IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 130/2009 Reserved on: 14.11.2011 Decided on:18.11.2011 _____________________________________________ Avtar Chand and another. …Appellants. Versus Satish Kumari and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the appellants : Mr. Sanjeev Kuthiala, Advocate. For the Respondents : Mr. Anup Rattan, Advocate for respondents No.1 to 3. Mr. Pawan Gautam, Advocate for respondent No.4. _____________________________________________________ Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 16.1.2009 passed by the learned Additional District Judge, Una in Civil Appeal No.59 of 2006. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the plaintiff, predecessor-in-interest of respondents No. 1 to 3, 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 (hereinafter referred to as ‘plaintiff’ for convenience sake) instituted a suit for possession by specific performance of agreement to sell dated 14.12.2003 in respect of land measuring 0-14-78 hectares being 1/3rd share out of land measuring 0-44-36 hectares comprised in Khewat No.1 min, Khatauni No.1 min, Khasra Nos. 3453 and 3462 kitta 2 according to Missal Haquiat Bandobast for the year 1996-97 situated in Mohal and Mouza Bhaira, Tehsil Amb, District Una and in the alternative for recovery of ` 40,000/-, including interest. According to the averments contained in the plaint, the land was owned and possessed by defendant No.1, in the original suit, namely, Paras Ram. He appointed his son defendant No.2 in the original suit, namely, Ram Singh as general power of attorney whereby he authorized him to alienate his property by way of sale etc. situated in village Bhaira, which was registered on 18.11.2003. Defendant No.2 entered into agreement to sell in respect of suit land for total consideration of ` 40,000/-vide agreement to sell dated 14.12.2003 and ` 20,000/-was received by defendant No.2 as earnest money on the same day. He agreed to execute and register sale deed in favour of the plaintiff on or before 31.3.2004. Plaintiff was ready and willing to perform his part under the contract. In the 3 month of January, 2004, plaintiff came to know that defendant No.1, namely, Paras Ram, in a secret manner was proposing to sell land to defendants No.3 and 4, namely, Avtar Singh and Sham Singh, as denoted in the original suit. He made a request to defendant No.1 not to do so. He also filed suit for permanent injunction against defendant No.1 in the court of Civil Judge, Amb. However, the fact of the matter is that defendant No.1 sold the land to defendants No.3 and 4, namely, Avtar Singh and Sham Singh for consideration of ` 35,000/-. Plaintiff also filed objections before the Sub Registrar, however, despite objection; sale deed was registered in their favour. Plaintiff on 16.1.2004 was also present alongwith balance amount. He had offered remaining sale consideration to both the defendants, namely, Paras Ram and Ram Singh. They refused to accept the same. According to the plaintiff, defendants No.1 and 2 have willfully violated the terms and conditions of agreement to sell entered by defendant No.2 on behalf of defendant No.1 as general power of attorney. Legal notice was served on the defendants No.1 and 2 on 2.1.2004, which was refused by defendant No.1, however, the same was received by defendant No.2. Plaintiff requested the defendants to 4 execute and register the sale deed; however, they refused to do so. 3. Written statement was filed by defendant No.1, namely, Paras Ram. According to him, agreement dated 14.12.2003 entered into between plaintiff and defendant No.2 was null and void. It was not disputed that land in suit was owned and possessed by defendant No.1 to the extent indicated in the plaint. It was also stated that defendant No.1 was an old aged person of 92 years and illiterate. According to defendant No.1, power of attorney to defendant No.2 was executed for the purpose of management only, i.e. demarcation and looking after the land. When he came to know about the agreement, he revoked the power of attorney on 20.12.2003 before Sub Registrar, Amb. According to him, defendant No.2 has also executed another sale deed dated 19.12.2003 without his consent and knowledge. Defendant No.2 Ram Singh also filed written statement. He has not disputed the allegations made in the plaint that the agreement was entered into between the plaintiff and defendant No.1 through defendant No.2, as general power of attorney. 4. Appellant-defendants No.3 and 4 (hereinafter referred to as ‘defendants No.3 and 4’ for convenience sake) filed independent written statement. According to 5 them, they have purchased the land from defendant No.1 for consideration of ` 35,000/-. They claimed themselves to be bona fide purchasers. 5. Replication was filed by the plaintiff to the written statement filed by defendant No.1. Issues were framed by the trial court on 21.4.2004 and 5.11.2004. Learned Civil Judge (Junior Division), Court No.1, Amb decreed the suit on 29.6.2006. Defendants No.3 and 4 preferred an appeal before the Additional District Judge, Una against the judgment and decree dated 29.6.2006. Plaintiff and defendants No.1 and 2, namely Paras Ram and Ram Singh, were added as respondents in appeal No. 59 of 2006. Learned Additional District Judge, Una dismissed the appeal on 16.1.2009. Hence, the present Regular Second Appeal. It was admitted on the following substantial questions of law: 1. Whether the impugned judgments passed by the learned lower courts are sustainable on account of misreading and mis-appreciation of the pleadings and the evidence both oral as well as documentary, especially, the statements of PW-2, PW-5, DW-1, DW-2, Ext. PW-2/E, Ex.PW-5/A and Ex.D-1? 2. Whether a bona fide purchaser for value without notice, on the strength of the registered sale deed, having been put in possession, can be asked to join in the execution of the sale deed to pass title residing in such bona fide purchaser to the plaintiff seeking relief 6 under the Specific Relief Act seeking possession by specific performance of a void agreement to sell? 3. Whether the relief envisaged under section 16 (c) and 19 (b) of the Specific Performance Act on the plea of readiness and willingness is of any consequence once there is a conveyance by title and whether without adjudication of question of purchase bona fide for value without notice, the relief of specific performance can be given without findings of cancellation of such instrument of conveyance? 4. Whether the relief of specific performance is sustainable after holding that the title has passed from the previous owner to the subsequent purchaser on the basis of a valid registered sale deed and whether such bona fide purchaser can be asked to convey his rights and title to the plaintiff without giving the relief of refund of the sale amount to such subsequent purchaser from the plaintiff? 6. Mr. Sanjeev Kuthiala, on the basis of the substantial questions of law framed, has vehemently argued that both the courts below misread and mis- appreciated the oral as well as documentary evidence led by the parties. According to him, learned trial court could not order the subsequent purchasers to convey their rights and title to the plaintiff without giving the relief of refund of sale amount. He also argued that the trial court has mis-appreciated the statements of PW-2, PW-5, DW-1 and DW-2 and has also misread Ex.PW-2/E, Ex.PW-5/A and Ex.D-1. According to him, his clients were bona fide purchasers. 7 7. Mr. Anup Rattan and Pawan Gautam have supported the judgments and decrees passed by both the courts below. 8. I have heard the learned counsel for the parties and have perused the record carefully. 9. Since all the substantial questions of law are interconnected and interlinked, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. 10. Defendant No.2 is son of defendant No.1. General power of attorney was executed by defendant No.1 in favour of defendant No.2 on 18.11.2003 vide Ex.PW- 5/A. An agreement dated 14.12.2003 is Ex.PW-2/E. General power of attorney was cancelled on 20.12.2003 vide Ex.D-1. 11. Original plaintiff Suresh Kumar appeared as PW-2. According to him, he had entered into agreement to sell with defendant No.1, namely, Paras Ram, through defendant No.2 Ram Singh. He issued legal notices to defendants No.1 and 2 to register the sale deed. He also appeared before the Sub Registrar at the time of sale made by defendant No.1 in favour of defendants No.3 and 4. 12. Parvesh Kumar has appeared PW-3. He has proved document Ex.PW-2/H. Plaintiff had submitted an 8 application before the Sub Registrar; vide Ex.PW-2/H not to register sale deed since he had paid a sum of ` 20,000/- to defendant No.1. The prayer of the plaintiff was not entertained. 13. PW-4 Sheela Devi has identified the signatures of her husband late Sh. Sohan Lal over Ex.PW-2/E. 14. PW-5 Ram Singh is none other but defendant No.2. He has admitted agreement Ex.PW-2/E, which was entered into between him, on behalf of defendant No.1, and plaintiff for sale consideration of ` 40,000/-. He has denied that the agreement was forged. 15. PW-6 Sarabjit Singh has scribed the document Ex.PW-2/E. He has proved the same. PW-7 Saligram was marginal witness of Ex.PW-2/E. 16. Defendant No.1, Paras Ram, has appeared as DW-1. He has deposed that he was 93 years old and he was illiterate. According to him, he gave power of attorney to defendant No.2 Ram Singh in order to take demarcation of land. He was never authorized to sell or mortgage the suit land. He has revoked the power of attorney on 20.12.2003. He also testified that the agreement was outcome of collusion between defendant No.2 and the plaintiff. He was not bound by the agreement and specific performance of which was sought. He has admitted that 9 power of attorney was scribed by Malkiat Singh. It was produced before Tehsildar. According to him, he and his son appeared before him. 17. DW-2 Avtar Singh is one of the defendants. According to him, sale deed dated 16.1.2004 was executed for a sum of ` 35,000/-. Mutation was also sanctioned. Execution of Ex.PW-5/A has been admitted by DW-2. 18. It is evident from close scrutiny of the agreement that defendant No.2 could transfer the land by way of exchange, sale, mortgage, gift deed etc. and to get the same registered before the Sub Registrar and also to receive consideration of sale and to deliver the possession and further to get the mutation attested and sanctioned. Earlier agreement to sell was entered on 14.12.2003. It was scribed by PW-6 Sarabjit Singh. PW-7 Saligram was marginal witness of the same. PW-4 Sheela Devi has identified the signatures of her husband over Ex.PW-2/E. Plaintiff had also moved an application vide Ex.PW-2/H, which was rejected by the Registrar. 19. According to defendant No.1, power of attorney dated 18.11.2003 was cancelled on 20.12.2003 vide Ex.D-1. According to the averments contained in Ex.D-1, he had no intention to sell the property. However, the fact of the matter is that suit land has been sold to defendants 10 No.3 and 4 vide agreement dated 16.1.2004. In his cross- examination, DW-1 has deposed that he has not received any amount from the plaintiff. However, it has come in his cross-examination that he received a sum of ` 20,000/- from defendant No.2, namely, Ram Singh. He also deposed that no witness was present at the time of registration of Ex.PW-5/A. However, visual impression of Ex.PW-5/A shows the presence of witness. Relations between defendants No.1 and 2, namely, Paras Ram and Ram Singh were cordial. Paras Ram has executed will in favour of children of defendant No.2. Defendants No.3 and 4 knew about the earlier agreement dated 14.12.2003 since the plaintiff had approached the Registrar vide application Ex.PW-2/H and despite that they have purchased the suit land. 20. Plaintiff was always ready and willing to perform his part of contract even on 16.1.2004 when the second agreement to sell was prepared and registered. He had moved an application vide Ex.PW-2/H though it was rejected by the Sub Registrar. He has also served a legal notice vide Ex.PW-2/A on defendant No.1. He has proved receipts Ex.PW-2/B and Ex.PW-2/D. The fact that plaintiff has lodged his objections before the Sub Registrar have been duly supported by PW-3 Parvesh Kumar. He 11 has also filed a civil suit to restrain defendant No.1 to register the sale deed vide Ex.PW-1/A and Ex.PW-1/B. 21. What emerges from the observations and discussions made hereinabove is that Ex.PW-5/A has been duly executed on 18.11.2003. Defendant No.2 was authorized to alienate the property as per clause 6 of the power of attorney. The agreement was entered into between the plaintiff and defendant No.1 through defendant No.2 on 14.12.2003. Defendant No.1 has received a sum of ` 20,000/-. The plaintiff was always ready and willing to perform his part of contract dated 14.12.2003 and had also taken all the necessary steps, including issuing legal notice to defendants No.1 and 2. The power of attorney was only revoked on 20.12.2003 after the agreement was already executed by defendant No.2 on behalf of defendant No.1 with plaintiff. Defendants No.3 and 4, namely, Avtar Singh and Sham Singh always knew about the earlier agreement dated 14.12.2003 and still they have purchased the property. Thus, they cannot be termed as bona fide purchaser. 22. Since defendants No.3 and 4 were not found bona fide purchasers for valuable consideration, they were directed by the trial court, while decreeing the suit for specific performance of the agreement to sell dated 12 14.12.2003, to join in order to execute sale deed so that title which has passed on them is passed to the plaintiff qua Khasra Nos. 3453 and 3462. The issue with regard to the manner in which the decree was passed, was not even raised before the first appellate court by defendants No.3 and 4. 23. Accordingly, in view of the observations made hereinabove, there is no merit in the Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs. (Justice Rajiv Sharma), Judge. 18.11. 2011 *awasthi*