1 RSA No. 1376 of 2008 THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH --- R. S. A. No. 1376 of 2008 (O&M) Date of decision: 12.5.2009 Kashmir Singh … Appellant Versus Kali Charan and others … Respondents --- CORAM: HON’BLE MR. JUSTICE AJAY KUMAR MITTAL --- PRESENT: Mr. Lokesh Sinhal, Advocate for the appellant. Mr. Adarsh Jain, Advocate for respondent Nos. 1 to 3. --- AJAY KUMAR MITTAL, J. Kashmir Singh, appellant herein, was defendant No.4 in the suit filed by Kali Charan and others, the plaintiff-respondent Nos. 1 to 3. The suit was decreed by the trial court and the trial court decree was affirmed in appeal by the lower appellate court. The facts, in brief, are that defendant Nos. 1 and 2 were owners in possession of agricultural land measuring 28 Kanals 10 Marlas situated in the revenue estate of village Jhuppa, Tehsil Palwal, District Faridabad. The duo agreed to sell half share in the 2 RSA No. 1376 of 2008 said land in favour of plaintiff Nos. 1 and 2 whereas the other half in favour of plaintiff No.3, at the rate of Rs. 1,00,000/- per acre, for a total consideration of Rs. 3,56,250/-. An agreement dated 8.7.1997 was executed between the parties and a sum of Rs. 1,00,000/- was received by them from the plaintiffs as earnest money, i.e. the part payment of the amount of the sale consideration. The tentative date for execution of the sale deed was fixed for 10.6.1998 on payment of the balance sale consideration. Amongst other stipulations in the agreement, one was that the sale deed could be executed either in favour of the plaintiffs or their nominees and also that the land agreed to be sold was free from all sorts of encumbrances. It was further mentioned therein that no other agreement, prior to the agreement dated 8.7.1997 had earlier been executed in respect of the land covered under agreement dated 8.7.1997. It was pleaded that the contents of the agreement in question were read over and explained to defendant Nos. 1 and 2. The second page of the agreement to sell had been lost and the papers were completed after obtaining the certified copy of page No.2 of the agreement to sell. Defendant Nos. 1 and 2, during the prevalence of the agreement to sell, dated 8.7.1997, executed and got registered a sale deed on 7.4.1998 of a major part of the suit land, in favour of defendant No.3, and according to the pleadings of the plaintiffs, it was so done by defendant Nos. 1 and 2 to avoid their legal obligation accrued under the agreement to sell dated 8.7.1997 whereby they 3 RSA No. 1376 of 2008 had agreed to sell the land, including the one sold in favour of defendant No.3, to them. It was pleaded that since defendant Nos. 1 and 2 sold the land at the time when they were still legally bound to sell it in favour of the plaintiffs in view of the agreement dated 8.7.1997, the sale made by them in favour of defendant No. 3, vide sale deed dated 7.4.1998 did not create any title in favour of defendant No.3. The matter did not rest here and yet another development took place. Defendant No.3 went a step ahead of what defendant Nos. 1 and 2 had done. He further sold the land, during the pendency of the suit filed by the plaintiffs, in favour of defendant No.4 vide sale deed dated 28.2.2000 and more importantly, it was so done when an injunction order against alienation of the land was operating against him. The plaintiffs, thus, laid challenge to the said sale as well, i.e. the sale deed dated 28.2.2000, pleading that the same was hit by the principle of lis pendens. It was next pleaded that the plaintiffs were always ready and willing to perform their part of the agreement to sell, dated 8.7.1997, but defendant Nos. 1 and 2 failed to abide by the terms and conditions of the agreement to sell, dated 8.7.1997. On the above premises, the plaintiffs prayed for a decree for possession by specific performance of the above agreement to sell and for declaration to the effect that the sale deed dated 7.4.1998 vide which defendant Nos. 1 and 2 sold the land in favour of 4 RSA No. 1376 of 2008 defendant No.3 and the sale deed dated 28.2.2000 vide which defendant No.3 further sold the land in favour of defendant No.4 as the same did not create any legal title in favour of defendant Nos. 3 and 4. The plaintiffs also sought a decree of permanent injunction restraining the defendants from alienating the suit land. In the alternative, a decree for recovery of Rs. 3,56,250/- for which the suit land was agreed to be sold by defendant Nos. 1 and 2 in favour of the plaintiffs pursuant to the agreement to sell, dated 8.7.1997, was also sought. The defendants gave a hot contest to the pleas of the plaintiffs. Three written statements were filed, one by defendant Nos. 1 and 2, the second by defendant No.3 and the third one by defendant No.4. Defendant Nos. 1 and 2 pleaded that they had never entered into the agreement of sale of the land in suit with the plaintiffs nor did they receive any earnest money. No sale price of the land was ever negotiated by them with the plaintiffs and the agreement to sell and the receipts etc. were forged documents and were obtained by fraudulent means. The sale deed made in favour of defendant No.3 was legal and valid. Defendant No.3 in his written statement pleaded that the agreement to sell, dated 8.7.1997, was a forged document and the sale made to him through sale deed dated 7.4.1998 was legal and valid and it created a valid title in his favour. He was a bona fide purchaser of the suit land for valuable consideration without notice of 5 RSA No. 1376 of 2008 the alleged agreement of sale, dated 8.7.1997, in favour of the plaintiffs. Defendant No.4 in his written statement pleaded that no agreement was executed by defendant Nos., 1 and 2 in favour of the plaintiffs and if there was any, it was bogus document and he being a lawful and bona fide purchaser of the land was the legal owner thereof. It was further pleaded that defendant No.3 had legally sold the suit land in his favour vide sale deed dated 28.2.2000. The plaintiffs also moved an application under Order 39 Rule 2-A of the Code of Civil Procedure (for short “the Code”) for initiating contempt proceedings against the defendants for disobeying the injunction order passed in the suit on 18.5.1998. And the suit as well as the aforesaid proceedings were taken up together and disposed of by a single judgment, by the trial court. The trial court on appreciation of the evidence, accepted the pleas of the plaintiffs and as a result decreed their suit vide judgment and decree dated 19.1.2007, for possession by specific performance of the agreement of sale dated 8.7.1997, Exhibits P-1 and P-2. The trial court held that defendant Nos. 1 and 2 were duty bound to get the sale deed executed and registered in respect of half share of the suit land in favour of plaintiff Nos. 1 and 2 and the remaining half in favour of plaintiff No.3. The sale deed dated 7.4.1998 (Exhibit P-3) executed by defendant Nos. 1 and 2 in favour of defendant No.3 was declared to be illegal and having no bearing on the rights of the plaintiffs. It 6 RSA No. 1376 of 2008 was further held that since defendant No.3 was not having any legal and valid title to the land, the sale made by him in favour of defendant No.4 vide sale deed dated 28.2.2000 (Exhibit D-1) during the pendency of the suit was illegal and had no bearing on the rights of the plaintiffs and the same was hit by the principle of lis pendens as well. In contempt proceedings, defendant No.3 was found guilty and sentenced to undergo simple imprisonment for a period of fifteen days. Three appeals came to be filed against the judgment and decree of the trial court, one by Kashmir Singh, defendant No.4, the other one by Suresh Kumar, defendant No.3 challenging the trial court decree in so far as it related to the cause of specific performance and the third one, also by defendant No.3, challenging the order of conviction and sentence passed by the trial court in contempt proceedings. The lower appellate court, on re-appreciation of the evidence affirmed the findings of the trial court on the former aspect but accepted the appeal filed by defendant No.3 whereby he had laid challenge to his conviction and sentence passed in contempt proceedings, vide judgment and decree dated 8.2.2008. I have heard the learned counsel appearing for the parties and have also gone through the record with their assistance. Learned counsel for the appellant vehemently argued that once the lower appellate court had exonerated defendant No.3- 7 RSA No. 1376 of 2008 Suresh Kumar, by accepting his appeal filed against his conviction and sentence, the findings that he was not bona fide purchaser for consideration were contradictory and legally unsustainable. Clarifying his submission, the learned counsel argued that the lower appellate court had held that there was no violation of the provisions of Order 39 Rules 1 and 2 of the Code and, therefore, the proceedings were not valid. Once that is so, the necessary corollary would be that defendant No.3 was a bona fide purchaser for consideration and consequently sale by defendant No.3 to defendant No.4 was valid and the suit should have been dismissed. Controverting the aforesaid submission, the learned counsel for respondent Nos. 1 to 3, emphasized that the lower appellate court had set aside the sentence of 15 days awarded to Suresh Kumar, defendant No.3 for violating the ad interim injunction on mere technicality as the trial court had not followed proper procedure while recording evidence in these proceedings. According to the learned counsel, defendant No.3 or 4 cannot derive any benefit there from as the proceedings under Order 39 Rule 2-A of the Code are different from the suit for specific performance. The argument of the learned counsel for the appellant does not impress me at all. The controversy raised in the suit and the proceedings under Order 39 Rule 2-A of the Code was totally different. The issue involved in the suit related to enforcement of the agreement to sell, dated 8.7.1997 whereas, the question for adjudication, in proceedings 8 RSA No. 1376 of 2008 under Order 39 Rule 2-A of the Code was, whether defendant No.3 had disobeyed the ad interim injunction granted under Order 39 Rules 1 and 2 of the Code, and made himself liable for punishment there-under. The controversy though was in respect of the same property but it cannot be termed as identical. The proceedings for disobedience or breach of injunction order are quasi criminal in nature as the person who violates such order of the court can be detained in prison if it is established that there has been intentional violation of injunction order. The principles of criminal law regarding mens rea and also that the defendant has voluntarily and intentionally committed breach of an ad interim injunction order must be proved on record beyond all shadows of doubt. On the other hand, the principles on which the decision of the civil suit depends are different as in that case, on the basis of evidence led on various issues, the plaintiff is required to prove the case on the basis of preponderance of evidence. Further, in the present case, no finding in favour of defendant No.3 that he was a bona fide purchaser had been recorded by the lower appellate court while granting him benefit in the proceedings under Order 39 Rule 2-A of the Code and defendant No.3 has been let off on mere technicality as the trial court had not followed proper procedure while recording evidence in those proceedings. Still further, the appellant-Kashmir Singh had purchased the suit property during the pendency of the suit and especially when ad interim injunction restraining defendant No.3 from alienating the 9 RSA No. 1376 of 2008 same was operative. The apex Court in Sanjay Verma Vs. Manik Roy and others, 2007(2) HRR 179 has categorically laid down that no party can be permitted to take the plea of being bona fide purchaser during the pendency of litigation. The observations recorded in para 11 of said judgment read thus:- “The principles specified in Section 52 of the T.P. Act are in accordance with equity, good conscience or justice because they rest upon an equitable and just foundation that it will be impossible to bring an action or suit to a successful termination if alienations are permitted to prevail. A transferee pendent lite is bound by the decree just as much as he was a party to the suit. The principle of lis pendens embodied in Section 52 of the T.P. Act being a principle of public policy, no question of good faith or bona fide arises. The principle underlying Section 52 is that a litigating party is exempted from taking notice of a title acquired during the pendency of the litigation. The mere pendency of a suit does not prevent one of the parties from dealing with the property constituting the subject matter of the suit. The Section only postulates a condition that the alienation will in no manner affect the rights of the other party under any decree which may be passed in the suit unless the property was alienated with the permission of the Court.” 10 RSA No. 1376 of 2008 Accordingly, defendant No.4-appellant could not claim the protection of Section 41 of the Transfer of Property Act, 1882. In view of the above, this Court does not find any ground to interfere with the concurrent findings of fact recorded by the courts below which are neither perverse nor arbitrary in any manner,. Resultantly, there is no merit in the appeal and the same is accordingly dismissed. (AJAY KUMAR MITTAL) May 12, 2009 JUDGE *RKMALIK*