R.S.A. No. 3347 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3347 of 2008 Date of Decision: 20.11.2008 Khalil Ahmed ...Appellant. Versus Sadhu Ram and another ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. APS Mann, Advocate for the appellant. AJAY KUMAR MITTAL, J. This regular second appeal filed by defendant No.2 (vendee) is directed against the judgment and decree dated 13.8.2008 passed by the Additional District Judge, Yamuna Nagar at Jagadhri whereby that of the Additional Civil Judge (Senior Division), Jagadhri dated 11.9.2006, declining the relief of specific performance but granting monetary compensation of Rs.73,000/- was set aside and the suit of the plaintiff for specific performance of the agreement was decreed. Briefly stated, the facts of the case are that the plaintiff- Sadhu Ram, filed a suit for specific performance of the agreement dated 21.5.2001 executed in his favour by defendant No.1-Sagira to sell the land measuring 4 kanals 15 marlas being 1/4th share in the land measuring 18 kanals 19 marlas, fully detailed in the head note of the plaint, situated within the revenue estate of village Bhangera-Bhangeri- Bagpat, Teshil Chhachhrauli District Yamuna Nagar (hereinafter R.S.A. No. 3347 of 2008 -2- referred to as the “suit land”). It was pleaded that defendant No.1 being owner of the suit land, vide agreement to sell dated 21.5.2001 agreed to sell the same to the plaintiff for a sale consideration of Rs.60,000/- and had received a sum of Rs.36,500/- as earnest money and the sale deed was agreed to be executed in his favour on or before 26.11.2001 on payment of the balance amount of sale consideration of Rs.23,500/-. It was further pleaded that the plaintiff was ready and willing to perform his part of contract but defendant No.1 began negotiation for alienating the suit land in favour of defendant No.2 before execution of the sale deed in favour of the plaintiff. After coming to know this unfaithfulness to the agreement on the part of the prospective vendor, the plaintiff filed a suit for permanent injunction on 6.9.2001 against the defendants restraining defendant No.1 from alienating the suit land in favour of defendant No.2 but during the pendency, he got executed the sale deed in favour of defendant No.2 on 12.9.2001 selling the suit land for a consideration of Rs.2,56,000/-. The plaintiff claimed that the sale deed dated 12.9.2001 executed by defendant No.1 in favour of defendant No.2 as well as the mutation dated 25.9.2001 sanctioned on the basis thereof, were illegal, unlawful and void as the same had been executed to defeat the rights of the plaintiff qua the suit land. The plaintiff requested defendant No.1 to get the sale deed executed and registered in his favour on receipt of the balance amount of sale consideration in pursuance to the agreement in question but he refused to do so and that gave rise to the filing of the suit, as mentioned above. Upon notice, two sets of written statements were filed by the defendants. Defendant No.1 in his statement besides raising R.S.A. No. 3347 of 2008 -3- various preliminary objections pleaded that neither he entered into any agreement to sell the suit land with the plaintiff nor received an amount of Rs.36,500/- as earnest money. It was pleaded that he contacted the plaintiff for obtaining a sum of Rs.28,000/- as loan on interest and the plaintiff asked him to come to Chhachhrauli on 21.5.2001 for executing the pronote and receipt. It was further pleaded that the plaintiff in collusion with the Deed Writer as well as the attesting witnesses, got the alleged agreement to sell the suit land prepared which was false and fabricated. According to defendant No.1, the suit for permanent injunction filed by the plaintiff against him and defendant No.2 was later on withdrawn by the plaintiff and that he validly sold the suit land to defendant No.2 vide registered sale deed dated 12.9.2001 and handed over the actual physical possession thereof to him. The sale deed dated 12.9.2001 was a legal, genuine, for consideration and, therefore, binding on all the concerned including the plaintiff. The other averments made in the plaint were denied and a prayer for dismissal of the suit was made. Defendant No.2 in the written statement besides raising various preliminary objections pleaded that he was a bonafide purchaser of the suit land for a sale consideration of Rs.2,56,000/- and defendant No.1 had never entered into the agreement to sell the same with the plaintiff nor received any amount as earnest money. It was further pleaded that at the time of execution and registration of the sale deed, defendant No.1 and his brother handed over the actual physical possession of the suit land to him. On the basis of the sale deed, mutation dated 25.9.2001 was sanctioned in favour of defendant No.2 R.S.A. No. 3347 of 2008 -4- and since then he had been owner in possession thereof. It was also pleaded that the sale deed executed by defendant No.1 and his brother in his favour and the mutation sanctioned on the basis thereof were genuine and binding upon all the concerned including the plaintiff. He prayed for a dismissal of the suit. The trial court on appreciation of the oral as well as the documentary evidence led by the parties held that since the plaintiff had failed to establish that he was ready and willing to perform his part of contract, he could not compel defendant No.1 to execute the sale deed in his favour especially when he executed the sale deed in favour of defendant No.2 and handed over the possession thereof to him. It was further held that defendant No.1 had received Rs.36,500/- from the plaintiff as he himself admitted his thumb impression on the agreement to sell dated 21.5.2001. Accordingly, the trial court vide judgment and decree dated 11.9.2006 dismissed the suit of the plaintiff for specific performance of the agreement, Ex.P1, but directed defendant No.1 to pay Rs.73,000/- to the plaintiff being the double amount of Rs.36,500/- which was received by him as per the agreement, within a period of one month failing which interest at the rate of 6% per annum would accrue upon the said amount till the date of actual realization. Feeling aggrieved, the plaintiff took the matter in appeal before the lower appellate court which vide judgment and decree dated 13.8.2008 accepted the appeal and decreed the suit of the plaintiff for specific performance of the agreement to sell dated 21.5.2001. The lower appellate court set aside the sale deed dated 12.9.2001 executed by defendant No.1 in favour of defendant No.2 qua the suit land and R.S.A. No. 3347 of 2008 -5- directed defendant No.1 to execute the sale deed in respect of the suit land in favour of the plaintiff on payment of the balance amount of sale consideration of Rs.23,500/- plus stamp and registration charges within a period of 45 days from the date of decree, i.e. 13.8.2008. Hence, the present regular second appeal by defendant No.2. Learned counsel for the appellant-defendant No.2 has submitted that he was a bonafide purchaser for consideration and that the findings recorded regarding knowledge of summons was erroneous. I have heard the learned counsel for the appellant and have perused the impugned judgments with his assistance. The lower appellate court in view of the oral as well as documentary evidence on record had come to a conclusion that the sale deed in favour of defendant No.2 was hit by the principle of lis-pendens and he was not a bonafide purchaser especially when he purchased the suit land on 12.9.2001 during the pendency of the injunction suit which was filed on 6.9.2001 and to which he was a party. It was further held by the lower appellate court that the plaintiff was ready and willing to perform his part of the contract. The finding recorded by the lower appellate court that defendant No.2 was not a bonafide purchaser and that summons of injunction suit were presented for service to the defendants on 7.9.2001 is a pure question of fact on which the findings had been recorded against the defendant-appellant. The said finding is amenable to the reversal in exercise of jurisdiction under Section 100 of the Code of Civil Procedure if element of perversity is shown in the same. However, no illegality or perversity could be found in the findings recorded by the lower appellate court which may warrant interference by R.S.A. No. 3347 of 2008 -6- this Court in the regular second appeal. No question of law, much less a substantial question of law arises in this appeal for determination by this Court. Accordingly, finding no merit in this appeal, the same is hereby dismissed. There shall, however, be no order as to costs. November 20, 2008 (AJAY KUMAR MITTAL) gbs JUDGE