RSA No.1148 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1148 of 1985 Date of Decision: 18.05.2010 Smt.Gurbachan Kaur ..Appellant Vs. Surjan Singh & Ors. ..Respondents CORAM: HON'BLE MR.JUSTICE VINOD K.SHARMA Present: Mr.H.R.Bhardwaj, Advocate, for the appellant. Mr.V.K.Jain, Sr.Advocate, with Mr.J.L.Malhotra, Advocate, for the respondents. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) This is appellant/plaintiff's appeal against the judgment and RSA No.1148 of 1985 2 decree dated 6.11.1984 passed by the learned courts below, vide which plaintiff/appellant has been granted a decree of refund of earnest money with interest at the rate of 6 per cent per annum, while claim for possession by way of specific performance of agreement to sell dated 6.5.1974 was dismissed. Pleaded case of the plaintiff/appellant was that defendant No.1 on 6.5.1974 representing himself to be the sole owner of khasra No.1806, 1807, 1808, and 1809 as per Jamabandi for the year 1954-55 agreed to selll land measuring 43 kanals 4 marlas to the plaintiff/appellant for valuable consideration of Rs.10,000/- (Rupees ten thousand only) per Killa. An agreement to sell was executed between the parties on 6.5.1974 and it was agreed between the parties that the conveyance deed would be executed on or before Magh 15, Samvat 2031 i.e. 28.1.1975. Plaintiff also claimed that in part performance of the contract, actual physical possession of the land was given to the plaintiff/appellant. One of the stipulations in the agreement to sell was that the plaintiff/appellant could enforce the contract by way of specific performance and the expenses incurred for this were permitted to be deducted from the sale consideration. The case of plaintiff further was that after the consolidation new numbers were allotted for the previous khasra numbers and the defendant became owner of land measuring 38 kanals 6 marlas bearing Khasra No.91R/2/3, 12, 9, 10, 11, 90R/6, and 15 and had put the plaintiff in actual physical possession of the land allotted to him for consideration. It RSA No.1148 of 1985 3 was also pleaded case of the plaintiff/appellant that Rasulpur was a small village and all persons had come to know that the land had been agreed to be sold by defendant No.1 in favour of the plaintiff/appellant and that the plaintiff/appellant had been put in possession of the land in dispute. Pleaded case of the plaintiff/appellant further was, that as his possession was being threatened he filed a suit for permanent injunction against defendant No.1 in the court of learned Sub Judge, Amritsar. Temporary injunction was granted in favour of the plaintiff/appellant and against defendant No.1 and he was restrained from dispossessing the plaintiff from the land in dispute measuring about 40 kanals of land. Injunction order was passed in favour of the plaintiff/appellant on 12.9.1974. Defendant No.1 did not contest the proceedings and absented himself which raised a suspicion in the mind of the plaintiff/appellant. On inquiry it was revealed that defendant No.1 had fictitiously executed a sale deed in favour of defendants No.2 to 4 for a part of the land for a sum of Rs.42000/- (Rupees forty two thousand only) on 3.9.1974 and the sale deed was also got registered from the Sub Registrar on that very day. Sale deed was said to be executed with mala fide intention. It was further the case of the plaintiff/appellant that sale in favour of defendants No.2 to 4 was without consideration and was with intention to defeat the rights of the plaintiff under the agreement to sell. The case of the plaintiff was that in view of the subsequent development, without waiting for the period for execution of the sale deed, he filed a suit for specific performance of agreement to sell. RSA No.1148 of 1985 4 The plaintiff also pleaded that the plaintiff had always been willing and was still willing to perform her part of the contract, whereas breach was committed by defendant No.1. It was also pleaded case of the plaintiff/appellant that when defendant No.1 was asked to execute the sale deed, defendants No.2 to 4 disclosed that they had purchased land measuring 33 kanals 2 marlas from defendant No.1. On notice, suit was contested by the defendants. Defendant No.1 took up the plea, that the suit of the plaintiff was not maintainable for want of relief of possession in a suit for specific performance. He denied having executed any agreement in favour of the plaintiff/appellant. Additional stand was also taken, that the consolidation proceedings had already taken place in the year 1960, whereas agreement was executed on 6.5.1974, therefore, the agreement was vague and indefinite, therefore, did not confer any right or title on the plaintiff. Plea was also taken that defendant was not owner of the whole of the land and that the plaintiff/appellant had sued the defendants for more area of land than the one agreed in the agreement. Defendant No.1 also denied having received earnest money of Rs.7000/- (Rupees seven thousand only). Objection with regard to the suit being not properly valued for the purposes of court fee and jurisdiction was also raised. Defendants No.2 to 4 contested the suit by challenging the valuation of the suit for the purposes of court fee and jurisdiction. Defence was also taken that khasra numbers agreed to be sold to the plaintiff/appellant were not in existent on the date of alleged agreement and RSA No.1148 of 1985 5 therefore, the agreement was not enforceable in law. The plea that the defendants were bona fide purchasers for consideration and without notice, was also raised. It was also the case of the defendant/respondents that they were in possession of 33 kanals 2 marlas of land out of suit land measuring 38 kanals 6 marlas. Possession of the plaintiff/appellant was disputed. On the pleadings of the parties, learned trial court framed the following issues. 1. Whether defendant No.1 entered into an agreement for the sale of land in dispute with the plaintiff? OPP 2. Whether the suit is properly valued for the purposes of court fee was and jurisdiction? OPP 3. Whether the plaintiff has been willing and ready and still remains ready and willing to perform his part of the contract? OPP 4. Whether defendant No.1 committed breach of the contract? OPP 5. Whether the defendants Nos. 2 to 4 are bona fide purchasers for valuable consideration and without notice of the agreement in favour of the plaintiff? OPD 6. Whether the suit is not maintainable for reasons and allegations made in para No.2 of the preliminary objections of the written statement filed by defendants No.2 to 4? OPD RSA No.1148 of 1985 6 Additional Issues: 1. Whether the suit in the present form is not maintainable? OPD (objected to) 2. Whether the suit land was allotted in lieu of the numbers which were originally agreed to sell to the plaintiff? OPP 2-A Whether the possession of the land agreed to be sold was delivered to the plaintiff at the time of the agreement and she has been dispossessed therefrom during the pendency of the suit as alleged. If so, to what effect? OPP 2-B. Whether defendant No.1 was owner of the entire land agreed to be sold and the land which is the subject matter of the suit? If so, to what effect? OPP 7. Relief. Both the parties led evidence, in support of their respective stands and on appreciation of evidence, a concurrent finding was recorded by the learned courts below, that defendant No.1 had entered into an agreement for sale of the land with the plaintiff. Suit was held to be properly valued for the purposes of court fee and jurisdiction. Both the courts also recorded a finding that the plaintiff/ appellant was willing and ready and remained ready and willing to perform her part of the contract. The learned court also held that defendant No.1 had committed breach of contract. On issue No.5, learned trial court held that defendants No.2 to 4 RSA No.1148 of 1985 7 were bona fide purchasers for value and consideration without notice of agreement in favour of the plaintiff, whereas issue No.6 was decided against the defendants, as not pressed. On additional issue No.1, learned courts below held that the suit was maintainable in the present form. On additional issue No.2, learned courts below have held that the plaintiff/appellant had failed to prove that the suit land was allotted in lieu of khasra numbers originally agreed to be sold to the plaintiff/appellant. Learned courts below on issue No.2-A held that the plaintiff had failed to prove that possession of the land was delivered to the plaintiff/appellant at the time of execution of the agreement. It was further held that she was not dispossessed during the pendency of the suit. In view of the findings referred to above, learned trial court dismissed the suit against defendants No.2 to 4, by holding them to be bona fide purchasers for consideration and decreed the suit for recovery of a sum of Rs.7000/- (Rupees seen thousand only) paid as earnest money. Leaned lower appellate court affirmed the findings, but modified the relief and held the plaintiff/appellant to be entitled to interest at the rate of 6 per cent per annum. Learned courts below non-suited the appellant/plaintiff on two grounds. Firstly, that the plaintiff/appellant was not able to identify the suit land with khasra numbers agreed to be sold by defendant No.1 in pursuance to the agreement to sell executed between the parties and secondly, that defendants No.2 to 4 were bona fide purchasers for consideration without RSA No.1148 of 1985 8 notice. It may be pertinent to mention here that on earlier occasion, learned trial court had decreed the suit merely for recovery of Rs.7000/- (Rupees seven thousand only), against which the plaintiff/appellant had preferred an appeal. The learned lower appellate court remanded the case back to the learned trial court to consider as to “whether the plaintiff/appellant was entitled to any compensation as claimed by him in para No.10 of the plaintiff”?. Learned trial court on re-consideration of matter, for want of any evidence and proof of the damages, rejected this claim of the plaintiff/appellant. This finding was also affirmed by the learned lower appellant court. In order to appreciate the controversy involved in this appeal, it would be appropriate to reproduce the findings recorded by the learned courts below to non-suit the plaintiff/appellant in detail. Learned trial court on the basis of evidence, recorded a finding that consolidation of the land in village Rasulpur Kalan stood completed, much earlier to the agreement to sell dated 6.5.1974. Revenue Khasra Nos.1806,1807, 1808 and 1809, mentioned in the sale agreement, denoted pre consolation khasra numbers. The learned trial court held, that land agreed to be sold vide agreement to sell had post consolidation khasra numbers assigned thereto much prior to the execution of the sale agreement. In the absence of any evidence it was not ascertainable that as RSA No.1148 of 1985 9 to why the pre-consolidation khasra numbers and not the post consolidation khasra numbers of the land agreed to be sold, were mentioned in the agreement to sell. The learned court also took note of the fact that besides agreement to sell, plaintiff had purchased the land from defendant no.1 and his brother by way of separate sale deed, wherein post consolidation khasra numbers were mentioned. The learned court, therefore, held that it was for the plaintiff/appellant to show as to why pre-consolidation numbers were given, in agreement to sell. Learned trial court thereafter had proceeded to hold that it was for the plaintiff/appellant to prove that the suit land was allotted in consolidation in lieu of the area comprised in the revenue khasra numbers mentioned in the sale agreement. This conclusion was arrived at by the learned courts below keeping in view the fact that it was in evidence that Surjan Singh defendant No.1 had filed application for purchase of land under section 18 of the Punjab Security of Land Tenures Act, 1953 against Thakar Singh son of Kesar Singh, Santa Singh, Ass Kaur etc. He filed application for purchase of 116 kanals 4 marlas of land including the land comprising in khasra Nos.1806, 1807, 1808, and 1809. Defendant No.1 was allowed to purchase land measuring 78 kanals 18 marlas comprised in revenue khasra No.1772, 1776, 1805, 1806, 1807, 1808, and 1809 and 1812 from Thakar Singh son of Kesar Singh, Santa Singh and Ass Kaur on payment of amount mentioned therein. Assistant Collector also held that land comprised in khasra Nos.1806, 1807, RSA No.1148 of 1985 10 1808 and 1809 was with Thakar Singh son of Kesar Singh, whereas rest of the land was with Santa Singh and Ass Kaur. However, it was not disputed that defendant No.1 acquired the ownership of the land vide order dated 7.6.1960, Ex.P.2. Learned courts below thereafter considered Khatauni Paimaish Ex.P.10 and P.12 and entries in Naksha Haqdarwar Ex.P.7 as well as other documentary evidence and thereafter held that the plaintiff/appellant was not able to prove that the suit land was allotted in consolidation in lieu of revenue khasra numbers agreed to be sold to the plaintiff/appellant. Learned courts below did not accept the contention raised by the plaintiff/appellant that the sale deed in favour of defendants No.2 to 4 was executed hurriedly in the absence of funds available with defendants No.2 to 4, because major portion of the amount i.e. Rs.36,000/- (Rupees thirty six thousand only) out of Rs.42,000/- (Rupees forty two thousand only), remained unpaid, which was paid only on subsequent date. Learned courts held that the notices sent to defendant No.1 and defendants No.2 to 4 were dated 2.11.1974, whereas sale had been executed in favour of defendants No. 2 to 4 on 3.9.1974. The learned court also held that in the suit for injunction filed by the plaintiff, defendants No.2 to 4 were not party. The finding was recorded that there was no evidence to show that defendants No.2 to 4 had knowledge of agreement to sell in favour of the plaintiff/appellant. The finding was also recorded that defendants No.2 to 4 were bona fide purchasers for consideration with notice. RSA No.1148 of 1985 11 As already mentioned, it was in view of the finding recorded above, that the courts below decreed the suit for recovery of earnest money with interest and refused the relief of specific performance while dismissing the suit against defendants No.2 to 4. Mr.H.R.Bhardwaj, learned counsel appearing on behalf of the appellant contended, that the following substantial questions of law arise for consideration in this appeal. 1. Whether the judgment and decree passed by the learned courts below is the outcome of misreading of documentary and oral evidence on record which has resulted in miscarriage of justice and therefore, perverse? 2. Whether in the facts and circumstances of the case, learned courts below were justified in holding defendants No.2 to 4 to be bona fide purchasers for consideration without notice? In support of the substantial question law, learned counsel for the appellant contended, that the learned courts below have recorded a concurrent finding of fact that defendant no.1 had executed an agreement to sell dated 6.5.1974, agreeing to sell land measuring approximately 40 kanals in Khasra Nos. 1806, 1807, 1808, and 1809 as per jamabandi for the year 1954-55 and had received an earnest money of Rs.7,000/- (Rupees seven thousand only). Learned courts below also held that it was proved that the plaintiff had always been willing and was still willing to perform her part of RSA No.1148 of 1985 12 the contract. The contention of the learned counsel for the appellant was, that defendant No.1 appeared and after filing the written statement did not contest the case. The learned court ought to have granted decree of specific performance of the agreement, specially when finding of the learned courts below, that the plaintiff/appellant had failed to connect the suit land with the land agreed to be sold, is on the face of it, perverse and is the outcome of misreading of evidence. Learned counsel for the appellant referred to Ex.P.2 i.e. the order passed by Assistant Collector allowing purchase of land by defendant No.1 vide which he was permitted to purchase the land belonging to Thakar Singh son of Kesar Singh, Santa Singh and Ass Kaur etc. The contention of learned counsel was, that this fact was not even in dispute, that defendant No.1, in fact, in pursuance to Ex.P.2, had purchased the land as per agreement that payment was also made and he became absolute owner of the land. Learned counsel for the appellant referred to Ex.P.6 copy of Khatuni Paimaish relating to Mauja Rasul Pur, District Amritsar, wherein it was shown that in lieu of old khasra Nos. 1774M 1782M and 1807M, new khasra nos. 91/2/3, whereas in lieu of khasra Nos. 1771M 1772 M and 1808, new khasra No.91/12 and in lieu of khasra No.1772M, 1773M, 1774M 1806M, 1807M, 1808 M, new khasra Nos. were 91/9, for Khasra Nos. 1809M 1810M 1811M 1822M and 1823M, new khasra No. 90/6, and for Khasra Nos. 1809M, 1811M and 1823M, new khasra No.15, for old Khasra RSA No.1148 of 1985 13 No.1806,M 1807M, 1808M, 1809M 1811M new khasra numbers were 91/10 and 91/11. The contention of the learned counsel for the appellant, therefore, was that the learned courts below misread the documentary evidence on record i.e. Ex.P.2 and P.6, in coming to the conclusion that the plaintiff had failed to connect the whole khasra numbers with new khasra numbers. The contention of the learned counsel for the appellant was that from Ex.P.13 i.e. copy of Khatuni Paimaish and Ex.P.15 also factum of the suit land having been allotted in lieu of old khasra Nos. 1806, 1807, 1808, 1809 stood fully proved. The finding of the learned courts below, therefore, holding, that plaintiff/appellant was not able to connect the suit land with old khasra numbers on the face of, was perverse being outcome of misreading of evidence. Mr.V.K.Jain, learned senior counsel appearing on behalf of the respondents, on the other hand, vehemently contended that concurrent finding of fact recorded by the learned courts below cannot be challenged by the plaintiff/appellant in regular second appeal. The contention of the learned senior counsel was that the reading of the documentary evidence referred to above, would show that new khasra numbers allotted were not for khasra numbers 1806, 1807, 1808, 1809 but also included other khasra numbers and therefore, learned courts below were right in coming to the conclusion that the plaintiff had failed to prove that the suit land was allotted in lieu of old khasra numbers agreed to be sold by defendant no.1 to plaintiff/appellant. RSA No.1148 of 1985 14 However, on consideration, I find force in the contentions raised by the learned counsel for the appellant. It is not in dispute that defendant No.1 had agreed to sell the suit land to the plaintiff/appellant. The allotment of new khasra numbers for old khasra numbers were proved by way of documentary evidence. It was also proved that other khasra numbers qua which new khasra numbers were allotted were also under the ownership of defendant No.1, as the said land belonged to Thakar Singh son of Kesar Singh which was also purchased in pursuance to Ex.P.2, therefore, defendant No.1 was absolute owner of khasra numbers agreed to be sold and the one allotted in lieu thereof. The suit land was connected with the agreement to sell, as in the agreement defendant No.1 had agreed to sell approximately 40 kanals of land, whereas suit land was measuring 38 kanals 6 marlas i.e. for the reason that after consolidation there must have cut imposed on the previous land holding of defendant No.1. The contention of the learned senior counsel for the respondents cannot be accepted, that merely because the land allotted was in lieu of other khasra numbers also, which were agreed to be sold, would lead to a conclusion that the land was not connected. The question was that the land should be owned by the vendor, so that the vendee could enforce the agreement to sell, mathematical calculation were not required. Once it was not disputed that defendant No.1 had become owner of the land in lieu of the allotment of new khasra numbers for old khasra numbers agreed to be sold. RSA No.1148 of 1985 15 This conclusion finds further support from the fact, that defendant No.1 had agreed to sell these very khasra numbers to defendants No.2 to 4 by claiming himself to be the owner of these khasra numbers. The first substantial question of law deserves to be answered in favour of the plaintiff/appellant. It is held that finding of the learned courts below holding that the plaintiff/appellant has not been able to connect the suit land with the previous khasra numbers cannot be sustained. Consequently, finding of the learned courts below on additional issues No.2 and 2-A are reversed and answered in favour of the plaintiff/appellant and against the defendant/respondents. On the second substantial question of law, learned counsel for the appellant, vehemently contended, that the findings of the learned courts below holding defendants No. 2 to 4 to be bona fide purchasers for consideration is on the face of it perverse. The contention of the leaned counsel for the appellant was that it was not in dispute that the plaintiff/appellant had, in fact, filed a suit for injunction restraining the defendant No.1, from dispossessing the plaintiff/appellant or alienating the suit land to any other person. It is further not in dispute that the injunction was granted in favour of the plaintiff/appellant. Instead of appearing before the court to contest the case, defendant No.1 adopted a fraudulent mean of executing the sale deed in favour of defendants No.2 to 4 on 3.9.1974. The hurry shown in execution of the sale deed was sufficient to hold that defendants No.2 to 4, could not be said to be bona fide purchasers for consideration. This finds further support from the fact that before the RSA No.1148 of 1985 16 Sub-Registrar at the time of registration of the sale deed only a sum of Rs.6000/- (Rupees six thousand only) was paid. It was for the reason that defendants No.2 to 4 were fully aware of the fact that there was an agreement to sell qua which the suit was pending. The fact, that balance payment was only paid after the suit for injunction was not pressed, in view of the sale having been made and the plaintiff/appellant had chosen to file a suit for specific performance, goes a long way to show, that defendants No.2 to 4 were not bona fide purchasers. It is also not disputed that defendants No.2 to 4 are residents of village Rasulpur which is a small village and therefore, it cannot be believed that defendants No.2 to 4 had no notice of the agreement between the plaintiff/appellant and defendant No.1 qua the sale. The hurry shown in execution of the sale deed was sufficient to conclude that defendants No.2 to 4 had notice of agreement to sell in favour of the plaintiff/appellant and can not be termed to be bona fide purchasers. The contention of the leaned counsel for the respondents that payment of sale consideration was proved, is sufficient to hold that defendants No.2 to 4 were bona fide purchasers for consideration without notice and no interference is called for by this court qua the findings so recorded, cannot be accepted for the reasons mentioned in the earlier part of the judgment holding that the facts and circumstances of the case show, that defendants No.2 to 4 had knowledge of the agreement to sell between the plaintiff/appellant and defendant No.1. This view finds support from the judgment of this court in the RSA No.1148 of 1985 17 case of Jugraj Singh