R.S.A. No.1387 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.1387 of 2008 Date of Decision:21.11.2008 Major Singh and others .....Appellants Vs. Makhan Singh .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. H.S. Baath, Advocate for the appellants. **** JUDGMENT HARBANS LAL, J. This appeal is directed against the judgment/ decree dated 4.2.2008 passed by the Court of learned Additional District Judge, Tarn Taran whereby he dismissed the appeal filed against the judgment/ decree dated 3.2.2007 rendered by the Court of learned Civil Judge (Junior Division), Tarn Taran vide which he decreed the suit for possession by way of specific performance of the agreement to sell dated 18.10.2001 executed by Major Singh defendant in favour of the plaintiff on payment of balance amount of Rs.1,59,875/-. The facts which form the backdrop of the suit are that Major Singh- defendant is owner of the land measuring 7 kanal 11 marlas bearing Khata No.273/894, Khasra No.49//25/2 (4 kanal 11 marlas), 51/5 (3 kanal 3 marlas) situated in Village Johal Dhai Wala, Tehsil Khadur Sahib as it fell to his share by way of family settlement. He entered into an agreement with the plaintiff to sell the land at the rate of Rs.2,70,000/- per acre by receiving R.S.A. No.1387 of 2008 -2- a sum of Rupees One Lac as earnest money. As agreed upon, the sale deed was to be executed and registered by 31.10.2001. The plaintiff is still ready and willing and has always been ready and willing to perform his part of the agreement. On 31.10.2001, the plaintiff went to the office of Sub-Registrar, Khadur Sahib for getting the sale deed executed, but the aforesaid defendant did not turn up. The plaintiff then got his affidavit attested from the office of Sub-Registrar / Executive Magistrate, Khadur Sahib on the said date. Major Singh- defendant executed a sale deed in favour of his co-defendants Sukhjinder Singh, Manjinder Singh and Harjinder Singh, sons of Darabara Singh in violation of the afore-mentioned agreement without consideration. His aforesaid co-defendants had notice of the prior agreement in respect of the suit property executed by Major Singh in favour of the plaintiff. The plaintiff telegraphically informed the co-defendants not to purchase the suit land as Major Singh had already entered into an agreement to sell the suit land to him. So much so, the plaintiff also moved an application to the Sub- Registrar, when the sale deed was presented for registration, but to no effect. He requested the defendants to admit his claim, but they refused to do so. On these allegations, this suit has been filed for specific performance of the afore-referred agreement to sell. In his written statement, Major Singh- defendant admitted himself to be the owner in possession of the suit land, but denied that he has entered into the alleged sale agreement with the plaintiff. This apart, he also denied the receipt of Rs.1 lac as earnest money. In their joint written statement, his co-defendants have inter-alia pleaded that the suit is not maintainable. However, they have admitted Major Singh to be the owner in possession of the suit land, but, denied the execution of the disputed sale R.S.A. No.1387 of 2008 -3- agreement. It has been alleged that the plaintiff and Major Singh- defendant have collided to grab the suit land from the answering defendants who have purchased the same vide sale deed dated 25.1.2001 for consideration of Rs.1,88,750/- accompanied by delivery of possession. The answering defendants are bonafide purchasers for consideration and without notice of the alleged sale agreement. The following issues were framed by the learned trial Court:- 1. Whether the defendant No.1 executed an agreement to sell dated 18.10.2001 in favour of the plaintiff and received Rs.1 lakh as earnest money? OPP 2. Whether defendant No.1 had failed to fulfill his part of contract? OPD 3. Whether the plaintiff has been always ready and willing and still ready to perform his part of the contract? OPP 4. Whether the plaintiff is entitled to the specific performance of the agreement dated 18.10.2001? OPD 5. Whether the plaintiff is entitled to the alternative relief of the recovery as claimed for? OPP 6. Whether the alleged agreement dated 18.10.01 is forged, fabricated document? OPD1. 7. Whether the suit of the plaintiff is not maintainable in the present form? OPD 2 to 4. 8. Whether defendants No.2 to 4 purchased the property vide registered sale deed dated 25.1.01 for consideration of Rs.1,88,750/- and had received the possession of same? OPD R.S.A. No.1387 of 2008 -4- 9. Whether defendants No.2 to 4 are bonafide purchasers of the suit property, without notice and for consideration? OPD 10. Relief. After hearing the learned counsel for the parties and examining the evidence on record, the learned trial decreed the suit as ntoiced earlier. Feeling aggrieved therewith, all the defendants went up in appeal, which was dismissed by the First Appellate Court. Being undaunted and dissatisfied therewith, they have preferred this appeal. I have heard the learned counsel for the parties, besides perusing the findings returned by both the Courts below with due care and circumspection. Mr. H.S. Baath, Advocate representing the appellants has urged with great eloquence that both the Courts below have gravely erred in decreeing the suit for specific performance as the same at the most could have been decreed for the stipulated damages, for the reason that Major Singh defendant- appellant is no longer the owner in possession of the land in dispute. To add further to it, his co-appellants being the bonafide purchasers for value without notice have become the owners of the disputed land. This contention does not find favour with me. As stipulated in the sale agreement Ex.P.1, the sale deed was to be executed and registered in favour of the plaintiff- respondent by 31.10.2001, whereas Major Singh defendant- appellant executed and registered the sale deed in favour of his co-appellants on 25.10.2001. Obviously, he did so with undue haste. There is no gainsaying the fact that the co-defendants, i.e., defendants No.2 to 4 R.S.A. No.1387 of 2008 -5- are brothers interse and they resided in one and the same village. The parties belong to one and the same village, i.e., Johal Dhai Wala. That being so, it is very difficult to presume that the co-defendants of the appellant- Major Singh would have not acquired the knowledge with regards to the disputed sale agreement entered into between the plaintiff and Major Singh- appellant. The plaintiff has come up with the plea that he had informed the subsequent vendees with regards to the existence of the disputed sale agreement. Ex.P.3 to P.6 are the copies of the telegrams. This documentary evidence is indicative of the fact that the subsequent vendees despite knowing fully well that Major Singh- appellant has already entered into agreement with the plaintiff to sell the land in dispute, got the sale deed executed and registered in their favour. In these premises, it boils down that the relief of specific performance has been rightly granted by the learned Courts below and no interference is warranted therein. This apart, no substantial question of law arises for determination by this Court. Sequelly, this appeal is dismissed being bereft of any merit. November 21, 2008 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? No