RSA No.2657 of 2010(O & M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2657 of 2010(O & M) Date of Decision:03.08.2010 Jakir Hussain .... appellant Versus Deen Mohammad & anr. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Lokesh Sinhal,Advocate for the appellant **** RAKESH KUMAR GARG J. The appellant, who was defendant No.2 before the trial Court has approached this Court by way of Regular Second Appeal challenging the judgment and decrees of the Courts below, passed in favour of respondent No.1 for possession by way of specific performance of agreement to sell dated 28.03.2001 and declaring the sale deed dated 10.05.2002 and mutation qua the suit land to be illegal. Consequential relief of permanent injunction was decreed. The plaintiff-respondent approached the civil Court on the averments that respondent No.2 had executed an agreement to sell dated 28.03.2001 in his favour for selling the land in dispute for a total sale consideration of Rs.1,10,000/- and received Rs.80,000/- as earnest money. The balance amount was to be paid at the time of execution of registered sale deed on or before 29.07.2002. However, respondent No.2 avoided the execution of sale deed and sold the land during the subsistence of the RSA No.2657 of 2010(O & M) 2 agreement vide sale deed dated 10.05.2002 and subsequently mutation No.1901 was also sanctioned. Hence the present suit. Upon notice, defendant-respondent No.2 was proceeded against ex parte. However, appellant appeared and filed written statement raising various preliminary objections. On merits, it was stated that he had entered into an agreement to sell with respondent No.2 on 14.05.2001 and got the sale deed registered in his favour on the basis of the aforesaid agreement to sell. It was further stated that the appellant was a bona fide purchaser for valuable consideration without notice of the earlier agreement and the respondents in collusion with each other and to defeat the rights of the appellant had prepared an ante dated agreement. Rest of the allegations were denied and dismissal of the suit was prayed. Both the courts below recorded a finding of fact that agreement to sell dated 28.03.2001 in favour of respondent No.1 stood proved and the appellant had no locus to challenge the same. It was further held that the appellant was not a bona fide purchaser and resultantly the sale deed executed on 15.05.2002 in favour of the appellant was held to be illegal. Issues No.5 to 8 were not pressed before the Courts below. Resultantly, the decree was passed in favour of the plaintiff- respondents and the appeal preferred before the Lower Appellate Court by the appellant was dismissed. The appellant raised the following substantial questions of law said to be arising in this appeal in his memo of appeal: 1. Whether after discharging the initial onus by the appellant/subsequent vendee to prove issue No.4, it was for the plaintiff to prove that subsequent vendee had the knowledge of earlier agreement in favour of the plaintiff? 2. Whether courts below ought to have adverse inference against the plaintiff and defendant No.1 as defendant RSA No.2657 of 2010(O & M) 3 No.1 did not come present and get himself proceeded ex parte? 3. Whether the findings of the courts below are perverse? 4. Whether the findings recorded by the courts below are result of mis-reading and non-reading of evidence? But, before this Court, learned counsel for the appellant has vehemently argued that appellant was a bona fide purchaser for valuable consideration without any notice of the previous agreement to sell and therefore was entitled to the protection as provided under Section 19(b) of the Specific Relief Act,1963 and, thus, the judgment and decrees of the courts below are liable to be set aside. On the basis of the argument raised by learned counsel for the appellant before this Court as referred to above, the under mentioned substantial question of law is framed for consideration. 1. Whether the appellant is entitled to the protection of Section 19(b) of the Specific Relief Act in the facts and circumstances of the case? I have heard learned counsel for the appellant and perused the impugned judgment and decrees. The onus to prove the issue of bona fide purchaser for valuable consideration without notice of previous agreement was upon the appellant. To prove the aforesaid issue, appellant stepped into witness box himself as DW5 and also examined DW1 Jabbar Khan who had stated that the appellant had no knowledge about the previous agreement between the respondents. It may be stated, here, that except the bald statement of the appellant and his witness, there is no other documentary evidence on record to corroborate the aforesaid assertion of the appellant. It may also be noticed that the plaintiff-respondent examined Mr.Harun Khan, Advocate as PW1, who had scribed both the agreements to sell RSA No.2657 of 2010(O & M) 4 i.e.agreement to sell dated 28.03.2001 in favour of plaintiff-respondent and agreement to sell dated 14.05.2001(Ex.D-1) in favour of the appellant. However, no suggestion was put to the aforesaid witness by the appellant that he had informed the appellant regarding the factum of scribing of the agreement to sell dated 28.03.2001 by him. In spite of best evidence available regarding knowledge of previous agreement to sell executed in favour of plaintiff-respondent, appellant failed to put him any suggestion/question. In this view of the matter, the finding of fact recorded by the courts below on the question raised before this Court, cannot be found faulted with. Moreover, the Hon'ble Supreme Court of India has authoritatively laid down that this Court will not exercise its jurisdiction under Section 100 Civil Procedure Code, and act as a third court of appeal and will not interfere in a concurrent finding of fact recorded on the basis of evidence on record. The substantial question of law as framed is answered in the negative i.e.against the appellant. Dismissed. (RAKESH KUMAR GARG) JUDGE 03.08.2010 neenu