R.S.A.No. 1228 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1228 of 2009 (O&M) Date of decision: 26.11. 2009 Karamjit Singh ......Appellant Versus Joginder Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Avnish Mittal, Advocate, for the appellant. **** SABINA, J. Plaintiff Karamjit Singh filed a suit for possession by way of specific performance of agreement to sell dated 29.12.1995, which was partly decreed by the Civil Judge (Jr.Divn.), Jagadhari vide judgment and decree dated 16.12.2005. In appeal, filed by the plaintiff, the said judgment and decree were upheld by the Additional District Judge, Yamuna Nagar at Jagadhari vide judgment and decree dated 19.1.2009. Hence, the present appeal by the plaintiff. R.S.A.No. 1228 of 2009 (O&M) 2 Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 to 5 of its judgment, are as under:- “2. The appellant/plaintiff (hereinafter referred to as the plaintiff) brought a suit for possession by way of specific performance with material averments that vide agreement to sell dated 29.12.95, defendant no.1 owner of the suit land (as detailed in head note of the plaint) agreed to sell his 1/3 share i.e. 36K-10M for total sale consideration of Rs.3,20,000/- and received Rs. One lakh as earnest money under the agreement to sell vide receipt of even date. The date fixed for execution and registration of sale deed was 20.7.1996. 3. The plaintiff further averred that respondent no.1 disclosed to him at the time of execution of the agreement to sell that the land is under mortgage with defendants no.2 to 5 and he would get the land redeemed before execution and registration of sale deed, in case he fails to redeem the land before stipulated date, he would leave the mortgage amount with the plaintiff. The plaintiff averred that the agreement to sell contains usual terms and conditions as regard to the penal clause of forfeiture of earnest money and payment of double amount and enforcement of specific performance of agreement to sell in case of default of either of the party. R.S.A.No. 1228 of 2009 (O&M) 3 4. The plaintiff further averred that he disclosed the agreement to sell to defendants no.2 to 4 by visiting their village Lalheri Kalan in the first week of February, 1996 and also showed them the agreement to sell which was read by defendants no.2 to 4 and also enquired about if defendant no.1 had approached them for redeeming the land and assured them that the land would be soon redeemed. The plaintiff further pleaded that defendant no.1 did not fulfill his obligation under the contract and he did not appear before the Sub-Registrar Chhachhrauli on due date as agreed upon between the parties for execution and registration of the sale deed. He marked his presence in the office of Sub Registrar on 19.7.1996 already with the money as 20.7.1996 was Saturday, a holiday. The plaintiff stated that he has always been willing to perform his part to contract and also met the defendant no.1 in first week of February, 1996 and tendered the entire balance sale consideration and the amount for purchased of the stamp papers and other miscellaneous expenses for execution and registration of the sale deed but defendant no.1 R.S.A.No. 1228 of 2009 (O&M) 4 put off the matter by pleading that the time fixed for execution and registration of the sale deed is quite for away and that the land has not been redeemed by him so far. The plaintiff further pleaded that on 20.7.96 he approached the defendant no.1 and asked him to fulfill his part of contract but he was astonished to know that defendant no.1 had secretly sold the entire land alongwith other land to defendants no.2 to 4 by means of two sale deed dated 15.2.96 and 25.6.96. The plaintiff further pleaded that defendants no.2 to 4 have sold the land to defendant no.6 vide sale deed dated 4.9.96 in order to defeat his right in the suit land. The plaintiff stated that he was is still ready and willing to perform his part of contract and pleaded that defendants be asked to honour the agreement to sell. He also challenged the sale deeds in question as illegal, null and void and not binding upon his rights. He stated that the defendants have knowledge of the agreement to sell in question and thus, prayed that he be granted a decree for possession of the suit land by specific performance of the agreement to sell dated R.S.A.No. 1228 of 2009 (O&M) 5 29.12.95, as prayed for by him. 5. The respondents/defendants no.1 & 5 (hereinafter referred to as the defendants no.1 & 5) did not contest the suit and were preceded against exparte. 6. Respondents/defendants No.2 and 4 (hereinafter referred to as defendants No.2 & 4) filed their joint written statement and resisted the suit of the plaintiff by taking preliminary objections interalia as to the maintainability of the suit being bad on account of mis-joinder of necessary parties and that the defendants are bonafide purchasers of the suit land for valuable consideration and are being protected by law. The plaintiff is estopped from filing the present suit by his own act and conduct. On merits, the defendants denied the execution of the agreement to sell dated 29.12.95 between the plaintiff and defendant no.1 and pleaded that the agreement in question is forged document, which has been prepared in collusion with the plaintiffs and defendant no.1 being close relative and as such not binding upon their rights. However, they admitted that the suit land was under mortgage R.S.A.No. 1228 of 2009 (O&M) 6 for Rs.1,99,000/- with them. They pleaded that the plaintiff actively participated in the execution of the sale deed regarding the suit land, which has been executed by defendant no.1 in their favour for valuable consideration. They pleaded that the sale deeds dated 15.2.96 and 25.6.96 executed in their favour by defendant no.1 are valid and binding upon the plaintiff. They also admitted that they sold the land to defendant no.6 as they had every right to sell the same being bonafide purchasers for valuable consideration. With these broads averments, they pleaded to dismiss the suit. 7. Respondent/defendant no.6 (hereinafter referred to as defendant no.6) filed a separate written statement and pleaded that he purchased the suit land from defendants no.2 to 4 for valuable consideration and as such has become rightful owner of the land in question, being bonafide purchaser. All the facts mentioned in the plaint were denied for want of knowledge and pleaded that the plaintiff has not come in the court with clean hands and as such has no locus standi to file the present suit. With the aforesaid R.S.A.No. 1228 of 2009 (O&M) 7 broad averments, he pleaded to dismiss the suit of the plaintiff.” On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the plaintiff is entitled for possession of the suit land by way of specific performance of agreement dated 29.12.95 as prayed for ? OPP 2. Whether the suit is not maintainable ? OPD 3. Whether the suit is bad for mis-joinder of necessary parties?OPD 4. Whether the defendants are bonafide purchaser of the suit land for valuable consideration, if so its effect ? OPD 5. Whether the plaintiff is estopped from filing the present suit by his own act and conduct ? OPD 6. Whether the agreement dated 29.12.95 is forged document? OPD 7. Relief. After hearing learned counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed. Plaintiff had filed a suit for specific performance of agreement to sell dated 29.12.1995. The Courts below have decreed the suit of the plaintiff-appellant for recovery of double the earnest money. The relief for specific performance of agreement to R.S.A.No. 1228 of 2009 (O&M) 8 sell was declined on the ground that defendants No. 2 to 5 were bona fide purchasers for consideration. The point in issue for consideration in the present appeal is only to the limited extent as to whether defendants No.2 to 6 were bona fide purchasers in consideration. Although DW-1 Vinod Kumar had not appeared for cross-examination but in a suit filed by defendant No.1 against defendant Nos. 2 to 4, defendant No.1 had challenged the sale deeds executed by him in favour of defendants No.2 to 4. The property in question was already mortgaged with defendants No.2 to 5 for a sum of Rs.1,99,000/- vide mortgage deed dated 18.8.1994. The possession of the suit property was already with the said defendants. In these circumstances, the Courts below rightly held that the defendants, who were already in possession of the suit property as mortgagees, had no notice of the agreement to sell executed by defendant No.1 in favour of the plaintiff and consequently, they were bona fide purchasers for consideration. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE November 26, 2009 anita