R. S. A. No. 4648 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 4648 of 2010 Date of Decision : January 12, 2011 Balwinder Singh .... Appellant Vs. Maghar Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Amandeep Singh Manaise, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : Defendant no.7 Balwinder Singh is in second appeal. Respondent no.1 – plaintiff Maghar Singh filed suit against appellant and proforma respondents no.2 to 7 (defendants no.1 to 6) for specific performance of the agreement to sell alleging that defendant no.1 Santo, being owner of the suit land measuring 02 kanals, agreed to sell the same to the plaintiff for ₹ 34,000/- and received ₹ 5,000/- as earnest money and executed agreement dated 17.12.1999. Sale deed was to be executed on 17.01.2000. However, defendant no.2 Kundan Singh, alleging himself to be attorney of defendant no.1, executed sale deed of the suit land in favour of R. S. A. No. 4648 of 2010 2 his sons defendants no.3 to 6 without consideration. Said sale deed is illegal and does not bind the plaintiff. Defendant no.2 was not attorney of defendant no.1. Defendants no.3 to 6 also had knowledge of the impugned agreement in favour of the plaintiff. On 17.01.2000 i.e. the date stipulated for execution of sale deed, the plaintiff went to the office of Sub Registrar with requisite money to get the sale deed executed in terms of the agreement, but the defendant did not turn up. Plaintiff has always been ready and willing to perform his part of the agreement. Defendant no.7 – appellant has purchased the suit land during pendency of the suit from defendants no.3 to 6, vide sale deed dated 13.03.2000. Plaintiff alleged that the said sale deed is also not binding on him. Defendants no.1 to 4 filed written statement. However, written statement of defendant no.1 was filed by defendant no.2 as her attorney. It was pleaded that defendant no.2 is brother of defendant no.1, who is blind. Execution of impugned agreement by defendant no.1 was denied. It was alleged that the said agreement is result of fraud and forgery. It was also pleaded that defendant no.2 is attorney of defendant no.1 and as such, sold the suit land to defendants no.3 to 6 for valuable consideration and they have further sold it to defendant no.7, who is brother of the plaintiff. Defendant no.7, in his written statement, also controverted the allegations of the plaintiff. It was pleaded that defendant no.7 is bona fide R. S. A. No. 4648 of 2010 3 purchaser of the suit land for valuable consideration vide sale deed dated 13.03.2000. Various other pleas were also raised by the defendants. Learned Civil Judge (Junior Division), Tarn Taran, vide judgment and decree dated 04.02.2008, while holding the impugned agreement to have been proved, however, decreed the plaintiff's suit for recovery of ₹ 10,000/- i.e. ₹ 5,000/- as earnest money and ₹ 5,000/- as stipulated damages, instead of granting relief of specific performance of the impugned agreement. However, first appeal preferred by the plaintiff has been allowed by learned Additional District Judge, Tarn Taran, vide judgment and decree dated 14.09.2010 and thereby, suit filed by the plaintiff for possession of the suit land by specific performance of the impugned agreement to sell has been decreed. Feeling aggrieved, defendant no.7 has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. In order to prove the impugned agreement, the plaintiff himself stepped into the witness-box and has also examined Sulakhan Singh – document writer (PW-2), who scribed the impugned agreement and Kulmit Singh (PW-5) – an attesting witness of the agreement. All of them have stated about the execution of the impugned agreement by defendant no.1 in favour of the plaintiff. The said evidence stands almost unrebutted on this R. S. A. No. 4648 of 2010 4 aspect because defendant no.1 has not stepped into the witness-box. Statements of defendant no.2 and defendant no.7 and another witness Kashmir Singh have no probative value regarding execution of impugned agreement. On the contrary, plaintiff's evidence is cogent and reliable and is sufficient to prove execution of impugned agreement by defendant no.1 in favour of plaintiff. Statement of aforesaid witnesses could not be impeached in their cross-examination. In addition to the aforesaid, it may be added that even the trial court held that the impugned agreement was proved to have been executed by defendant no.1 in favour of plaintiff. The said finding of trial court was not challenged by any defendant by filing any appeal. The said finding has been affirmed by the lower appellate court. The aforesaid concurrent finding recorded by both the courts below is fully justified by the evidence on record and is supported by cogent reasons and cannot be said to be perverse or illegal in any manner so as to warrant interference in second appeal. Learned trial court declined relief of specific performance of the agreement to the plaintiff by taking a completely perverse and illegal view. The trial court observed that since defendant no.1 had executed Power of Attorney in favour of defendant no.2, therefore, defendant no.1 was precluded from entering into the impugned agreement with the plaintiff. R. S. A. No. 4648 of 2010 5 This approach of the trial court has rightly been found to be perverse and illegal by the lower appellate court and has rightly been set aside. Defendant no.1, even by appointing defendant no.2 as her attorney, did not forfeit her right and power to deal with the suit land owned by her. Of course, as attorney, defendant no.2 could also deal with the land of defendant no.1, but defendant no.1, being the principal, could not be deprived of the power and right to deal with her own land, merely because she had executed Power of Attorney in favour of defendant no.2. Now, coming to the question of sale of suit land by defendant no.2 as attorney of defendant no.1 to defendants no.3 to 6, who are none else, but real sons of defendant no.2 himself, obviously the said sale cannot bind the plaintiff, in whose favour the agreement had already been entered by defendant no.1. Agreement in favour of plaintiff is dated 17.12.1999, whereas sale deed by defendant no.2 in favour of defendants no.3 to 6 is dated 20.12.1999 i.e. after the execution of the impugned agreement. Defendants no.3 to 6 also cannot be said to be bona fide purchasers of the suit land because sale deed in their favour was executed by their own father defendant no.2 acting as attorney of defendant no.1. Defendant no.2 himself was bound by the impugned agreement being attorney of defendant no.1. Consequently, sale by defendant no.2 in favour of his own sons cannot be said to be bona fide. In addition to it, defendant no.7 – appellant purchased the suit land from R. S. A. No. 4648 of 2010 6 defendants no.3 to 6 vide sale deed dated 13.03.2000 i.e. during pendency of the suit, which stood instituted on 28.01.2000. Consequently, sale in favour of defendant no.7 – appellant is hit by doctrine of lis pendens. Even otherwise, defendant no.7 also cannot be said to be bona fide purchaser of the suit land because defendant no.7 is none else but real brother of the plaintiff. Defendant no.7, residing in the same village, could not be unaware of the impugned agreement in favour of his own brother – plaintiff. Sale deed in favour of defendant no.3 was executed almost three months after the impugned agreement had been executed in favour of the plaintiff. Moreover, as already noticed, sale deed in favour of defendant no.7 – appellant was executed six weeks after the filing of the suit. Thus, by no means, defendant no.7 can be said to be bona fide purchaser of the suit land. In addition to it, sale in his favour is hit by doctrine of lis pendens. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine. January 12, 2011 ( L. N. MITTAL ) monika JUDGE