1 0 IN THE HIC9HCOURT OF PUNJAB AND HARYANA AT CHANDIGARH 61 RSA N03763 of 1987 DateofDecision ID022010 DarshanSinghand another Appellant no2 throughShri RNararig Advocate None for appellant no Versus CharaniitSinghand others C 3 LRsof 0 no through Shri C Puneet Jindai Advocate I None for other C5 CORAM HONBLE MRJUSTICE MAHESH GROVER I Z m 1 WhetherReportersof seethejudginent2 I 2 To be referredto theReporters or not2 08 3 Whether thejudglnent should be in theDigest2 r W Z Mahesh GroverJe Qm This RegularSecond AppeallS directed againstjudgment and decreedated 1381987 passedby the District JudgeJalindhar hereinafter described as the flrst appellateCourtlvide which the appealof Pritain Singh no2 since deceasedand now represented by his legal was acceptedand the judginentand decree dated 209 1984 of the Sub ldgeIst Class Phiilaur referred to hereinafter as he trial Court were set aside The plaintiffflled a sult for speciflc of an agreeinent to sell dated 291 21 982 executedbyCharanjitSinghdefendant Pooja 2013.06.25 10: 51 True Scanned Copy Of The Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 408 1 0 RSAN03763 of 1987 2m 6s nol in respectofthe land in disputewhich was fullydetailed in the head note of the plaintIt was pleaded that respondent nol had agreed to sell the suit land for a total considerationofRsA55001 and had received asum of Rs100001e from the plaintiffas eamest money On the date of agreement dated29121982 lt was furtherpleadedthat the sale deed was to be executed and on or before 281 1983 after paymentof 0 reinaining sale consideration It was averredthat the plaintiffhad always C remained readyand willingto performhis partof contact and is still ready I C0 and willingto do So but the greedfor lnoney had changedthe mind of I 118 noMd had fal1en lll the hands of Darshan Singhand l Z P Smtesham Kaur present and one BhajanKaur of village a tr Pabwan and had tried to sell the suit land to them which compelled him to I 08 flle a suit for petlmanentinjunction in which ad interim staywas grantedIt QO W8S allegedthat duringthe pendency of the said suit when the wm had flled an application for vacationof interim stay it transpired that a false and fictitious documentin the shape to sell dated6 1 1982was gotprepared in respectof the SUlt land from nol in favourof Gurmej no3 It was prayedthat since the plaintiffhad remained alwaysreadyand willingto performhis part of agreement no l be directed to execute the sale deed lIl furtheranceof agreementdated 2912982 and the possessionof the suit land be got delivered to him alter payment of the remainingsale consideration In the alternative a prayer for passing a decreeof recovery of Rs100001 alongwith stipulateddamages of Rs00001 and special Pooja 2013.06.25 10: 51 True Scanned Copy Of The Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 409 0 1 RSAN03763 of 1987 8 Ic damages ofRsO000 was made Uponnotice appellant nol no l and no ie Darshan SinghCharanjitSinghand GurmejSinghappeared and flled their jointwritten statement resisting the suit whereasappellant no 2 did not appear despiteservice In the preliininaryobjectionstheyhad 1 allegedthat agreementdated 292 982 was never executed in favour of r 1 0 theplaintiffwhich was statedto be a forgedand fabricateddocument It was C averred that the suit land was byappellant no frotn I C5 nol by virtue of sale deed dated 121 1983 which was on I 1421983 for a consideration of RsAO0001 and that the said transaction Z was protected by the provisions of Section 41 of the Transfer of Property e r Act1882 6forshort the 1882 Act On merits the avermentsof the 08 plaintiffwere allegedto be wrong and denied lt was pleadedthat Q0 nol had executedan agreementto sell dated 161982 in favour n7 Z no3 ln respectof the suit land In this agreementit was stipulated thatthe saledeedwould be executedby no m favour of no or any other person nominatedby him on or before 201 1983and pursuanto that the saledeed was got executedon l l 1983 and on 141983 in favour ofappellant no It was claimedthat appellant nol wasa bona fide purchasefor considerationand agreementto sell dated29121982 in favour ofthe plaintiffwas a sham transaction On the pleadings of the partiesthe followingissues were framed 1 Whether defendant No 1nalnelyCharanjitSinghexecuted Pooja 2013.06.25 10: 51 True Scanned Copy Of The Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 410 0 RSAN03763 of 1987 4 P an to sell the suit land dated291282 in favour of the plaintiffand received an amount of Rs100001 as earnestmoney7 If so its effect20PP 2 Whetherthe plaintiffhadbeenand iswillingto performhis partof the contract in regard to the allegedagreementto sell 1 deeddt 2912822 Ifso its effect20PP 0 3 If secondpartof issueNo l ie the paymentof an amount of Cso Rs 100001 as earnest money is provedwhether defendant I CA0 No is readyto pay back the said amount to theplaintiff7If I so what is its effect2OPD Z 4 Whether defdtlVo namelyCharanjitSinghexecuted an m Ct to sell deeddt82 in regardto the suit land in I Cl8 favour oof defendant NoAnamely GurmejSingh and Qo received an amount of Rs10000 as earnest money2If Z soits effect20PD 5 Whether the plaintiffis barredby his act and conduct from tllingthe presentsuit2OPD 5A Whether defendantNo is protecteduls 41 ofthe TP Act as he haspurchased the land ln suit as bona flde purchaserSom defendantN0170PD 6 Relief After appraisal of the entlre evidence on record the trial Court passeda decree for asum of Rs200001 in favour of the plaintiffand against no l with costs It was further directed that respondent Pooja 2013.06.25 10: 51 True Scanned Copy Of The Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 411 0 RAN03763 of 1987 S 1 1101 would also be liable to pay futureintereston the said amount at the rate of 12Io per annum Som the date of filingof the suit till realisation Prior thereto the trial Court concluded that the agreementto sell in favour ofthe was valid and so was the agreementdated29121 982 but since the sale deed had alreadybeen in favour of appellant no 1 the 1 agreementln favour of the plaintiffwas rendered inexecutable and 0 therefore tt was a fit case to resort to the provisions of Section 20 of the 0 SpecificRelief Act l 9636forbrevitythe 1963Act1 I C5 ln appealthe first appellate Court reversedthe Sndingsofthe I trial Court and held that the agreementto sell in favour of no Z and consequentsale deed in favour of appellant no were the documents executedpurelyto defeattherightsofthe plaintiffIt was furtherconcluded I cRj the execution of the agreementto sell in favour of no3 was rn shroudedin suspicious circumstancesandthatappellant no l was not a bona 7 Z fide purchaser of the Sllit land no alongwith Ll the was directed to execute a sale deed in favour ofthe plaintiff pursuant to agreementto sell dated29121982 afterreceiptofthe remaining saleconsideration This has resultedin thefilingofthe instantappealbythe Learned counsel for the has contended that the flndingsof the first appellate Court are perverse and are liable to be set aside He lrther contendedthat the same are contraryto the material on record Accordingto him the followingquestions of law arise for considerationofthis Court Pooja 2013.06.25 10: 51 True Scanned Copy Of The Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 412 0 RA1Vo3763 of 1987 m6 lr 1 Whether in the facts and circumstances of the case the appellants are protected under Section 41 of the Transfer of Property Act2 2 Whether it is legallynecessarythat the agreeinentshouldbe scribedbya regulardeedwriter2 3 Whether stamp papers much prior to the r 0 executlOO of the agreementwould make the agreement C0 flctitious and I C9 4 Whether thejudgment of the lower appellate Court holding I that exhibitDl is not a genuineagreementto sell and was Z prepared is a findingbased on perversereading r ofthe evidence or not2 I 08 On the other hand Iearnedcounsel for the legal QO of theplaintiffdefendedthe observationsinade bythe first appellate Court wno Z and statedthat thereis no infirmity oorperversity therein andthat therewasa r cogentreasoningivenin the impugned judgment to supportthe same He thus prayedfor dismissalofthe appeal I have consideredthe rival contentionsand have gonethrough the whole record The controversycentresaroundtwo issueswhich were framed and answeredbyboth the Courts below ie issue no l and issuenoeA The plaintiffin order to prove his case had brouht evidence to show that agreementdated 291 21882 was a valid pieceof evidence Pursuant to this agreementRs 100001 were also paidas earnest Pooja 2013.06.25 10: 51 True Scanned Copy Of The Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 413 0 RSANo763 of 1987 a7 1L money Both the appellants and no denied the agreementto sell in favour of the plaintiffand the agreementto sell dated 1 6982 and consequent sale deed in favour of appellant no However theyhave done so wlthout qualifying as to how agreeinentto sell in favour of the plaintiffcame lnto existence On the other hand the plaintiffhad shown that he had filed a sult for permanentinjunctionon 1211983 0 seeking to restrain no from alienatngthe suit land as he had C3 coine to know about the agreementto sell ionfavour no He I C had also succeededin obtaining intenm injunction in that regardbut Slnce the date for execution ofthe sale deed ie 281983 had expiredafterthe Z process had been initiated in that suit theinjunction was not carried forward C any 8lrther and the plaintiffinstantlythereaer on 3 11 1983 filed the I 08 present suit for speciflc The sale deed was executedin favour QO ofappellant nol on 1421983 afterthe instantsuit had come into existence w Z If the agreementto sell in favour of appellant nol is to be seen then it 1S shroudedin suspicious circumstancesthe reasons ofwhich have been dealt with by the first appellate Court It has not been scribed by a deed writer and was written by a Patwari who was not producedn the Witness box The agreement was also not accordedanyserial nuinber in the registerand therefore on this account themarginal witness who had stated while appearing in the wtness box that entrywas made in the registerwas also falsifled Moreover the stamppaper on which it was scribed was in the year 1980 whereasthe agreementwas scribed on l 6982 and therewere on thesestamppaper that lt was a Pooja 2013.06.25 10: 51 True Scanned Copy Of The Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 414 e 1 0 t RSAN03763 of 1987 8 t concocted doculnent It was therefore rightlydiscarded by the Srst appellate Court The question of appellant no beinga bona fide purchase 1 was ae also held againsthim for rightfulreasons The instant suit was Sled on 3111983 whereasthe sale deed in favour of appellant no l was scribed on m 1111983 and was got on 1421983 ie duringthependency of 0 the suit and thus the fllingofthe sultwas verywell within theknowledge C3 of the The sale in favour of appellant nol istherefore hit by I C5 theprincipleoflis pendens and theappellant nol cannot be held to be bona I fide purchaser ofthe suit land Z Accordinglyirresistible conclusion is that once the agreement m Ct to sell is held to be a non4oonafide and fictitious documentandthe fact that I 08 the sale deed was scribed on 121 983 duringthependency ofthe suit and r also the fact that the were very well aware of the agreementto wm Z sell in favour of the plaintiffwho had also Oled a sult for permanent Ll lllJunction111which theyhad also as defendants I am of the consideredopinionthat appellant no l cannot be construed to be a bona fide purchaser of the SUlt land and thereforethe flndingsof the first appellate Court are correct andjustified There beingan agreementto sell in favour of the plaintiffand his willingness to performhis partof agreementwhich is apparentfrom the fact that the moment he came to know that no was tryingto sell the suit land to some one else he had filed a suit for permanent injunctionthere is no other optionbut to decree the suit for specic Pooja 2013.06.25 10: 51 True Scanned Copy Of The Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 415 0 RSAN03763 of 1987 w9 l4 It is also in evidence that ono3 in whose favour to sell dated 1 61982 was executed was a front man for the as it has come on record that after givingthe amountto him the had abroad The of the suit land wasconcededly with the plaintiffand now with his legal 1 As observed in the foregoing the agreement111 0 favour of the appellaIlts was too deeplymired in suspicious clrcumstances C and theywere certainly not bona flde for consideration C In such an theappealof the is rejected I andtheflndingsofthe Srst appellate Court are afflrmed Z The questions of law which hae been raised are not really substantialquestions of Iaw to be determinedin a RegularSecondAppeal I 08 I es e ClQ February10 2010 Mahesh Grover l SCl Judge 07 Z tl 1 vo 2 Pooja 2013.06.25 10: 51 True Scanned Copy Of The Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document