IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.105 of 2008 KAMLA DEVI, wife of Gajendra Prasad Sinha, resident of village Balia, P.O. Banouli, District Darbhanga at present Mohalla Saifullaganj Harahi Station Road Darbhanga P.S. L.N.M.U. campus, District Darbhanga …. Plaintiff …. Appellant … Appellant Versus 1. AKBARI KHATOON, daughter of Late Majju Mian, wife of Wasi Ahmad @ Lambu 2. Akhtari Khatoon Daughter of Late Majju Mian wife of Abdul Jabbar Both residents of village Bahuara, P.S. Patepur, District Vaishali … Defendants 1st Party … Respondents 1st Party … Respondent 1st party 3. Manmohan Prasad Sinha, Son of Giribardhari Sinha, resident of Krishnapur, Begusarai at present Mohalla Saifullaganj Station Road, P.S. L.N.M.U. District Darbhanga ….. Defendant 2nd Party … Respondent 2nd Party .. Respondent 2nd Party ----------- For the Appellant : M/s Sukumar Sinha, Sr. Advocate & Abinash Kumar, Advocate For the Respondent no. 2: Smt. Sudha Ambastha, Advocate ----- 10 02.11.2010 This appeal has been preferred against the judgment and decree dated 31.1.2008 passed in Title Appeal No. 20 of 2006 by the 1st Additional District Sessions Judge, Darbhanga, whereby the title appeal aforesaid has been dismissed and the judgment and decree dated 28.3.2006 passed by the Munsif 2nd, Darbhanga in Title Suit No. 52 of 1989 has been 2 affirmed. The plaintiff – appellant has filed Title Suit No. 52 of 1989 against the original defendant Majju Mian (since deceased) for Specific Performance of Contract for sale of the suit premises, which stands detailed in the plaint of the suit. Plaintiff - appellant’s case is that the aforesaid original defendant Majju Mian, who was the owner of the suit property, had entered into a contract with the plaintiff through her husband on 12.5.1986 to sell the suit property for Rs. 7500/- by executing the deed of agreement for sale, which has been brought on record as Ext. 5. The earnest money of rupees four thousand was paid to him and Majju Mian had promised the sale in favour of the plaintiff by 12.5.1989, i.e., within three years from the date of execution of agreement for sale on receiving the balance amount of consideration money of Rs. 3,500/-. It has also been alleged by the plaintiff that the defendant has delivered the possession of the suit property to her through her husband as a prospective purchaser on 12.5.1989 and since then the plaintiff is coming in possession of the suit property. 3 Prior to that the plaintiff was in occupation of the suit premises as tenant of the Majju Mian. It is further case of the plaintiff that late Majju Mian was illiterate person, thus, the text of the agreement was read over and explained to him by his son-in-law Wasi Ahmad in presence of the witnesses and thereafter Majju Mian has affixed L.T.I. on the deed of agreement and his son-in-law Wasi Ahmad signed on his behalf. Subsequently, though the husband of the plaintiff had tendered the entire consideration money to the defendant on several occasions before 12.5.1989 and requested him to execute the sale deed but the same has been avoided by him on one pretext or the other. The plaintiff was all along willing and ready to perform his part of contract. However, even though legal notice was served upon the original defendant Majju Mian, since he did not pay any heed and did not execute the sale deed, the plaintiff was compelled to file the suit. It is also a fact that aforesaid Majju Mian has executed a registered sale deed dated 21.6.1990 in favour of the defendant no. 2, namely, Manmohan Prasad Singh, with respect to the suit 4 property prior to entering his appearance in the concerned suit. The aforesaid purchaser was impleaded as defendant no. 2 and by amendment in the plaint, it has further stated by the plaintiff - appellant that the sale deed in his favour was collusive, illegal, inoperative and void document and not binding upon the plaintiff. It is also the case of the plaintiff that the defendant Majju Mian had executed the sale deed in favour of the defendant no. 2 having full knowledge about the case and the defendant no. 2 had also purchased the same in full knowledge of agreement dated 12.5.1986 executed by Majju Main in favour of the plaintiff. Thus, it cannot be treated to be a bona fide purchase. By further amendment of plaint, it was also brought on record that the subsequent purchaser defendant no. 2 filed Eviction Suit No. 17 of 1991 against the plaintiff and obtained an order of eviction under Bihar Building (Lease, Rent and Eviction) Control Act, 1982, which was challenged in Civil Revision No. 1935 of 1997. However, the same was rejected by this Court holding that the plaintiff would 5 be entitled for the restoration of possession if she would succeed in the suit filed by her under Specific Relief Act. Later on, on the basis of decree of eviction the defendant no. 2 filed Execution Case no. 3 of 1995 and evicted the plaintiff through the process of law. The defendant nos. 1 and 2 filed their written statement. Defendants have denied the contract for sale of the suit property either directly or through her husband and also receiving any earnest money and it has been stated that the plaintiff, mischievously taking advantage of illiteracy of the defendant, took his L.T.I. on the blank paper which was converted into deed of agreement, thus, the same is not binding upon the defendant no. 1. The defendant no. 2 had also denied the allegations raised in the plaint and has claimed that he is bona fide purchaser of the suit property for valuable consideration having no knowledge of any contract between plaintiff and defendant no. 1. He has also denied the fact that there was any contract for sale executed by defendant no. 1 Majju Mian. 6 The original defendant no. 1 died during the pendency of the suit and his legal representatives were impleaded as party but they did not lead any evidence. On the basis of the pleadings of the party the trial court, in all, framed 11 issues and had recorded finding that the deed of agreement for sale Ext. 5 and receipt showing payment of earnest money are not genuine documents. The plaintiff could not prove either execution of the contract or her willingness for performance of the contract. Further, that the agreement for sale is not a valid. Accordingly, the trial court dismissed the suit filed by the plaintiff. The plaintiff preferred Title appeal No. 20 of 2006 against the judgment and decree passed by the trial court. The appellate court also recorded finding that the evidence led on the P.Ws. on the point of execution for writing of the document of contract does not inspire confidence and it can safely be said that plaintiff failed to discharge her initial onus proving the execution of agreement for sale. It has also been noticed by the appellate court that plaintiff could not lead any evidence regarding the date on which any 7 balance consideration amount was tendered on behalf of the plaintiff to the defendant no. 1. Thus, it has come to the conclusion that in view of the fact that the plaintiff – appellant has failed to prove her initial onus of proving execution of Mahadnama, there is no need to further discuss the evidence led on behalf of the defendant no. 2, who claims to be a bona fide purchaser for value without notice. Accordingly the appeal was also dismissed. Heard learned counsel for the appellant and the respondent no. 2. Learned counsel appearing on behalf of the appellant submitted that though a written statement has been filed on behalf of the original defendant no. 1 but subsequently he died and his legal representatives were substituted, however, they did not contest the suit by leading evidence. The defendant no . 2 being the purchaser subsequent to the agreement for sale could not had a right to contest the suit if his vendor has not contested. Thus, it has been urged that both the courts below had erred in dismissing the suit of the plaintiff at the behest of the defendant no. 2 (subsequent 8 purchaser), who had contested the suit. Learned counsel placed reliance upon a decision of the Apex Court in Guruswamy Nadar v. Lakshmi Ammal reported in AIR 2008 Supreme Court 2560 and submitted that the defendant no. 2 could not have a right to contest the suit as his transaction would be barred by principle of lis pendens. Further, the defendant no. 2 cannot get benefit of Section 19(b) of the Specific Relief Act since he had full knowledge of the earlier contract between the defendant no. 1 and the plaintiff. Learned counsel submitted that the principle of lis pendens in the present case would have an overriding effect upon the provisions as contained in Section 19 of the Specific Relief Act. Thus, it is contended that he cannot be even necessary party to be even impleaded in the present suit. However, this Court does not find substance in the submission made on behalf of the appellant. At the time of hearing of this appeal learned counsel for the appellant has produced certified copy of the ordersheet of Title Suit no. 52 of 1989 along with the petition filed on behalf of the plaintiff which goes to 9 show that at the instance of the plaintiff herself the defendant no. 2 was made a party in the suit and apart from statements on fact certain reliefs were also sought to be added including for declaration that the kebala dated 21.6.90 executed by defendant 1st party to defendant 2nd party is void, inoperative, collusive and not binding upon plaintiff. And for permanently restraining the defendant 2nd party from interfering into possession of plaintiff over suit property and from taking possession of suit property in any manner. Once having acted like above and got the plaint amended by adding relief sought against the defendant no. 2, now the plaintiff could not challenge the authority of the defendant no. 2 to contest the suit. Specially when the original purchaser had died during the pendency of the suit and during the pendency of the suit the defendant no. 2 had filed eviction suit and got the plaintiff evicted through process of law, which was even upheld by this Court, however, observing that the evicted tenant would be entitled for restoration of possession if her suit filed for specific performance is decreed in her 10 favour. Thus, the result of this suit would have definitely affected the defendant no. 2. In the case of Guruswamy Nadar (supra), even though the subsequent purchaser was not a necessary party but he had also been impleaded as a party defendant in the suit, however, the plaintiff was able to prove the contract as well as his readiness and willingness to perform the remaining part of the contract. Whereas, in the present case both the courts below have recorded concurrent finding that the plaintiff has failed to prove her case of execution of any agreement for sale between the plaintiff and the defendant no. 1. The appellate court has held that on careful analysis of the case of plaintiff – appellant it is quite apparent that the plaintiff had failed to prove her initial onus of proving the Mahadnama and, therefore, there is no need to further discuss the evidence of the respondent, who claims to be a bona fide purchaser for value without notice. Hence, on the basis of pleadings and evidence of the plaintiff itself both the courts below have concurrently held that the suit is liable to be dismissed on account of the fact that the plaintiff 11 could not prove her case. Thus, in the facts and circumstances of the case, the decision rendered by the Apex Court in Guruswamy Nadar (supra) would not come in help of the appellant. In above view of the matter, this Court is of the opinion that the appellant could not point out any substantial error committed by the court below, which could lead to any substantial question of law. As a result this appeal fails and is, accordingly, dismissed. Spd/- ( Dr. Ravi Ranjan, J.)