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2000 DIGILAW 135 (PNJ)

Gian Singh v. Harbans Singh

2000-02-03

R.L.ANAND

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Judgment R. L. Anand, J. 1. Gian Singh, Dhian Singh, sons of Sampuran Singh, Ranjit Singh son of Jagir Singh and Fateh Singh son of Ajit Singh (defendants in the trial Court) have filed the present R. S. A. and it has been directed against the judgment and decree dated 1.10.1999 passed by additional District Judge, Amritsar, who allowed the appeal for Harbans Singh and Jagir Singh plaintiffs by setting aside the judgment and decree dated 13.12.1994 passed by the trial Court and a decree for specific performance of agreement of sale Ex. P1 with respect to the suit land was passed in favour of the plaintiffs and against the defendants with costs and directions were given by the first Appellate Court that the plaintiffs would deposit the remaining sale consideration in Court within three months from the date of the decision of the appeal i. e.1.10.1999, failing which their suit shall stand dismissed. 2. Some facts can be noticed in the following manner:- Harbans Singh son of Bhagwan Singh and Jagir Singh son of Sunder Singh filed a suit for possession by way of specific performance of agreement of sale dated 30.12.1991 with respect to the land measuring 23 kanals 10 marlas situated in village Talwandi Sohba Singh, Tehsil Patti, District Amritsar as per jamabandi for the year 1987-88 on payment of Rs.30,250/-. They have prayed for the delivery of possession. In the alternative, the plaintiffs have prayed for a decree for specific performance of agreement to sell dated 30.12.1991 regarding land measuring 23 kanals 10 marlas of Thur/khuh quality situated at Majha but of 60 kanals 2-1/3 marlas which forms l/3rd share of 180 kanals 7 marlas of the land situated in village Talwandi sobha Singh, Tehsil Patti, District Amritsar in their favour. The plaintiffs also prayed for permanent injunction restraining defendant No.1 Harbhajan Singh from alienating the land measuring 23 kanals 10 marlas bearing Khata No.265/755, Mushtif and Killa Nos.74/3, 4,7,8,13 situated in village Sobha Singh, Tehsil Patti as per jamabandi for the year 1987-88. Further the plaintiffs claimed in the alternative a money decree for a sum of Rs.10,000/-, i. e. Rs.5.000/- as earnest money and Rs.5,000/- as damages, on the basis of agreement dated 30.12.1991. Further the plaintiffs claimed in the alternative a money decree for a sum of Rs.10,000/-, i. e. Rs.5.000/- as earnest money and Rs.5,000/- as damages, on the basis of agreement dated 30.12.1991. 3 The case set up by the plaintiffs before the trial Court was that the land in question was owned and possessed by Harbhajan Singh, defendant No.1 and he agreed to sell the same to the plaintiffs vide agreement to sell dated 30.12.1991 and received a sum of Rs.5,000/- by way of earnest money. The land in suit was agreed to be sold at the rate of Rs.12,000/- per killa and the sale deed was agreed to be executed on or before 10.1.1992 on receipt of the remaining sale consideration from the plaintiffs. It was also agreed that if defendant No.1 failed to execute the sale deed, he shall be Rs.5,000/- more as damages to the plaintiffs plus Rs.5,000/- received as earnest money and in case plaintiffs committed any breach of the agreement, their amount of earnest money shall stand forfeited. It was also agreed that the entire registration expenses were to be borne by the plaintiffs. After execution of the agreement to sell in question, defendant No.1 delivered the possession of the suit land to the plaintiffs. Plaintiffs further pleaded that defendants No.2 to 5 namely Gian Singh, Dhian Singh and Ranjit Singh respectively alleged that they got the sale deed dated 3.1.1992 executed in their favour from the defendant No.1. The plaintiffs challenged the execution, validity and existence of the said sale deed and pleaded that the said sale deed is a paper transaction executed simply to defeat their rights and the same is barred by the principle of lis pendens as provided under Sec.52 of the Transfer of Property Act. Defendants No.2 to 5 had the knowledge of the agreement of sale dated 30.12.1991 as the plaintiffs had moved application before the Sub-Registrar on the date of execution of alleged sale deed in their favour. A copy of the stay order dated 3.1.1992 passed by the Court was also shown to the Sub-Registrar, Patti, but inspite of the same the Sub-Registrar had executed the sale deed. Therefore, defendants No.2 to 5 were not bona fide purchasers of the suit land. The plaintiffs further pleaded that defendants No.6 to 23 alleged themselves to be co-sharers and transferees in the suit land. Therefore, defendants No.2 to 5 were not bona fide purchasers of the suit land. The plaintiffs further pleaded that defendants No.6 to 23 alleged themselves to be co-sharers and transferees in the suit land. Plaintiffs pleaded that defendant No.1 also agreed to sell the land measuring 23 kanals 10 marlas which was of Thur/khuh quality situated in Majha in village Talwandi Sobha Singh, Tehsil Patti, District Amritsar out of the land measuring 60 kanals 2-1/3 marlas which forms 1/3 share of the land measuring 180 kanals 7 marlas fully detailed in the head note of the plaint as per jamabandi for the year 1987-88 of village Talwandi Sobha Singh, Tehsil Patti, District Amritsar. The plaintiffs further pleaded that they were always ready and willing to get the sale deed executed and registered in their favour from the defendant No.1 after paying the remaining sale consideration, but the defendant no.1 was not ready to do so. The plaintiffs are in possession of the suit land as prospective vendees. They moved the application before the Sub Registrar on 1.1.1992 and got marked their presence. In this way, defendant no.1 committed a breach of agreement with the plaintiffs and thus the plaintiffs are entitled for specific performance of the agreement of sale in question. The suit was contested by defendants No.2 to 5. They took preliminary objections that the suit is not maintainable in the present form; that the suit is not properly valued for the purposes of court fee and jurisdiction and that the suit is bad for non-joinder of necessary parties. On merits, they pleaded that defendant No.1 had sold the land measuring 24 kanals in their favour for consideration of Rs.30,000/- on 3.1.1992 and they purchased the land after due enquiry and thus they are protected under Sec.41 of the Transfer of Property Act. They pleaded that they are in possession of the suit land since the date of its purchase. The execution and registration of agreement dated 30.12.1991 relied upon by the plaintiffs was denied. They also denied all other averments in the plaint and prayed for the dismissal of the suit. Defendant No.23 also filed separate written statement pleading that he was a bonefide mortgagee. Plaintiffs filed replication to the written statement of defendants No.2 to 5 in which they reiterated their allegations made in the plaint by denying those of the written statement. 4. Defendant No.23 also filed separate written statement pleading that he was a bonefide mortgagee. Plaintiffs filed replication to the written statement of defendants No.2 to 5 in which they reiterated their allegations made in the plaint by denying those of the written statement. 4. From the pleadings of the parties, the learned trial Court framed the following issues:- 1. Whether defendant No.1 executed an aggrement to sell the suit land dated 30.12.91 in favour of the plaintiffs and received an amount of Rs.5,000/- as earnest money? OPP.2. Whether the plaintiffs had been ready and willing to perform their part of the contract? OPP 3. Whether the plaintiffs are entitled to the specific performance of the agreement in question Opp.4. If the plaintiffs are not found to be entitled to specific performance of the agreement, whether they are entitled to alternative relief of recovery of Rs.10,000/-, i. e. Rs.5,000/- as earnest money and Rs.5,000/- as damages and compensation? OPP.5. Whether the suit is not maintainable in the present form? OPD 6. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD 7. Whether defendants No.2 to 5 are bona fide purchasers for consideration after due enquiry of the revenue record without notice and sale in their favour is protected under Sec.41 of the T. P. A. OPD.8. Whether the suit is bad for nonjoinder of necessary parties?opd 9. Relief. 5. In support of their case the plaintiffs examined PW1 Ninder Singh, Deed-Writer, PW2 Tarlok Singh, PW3 Milkha Singh, PW4 Kulwant Singh and plaintiff Harbans Singh appeared as his own witness as PW5. He produced on record the agreement of sale dated 30.12.1991 Ex. P1. He also proved the endorsement ex. PI/a of the Sub-Registrar. He further proved the application dated 10.1.1992 Ex. P2 showing that he was present in the office of Sub-Registrar on 10.1.1992, the last date of performance of agreement. He also proved the endorsement of Sub-Registrar Ex. PS, his affidavit dated 10.1.1991 Ex. P4 and copy of the application dated 3.1.1992 Ex. PW2/a with endorsement of the Sub-Registrar of the same date Ex. PW2/b. 6. On the contrary, the contesting defendants examined DW1 Charan Singh, DW2 Dial Singh, DW3 Dhian Singh and produced their own sale-deed dated 3.1.1992 Ex. Dl. 7. The learned trial Court decided Issues No.1 in favour of the plaintiffs and against the defendants. PW2/a with endorsement of the Sub-Registrar of the same date Ex. PW2/b. 6. On the contrary, the contesting defendants examined DW1 Charan Singh, DW2 Dial Singh, DW3 Dhian Singh and produced their own sale-deed dated 3.1.1992 Ex. Dl. 7. The learned trial Court decided Issues No.1 in favour of the plaintiffs and against the defendants. Issues No.3 and 7 were decided in favour of the defendant. Issue No.4 was decided in favour of the plaintiffs and against the defendant No.4. Issue Nos.5, 6 and 8 were decided against the defendants as the same were not pressed during the course of arguments. Eventually, the suit of the plaintiffs for specific performance was dismissed but their suit in the alternative for recovery of Rs.10,000/- was decreed with costs. 8. Aggrieved by the judgment and decree of the trial Court, the plaintiffs filed the appeal before the first Appellate Court, which set aside the judgment and decree of the learned trial court and granted a decree of possession by way of specific performance in the terms as stated in the earlier portion of this judgment. Now aggrieved by the judgment and decree of the first Appellate Court, the present appeal by the contesting defendants. 9. I have heard Mr. B. R. Mahajan, Advocate on behalf of these appellants and with his assistance have gone through the file of this case. I am inclined to dismiss this appeal in limine though the present appeal is from a judgment of reversal. If the reasons advanced by the trial Court in declining the relief of specific performance on their face are perverse or illegal and those reasons have been rectified by the first Appellate Court, it is not incumbent upon the High Court in regular second appeal to admit the appeal for final scrutiny. The relief of specific performance of the agreement to sell was not granted primarily on the ground that defendants No.2 to 5 were the bona fide purchasers for consideration. Is it true, this is a point to be seen. The agreement of sale in favour of the plaintiffs is dated 30.12.1991. The last date for performance of sale-deed was 10.1.1992. The intention of defendant No.1 became bad and he executed the sale-deed in favour of the contesting defendants on 3.1.1992. The plaintiffs were quite vigilant. They rushed to the civil Court and filed a suit for injunction. The agreement of sale in favour of the plaintiffs is dated 30.12.1991. The last date for performance of sale-deed was 10.1.1992. The intention of defendant No.1 became bad and he executed the sale-deed in favour of the contesting defendants on 3.1.1992. The plaintiffs were quite vigilant. They rushed to the civil Court and filed a suit for injunction. They obtained a stay order against the defendant No.1 from alienating the suit property in favour of other per sons. They made application before the Sub-Registrar on 3.1.1992. They showed the stay order and in spite of that defendants No.2 to 5 went ahead and purchased the land on 3.1.1992. Thus, it can be said that defendants No.2 to 5 had the knowledge of the agreement to sell dated 30.12.1991 and in these circumstances it can not be said that they were the bona fide purchasers or that they had no knowledge of the earlier transaction of sale in favour of the plaintiffs. In this view of the matter, the rule of Us pendens will apply and the contesting defendants will not be able to get a valid title on the basis of the sale deed Ex. D1. This aspect of the case has been rightly dealt with by the first Appellate Court in para No.16 of the impugned judgment, which is reproduced as under: - "16.1 have given my careful thought to the submissions made by learned counsel for the parties. Ex. Dl is the sale deed dated 3.1.1992 executed by defendant No.1 in favour of defendants No.2 to 5 Ex. PI is the agreement to sell dated 30.12.1991 with endorsement Ex. Pl/ A of the Sub-Registrar of the same date which shows that Harbhajan Singh defendant no.1 had agreed to sell the suit land in favour of the plaintiffs/appellants and stipulated date for execution of sale deed was fixed as 10.1.1992. Agreement of sale Ex. P-1 has been duly proved on the record. The defendants have not challenged the findings regarding agreement of sale Ex. PI in this appeal by filing cross appeal or cross objections. , As such, the findings of the lower court that defendant No.1 Harbhajan Singh had executed agreement of sale dated 30.12.91. Ex. Pl with respect to the suit land in favour of plaintiffs/appellants are affirmed. The sale deed Ex. PI in this appeal by filing cross appeal or cross objections. , As such, the findings of the lower court that defendant No.1 Harbhajan Singh had executed agreement of sale dated 30.12.91. Ex. Pl with respect to the suit land in favour of plaintiffs/appellants are affirmed. The sale deed Ex. Dl dated 3.1.1992 executed by defendant No.1 in favour of defendants no.2 to 5 has also been proved on the record from the evidence led by the defendants. Plaintiffs/appellants have challenged the sale deed Ex. Dl being hit by the rule of /is pendens, whereas the defendants No.2 to 5 respondents have pleaded that they are bond fide purchasers for value without notice with respect of suit land. " Once it is established that the contesting defendants were not the bona fide purchasers, the ancillary point can be solved without any difficulty and that is, that the rule of lis pendens in this case would apply. The transferees of the vendor will be bound by the obligations of the vendor and if the decree for specific performance is granted against the vendor of the transferee they are bound and liable to join in the execution of the sale deed. 10 Faced with this difficulty the learned counsel for the appellants then submitted that the trial Court rightly refused to grant a decree for specific performance because the vendees had purchased a different property from the one which was agreed to be sold to the plaintiffs. He submitted that the plaintiffs as per agreement of sale purchased land from Rect. No.74, Khasra No.3,4,7,8 and 13 area measuring 23 kanals 10 marlas, but the khasra Nos. which were purchased by the contesting de-fendants were different. Thus, this aspect of the case has not been considered by the first Appellate Court. 11. There is no merit in the said contention of the learned counsel for the appellants. The successful plaintiffs will be substituted in place of Harbhajan Singh moment the suit is decreed in their favour. The plaintiffs have claimed that they had purchased the area measuring 23 kanals 10 marlas situated in village Talwandi Sobha Singh, Tehsil Patti, District Amritsar as per jamabandi for the year 1987-88. The khasra numbers must be mentioned in the agreement. The successful plaintiffs will be substituted in place of Harbhajan Singh moment the suit is decreed in their favour. The plaintiffs have claimed that they had purchased the area measuring 23 kanals 10 marlas situated in village Talwandi Sobha Singh, Tehsil Patti, District Amritsar as per jamabandi for the year 1987-88. The khasra numbers must be mentioned in the agreement. The case of the plaintiffs is that out of 60 kanals 2-1/3 marlas of land situate 1 at Majha, defendant No.1 Harbhajan Singh entered into an agreement to sell with respect to 23 kanals 10 marlas, which forms l/3rd share of 180. kanals 7 marlas of land situated in village Talwandi Sobha Singh. With respect to Khasra Nos.3,4,7,8 and 13 of rect. No.74 the plaintiffs sought an injunction against the defendant No.1 from alienating the land to the extent of 23 kanals 12 marlas as per jamabandi for the year 1987-88. Thus, it cannot be said that the property which was purchased by the defendants had a separate entity altogether. Moreover, this is for the executing court to see when the execution would be filed with regard to the delivery of the possession and with regard to the execution of the sale deed. 12. The point for survival is whether the judgment of the first Appellate Court is in accordance with law or not. It is true that the relief for permanent injunction is a discretionary one, but this discretion is to be exercised and is supposed to be exercised according to the recognised judicial norms. If the agreement has been executed with respect to immovable property, the general law of the land is that in such case decree for specific performance should be granted unless the case is covered by the exceptions as contained in the Relief Act. Of course, the prayer of specific performance could be defeated by the present appellants if they proved that they were the bo no fide purchasers for consideration. But in the present case it is proved on the record that the defendants/appellants had the knowledge about the earlier agreement of sale dated 30.12.1991 Ex. Pl. So much so, it was even brought to the notice of the present appellants by the Sub-Registrar. But in the present case it is proved on the record that the defendants/appellants had the knowledge about the earlier agreement of sale dated 30.12.1991 Ex. Pl. So much so, it was even brought to the notice of the present appellants by the Sub-Registrar. It has been admitted by DW2 Dial Singh Lamberdar that when the sale deed was presented on 3.1.1992, the Tehsildar had told that Harbhajan Singh has already executed agreement with respect to land mentioned in that sale deed and that the sale deed be not registered. Moreover, Ex. Pl is a registered document. Dial Singh Lamberdar, the attesting witness of the sale-deed Ex. Dl. Meaning thereby that when Dial Singh Lamberdar, the attesting witness, was aware about the execution of agreement Ex. Pl, it can be readily inferred that the appellants knew it that Harbhajan Singh had entered into agreement of sale dated 30.12.1991. The plea that the subject matter of the sale deed is different was not found availed by the defendants before the first Appellate Court. No argument was addressed in this regard before the first Appellate court by the present appellants. Now it is too late and inequitable on the part of the appellants to say before the High Court that the subject matter of the sale deed Ex. D1 was different from the subject of agreement Ex. P1. 13. Before 1 part with this order, I would like to highlight that the subordinate Courts should try to promote the law of specific performance rather than to defeat it, otherwise the very object of the Specific Relief Act would be frustrated. The legislature in its wisdom and the Honble Supreme Court in its generosity had already highlighted the various considerations and contingencies where a decree for specific performance should not be granted. If the case of a contesting defendant or the so-called bona fide purchaser is not covered by any of the exceptions of the Act or of the dictum laid down by the Honble Supreme Court, the Courts should lean towards granting a decree for specific performance when due execution is proved and it is further proved that there is no fraud etc. influenced upon the plaintiff or that he has not taken any undue advantage of the situation. influenced upon the plaintiff or that he has not taken any undue advantage of the situation. In the end, this Court is of the considered opinion that there is no merit in the present appeal and the same is hereby dismissed in limine with no order as to costs. Appeal dismissed in limine.