were purchased from the stamp vendor for the purpose of executing the agreement to sell indicated fraudulent transaction as in the R.S.A.No.4238 of 2009 (O&M) -4- register there are 150/200 entries against one line indicating manipulation and also indicating that the stamp papers were procured fraudulently. That apart, the scribe was not examined by the appellant. He could have been the best witness to say something about the execution of the agreement to sell. In these circumstances, a suspicion arose in the minds of the Courts below compelling them to decide the issue on the basis of preponderance of probabilities that the agreement to sell was not a valid document. I also do not find any material from where I could persuade myself to differ with the findings recorded by the Courts below. In any eventuality respondents No.2 to 11 appear to be the bona fide purchasers of the suit property as the existence of a document such as an agreement to sell would in possibility be not in their knowledge considering the fact it was executed much prior in time, and in the absence of any evidence from the vendor indicating the passing of the knowledge of the agreement to sell to them. Also there is nothing to show that there was passing of any consideration pursuant to the agreement to sell. Consequently the appeal being devoid of any merit is dismissed. 6.5.2010 (MAHESH GROVER) JUDGE dss