Regular Second Appeal No.2082 of 1993 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No.2082 of 1993 Date of decision: 15.05.2008 Rup Singh ( died ) through his LRs ..... Appellant. Versus Karnail Singh and another ..... Respondents. CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present:- Mr. R.K. Battas, Advocate for the appellant. Mr. Gurnam Singh Nagra,Advocate for the respondents. RAKESH KUMAR GARG, J. Respondent No.1 has filed suit for possession by way of specific performance of contract for sale dated 02.02.1983, executed by Balwant Singh, defendant No.1 (now respondent No.2) regarding land measuring 20 kanals 6 marlas as detailed in the head note of the plaint situated in village Sajanpur, Tehsil and District Gurdaspur or in the alternative for recovery of Rs.6,000/-. Regular Second Appeal No.2082 of 1993 2 2. According to respondent No.1, respondent No.2 namely Balwant Singh, was the owner of the suit land, who vide agreement dated 02.02.1983 had agreed to sell the same, in his favour, for consideration of Rs.65,000/- on receipt of earnest money i.e. Rs.3000/-. The sale deed was to be executed/ registered on or before 21.12.1983 on receipt of the balance sale consideration and in case of default on his part, the earnest money shall stand forfeited and if Balwant Singh, respondent No.2 fails to execute the same, he was to refund Rs.3,000/- as earnest money along with damages of Rs.3,000/-. However respondent No.1 was ready and willing to perform his part of the contract and was also having ready cash with him. In spite of his request to Balwant Singh, respondent No.2 to execute the sale deed on receipt of the balance sale consideration, he did not execute the same. Respondent No.1 filed an application before the Sub Registrar, Gurdaspur marking his presence on the stipulated date. However, respondent No.2 ( Balwant Singh ) did not turn up and sold the suit land to the appellant ( since deceased ). Regular Second Appeal No.2082 of 1993 3 3. Defendant No.2 i.e. present appellant and respondent No. 2 contested the suit by filing separate written statements. Respondent No.2 Balwant Singh admitted the factum of execution of said agreement. According to him, he also admitted the fact regarding execution of another agreement dated 21.06.1983 on receipt of Rs.25,000/- ( including Rs.3,000/-, already received vide agreement dated 2.2.1983 ) and Rs.15296/- were to be received before the Sub Registrar at the instance of the plaintiff and the sale deed was to be executed on or before 24.01.1985. Thus the earlier agreement dated 2.2.1983 merged into the subsequent agreement dated 21.06.1983 and the said sale deed was to be executed by him in favour of appellant, Roop Singh ( since deceased ) on 24.01.1985. However, the remaining averments made in the plaint were denied by the appellant including knowledge of earlier agreement between respondent No.1 and respondent No.2 and claimed himself to be bona fide purchaser for value and without notice. 4. Respondent No. 1 filed replication controverting the averments made in the written statement and re-asserting those of the plaint. Regular Second Appeal No.2082 of 1993 4 5. From the pleadings of the parties, the following issues were framed by the trial Court:- “1- Whether the defendant No.1 entered into an agreement for sale dated 2.2.1983 with the plaintiff and received Rs.3000/- as earnest money?OPP 2- Whether the plaintiff has been ready and willing to perform his part of the contract?OPP 3- Whether defendant no.2 is bona fide purchaser for consideration of the suit land vide sale deed dated 27.5.1985 and without notice of the alleged agreement in favour of the plaintiff ?OPD2 4- Whether the plaintiff is entitled to specific performance of the contract ?OPP 5- Whether in the alternative, the plaintiff is entitled to Rs.3000/- as refund of the earnest money and Rs.3000/- as damages ?OPP 6- Relief.” 6. On appreciation of evidence led by the parties, the trial Court vide order dated 22.05.1990 decided issue Nos.1 to 4 in favour of the plaintiff-respondent. Issue No.5 was held to be redundant and, thus, the suit of the plaintiff-respondent was decreed with costs on payment of Regular Second Appeal No.2082 of 1993 5 balance sale consideration of Rs.65,000/- excluding stamp paper charges and registration charges to be borne by the plaintiff-respondent. Respondent No.2 was directed to execute the sale deed within a period of three months, failing which respondent No.1 could get the sale deed executed through the process of the Court. 7. Aggrieved against the said judgment and decree dated 22.05.1990, passed by the trial Court, appellant filed an appeal before the Appellate Court at Gurdaspur, which vide its judgment and decree dated 15.05.1993 dismissed the appeal. Hence, this Regular Second Appeal. 8. I have heard learned counsel for the parties and perused the record. 9. Mr. R.K. Battas, learned counsel for the appellant has sought to raise the following substantial question of law:- “Whether appellant/defendant no.2 is a bona fide purchaser for consideration and without notice and the findings of the Courts below are perverse?”OPP Regular Second Appeal No.2082 of 1993 6 10. Learned counsel for the appellant has vehemently argued that the appellant is a bona fide purchaser for value and without notice and the evidence produced by the appellant, in this regard, stands un-rebutted and thus the Courts below have erred in law while deciding issues against him. He has further argued that there is no evidence on the file that agreement dated 2.2.1983 ( Ex.P1 ) merged into agreement dated 21.06.1983 and in furtherance of this agreement, sale deed Ex.D1 was to be executed in favour of the plaintiff- respondent no.1. There is also no reference in sale deed dated 24.01.1985 (Ex.D1) that the land was being sold in pursuance of the agreement dated 21.06.1983 and thus the same has not been proved. 11. The arguments raised by the counsel for the appellant is devoid of any merit. Balwant Singh, respondent No.2 while appearing in the witness box as DW1, has categorically admitted about the execution of agreement dated 2.2.1983 ( Ex.P1 ) and receipt of earnest money of Rs.3000/- vide his agreement. The execution of this agreement has further been proved by an attesting witness namely Rattan Singh, PW2. It has also been proved from the evidence on record that the earlier agreement was merged into a subsequent agreement dated 21.06.1983 and the sale deed was to be Regular Second Appeal No.2082 of 1993 7 executed on or before 24.01.1985. According to respondent No.2, the earlier agreement was cancelled by a subsequent agreement dated 21.6.1983 and the sale deed was to be executed on or before 24.01.1985 as per the subsequent agreement. He has also stated in the written statement that the stamp papers for the sale deed dated 24.01.1985 and the agreement between respondent No.2 and appellant executed on 14.01.1985 were purchased on the same day in the presence of all the parties. It is thus clear that the appellant knew about the earlier agreement between respondent No.1 and respondent No.2. The subsequent agreement dated 21.6.1983 has cancelled the earlier agreement dated 2.2.1983. This makes abundantly clear that appellant knew about the earlier agreement. In that situation, no written document or any other oral evidence was required to show that appellant had the knowledge about the earlier agreement. Moreover,appellant had purchased the suit land for a price much less than the price to be paid by respondent No.1. In view of the fact, appellant cannot be said to be a bona fide purchaser for consideration and without notice. In fact learned counsel for the appellant has made efforts to re-appreciate the findings recorded by the Courts below. However,he could not pin point any error in the concurrent findings of fact recorded by the Courts below. No Regular Second Appeal No.2082 of 1993 8 illegality or perversity could be found in the judgments and decrees passed by the Courts below. The Courts below have given a categoric finding that the appellant knew about the agreement between plaintiff-respondent and defendant- respondent namely Balwant Singh and as such the appellant cannot be said to be a bona fide purchaser and that too without notice. Thus no question of law, much less a substantial question of law arises in this appeal for the determination of this Court. 12. In view of the above, finding no merit in this appeal, the same is hereby dismissed. ( RAKESH KUMAR GARG ) May 15, 2008 JUDGE dinesh