R.S.A. No. 3346 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3346 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 Civil Judge (Senior Division), Yamuna Nagar at Jagadhri dated 13.12.2007, dismissing the suit of the plaintiff for specific performance of the agreement, Ex.P1 and granting alternative relief for recovery, has been 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 23.5.2001, executed in his favour by defendant No.1-Nanak, to sell the land measuring 4 kanals 15 marlas being 1/4th share of the total land R.S.A. No. 3346 of 2008 -2- measuring 18 kanals 19 marlas, detailed in the head note of the plaint, situated within the revenue estate of village Bhangera-Bhangeri-Bagpat, Teshil Chhachhrauli District Yamuna Nagar (hereinafter referred to as the “suit land”). It was pleaded that defendant No.1 being owner of the suit land, vide agreement to sell dated 23.5.2001 agreed to sell the same to the plaintiff for a sale consideration of Rs.60,000/- and had received a sum of Rs.7500/- 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.52,500/-. 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 of 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 along with other land of Sagira for a consideration of Rs.2,56,000/- and also got registered before the concerned Sub Registrar. The plaintiff claimed that the sale deed dated 12.9.2001 as well as the mutation dated 25.9.2001 sanctioned on the basis thereof were illegal, null 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 R.S.A. No. 3346 of 2008 -3- but he refused to do so which gave rise to the filing of the suit. Upon notice, two sets of written statements were filed by the defendants. Defendant No.1 in his written statement besides raising various preliminary objections pleaded that he never entered into any agreement to sell the suit land to the plaintiff as there was no occasion or necessity for him to sell the suit land at a lesser rate. It was pleaded that in May, 2001 when he was in need of money, he contacted the plaintiff for raising the loan of Rs.6000/- on interest, which was advanced to him by the plaintiff and the same was repayable along with interest at the rate of 4% per month. It was further pleaded that when they went to Chhachhrauli to execute the pronote and receipt with regard to the said loan, the plaintiff in collusion with the Deed Writer as well as the attesting witnesses, got the alleged agreement to sell 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 he sold the suit land to defendant No.2 vide registered sale deed dated 12.9.2001 and handed over the actual physical possession to him. It was also pleaded that defendant No.1 and his brother on 26.11.2001 alienated their land measuring 9 kanals 9 marlas to defendant No.2 for a consideration of Rs.2,56,000/- and thereafter defendant No.2 was owner in possession thereof and that 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 pleaded that he R.S.A. No. 3346 of 2008 -4- purchased the land measuring 9 kanals 9 marlas from defendant No.1 and his brother Sagira for a sale consideration of Rs.2,56,000/- vide agreement to sell dated 28.8.2001 executed in his favour on receipt of Rs.80,000/-. The last date for execution and registration of the sale deed of the suit land was fixed as 14.12.2001 and on 12.9.2001, defendant No.1 and his brother got registered the said deed in favour of defendant No.2 on receipt of Rs.1,76,000/- the balance amount of the sale consideration and handed over the physical possession of the suit land to him. It was further pleaded that he was bonafide purchaser of the suit land and that the sale deed dated 12.9.2001 was legal and genuine. The other averments made in the plaint were denied being wrong and a prayer for dismissal of the suit was made. 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.7500/- from the plaintiff as he himself admitted his thumb impression on the agreement to sell dated 23.5.2001. Accordingly, the trial court vide judgment and decree dated 13.12.2007 dismissed the suit of the plaintiff for specific performance of the agreement, Ex.P1, but granted the alternative relief for recovery of Rs.7500/- with proportionate costs along with interest at the rate of 12% per annum from 6.11.2001 till the date of actual realization. Feeling aggrieved, the plaintiff took the matter in appeal R.S.A. No. 3346 of 2008 -5- 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 23.5.2001. 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 directed defendant No.1 to execute the sale deed in respect of the suit land in favour of the plaintiff on payment of balance amount of sale consideration of Rs.52,500/- 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 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 the 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 R.S.A. No. 3346 of 2008 -6- 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 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