RSA No.884 of 2010 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Date of decision: April 05,2011 RSA No. 884 of 2010 (O&M) S.Bikkar Singh and others .....Appellants Versus S.Gurdeep Singh and others .......Respondents RSA No. 885 of 2010 (O&M) S.Bikkar Singh and others .....Appellants Versus S.Gurdial Singh and others .......Respondents RSA No. 886 of 2010 (O&M) S.Bikkar Singh and others .....Appellants Versus Tej Kaur and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. J.S.Toor,Advocate for the appellants. Mr.C.B.Goel,Advocate for the respondents . **** RSA No.884 of 2010 (O&M) 2 SABINA, J. Vide this judgment, the above mentioned three appeals i.e. Regular Second Appeals No. 884, 885 and 886 of 2010 would be disposed of as they have arisen out of a common judgment. The case of the plaintiff-Sham Singh was that he had paid a sum of ` 50,000/- towards earnest money to defendants No. 1 and 2. The same was received by defendant No.1 at the time of execution of agreement to sell. The suit land was mortgaged with Oriental Bank of Commerce, Anaj Mandi, Sirhind Road, Patiala for a sum of ` 3,90,000/- vide simple mortgage deed. The sale deed was to be executed on 1.6.1991. The possession of the suit land had been delivered by defendants No. 1 and 2 to the plaintiff and plaintiff was in continuous possession of the suit property since then. Defendants No. 1 and 2 had entered into a negotiation for sale of the suit land with defendants No. 3 and 4 and they were threatening to take possession of the suit land from the plaintiff. Plaintiff was ready and willing to perform his part of the contract. June 1st and 2nd, 1991 were holidays and, as such, the plaintiff remained present in the Office of Sub Registrar on 3.6.1991 along with balance sale consideration. Defendants no. 2 and 2-A had sold part of the suit land to defendants No. 3 and 4 vide sale deed dated 21.3.1989 although they had no right to do so. Hence, the suit for specific performance of agreement to sell in question was filed by the plaintiff. Defendants, in their written statement, denied that vide agreement dated 31.10.1988, defendant No.1 himself and as RSA No.884 of 2010 (O&M) 3 attorney of defendant No.2 had agreed to sell the suit land to the plaintiff. It was admitted that defendant No.1 had been appointed by defendant No.2-A as her general attorney. Defendant No.2-A had never agreed to sell her share in the suit land. It was denied that the possession of the suit land had been handed over to the plaintiff. It was averred that defendants No. 3 and 4 were in possession of part of the suit land on the basis of sale deed dated 21.3.1989. It was denied that defendant No.1 had received ` 50,000/- from the plaintiff towards earnest money or had agreed to sell the suit land to the plaintiff. Plaintiffs-Gurdeep Singh and Aaya Singh, in their suit for permanent injunction, averred that defendant No.2-Surjit Kaur and defendant No.2-A-Tej Kaur had sold portion of the suit land vide sale deed dated 21.3.1989 and since then they were in continuous possession thereof. Defendant-Sham Singh had no right, title or interest in the suit property. Defendant-Sham Singh, in his written statement, denied the execution of the sale deed in favour of the plaintiffs-Gurdeep Singh and Aaya Singh. It was averred that Sham Singh was in possession of the suit land on the basis of agreement to sell dated 31.10.1988 executed in his favour by Gurdial Singh on his own behalf and as general attorney of Surjit Kaur. In Civil Suit filed by Tej Kaur, Surjit Kaur and Gurdial Singh for permanent injunction against Sham Singh, it was averred that they were owners in possession of the suit land and Sham Singh -defendant had no concern with their suit land. Defendant- Sham Singh, in his written statement, averred RSA No.884 of 2010 (O&M) 4 that he was in possession of the suit land on the basis of agreement to sell dated 31.10.1988 executed in his favour. It was further averred that he had paid ` 50,000/- towards earnest money to Gurdial Singh on his own behalf and as general attorney of Surjit Kaur. Sham Singh claimed protection under Section 53-A of the Transfer of Property Act, 1882. All the suits were consolidated. On the pleadings of the parties, following issues were framed by the trial Court:- “ 1. Whether defendant No.1 himself and general attorney of defendant No.2 agreed to sell the suit land to the plaintiff Sham Singh vide agreement dated 31.10.88?OPP 2. Whether plaintiff Sham Singh is in possession of the suit land?OPP 3. Whether Guridal Singh and Surjit Kaur defendants have leased out the land bearing Kh.No.22 and 23 of Rectangle No. 57 to defendant Gurdeep Singh and Aaya Singh, vide agreement dated 27.5.88 and subsequently defendants No. 3 and 4 have become owners of the suit land vide sale deed dated 21.3.1989, if so its effect?OPD 4.Whether Gurdeep Singh and Aaya Singh plaintiff (of suit No.3711) are in possession of the land bearing khasra No.22 and 23 of Rectangle No.57 as owners?OPP 5.Whether the plaintiffs of suit No. 3931 namely Tej Kaur and others share in possession of the suit land as owner of land measuring 22 kanals 11 Marlas?OPP (Tej Kaur and others) RSA No.884 of 2010 (O&M) 5 6.Whether the plaintiffs have already been ready and willing to perform their part of contract?OPP 7.Whether the plaintiffs are entitled to specific performance of the agreement dated 31.10.1988, on what terms?OPP 8.Whether the plaintiffs are entitled to the possession of land bearing Khasra No.22 (7-7), 23(6-18) of Rectangle No.57?OPP 9.Whether the plaintiff is entitled to the injunction as prayed for?OPP 10.Whether the suit is not maintainable in the present form?OPD 12.Relief” The following additional issues were framed on 15.11999, 23.1.2001 and 31.1.2001;- “11.Whether the defendants No. 3 & 4 are bonafide purchasers for consideration without notice and in good faith?OPD “3-A.Whether agreement dated 31.10.1988 is a forged and fabricated documents?OPD 3-B. Whether agreement dated 31.10.1988 is the result of fraud?OPD” The Civil Judge(Senior Division) vide judgment and decree dated 11.11.2003 has held as under:- “In view of my findings on all the issues above, suit No.254-T, filed by the plaintiff Sham Singh, is partly decreed, against defendants No. 1 & 2, for recovery of Rs.50,000/- with interest @ 12% per annum from 31.10.1988 till realisation of the RSA No.884 of 2010 (O&M) 6 decretal amount. Civil suit No.250-T filed by Gurdeep Singh and Aaya Singh, is decreed for permanent injunction, restraining defendant Sham Singh and his legal representatives, from interfering in their possession, over part of the suit land, bearing Khasra Nos. 57//22 and 23, measuring 14 Kanals 5 Marlas, whereas Suit No. 251-T, filed by Tej Kaur and others, is decreed for possession of 22 Kanals 11 Marlas of suit land, bearing Khasra Nos. 57/21(6-11), 58/17(4-0), 24/2 (4-0) and 25(8-0), on payment of Rs. 50,000/- to legal heirs of defendant Sham Singh, with interest @ 12% per annum, with effect from 31.10.1988, till date of payment. In the facts and circumstances of the case, parties are left to bear their own costs. Decree-sheet be prepared.” During the pendency of the suit, plaintiff-Sham Singh died and his legal representatives were brought on record. Aggrieved by the said judgment and decree, the legal representatives of Sham Singh preferred three appeals. Vide judgment and decree dated 19.10.2009, the Additional District Judge dismissed all the three appeals. Hence, the present appeals by the legal representatives of Sham Singh. After hearing the learned counsel for the parties, I am of the opinion that the above-said appeals deserve dismissal. In the present case, the only question that requires consideration is as to whether the appellants were entitled to a decree for specific performance of agreement to sell in question or not. Both the Courts below, after appreciating the evidence led RSA No.884 of 2010 (O&M) 7 by the parties on record, have held that the appellants were not entitled to a decree for specific performance of an agreement to sell. Defendants No. 3 and 4-Aaya Singh and Gurdeep Singh were held to be bona fide purchasers for consideration. The agreement to sell, Exhibit P1, was executed in favour of Sham Singh by Gurdial Singh on his own behalf and as attorney of Surjit Kaur. However, agreement to sell in question was not executed by Tej Kaur. Admittedly, Tej Kaur had already sold her share out of the joint land before execution of agreement to sell, Exhibit P1. Learned First Appellate Court, after appreciating the evidence on record, held that the plaintiff had failed to establish that he had come in possession of the suit land after the execution of the agreement to sell, Exhibit P1. Plaintiff had come in possession of 22 kanals 11 marlas of land after the crop of Khariff, 1990. Plaintiff was held to be ready and willing to perform his part of the contract. However, it was held that Gurdeep Singh and Aaya Singh were bonafide purchasers for consideration as they had purchased 14 kanals 5 marlas of land vide sale deed dated 21.3.1989, Exhibit DW2/2 without any notice of execution of the agreement Exhibit P1. Gurdeep Singh and Aaya Singh were in possession of the suit land after the execution of the sale deed in their favour. It has been further held by the learned First Appellate Court that the agreement to sell in question was, in fact, a security transaction which had been executed as security for repayment of ` 50,000/- advanced to the plaintiff by defendants No. 1 and 2. Although there was no plea by Gurdial Singh and Surjit Kaur that the agreement to sell in question was merely a security qua loan advanced to them by the plaintiff but RSA No.884 of 2010 (O&M) 8 the learned First Appellate Court, after appreciating the evidence led on record, had rightly came to the conclusion that from the facts and circumstances of the case, it appeared that Exhibit P1 was executed by the defendants in favour of the plaintiffs as a security for the loan transaction,whereas, there was no intention of the parties to sell or purchase the property in question. No substantial question of law arises in these appeals. Dismissed. ( Sabina ) Judge April 05,2011 arya