RSA No.3871 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH REGULAR SECOND APPEALNo.3871 of 2009 (O&M) DATE OF DECISION: 3 rd MAY, 2011 Partap Singh .... Appellant Versus Duli Chand Sharma & others .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. Sushil Jain, Advocate for Mr. Gopi Chand, Advocate for the appellant. Mr. Mani Ram Verma, Advocate with Mr. Niput Verma, Advocate and Ms. Shivani Verma, Advocate for respondent No.1. * * * * L.N. MITTAL, J. (ORAL) This is second appeal by Partap Singh-defendant No.2. Suit was filed by respondent No.1/plaintiff Duni Chand Sharma against Narayan Singh defendant No.1/respondent No.2 herein (since deceased and represented by legal representatives) and defendant No.2- appellant Pardap Singh. Plaintiff alleged that defendant No.1 being owner of the suit land measuring 17 Kanals 10 Marlas, agreed to sell the same to the plaintiff @ Rs.2,20,000/- per acre and received Rs.25,000/- as earnest money and executed agreement dated 11.09.1995. Sale deed was to be executed up to 30.12.1995. However, prior to it, defendant No.1, who was the sole defendant initially, threatened to sell the suit land and therefore, plaintiff filed RSA No.3871 of 2009 (O&M) -2- suit on 05.12.1995 for permanent injunction restraining the defendant Narayan Singh from alienating the suit land. During pendency of the suit, the plaintiff became entitled to relief of specific performance of the agreement and accordingly claimed relief of possession of the suit land by specific purpose of the agreement. Meanwhile defendant No.1 had sold 11 Kanals 17 Marlas land out of the suit land to Partap Singh defendant No.2 vide sale deed dated 19.12.1995 (copy Exhibit P-2) during pendency of the suit and, therefore, Partap Singh subsequent vendee was also impleaded as defendant No.2 in the suit. The plaintiff alleged that he has always been ready and willing to perform his part of contract but defendant No.1 committed breach thereof. Aforesaid sale deed was also challenged in the suit. Defendant No.1 broadly denied the plaint allegations. Impugned agreement was alleged to be false and fabricated. Defendant No.1 alleged that he had already sold the suit land to defendant No.2 vide agreement dated 01.12.1993 and by way of civil decree. Defendant No.1 also denied receipt of Rs.25,000/- from the plaintiff. It was also alleged that defendant No.1 has sold 11 Kanals 17 Marlas land to defendant No.2 vide sale deed dated 19.12.1995, whereas remaining 5 Kanals 13 Marlas land was given to defendant No.2 by decree of the Civil Court. Various other pleas were also raised. Defendant No.2 also filed separate written statement pleading similar version as that of defendant No.1. Defendant No.2 also claimed to bonafide purchaser of the suit land for valuable consideration without notice of the impugned agreement. Defendants also set up agreement dated 01.12.1993 regarding 11 Kanals 17 Marlas land, allegedly executed by RSA No.3871 of 2009 (O&M) -3- defendant No.1 in favour of defendant No.2. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Faridabad vide judgment and decree dated 27.01.2007, instead of decreeing the suit for specific performance of the impugned agreement, decreed the suit for recovery of Rs.50,000/- being double the earnest money. However, plaintiff preferred first appeal against judgment and decree of the trial court in which defendant No.1 preferred cross-objections. Learned Additional District Judge, Faridabad vide judgment and decree dated 25.09.2009 dismissed the cross-objections preferred by one legal representative of defendant No.1 and allowed the appeal preferred by the plaintiff and decreed the plaintiff's suit partly for specific performance of the impugned agreement regarding 11 Kanals 17 Marlas land out of 17 Kanals 10 Marlas land i.e. excluding land of Khasra No.44/1 (5-13) having been already decreed in favour of defendant No.2. Feeling aggrieved, defendant No.2 has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant vehemently contended that appellant is bona fide purchaser of the suit land measuring 11 Kanals 17 Marlas regarding which suit of the plaintiff has been decreed by the lower appellate court. It was contended that vide agreement dated 01.12.1993, defendant No.1 had agreed to sell the said land to defendant No.2 and, therefore, agreement in favour of defendant No.2 was prior in time to the impugned agreement in favour of plaintiff and consequently sale deed dated RSA No.3871 of 2009 (O&M) -4- 19.12.1995 executed in favour of defendant No.2 pursuant to agreement dated 01.12.1993 is protected and plaintiff cannot claim preferential right on the basis of subsequent impugned agreement dated 11.09.1995. I have carefully considered the aforesaid contention, which on first blush appears to be attractive but on scrutiny cannot be accepted. Agreement dated 01.12.1993 has not been proved. Original agreement has not been produced. Defendant No.2 sought permission to lead secondary evidence of the said agreement, but it was declined by the trial court. Revision petition filed against said order of the trial court was also dismissed by this Court. Thus permission to lead secondary evidence of the alleged agreement dated 01.12.1993 was not granted and the original agreement has not been produced. Photostat of the agreement has therefore not been admitted in evidence. This version of the defendants regarding the said agreement cannot, therefore, be accepted. Then we are left with sale deed dated 19.12.1995 executed by defendant No.1 in favour of defendant No.2. On the basis of the said sale deed alone, defendant No.2 cannot be said to be bona fide purchaser of the suit land because the said sale deed was executed during the pendency of the suit and is, therefore, hit by the doctrine of the lis pendens. The fact that notice of the suit had allegedly not been served on defendant No.1 before execution of the said sale deed, would not take the sale deed out of the purview of the doctrine of lis pendens because the fact remains that the said sale deed was executed after institution of the suit. In fact apprehension of the plaintiff that defendant No.1 was negotiating to sell the suit land necessitating the filing of injunction suit, turned out to be true and even after RSA No.3871 of 2009 (O&M) -5- filing of the suit, defendant No.1 sold the suit land to defendant No.2. The said sale deed is thus hit by the doctrine of lis pendens and consequently defendant No.2-appellant cannot be said to be bona fide purchaser of the suit land. For the reasons aforesaid, I find no merit in this second appeal. Finding of the lower appellate court in favour of the plaintiff is justified by the evidence on record and is supported by cogent reasons and is not shown to be perverse or illegal in any manner nor it is based on misreading or mis- appreciation of the evidence. Consequently, it does not warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is dismissed being devoid of merit. Out of the amount of Rs.1,20,000/- said to have been deposited by the appellant pursuant to interim order dated 29.10.2009, amount of Rs.1,00,000/- be refunded to the appellant, whereas the amount of Rs.20,000/- be disbursed to respondent No.1-plaintiff towards cost of this appeal. (L. N. MITTAL) JUDGE 3rd May, 2011 'raj'