R.S.A. No. 3241 of 2008 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- R.S.A. No. 3241 of 2008 (O&M) Date of decision:- 5.10.2010 Raghbir Singh & Anr. ... appellants. Versus Harjit Singh & Ors. ... Respondents CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. R.S.Ahluwalia, Advocate, for the appellants. Mr. G.S.Sirpikhi, Advocate, for the respondents. Gurdev Singh, J (oral) This appeal by the appellants/defendants No. 2 and 3 – Raghbir Singh and Kashmir Singh is directed against the judgment and decree dated 14.3.2008 passed by Additional District Judge (Ad hoc), Gurdaspur, vide which the appeal preferred by them and respondent No.4/defendant No.1 Raghbir Singh son of Fauja Singh, was dismissed and the judgment and decree passed by the Civil Judge (Jr. Division) Batala, decreeing the suit of respondents No. 1 to 3/plaintiffs for the specific performance of the agreement directing the defendants to execute the sale deed in their favour as per the terms and conditions of the agreement dated 19.7.1996, was affirmed. The facts, in brief, are that the plaintiffs, who are minors, filed suit through their real brother Harjit Singh, as their next friend, for specific performance of the above said agreement executed by defendant No.1 in R.S.A. No. 3241 of 2008 (O&M) -2- their favour regarding 15 Kanals and 17 marlas of land situated in Village Bharath, District Gurdaspur fully detailed in the heading of the plaint, on the payment of balance sale consideration of Rs.4,26,375/- and for putting them in actual possession of that land and in the alternative for the recovery of Rs.1 lakh by way of refund of earnest money and compensation/damages. They pleaded in their plaint that defendant No.1 executed the agreement to sell the suit land in their favour. It was mutually agreed between them that a sum of Rs.50,000/-, for which the land had been mortgaged, shall be paid by them and the other sum of Rs.68,000/- payable by Sarup Singh will be adjusted/kept as Amanat with them out of the total sale consideration. They always remained ready and willing to perform their part of the contract, but defendant No.1 failed to perform his part of the contract. That defendant sold the suit land in favour of defendants No. 2 and 3, but that sale deed is illegal, void and inoperative qua their rights. The suit was contested by defendant No.1, who denied the execution of such agreement by him in favour of the plaintiffs. He pleaded that any such document is false and forged document and as such is void, illegal and not binding on his rights. He has already sold the suit land in favour of defendants No. 2 and 3. The suit is not maintainable and the plaintiffs have no locus standi to file the same. Defendants No. 2 and 3 filed separate joint written statements in which they pleaded that out of the toal suit land they purchased 7 Kanals and 4 marlas of land comprised in Khasra No. 65R/7(7-4) situated in village Bharath, vide sale deed dated 3.9.1996, for a consideration of Rs.72,000/- and as such they are bona fide purchasers. They are coming in possession R.S.A. No. 3241 of 2008 (O&M) -3- of that land. On the pleadings of the parties issues were framed and they were offered opportunity to produce evidence in support of their respective pleadings. On the basis of evidence so produced and hearing learned counsel for the parties, the issues were decided and the suit of the plaintiffs was decreed. As already said above the first appeal preferred by the defendants against that judgment and decree was dismissed. This appeal has been preferred only by defendants No. 2 and 3, who have claimed that they are bona fide purchasers for a consideration. The finding recorded by the trial Court was affirmed by the first Appellate Court. Only following issue is relevant for the decision of this appeal:- "6-B. Whether defendants No. 2 and 3 are bonafide purchasers of land measuring 7 Kanals 4 Marlas out of the suit land for consideration in good faith?OPD (Deft. 2,3)." It has been submitted by learned counsel for the defenants No.2 and 3/appellants that the issue was decided against those defendants merely on the ground that they failed to produced the sale deed itself. The plea taken up by them in written statement could have been proved without the production of origianl sale deed as the factum of that sale deed is not in question and the only question to be decided was whether they were bona fide purchasers for consideration. According to him substantial question of law arises in the present appeal. It is pertinent to note that defendants No. 2 and 3 did not produce any evidence before the trial Court. No doubt the non-production of the sale deed also weighed with the trial Court for recording the finding on the R.S.A. No. 3241 of 2008 (O&M) -4- above said issue against them, but mainly the finding was recorded against them on account of the fact that there was no evidence on record to prove that issue. In order to seek protection of Section 41 of the Transfer of Property Act, 1882, defendants No. 2 and 3 were required to prove by cogent evidence that they are purchasers in good faith for a consideration and without any notice of the agreement in favour of the plaintiffs. No finding in their favour could have been recorded in the absence of any evidence. When such is the position, it cannot be said that any question what to say substantial question of law arises in the present appeal. There are concurrent findings of fact recorded by the lower Courts. This appeal is not maintainable and is dismissed accordingly. October 4, 2010 (Gurdev Singh) tripti Judge