RSA No. 4383 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 4383 of 2010 Date of decision: 18.10.2011 Shiv Shankar … Appellant Versus Gajender Singh and others … Respondents Present: Mr. N.D.Achint, Advocate, for the appellant. … ARVIND KUMAR, J: The present regular second appeal has arisen out of judgment and decrees passed by both the Courts below decreeing the suit of the plaintiff for specific performance of agreement dated 17.4.1997 executed by defendants Rajender Singh and Jagbir Singh(now deceased and represented by his legal representatives), both sons of Tek Ram for sale of 1/3rd agricultural land measuring 22 kanals 12 marlas situated within the revenue estate of village Dharana, Tehsil Beri, District Jhajjar, which comes to 7 kanals 11 marlas, for a sum of Rs.1,00,000/-. It is alleged in the suit that at the time of execution of agreement to sell, Rs.25,000/- was received as earnest money and the remaining amount was to be paid at the time of execution of the sale-deed, which was to be executed on or before 20.3.1998. Since defendants Rajender Singh and Jagbir Singh failed to execute the sale-deed in terms of agreement to sell dated 17.4..1997, the present suit came to be filed. Defendant No.3 was impleaded as party to the suit because during the pendency of the suit, Rajender Singh and Jagbir Singh had sold the land to him. Defendants 1 and 2 did not contest the suit and thus, were proceeded against ex-parte. Even the legal representatives of Jagbir RSA No. 4383 of 2010 2 Singh who were impleaded as defendants No.2A to 2E also chose not to contest the suit and thus, they were also proceeded against ex-parte. Only defendant No.3 Shiv Shankar had contested the suit and filed written statement wherein he pleaded that defendants 2 and 3 had not executed any agreement to sell dated 17.4.1997 in favour of the plaintiff. He further took the objection that on 17.4.1997, defendant No.2 Jagbir Singh was minor and the suit land had already been mortgaged by father of defendants 1 and 2 in favour of Oriental Bank of Commerce for raising loan. It was also alleged that the agreement to sell dated 17.4.1997 was as a result of fraud and it was a fabricated document because defendant No.1 had not executed the same as an agreement to sell but was a pronote in favour of the plaintiff whereby they had borrowed money from him. Defendant No.3 tried to establish his case saying that the suit land was of much more value than that of Rs.one lac which was stated to be the consideration amount in the alleged agreement to sell. Plaintiff filed replication to the written statement. On the pleadings of the parties, the trial Court struck issues to which evidence was led. On appreciation of evidence so led by the parties, the trial Court held that the agreement to sell was executed by defendants 1 and 2, i.e. Rajender Singh and Jagbir Singh and also held that on 17.4.1997, defendant No.2 had already attained the age of majority. Trial Court further held that the execution of agreement to sell dated 17.4.1997 was also in the knowledge of defendant No.3 Shiv Shankar when he had got executed sale-deed in his favour on 1.10.1999. All the issues were decided in favour of the plaintiff and thus, the suit of the plaintiff was decreed directing the defendants to put the plaintiff in possession of the suit land by way of specific performance of agreement to sell dated 17.4.1997 subject to payment of Rs.75,000/- as balance sale consideration. Trial Court further held that the sale-deed dated 1.10.1999 executed by defendants 1 and 2 in favour of defendant No.3 was not binding on the rights of the plaintiff. It granted one month’s time to the defendants to execute the sale- deed in favour of the plaintiff failing which the plaintiff was left at liberty to get assistance of the Court for execution of sale-deed and taking of possession. Feeling aggrieved of the judgment and decree of the trial Court, defendant No.3 Shiv Shankar filed an appeal which was dismissed RSA No. 4383 of 2010 3 by the lower appellate Court on 15.10.2008. Hence, this appeal. Learned counsel appearing on behalf of the appellant has contended that the alleged agreement to sell dated 17.4.1997 was not binding upon Jagbir Singh,defendant, because at that time, he was minor and at the time of execution of that agreement, land was mortgaged with the bank and was not redeemed and therefore, the agreement to sell was a sham transaction whereas the present appellant Shiv Shankar was a bona-fide purchaser of the suit land. Counsel tried to assail the findings recorded by both the Courts below only on the ground that the appellant was a bona-fide purchaser and the said agreement to sell was in fact a document of security executed by defendants 1 and 2, namely, Rajender Singh and Jagbir Singh, when they had raised a loan. He further contended that appellant-defendant No.3 was a bona-fide purchaser without notice. After hearing the counsel for the appellant, I do not find any merit in the present appeal. Defendants 1 and 2, namely, Rajender Singh and Jaagbir Singh who had executed the document had chosen not to dispute the claim of the plaintiff and therefore, a third person, i.e. defendant No.3, Shiv Shankar, who was a subsequent purchaser, cannot come forward to say that the agreement to sell dated 17.4.1997 was not executed by them and that it was a sham transaction and in fact, was a security-deed executed. Otherwise also, defendant No.3, the present appellant herein, had not disputed the execution of the document though he had tried to term it as security-deed for raising loan. While appearing in the witness-box, he had admitted in his cross-examination that on the date of execution of that agreement, he was present in the village and that document was in fact executed between the parties. He also admitted in his cross-examination that the plaintiff had appeared before the Registrar on the date fixed i.e. 20.3.1998, along with the remaining sale consideration for getting the sale- deed registered. This admission itself proves on record that the document executed was not a security-deed but was an agreement to sell. As regards the plea taken by the counsel for the appellant that the appellant had no notice of the document, the same also fails in the presence of the afore-said admission of the defendants. Therefore, the plea raised that he was a bona- fide purchaser for consideration without notice does not survive because his claim is hit by the doctrine of lis pendens. Nothing has been shown that the RSA No. 4383 of 2010 4 findings of fact so recorded by the Courts below suffer from any infirmity or are contrary to the record. No question of law, muchless substantial, arises in the present appeal. Consequently, the appeal being without any merit is hereby dismissed. October 18, 2011 ( ARVIND KUMAR) JS JUDGE