R.S.A.No. 2167 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2167 of 2009 (O&M) Date of decision: 18.11. 2009 Rajender Kumar Gupta ......Appellant Versus Madan Lal and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Shiv Kumar, Advocate, for the appellant. **** SABINA, J. Plaintiff-appellant filed a suit for specific performance of contract, which was partly decreed with costs by the Civil Judge (Jr.Divn.), Palwal vide judgment and decree dated 27.10.2007. A decree for specific performance of contract dated 6.3.1996 was dismissed. However, a decree for recovery of Rs.80,000/- along with costs and interest @ 15% per annum was passed in favour of the plaintiff. Aggrieved by the same, plaintiff filed an appeal, which was dismissed by Additional District Judge, Faridabad vide judgment and R.S.A.No. 2167 of 2009 (O&M) 2 decree dated 28.1.2009. The findings of the trial Court on all the issues were affirmed. Hence, the present appeal by the plaintiff. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 1 to 4 of its judgment, are as under:- “ A suit for specific performance was filed by Rajender Kumar Gupta (hereinafter referred to as the plaintiff). Said suit was based on an agreement of sale dated 6.3.1996. Said agreement was in respect of agriculture land detailed in paragraph No.2 (A) and 2(B) of the plaint. Respondent Madan Lal (hereinafter referred to as the vendor) was owner of the lands and the agreement on his behalf was executed by Sanjeev Khanna while acting as his general attorney. The vendor in terms of the agreement agreed to sell land to the plaintiff at the rate of Rs. 1.50 lacs per acre. The general attorney of the vendor received a sum of Rs.30,000/- as earnest money at the time of execution of the agreement. He had further received a sum of Rs.50,000/- on 15.7.1996. No time period was fixed for execution and registration of the sale deed. The land was in possession of mortgagees and tenants and the parties, thus, agreed that the vendor would execute and register the sale deed after obtaining possession of the land. The attorney of vendor got executed and registered a sale deed in R.S.A.No. 2167 of 2009 (O&M) 3 respect of a 8 kanal land on payment of Rs.90,000/- and the sale deed qua remaining 34 kanals 6 marlas land was to be executed after obtaining possession from tenants and mortgagees. The plaintiff was always ready and willing to perform his part of contract but the vendor and his attorney always failed to perform their part of the contract. The vendor through his attorney subsequently sold the land mentioned in paragraph No.2 (B) of the plaint to Sanjay Kumar (defendant No.2) vide registered sale deed dated 4.9.1998. According to the plaintiff, defendant No.2 had knowledge of agreement of sale deed 6.3.1996 and the sale in favour of defendant No.2 was effected only to defeat the agreement of sale dated 6.3.1996. On the aforesaid premise, the plaintiff filed the suit with a prayer that a decree for specific performance may kindly be passed in his favour in terms of the agreement dated 6.3.1996. 2. The vendor contested the suit. In the written statement filed through his attorney. It was admitted that the agreement in question was executed. The payments regarding earnest money and subsequent amounts were, however, disputed and it was alleged that the plaintiff had obtained signatures of vendor's attorney on some blank papers to prepare forge R.S.A.No. 2167 of 2009 (O&M) 4 receipts. As regards execution of sale deed dated 4.9.1998, the stand taken by the vendor was that the plaintiff himself got the sale deed executed in favour of defendant No.2 as his nominee. The plaintiff later on became dishonest and had filed the suit just to extract money. 3. It will not be out of place to mention that the vendor with the permission of the court had amended his written statement and thereby admitted that he had received the earnest money of Rs.30,000/- as also subsequent payment of Rs.50,000/- on 15.7.1996. He further admitted that no date for registration of sale deed was fixed as the time was not essence of the Court. 4. Defendant No.2 contested the suit on the plea that he was bona fide purchaser of the land described in para No.2(B) of the plaint in-as-much -as he had purchased the same for valuable consideration and did not have the notice of the agreement of sale deed dated 6.3.1996. According to him, the plaintiff and the vendor's attorney are property dealer and the agreement dated 6.3.1996 was the result of a calculated conspiracy.” R.S.A.No. 2167 of 2009 (O&M) 5 On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether defendant No.1 through his Attorney agreed to sell the suit land to the plaintiff at the rate of Rs. 1,50,000/- per acre vide agreement dated 6.3.1996 and received Rs.30,000/- as earnest money on the same date? OPP 2. Whether plaintiff has always been ready and willing and is still ready and willing to perform his part of contract? OPP 3. Whether defendant No.1 through his attorney has sold part of the suit land measuring 26 kanals 6 marlas in favour of defendant No.2 vide registered sale deed dated 4.9.1998 and also sold land measuring 8 kanals in favour of defendant No.3 on the same date and both the sale deeds are null, illegal and void? OPP 4. Whether defendant No.1 through his attorney received another amount of Rs.50,000/- on 15.7.1996 as part payment ? OPP 5. Whether defendant has executed a sale deed in respect of land measuring 8 kanals of land out of the suit land in favour of plaintiff on 15.11.1996 receiving Rs.90,000/-? OPP 6. Whether plaintiff is entitled to the decree of R.S.A.No. 2167 of 2009 (O&M) 6 specific performance of contract? OPP 7. Whether suit is collusive between plaintiff, defendant No.1 and his attorney? OPD 2 8. Whether defendant Nos. 2 and 3 are bonafide purchasers for valuable consideration of the suit land, if so to what effect? OPD 2 and 3. 9. Whether suit is false, frivolous and defendant Nos. 2 and 3 are entitled to special costs? OPD 10. Whether suit is not maintainable in the present form? OPD 11. Whether plaintiff has got cause of action and locus standi and to file the present suit? OPD 12. Whether plaintiff is estopped by his acts and conduct to bring the instant suit? OPD 13. Whether the suit is collusive between the plaintiff and defendant No.2 and 3? OPD 1 14. Relief. After hearing learned counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed. The plaintiff-appellant had filed a suit for specific performance. The Courts below have decreed the suit of the plaintiff in the alternative for recovery of Rs.80,000/- with interest. This appeal has been filed by the plaintiff with a prayer that the suit of the plaintiff for specific performance of the agreement to sell in question R.S.A.No. 2167 of 2009 (O&M) 7 was liable to be decreed. Both the Courts below did not decree the suit of the plaintiff for specific performance of the agreement to sell on the ground that defendant No.2 was a bona fide purchaser for consideration and had no notice of the agreement to sell in question. Learned Additional District Judge, while dealing with this aspect of the matter, in the impugned judgment, has held as under:- “10. The Court has perused the rulings and has carefully gone through the evidence. It is true that the evidence of defendant No.2 itself manifest that he had neither visited the village nor contacted the Halqa Patwari nor had made inquiries before purchase of the land. However, the crucial question would be whether such shortcomings on the part of defendant No.2 would preclude him from claiming himself a bonafide purchaser. The concept of bonafide purchaser has significant relevance under Section 19 of the Specific Relief Act 1963 (for short S.P.Act) for determining the question as to whether person seeking decree for specific performance is entitled to such relief. The relevant extract of Section 19 of the S.P.Act reads as under:- 19. Relief against parties and persons claiming under them subsequent title. Except as otherwise provided by this Chapter, Specific performance of a contract R.S.A.No. 2167 of 2009 (O&M) 8 may be enforced against- (a) xxxxxxxxx (b any other person claiming under him by a title arising subsequently to the contract except a transferee for value who has paid his money in good faith and without notice of the original contract. ( c) to (e) xx xxxx xxxx xx The expression 'notice' used in clause (b) of the aforesaid Section does not mean 'knowledge'. True meaning of said expression in relation to transfer of immovable property can be traced from Section 3 of the Transfer of Property Act (for short T.P.A) which inter alia provides that a person is said to have notice of a fact when he actually knows the fact, or when but for willful abstention from an enquiry or search which he ought to have made or gross negligence, he would have known it. Explanation II appended to said definition states that any person acquiring any immovable property or any shares or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof. R.S.A.No. 2167 of 2009 (O&M) 9 11. It is evident from Section 3 of the T.P.A. That notice can be of three kind (1) actual or (ii) constructive or (iii) imputed. A notice can be said actual when fact in question is specifically in the knowledge of person seeking plea of bonafide purchaser. By virtue of Explanation appended to Section 3 of T.P.A., person raising plea of bonafide purchaser would be deemed having constructive notice of the title which any person actually had over the land in his possession. Imputed notice of a fact can be attributed to the person raising plea of bonafide purchaser when he had shown willful abstention from an enquiry or search which otherwise would have brought such fact to his knowledge. 12. So, the crucial question in the case would be whether or not defendant No.2 had a notice of any of the aforesaid three categories. It is not the case of the plaintiff that agreement dated 6.3.1996 was executed in the presence of defendant No.2 or that he had served a notice on defendant No.2 to inform him about the agreement. There was, thus, no actual notice to the defendant No.2. It is not even the case of the R.S.A.No. 2167 of 2009 (O&M) 10 plaintiff that he was in possession of the land which defendant No.2 had purchased and therefore, the plea of constructive notice too is not available to hi against defendant No.2. 13. There then remains third category namely the imputed notice. Such notice can be attributed to defendant No.2 only if he were proved to have avoided an inquiry which would have brought to his knowedge the agreement dated 6.3.1996. The agreement was not a registered document. So, it was not possible for defendant No.2 to acquire its knowledge from the office of Sub-Registrar. The agreement was not incorporated in any of the revenue record. The fact that defendant No.2 did not approach the patwari is, therefore, inconsequential. The owner of the land and his attorney as also the defendant No.2 and the plaintiff are all residents of New Delhi. The agreement Ex.P-1 was scribed on a stamp paper purchased from Faridabad while suit land was situated in Palwal Tehsil. The attesting witness of agreement were not of the village where the land situates. It is nowhere the case of the plaintiff or even of the vendor that residents of R.S.A.No. 2167 of 2009 (O&M) 11 the village where land situates had the knowledge of the agreement. Conduct of defendant No.2 in not visiting the village, thus, cannot impute any knowledge to him about the agreement.” The reasons given by the learned Additional District Judge, while holding that defendant No.2 had no notice of the agreement to sell in question, are sound reasons. The agreement to sell in question was not a registered document. The property was situated at Palwal, whereas, the owner of the suit land as well as defendant No.2 were residing at New Delhi. The stamp papers had been purchased from Faridabad. The attesting witnesses of the agreement to sell were not the residents of the village where the land was situated. It is not the case of the plaintiff that he had informed defendant No.2 about the execution of the agreement to sell in his favour. In these circumstances, defendant No.2 was rightly held to be a bona fide purchaser for consideration as he had no notice of the agreement to sell in question. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE November 18, 2009 anita