RSA No. 3366 of 2007 1 In the High Court for the States of Punjab and Haryana at Chandigarh … RSA No. 3366 of 2007 Date of decision: October 23,2008 Gurcharan Singh @ Charan Singh ..Appellant. Versus Kartar Singh and another ..Respondents Coram: Hon'ble Mr.Justice Rakesh Kumar Garg Present: Mr. IPS Doabia, Advocate for the appellant. ... Rakesh Kumar Garg,J. This is plaintiff’s second appeal challenging the judgment and decrees of the courts below whereby his suit, for specific performance of agreement dated 5.10.1997 regarding the suit land and for declaration that the sale deed dated 25.8.1998 executed by defendant No.1 in favour of defendant No.2 is wrong and illegal; with a further prayer for permanent injunction restraining the defendants from interfering in his possession in any manner has been dismissed. The plaintiff-appellant filed a suit for specific performance of the agreement to sell dated 5.10.1997 regarding land measuring 2 K-7 M, situated in village Pawat and for permanent injunction restraining the defendants from interfering and dispossessing the plaintiff from the suit property, on the allegations that defendant No.1 was the owner of the said land measuring 2 K- 7M being 47/435 share out of land measuring 21K-15M fully detailed in the head note of the plaint. He executed an agreement of sale dated 5.10.97 in favour of the plaintiff and received Rs.1000/- as earnest money as a part of the sale price. The possession was delivered on the spot; the plaintiff is in peaceful possession of the property in dispute. The sale deed was agreed to be executed on receipt RSA No. 3366 of 2007 2 of balance sale price. After the execution of the agreement of sale, the plaintiff several times requested the defendant No.1 to execute the sale deed in favour of the plaintiff but the defendant No.1 kept on putting off the matter on one pretext or the other. On 26.8.1998 the plaintiff sent a registered notice to defendant No.1 for execution of the sale deed on 9.9.1998 by appearing before the Sub Registrar Samrala but defendant did not file any reply to the notice. On 9.9.1998, the plaintiff came present in the office of the Sub Registrar along with balance sale consideration and the necessary expenses. The plaintiff marked his presence before the Sub Registrar by swearing an affidavit. Failure of the defendant No.1 in executing the sale deed in favour of the plaintiff and further executing a sale deed in favour of defendant No.2 on 25.8.1998, lead the plaintiff to file the present suit. Defendant No.1 in his written statement has raised the preliminary objections that the suit is not maintainable in the present form as the defendant has never executed any agreement of sale in favour of the plaintiff. If in case, the execution of the alleged agreement is proved, then the same is fraud, fabricated and fraudulent document without consideration. The alleged agreement of sale cannot be enforced because it is vague, uncertain and un-enforceable; the same does not contain the description of the property. The defendant has already registered a sale deed on 25.8.1998 in favour of the defendant No.2 for a consideration of Rs.40, 000/- and has delivered the actual and physical possession to defendant No.2. Suit is not properly valued for the purpose of court fee and jurisdiction. All the other averments in the plaint have been denied. Defendant No.2 filed a separate written statement, raising the preliminary objections that the suit is not maintainable; that the plaintiff as suppressed the material facts from the court, that the defendant No.2 is bonafide purchaser without notice of any agreement of sale in favour of the plaintiff. On merits, all the pleas have been denied and it is reasserted that defendant No.2 has purchased the property in dispute from defendant No.1 for consideration and without notice of any agreement in favour of the plaintiff. RSA No. 3366 of 2007 3 After hearing learned counsel for the parties and going through the record of the case, the trial Court held that execution of the agreement to sell Ex.P1 stands proved. However, there is no evidence on record to suggest that the plaintiff was ready and willing to perform his part of the contract. The trial court further held that the defendant No.2 has proved himself to be a bonafide purchaser of the suit property for valuable consideration without notice of agreement to sell in favour of the plaintiff. Aggrieved against the aforesaid judgment and decrees of the trial Court, the plaintiffs filed an appeal which was also dismissed by the Additional District Judge, Ludhiana vide impugned judgment and decree dated 28.2.2007. Still not satisfied, the plaintiffs have filed the instant appeal challenging the judgment and decrees of the courts below. Learned counsel for the appellant has vehemently argued that the appellant had placed material evidence on record to show that he was ready and willing to perform his part of the contract and the courts below have failed to appreciate the evidence on record in this regard. Elaborating further his argument, learned counsel has stated that the courts below have failed to note that the plaintiff-appellant has sent a registered notice dated 26.8.1998 to the respondent Kartar Singh seeking specific performance of the contract by registered post and this aspect of the matter has been totally ignored by the courts below while recording findings against him that plaintiff has failed to prove his readiness and willingness to perform his part of the contract. Learned counsel has also argued that the defendant-respondent No.2 was not a bonafide purchaser for valuable consideration as he had knowledge of the agreement to sell between the appellant and defendant No.1. This is evident from the fact that the marginal witness of the agreement to sell between the appellant and respondent-defendant No.1 Kartar Singh is the same who was also the marginal witness between the alleged sale deed of defendant No.1 and 2. Moreover the parties belong to the same village and knew that the land in question had already been agreed to be sold to the appellant by RSA No. 3366 of 2007 4 respondent No.1 Kartar Singh. Learned counsel has further argued that the appellant is in possession of the suit land which is a deemed notice of his title and in view of this fact alone, the respondent No.2 cannot be held to be bonafide purchaser without notice. In support of his case, learned counsel for the appellant has placed reliance upon a judgment of this Court cited as Bahadur Ram Versus Lakhwinder Singh and others 2008(3) Civil Court Cases 526(P&H) to contend that the actual possession of a person itself is deemed or constructive notice of the title if any, of a person who is for the time being in actual possession thereof and a subsequent purchaser has to make inquiry as to further interest, nature of possession and title under which the person was continuing in possession on the date of purchase of the property. Since there was no evidence as to making of such inquiry in the case, therefore, subsequent purchaser cannot be held to be a bonafide purchaser. I have heard learned counsel for the appellant. I find no force in the contentions raised by the counsel for the appellant. Both the courts below after holding that execution of the agreement Ex.P1 stood proved on record further recorded a finding of fact that time was not the essence of the agreement in any manner as Ex.P1 is silent about the stipulated time or period within which the sale deed had to be executed on receipt of balance sale consideration. It was incumbent upon the plaintiff to discharge the onus to prove his readiness and willingness to perform the agreement and he has miserably failed to discharge the said onus. The courts below have recorded a finding of fact that there is no evidence on the judicial file that the plaintiff was ever ready with the sale consideration. Neither there is any document on the file which could support the version of the plaintiff that he intimated defendant No.1 regarding his readiness and willingness to perform his part of the agreement. Although there are pleadings by the plaintiff that defendant No.1 has been putting off the matter of execution on one pretext or the other despite his being requesting time and again and at the last he had to send a registered notice dated 26.8.1998 thereby RSA No. 3366 of 2007 5 asking him to appear before the Sub Registrar on 9.9.1998 for execution of the sale deed. No such document has been placed on record in evidence by the appellant. Even the plaintiff has not testified regarding having sent the said notice to defendant No.1. In the agreement Ex.P1, time was never made essence of the agreement, therefore, the plaintiff was required to prove that he remained ready and willing to perform his part of agreement on the stipulated date regarding which specific notice was given to defendant No.1, which he has not been able to prove in the present case. Thus the plaintiff has miserably failed to discharge the onus to prove his readiness and willingness. I find no illegality or infirmity in the findings of the courts below in this regard. The second contention of the counsel for the appellant is also without any force. There is no dispute with proposition of law as laid down in Bahadur Ram's case (supra). However,in the present case, the courts below have recorded a finding of fact to the effect that in the revenue record, defendant No.1 continue to be shown as owner in possession of the suit property. In the present case, there is not an iota of evidence to show the possession of the plaintiff over the suit property. So question of defendant No.2 ascertaining about the nature and possession of the suit property from the plaintiff does not arise at all. The reliance of the counsel for the appellant on the fact that Darshan Singh was witness to the alleged agreement Ex.P1 and the sale deed in favour of defendant No.2 is also misconceived. Admittedly, said Darshan was never examined as a witness in this case despite the fact that he was duly summoned by the plaintiff and for the reasons best known to him, the said witness was not examined. The courts below have rightly drawn adverse inference against the appellant. From the above discussion, it transpires that there is nothing on record, on the basis of which, it can be held that the defendant No.2 was not a bonafide purchaser for valuable consideration without notice. For the reasons recorded above, I find no merit in this appeal. RSA No. 3366 of 2007 6 There is no substantial question of law arises. Dismissed. October 23, 2008 (RAKESH KUMAR GARG) nk JUDGE