RSA No.1455 of 2007 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1455 of 2007 (O&M) Decided on : 31.08.2010 Swinder Singh & another ... Appellants versus Milkha Singh & others ... Respondents CORAM : HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present : Mr. V.K.Jain, Sr. Advocate with Mr. J.K.Bhatti, Advocate for the appellants. Mr. Deepak Nagar, Advocate for the respondents. **** 1. To be referred to the reporters or not? 2. Whether the judgment should be reported in the Digest? *** RAKESH KUMAR GARG, J. This is defendants' second appeal challenging the judgment and decree of the courts below whereby suit of the plaintiffs- respondents for specific performance of the agreement to sell dated 27.10.1994 was decreed. As per the averments made in the plaint, the case of the plaintiffs-respondents is that Puran Kaur- defendant No.1 (now represented by respondents No.3 & 4) being owner of the suit property agreed to sell the same @ Rs.70,000/- per acre and received a sum of Rs.75,000/- through Swaran Singh – defendant No.4 (now respondent No.2) at the time of execution of agreement to sell in the presence of witnesses. The sale deed was agreed to be executed on or before 04.12.1995 after receiving the balance sale consideration. The plaintiff-respondent was ready and willing to perform his part of the RSA No.1455 of 2007 (O&M) -2- contract and was requesting defendants No.1 and 4 to execute the sale deed in his favour but they were delaying the execution of the sale deed. The plaintiff-respondent remained present in the office of Sub Registrar, Amritsar on 04.12.1995, however, defendants did not turn up. It is the further case of the plaintiff-respondent that defendant No.1 cancelled the power the attorney in favour of Swaran Singh on 09.11.1994 and executed the sale deed in favour of defendants No.2 & 3 on 29.11.1994 of the suit property, which was kept as a secret. The aforesaid sale deed is illegal, invalid and not binding upon the rights of the plaintiff-respondent whose agreement is of the prior date. The factum of the sale deed came to the notice of the plaintiff- respondent in the second week of December, 1995. The plaintiff requested defendants to execute the sale deed but they refused to do so. Hence, the necessity raise to file the present suit. Upon notice, defendants No.1 to 3 appeared and filed written statement raising various preliminary objections including that the alleged agreement by defendant No.4 in favour of the plaintiff was illegal, null and void. On merits, it was admitted that defendant No.1 was the owner of the suit property but it was denied that she ever appointed defendant No.4 to be her attorney to alienate the suit property. It was further averred that the alleged power of attorney was cancelled vide cancellation deed dated 09.11.1994. It was further averred that the sale deed dated 29.11.1994 in favour of defendants No.2 & 3 were legal and valid documents and the plaintiff had got no right to challenge the validity of the aforesaid sale deed. Rest of the averments were denied and the prayer for dismissal of the suit was made. Defendant No.4 initially appeared but later he failed to RSA No.1455 of 2007 (O&M) -3- appear and hence, he was proceeded against ex parte vide order dated 03.01.1997. The plaintiff – respondent filed replication reiterating the averments of the plaint and controverted those of the written statement. On the pleadings of the parties, following issues were framed vide order dated 29.09.1997: (i)Whether defendant No.4 as general attorney of defendant No.1 executed a valid agreement of sale dated 27.10.1994 in favour of the plaintiff? OPP (ii)Whether the sale deed by defendant No.1 in favour of defendants No.2 & 3 is liable to be cancelled? OPP (iii)Whether the plaintiff is ready and willing to perform his part of the contract? OPP (iv)Whether the suit is properly valued for the purposes of court fee and jurisdiction? OPP (v)Whether there is any collusiveness between the plaintiff and defendant No.4 if so its effect? (vi)Whether the plaintiff is entitled to the specific performance of the contract and cancellation of the sale deed dated 29.11.1994? OPP (vii)Relief. It may be necessary to notice at this stage that during the pendency of the suit, defendants No.2 & 3 filed an application under Order 6 Rule 17 CPC for permission to amend the written statement filed by them to take the plea that defendants No.2 & 3 were the bona fide purchasers for consideration without notice of the alleged agreement to sell dated 27.10.1994. The aforesaid application for RSA No.1455 of 2007 (O&M) -4- amendment was rejected by the then Addl. Civil Judge (Sr. Div.) Amritsar vide order dated 07.04.2003. The aforesaid order was challenged by the appellants vide CR No.2715 of 2003, which was dismissed by this Court vide order dated 30.05.2003. After going through the evidence produced on the record and hearing the learned counsel for both the parties, the trial court decided all the issues in favour of the plaintiff and resultantly decreed the suit vide judgment and decree dated 29.07.2005. It may also be noticed that the judgment of the trial court is silent about the fact as to whether any argument was raised by defendants No.2 & 3 i.e. appellants before the trial court at the time of final hearing challenging their prayer for amendment in the written statement, which was rejected vide order dated 07.04.2003. Aggrieved from the judgment and decree of the trial court, appellants filed an appeal before the lower appellate court and assailed the findings of the trial court on issue Nos.1, 2 & 6. While recording the finding of the trial court on the aforesaid issues, the lower appellate court recorded a concurrent finding that the plaintiff- respondent had successfully proved that defendant No.1 was bound by the agreement to sell in question, which was executed by defendant No.4 being his power of attorney, which was valid on 27.10.1994, the date on which agreement to sell was executed. It was further found by the lower appellate court that the appellants have miserably failed to prove that agreement in question was forged and fabricated or that the same was created after the cancellation of the power of attorney. It may also be pointed out that before the lower appellate court, the appellant also raised the argument that he was bona fide purchaser of land in dispute for consideration without notice of the RSA No.1455 of 2007 (O&M) -5- earlier agreement dated 27.10.1994 and in that respect the trial court did not frame an issue to that effect, which was material for deciding the controversy between the parties and thus, the additional issue be framed and report of the trial court be called for. However, the aforesaid plea of the appellant was controverted on behalf of the plaintiff-respondent stating that since the amendment in the written statement to take up the aforesaid plea was not allowed, the appellant was not entitled to raise such an argument. The lower appellate court found that it is not the pleaded case of the appellants that sale in their favour by defendant No.1 was protected on the ground that they were bona fide purchasers for consideration and without notice of the agreement, therefore, the sale in their favour cannot be protected under Section 41 of the Transfer of the Property Act and dismissed the appeal. Still not satisfied, the appellants have filed the instant appeal challenging the impugned judgment and decree of the courts below submitting that the following substantial questions of law arise in this appeal: (i)Whether the judgment of the lower appellate court without deciding all the issues is sustainable in the eyes of law? (ii)Whether the appellate court was duty bound while dismissing the appeal of the appellants to decide whether the respondent-plaintiff was able to prove issue No.3 regarding readiness and willingness? (iii)Whether the judgment passed by the appellate court is based on surmises and conjectures and misreading and mis-appreciation of evidence on the file? RSA No.1455 of 2007 (O&M) -6- (iv)Whether the appellants are bona fide purchasers for valuable consideration? (v)Whether the amendment has been wrongly declined by the trial court and no finding has been given by the lower appellate court on that issue? (vi)Whether the agreement to sell in question set up by the respondent No.1 is collusive act of the respondent Nos.1 & 2? (vii)Whether the learned appellate court was competent to decide the arguments of the appellants regarding bona fide purchaser for valuable consideration and protected under Section 41 of the Transfer of Property Act on the basis of evidence led by the parties knowing well the dispute in question in view of the Apex Court judgments? In support of the appeal, Mr.V.K.Jain, Sr. Advocate appearing on behalf of the appellants has vehemently argued that the appellants moved application for amendment to take the plea of bona fide purchasers for value and consideration without notice of the alleged agreement to sell dated 27.10.1994. The said application was declined by the trial court vide order dated 07.04.2003. Though the said order was challenged by the appellants before the High Court by filing civil revision, which was also dismissed, yet appellants were entitled to raise the argument based on the plea of bona fide purchasers and the aforesaid issue was raised before the lower appellate court yet the lower appellate court failed to accept the aforesaid plea resulting into miscarriage of justice to the appellants. The lower appellate court has failed to frame and decide the proper issues arising out of the appeal and in this view of the matter, the RSA No.1455 of 2007 (O&M) -7- substantial questions of law as raised in the memo of appeal arise in this appeal and the impugned judgment and decree is liable to be set aside. I have heard learned counsel for the appellant and perused the impugned judgment and decree. Admittedly, the appellant has not raised the plea of bona fide purchaser for value and consideration and without notice of the previous agreement in favour of the plaintiff in his written statement. The appellant was not allowed to raise the aforesaid plea by way of amendment of the written statement and his prayer in this regard was rejected by the trial court vide order dated 07.04.2003. Even CR No.2715 of 2003 filed against the aforesaid order was dismissed by this Court vide order dated 30.05.2003 holding that the prayer of the appellant for amendment in the written statement was correctly declined by the trial court. Nothing has been shown before this Court as to how the order of this Court dated 30.05.2003 declining his request to allow the amendment in the written statement and to take up the plea of bona fide purchaser is wrong. Learned counsel for the appellant could also not raise any worthwhile argument before this court as to how the appellant was entitled to raise an argument on the basis of a plea which has not been pleaded. Thus, no interference is warranted in the impugned judgment and decree. No substantial question of law arises as argued. Dismissed. August 31, 2010 (RAKESH KUMAR GARG) sonia JUDGE