Research › Search › Judgment

Punjab High Court · body

2001 DIGILAW 415 (PNJ)

Ram Dass v. Shisha Singh

2001-04-05

K.C.GUPTA

body2001
JUDGMENT K.C. Gupta, J. - This regular second appeal is directed by the plaintiffs against the judgment and decree dated 13.11.1980 passed by the Addl. District Judge, Sangrur whereby he accepted the appeal and set aside the judgement and decree dated 15.6.1978 passed by the Senior Subordinate Judge, Sangrur in a suit for specific performance of contract of sale dated 7.1.1974 and passed a decree only for the recovery of Rs. 7,000/- with costs against Shisha Singh, respondent No. 1 (defendant No. 1). However, their suit for specific performance of agreement for sale was dismissed. 2. Briefly stated the facts are that Shisha Singh, respondent No. 1, Vir Kaur widow of Ujagar Singh, respondent No. 2 and Piara Singh, respondent No. 3 were owners in possession in equal shares of the land measuring 88 kanals 9 marlas situate in village Rogla District Sangrur. 3. Shisha Singh, respondent No. 1 was in possession as a co-sharer of land measuring 16 kanals comprised in Killa No. 111/15(8-0) and 111/16(8-0) according to the Jamabandi for the year 1972-73. He had mortgaged the aforesaid land (suit land) being co-sharer in possession in favour of Ram Kalan son of Sukh Ram father of the appellants for Rs. 5,000/- on 18.6.1968 vide mortgage deed Ex. PW 9/A. He had created additional mortgage on the aforesaid land on 20.6.1972 after the receipt of Rs. 3,000/- more. In this way, the mortgagee amount was Rs. 8,000/-. 4. It was next averred that respondent No. 1 Shisha Singh on 7.1.1974 entered into an agreement to sell Ex.P1 in respect of the aforesaid land with the appellants for Rs. 12,000/- and received Rs. 1,000/- as earnest money. He promised to execute the sale deed after receiving the balance amount of Rs. 3,000/- by 25.6.1974. In the alternative, he agreed that in case he was unable to execute the sale deed by the aforesaid date, then he would pay Rs. 3,000/- as compensation besides returning the amount of Rs. 9,000/-. 5. It was also averred that respondent No. 1 Shisha Singh did not execute the sale deed as per the agreement dated 7.1.1974 inspite of the fact that the appellants were ready and willing to get the sale deed executed in their favour. On the other hand, respondent Nos. 3,000/- as compensation besides returning the amount of Rs. 9,000/-. 5. It was also averred that respondent No. 1 Shisha Singh did not execute the sale deed as per the agreement dated 7.1.1974 inspite of the fact that the appellants were ready and willing to get the sale deed executed in their favour. On the other hand, respondent Nos. 1 to 3 on 6.6.1974 executed sale deed of land measuring 24 kanals including Killa No. 111/16 in favour of respondents 4 and 5. They further executed sale deed of land measuring 47 kanals 6 marlas out of the total land measuring 88 kanals 9 marlas in favour of respondent Nos. 6 to 10 including killa No. 111/15(8-0) vide sale deed dated 4.6.1974. 6. It was also averred that respondent Nos. 1 to 3 had dishonestly executed the sale deed in favour of respondent Nos. 4 to 10 and respondent Nos. 4 to 10 knew about the existence of the agreement to sell of the suit land in favour of the appellants before the execution of the sale deeds in their favour and even the appellants had informed about the agreement in their favour but still they got the sale deed executed. 7. It was next averred that appellants were always ready and willing to get the sale deed of the suit land executed in their favour and were still ready and willing and were having the balance amount alongwith the stamp and registration expenses but the respondents had refused to get the sale deed executed. 8. With these allegations, suit for specific performance of contract of sale dated 7.1.1974 was filed. Respondent Nos. 11 to 21 who were legal heirs of Ram Kalan were impleaded as proforma respondents. 9. Respondent No. 1 Shisha Singh, respondent Nos. 4 and 5 namely Joginder Singh and Sukhwant Singh, respondent Nos. 6 to 10 namely Chandi Ram, Niranjan Singh, Darshan Singh, Shera Singh and Daulat Ram filed separate written statements. 10. Respondent No. 1 Shisha Singh in his written statement denied that he had executed agreement Ex.P1 to sell land measuring 16 kanals in favour of the appellants. He, However, admitted that the land was under mortgage with Ram Kalan father of the appellants for a sum of Rs. 5,000/-. He further stated that before executing the sale deed in favour of respondent Nos. He, However, admitted that the land was under mortgage with Ram Kalan father of the appellants for a sum of Rs. 5,000/-. He further stated that before executing the sale deed in favour of respondent Nos. 4 and 5 he had approached the appellants for the purchase of the land but they refused to purchase the same and as such he sold the land subsequently to respondent Nos. 4 and 5 and the amount of mortgage of Rs. 5,000/- was left with them to make the payment of the same to the appellants. 11. Respondents Nos. 4 and 5 in their joint written statement admitted that they had purchased Killa No. 111/16 alongwith the other land from respondent Nos. 1 to 3 but asserted that they were bona fide purchasers for consideration and without notice of any agreement of sale. 12. Respondent Nos. 6 to 10 in their joint written statement also asserted that they were bona fide purchasers for value and had purchased Killa No. 116/15 alongwith other land from respondent Nos. 1 to 3 for a consideration of Rs. 40,000/-. They further stated that they had got the land redeemed after payment of Rs. 15,500/- to the mortgagees. 13. Respondent Nos. 12, 15, and 16 to 21 in their joint written statement admitted the claim of the appellants and stated that the appellants were entitled to receive the mortgage amount of Rs. 5,000/-. 14. With these pleadings, the parties went on trial on the following issues : "1. Whether defendant Shisha Singh executed the agreement to sell dated 7.1.1974 in favour of the plaintiffs and paid Rs. 1,000/- on that day ? OPP 2. Whether the plaintiffs have been ready and willing to perform their part of the contract ? OPP 3. Whether the defendants No. 4 and 5 are the bona fide purchasers for consideration without notice of agreement to sell between the plaintiffs and defendant No. 1 ? OPD 4. Whether the plaintiffs are entitled for the specific performance of agreement of sale and if so, on payment of what amount ? If issue No. 3 is not proved. 5. Whether the plaintiffs are entitled to the refund of Rs. 9,000/- and a sum of Rs. 3,000/- as liquidated damages on account of the breach of contract ? 6. Whether the suit is bad for non-joinder of necessary parties as alleged in the written statement ? If issue No. 3 is not proved. 5. Whether the plaintiffs are entitled to the refund of Rs. 9,000/- and a sum of Rs. 3,000/- as liquidated damages on account of the breach of contract ? 6. Whether the suit is bad for non-joinder of necessary parties as alleged in the written statement ? 7. Whether the suit is maintainable in the present form ? OPP 8. Whether the plaintiffs have no cause of action ? OPD 9. Whether the suit for the recovery of mortgaged money is maintainable ? OPP 10. Whether the suit is not properly valued for court-fee ? OPD 11. Whether Shisha Singh defendant No. 1 created an additional mortgage for Rs. 3,000/- in favour of the plaintiff through agreement dated 20.6.1972 ? If so, to what effect ? OPP 11-A. Whether defendants No. 6 to 9 are bona fide purchasers for value without notice of land measuring 47 kanals 6 marlas out of suit property vide sale deed dated 6.6.1974 ? If so, its effect ? OPD 11-B. Whether land comprising of Khasra Nos. 111/15 and 111/16 measuring 16 kanals had been mortgaged by Shisha Singh in favour of Ram Kalan for Rs. 5,000/- vide a mortgage-deed? If so, when and with what effect ? OPP. 11-C. Whether the entry in the jamabandi with regard to mortgage land comprising of khasra No. 111/5 instead of 111/15 has been wrongly made ? If so, its effect qua its vendees ? OPP. 11-D. Whether the sales evidenced by sale deed dated 4.6.1974 and 6.6.1974 are illegal, void and ineffective qua the rights of the plaintiffs ? If so, its effect ? OPP. 11-E. Whether the sale deeds dated 4.6.1974 and 6.6.1974 are liable to the cancelled ? OPP. 12. Relief." The trial Court had decided issue Nos. 1 to 4, 7, 11, 11B, 11C and 11D in favour of the appellants. However, issue Nos. 5, 9 and 11E were decided against them. The remaining issues were also decided against the respondents. As a result thereof, the trial Court had decreed the suit of the appellants for specific performance of the agreement to sell. 15. Aggrieved by the said judgment and decree of the trial Court dated 15.6.1978, respondent Nos. 4 to 10 filed appeal. 5, 9 and 11E were decided against them. The remaining issues were also decided against the respondents. As a result thereof, the trial Court had decreed the suit of the appellants for specific performance of the agreement to sell. 15. Aggrieved by the said judgment and decree of the trial Court dated 15.6.1978, respondent Nos. 4 to 10 filed appeal. The Additional District Judge vide his judgment dated 13.11.1980 accepted the appeal and set aside the judgment and decree of the trial Court and dismissed the suit of the appellants Ram Das etc. for specific performance of the agreement of sale and instead granted a decree for the recovery of Rs. 7,000/- with costs against Shisha Singh, respondent No. 1. 16. Dissatisfied with the judgement and decree of the appellate Court, the plaintiffs have preferred the present regular second appeal. 17. Counsel for the appellants Shri J.R. Mittal, Senior Advocate, alongwith Shri B.D. Sharma, Advocate, counsel for the respondent Nos. 4 to 10 Shri Gurnam Singh and Shri B.S. Dhillon, Advocates were heard and the record was gone into. 18. There is no dispute about it that Shisha Singh, respondent No. 1, had executed mortgage deed Ex.PW 9/A dated 18.6.1968 in favour of Ram Kalan son of Sukh Ram for Rs. 5,000/- being a co-sharer and had handed over possession of the suit land measuring 16 kanals comprised in Killa No. 111/15(8-0) and 111/16(8-0) to him. Shisha Singh had also admitted this fact in his written statement. The allegation of the appellants is that Shisha Singh being a co- sharer had executed agreement (Ex.P1) to sell the aforesaid land in 7.1.1974 to the appellants for Rs. 12,000/- and had received Rs. 1,000/- as earnest money. It was also agreed that the sale deed was to be executed on or before 15.6.1974 after the receipt of Rs. 3,000/- as the suit land was also mortgaged with them for Rs. 8,000/-. Shisha Singh denied the execution of the aforesaid agreement. However, execution of the said agreement is proved by PW 2 Mangal Singh, an attesting witness, PW 6 Harbans Lal, Scribe of the said agreement and PW 7 Inder Bhushan Bhatnagar, Handwriting and Finger Print Expert. 3,000/- as the suit land was also mortgaged with them for Rs. 8,000/-. Shisha Singh denied the execution of the aforesaid agreement. However, execution of the said agreement is proved by PW 2 Mangal Singh, an attesting witness, PW 6 Harbans Lal, Scribe of the said agreement and PW 7 Inder Bhushan Bhatnagar, Handwriting and Finger Print Expert. PW 2 Mangal Singh clearly stated that Shisha Singh had executed agreement Ex.P1 in favour of the appellants and after writing, Harbans Lal read over the agreement to Shisha Singh who thumb marked it after admitting it to be correct. He further stated that through the agreement Shisha Singh had agreed to sell 2 killas of land for Rs. 12,000/- and had admitted the mortgage amount of Rs. 8,000/-. Harbans Lal is a petition writer and had no axe to grind against the respondents. He also stated that he scribed the agreement at the instance of Shisha Singh and had read over its contents to Shisha Singh who thumb marked it after admitting it to be correct. It is further stated that the mortgage amount was Rs. 8,000/- and Rs. 1,000/- was paid as earned money in his presence. Inder Bhushan Bhatnagar, Handwriting and Finger Prints Expert categorically stated that he had compared the thumb impression of Shisha Singh on the agreement with the standard thumb impressions of Shisha Singh on the registered sale deed dated 6.6.1974 and also on the written statement dated 24.9.1975 filed by him and he was of the opinion that the agreement Ex.P1 contained the thumb impression of Shisha Singh. 19. In view of this over-whelming evidence, the mere denial of Shisha Singh that he never executed the sale deed in favour of the appellants cannot be believed. There was an obvious reason to deny the agreement of sale in favour of the appellants as subsequently he had transferred the suit land in favour of respondent Nos. 4 to 10. Both PWs Mangal Singh and Harbans Lal are independent witnesses, they have no axe to grind against the respondents or to depose in favour of the appellants. Therefore, from the said evidence it is conclusively proved that Shisha Singh had executed the agreement Ex.P1 on 7.1.1974 and had received Rs. 1,000/- at that time as earnest money and had agreed to sell the suit land to the appellants for Rs. Therefore, from the said evidence it is conclusively proved that Shisha Singh had executed the agreement Ex.P1 on 7.1.1974 and had received Rs. 1,000/- at that time as earnest money and had agreed to sell the suit land to the appellants for Rs. 12,000/- and had further admitted that the suit land was under mortgage for Rs. 5,000/-. 20. Further, the case of the appellants is that initially the mortgage was created for Rs. 5,000/- but subsequently Shisha Singh had created additional mortgage by receiving Rs. 3,000/- and thus the mortgage amount was Rs. 8,000/-. Hence, the finding of the trial Court on issue No. 1 is affirmed. 21. Now, the next question to be seen is whether the appellants were ready and willing to perform part of their contract as contained in the agreement Ex.P1 are were still ready and willing to do so. According to the agreement, the sale deed was to be executed by 25.6.1974 and the total consideration was Rs. 12,000/- . The appellants had already paid Rs. 9,000/- and were only to pay Rs. 3,000/- more. There is evidence of PW 8 Madan Lal who is Munim at Commission Agents shop namely M/s Kulwant Rai Sham Lal, Dirba Mandi. He stated that the appellants had an account with their firm as Ram Dass had sold wheat on 2.5.1974 worth Rs. 3,600/- and then again on 3.6.1974 worth Rs. 1,873/-. He proved Ex.PW 8/A, copy of the Nakal Zamindara and also a copy of the account (Khata) pertaining to the year 1974-75 Ex.PW 8/B and further copy of the account (Khata) for the year 1975-76, Ex.PW8/D. Thus Ram Dass had sold wheat worth Rs. 5,473/- in the month of June, 1974 and as such had sufficient funds with him to pay towards the balance sale price if Shisha Singh had sold the suit land to him. It is also in evidence that Ram Dass had approached Shisha Singh for execution of the sale deed but he refused. On the other hand Shisha Singh alongwith respondent Nos. 2 and 3 sold the suit land i.e. killa No. 111/16(8-0) alongwith the other land in favour of respondent Nos. 4 and 5 and then Killa 111/15 alongwith the other land in favour of respondent Nos. 6 to 10 vide sale deeds before 25.6.1974, the date which was fixed for execution of the sale deed in favour of the appellants. 2 and 3 sold the suit land i.e. killa No. 111/16(8-0) alongwith the other land in favour of respondent Nos. 4 and 5 and then Killa 111/15 alongwith the other land in favour of respondent Nos. 6 to 10 vide sale deeds before 25.6.1974, the date which was fixed for execution of the sale deed in favour of the appellants. This fact shows that Shisha Singh was not willing to execute the sale deed in favour of the appellants. Infact in his written statement, he had even denied the execution of the agreement in favour of the appellants. It clearly shows that Shisha Singh was not willing to execute the sale deed in favour of the appellants, although the appellants were ready and willing to perform their part of the contract. Considering this, the findings of the trial Court on issue No. 2 are affirmed. 22. Issue Nos. 11 B and 11 C - The mortgage deed Ex.PW 9/A dated 18.6.1968 shows that Shisha Singh who was in possession as a co-sharer of land comprised in killa No. 116/15(8-0) and 116/16(8-0) situated in village Rogla mortgaged the said land with possession to Ram Kalan, predecessor-in-interest of the appellants for Rs. 5,000/-. It was also stated by Shisha Singh that he would not get the land redeemed for three years. Shisha Singh, respondent (DW 2) admitted in his statement that he had mortgaged the suit land for Rs. 5,000/- with Ram Kalan, father of the appellants (plaintiffs). He further admitted that the suit land was in possession of the appellants. So, in view of the admission of Shisha Singh, it is conclusively proved that he had mortgaged the suit land with possession to Ram Kalan, father of the appellants. 23. Counsel for the respondents contended that infact killa No. 116/15 was not mortgaged and on the other hand killa No. 111/5 was mortgaged. Of course, copy of the mutation Ex.PW 9/A dated 22.8.1969 shows that mutation of Killa Nos. 111/5 and 111/16 was sanctioned in favour of Ram Kalan son of Sukh Ram for Rs. 5,000/-. It appears that the mistake had occurred at the time of entry and sanctioning of the mutation. Instead of Killa No. 111/15, Killa No. 111/5 was mentioned. However, the said mutation does not affect the rights of the appellants who are successors-in-interest of Ram Kalan because the mutation is not a document of title. 5,000/-. It appears that the mistake had occurred at the time of entry and sanctioning of the mutation. Instead of Killa No. 111/15, Killa No. 111/5 was mentioned. However, the said mutation does not affect the rights of the appellants who are successors-in-interest of Ram Kalan because the mutation is not a document of title. Rights of the appellants flow from the mortgage deed Ex. PW 9/A which clearly indicates that Killa Nos. 111/15 and 111/16 were mortgaged with possession by Shisha Singh with Ram Kalan father of the appellants. Subsequent entries in the jamabandi regarding killa Nos. 111/5 instead of killa No. 111/15 cannot be taken into consideration because the said entries are based on the entries in the mutation Ex.PW 9/A. Therefore, the transferees cannot make much capital on account of the clerical error in the revenue documents. The transferees were bound to make enquiries from the mortgagee as to in what capacity they were in possession of the suit land including killa No. 111/15 which they have not done. Thus the wrong entries made in the revenue record have got no effect on the rights of the appellants. Accordingly, the findings of the trial Court on these issues are affirmed. 24. Issue No. 11 - The allegation of the appellants that Shisha Singh had received Rs. 3,000/- more on the suit land and thus mortgage was created for Rs. 8,000/- instead of Rs. 5,000/-. Mark B is the document dated 20.6.1972. It is in the shape of an agreement. It is duly proved by PW 4 Tilak Ram, attesting witness, and Mohan Lal PW5, Scribe of the said agreement. They further stated that Rs. 3,000/- were paid to Shisha Singh and Shisha Singh had thumb marked it after admitting it to be correct. PW 5 Mohan Lal is a Stamp Vendor at Sunam. He has no axe to grind against the respondents. A perusal of the said agreement shows that through this agreement Shisha Singh had received Rs. 3,000/- more on account of the mortgage. This document is admissible in evidence because through it no mortgage has been created but only additional amount has been received. It is certainly admissible in evidence for the purposes of collateral evidence under Section 49 of the Indian Registration Act. 3,000/- more on account of the mortgage. This document is admissible in evidence because through it no mortgage has been created but only additional amount has been received. It is certainly admissible in evidence for the purposes of collateral evidence under Section 49 of the Indian Registration Act. It is true that additional mortgage in favour of the appellants cannot be created by the said document Mark B because the said document has not been registered but it shows that Shisha Singh had taken Rs. 3,000/- more from the appellants through this documents. This in all, it is established that Shisha Singh had taken Rs. 3,000/- more through the document mark B but not as mortgage amount and as such was liable to return this amount. Accordingly, the findings of the trial Court on this issue are affirmed. 25. Issues No. 3 and 11-A are discussed together being inter-connected. At the very outset it may be observed that respondent Nos. 4 and 5 and 6 to 10, though are transferees for consideration but they had notice of the agreement of sale in favour of the appellants. Hence, they cannot be protected under the provisions of Section 19(b) of the Specific Relief Act, 1963. The appellate Court has also observed that respondent Nos. 4 and 5 and 6 to 10 are not bona fide purchasers of the land in dispute. Respondent Nos. 4 and 5 and 6 to 10 had not filed any cross objections regarding this issue. Any how, as the plaintiff-appellants have filed appeal, they can still argue the matter. There is no dispute about it that Shisha Singh, respondent No. 11, Vir Kaur, respondent No. 2 and Piara Singh, respondent No. 3 had sold the land measuring 111/16(8-0) to Joginder Singh, respondent No. 4 and Sukhwant Singh, respondent No. 5 alongwith the other land vide sale deed Ex.D1. dated 6.6.1974 for Rs. 21,000/- and further they had sold the land comprised in Rectangle No. 111/15(8-0) alongwith the other land to respondent Nos. 6 to 10 namely Chandi Ram, Niranjan Singh, Darshan Singh, Shera @ Mewa Singh and Daulat Ram vide sale deed Ex. DW 8/A dated 4.6.1974 for Rs. 40,000/-. Thus respondent Nos. 4 to 10 are purchasers for consideration. The only question to be determined is whether they are bona fide purchasers without prior notice of agreement of sale Ex.P1 in favour of the appellants. DW 8/A dated 4.6.1974 for Rs. 40,000/-. Thus respondent Nos. 4 to 10 are purchasers for consideration. The only question to be determined is whether they are bona fide purchasers without prior notice of agreement of sale Ex.P1 in favour of the appellants. DW 2 Shisha Singh has admitted in his cross examination that appellants were in possession of the suit land comprised in killa Nos. 111/15(8-0) and 111/16(8-0) at the time of the execution of the aforesaid sale deeds. The salient feature of this case is that the appellants and respondents Nos. 4 to 10 belong to the same village i.e. village Rogla and the suit land is also situated in that very village. Even Shisha Singh lived earlier in village Rogla but lateron shifted to some other village. Thus Respondent Nos. 4 to 10 belong to the village Rogla where suit land is situated. It was under mortgage with the father of the appellants and appellants were in possession of it, so it is difficult to believe that respondent Nos. 4 to 10 had no prior notice of the agreement of sale Ex.P1 dated 7.11.1974 in favour of the appellants. There was heavy onus on the transferees to prove that they had no prior notice of agreement of sale in favour of the appellants. Counsel of the respondents contended that once the evidence is led, then the question of initial onus pales into insignificance and the Court will have to decide the question in controversy in the light of the evidence on record. For this contention, he has placed reliance on the judgement of Honble Supreme Court reported as Jagan Nath v. Jagdish Rai and others, 1998(1) PLJ 377 which supports the above contention of the learned counsel for the respondents. There is no dispute about it that the respondents are bound to discharge the initial onus. It is not enough to deny in their statement that they had not prior knowledge of the agreement in favour of the appellants. The circumstances of the case are such which indicate that they had prior knowledge of the agreement in favour of the appellants. It has been observed by a Division Bench of this Court in Gurmukh Singh Vir Singh and others v. Sohan Singh Bela Singh and others, AIR 1963 Pb. The circumstances of the case are such which indicate that they had prior knowledge of the agreement in favour of the appellants. It has been observed by a Division Bench of this Court in Gurmukh Singh Vir Singh and others v. Sohan Singh Bela Singh and others, AIR 1963 Pb. 470, relying upon AIR 1934 PC 68 and AIR 1946 PC 97 : "that where, on the land in respect of which an agreement to sell had been entered into is being sold by the vendor to another person in breach of the contract of sale and a suit for specific performance of the contracts against the vendor and the transferee is instituted, the onus is on the transferee to prove that he had no notice of the prior agreement to sell in favour of the plaintiff. The onus can only be discharged by the evidence led in case. The mere denial by the transferee to the effect that they had no notice of the previous contract for sale will not discharge the onus that rests on them." 26. There is another aspect of the matter which needs consideration. Respondent Nos. 4 to 10 did not make enquiries from the appellants (plaintiffs) regarding the nature of their possession of the suit land and about any agreement to sell etc. before getting the sale deeds executed from the vendors (respondent Nos. 1 to 3). It was rather obligatory for them to make enquiries about the nature of the possession of the appellants and about any other subsisting agreement with regard to this land with any one before purchasing the suit land as the appellants were in possession of the land at the time when the sale deeds were executed in their favour. There is no dispute about it that the appellants and respondent Nos. 4 to 10 belong to the same village i.e. village Rogla. It is also admitted by Shisha Singh DW 2 that the appellants were in possession of the suit land as mortgagees. DW Sukhwant Singh, one of the vendor, admitted in his cross examination that they have been residing in village Rogla since 1965 and Shisha Singh also resided in that village at that very time. He also admitted that he knew Ram Dass, one of the appellants for the last 10 years prior to the execution of the sale deeds in their favour. He also admitted that he knew Ram Dass, one of the appellants for the last 10 years prior to the execution of the sale deeds in their favour. However, he stated that sons of Ram Kalan i.e. appellants were in possession of only one killa as mortgagees but stated that at the time of execution of the sale deeds they had taken possession of both the killas of the suit land from Shisha Singh. He denied that the appellants were still in possession of the suit land as mortgagees. This fact is contradicted by DW Shisha Singh who categorically stated that the appellants were still in possession of the suit land. PW 9 Ram Dass, one of the appellants, has also categorically stated in his statement that they were in possession of the suit land since the time of mortgage. Therefore, in view of the statement of Shisha Singh, DW 2, the statement of Sukhwant Singh, DW 5, one of the vendees, cannot be believed that they were in possession of the suit land. Infact it is conclusively proved on file that the appellants were in possession of the suit land at the time of execution of the sale deeds by Shisha Singh in favour of respondent Nos. 4 to 10 and they are still in possession of the same. It has been observed by a Division Bench of the Bombay High Court in Faki Ibrahim v. Faki Gulam Mohidin, AIR 1921 Bombay 459 and Madras High Court in Parvathathammal v. Sivasankar Bhattar and others, AIR 1952 Madras 265 "that it was obligatory for the defendant to make enquiries from the plaintiffs about the nature of their possession and having omitted to do so, must be taken to have constructive notice of the agreement to sell in their favour." Thus the mere denial by the transferees to the effect that they had no notice of the previous contract for sale will not discharge the onus which rests on them and this is one of such cases where no evidence has been led by respondent Nos. 4 to 10 which could show that they had discharged the initial onus that rests on them. 4 to 10 which could show that they had discharged the initial onus that rests on them. The Court held as under : "The facts of the case in hand are rather identical to those of a judgment of the Bombay High Court in Faki Ibrahims case (supra) and by the Madras High Court in Parvathathmmals case (supra). The facts in Faki Ibrahims case (supra) were as under : "The plaintiffs sued to get a sale deed of the plaint property executed, alleging that the defendant No. 1 has agreed to pass a sale deed in his name on the 4th of March, 1917 but afterwards refused to convey the plaint property to the plaintiff. The 2nd defendant relied upon sale deed executed by the 1st defendant in his favour on the 9th January, 1918. It is admitted that the plaintiff was in possession, and that the 2nd defendant knew that the plaintiff was in possession, and made no inquiry as to the circumstances in which the plaintiff was in possession." "The trial Judge dismissed the suit on the ground that the 2nd defendant had no notice, actual or constructive, of the contract between the 1st defendant and the plaintiff. The plaintiff had been in possession since 1914, and admittedly was a mortgagee. The learned trial Judge seemed to think that although defendant No. 2 might be fixed with notice of the plaintiffs possession as mortgagee, he could not be fixed with the notice of the agreement to sell. In appeal, this decision was confirmed. The same distinction was made by the learned Appellate Judge, namely, that the constructive notice would only be of the plaintiffs holding as mortgagee as not as a person having an agreement to sell from the 1st defendant." It was held by Macleod, C.J. as under ;- "The result, therefore, must be that the 2nd defendant having knowledge of the plaintiff being in possession, and having made no inquiry why the plaintiff was in possession must be taken to have had constructive notice of all the equities in favour of the plaintiff. It would have been a different matter if he had made inquiries and had been told that plaintiff was only in possession as mortgagee but if he chooses to make no enquiry at all, then is liable to all the risks that might result from the discovery that the person in possession was entitled to equities against the vendor. The result, therefore, must be that the appeal must be allowed. The plaintiff will be entitled to a conveyance of the suit property from the 2nd defendant who has a registered sale deed from the defendant. The plaintiff will be entitled to his costs throughout." Fawcett, J. while concurring with the judgement of Macleod, C.J., held as under : "I concur. I would also refer to the 3rd illustration to clause (b) of Section 27 of the Specific Relief Act which authoritively declares the law in accordance with case of Daniels v. Davison. "A contract to sell land to B for Rs. 5,000/-. B takes possession of the land. Afterwards A sells it to C for Rs. 6,000/-. C makes no enquiry of B relating to his interest in the land. Bs possession is sufficient to affect C with notice of his interest, and he may enforce specific performance of the contract against C." Therefore, the Lower Courts were not justified in making the distinction upon which they dismissed the plaintiffs suit. 38. It has been held in Parvathathammals case (supra) by the Madras High Court that where a mortgagor agrees to sell the property to the plaintiff, a mortgagee in possession, but subsequently sells it to a third person and the mortgagee brings a suit for specific performance of agreement to sell, the purchaser cannot contend that the possession of the plaintiff would put him on notice only of his rights as a mortgagee and of no more. Omission by the purchaser in such a case to make inquiries of the mortgagee whether he has any rights other than usufructuary mortgagee amounts to wilful abstention or gross negligence and is therefore bound by the existing equities in favour of the plaintiff and cannot obtain the benefit of the principle of the proviso to Section 27 Specific Relief Act. 39. I respectfully agree with the law laid down in Faki Ibrahims case (supra) and Parvathathammals case (supra)." 27. 39. I respectfully agree with the law laid down in Faki Ibrahims case (supra) and Parvathathammals case (supra)." 27. Counsel for the respondents contended that they could not be presumed to have prior notice of the agreement of sale Ex.P1 in favour of the appellants. For this contention, he has placed reliance on Gurdeep Singh v. Kuldeep Singh and others, 1995 PLJ 484. In my view, the above authority is not applicable to the facts of the present case. In the above said authority, the circumstances were such that the agreement to sell was fake one. Two witnesses of the agreement had stated that it was executed in suspicious circumstances (not written in their presence and signatures obtained later on), nor did consideration pass to vendor. In such circumstances, it was held that the subsequent vendees did not have any notice of prior agreement. However, the circumstances are totally different in the present case. The execution of the agreement is duly proved and further Shisha Singh had received Rs. 1000/- as earnest money at the time of the execution of the agreement. It was further proved that he had already received Rs. 8,000/- on account of the mortgage of the suit land. The appellants were in possession of the same at the time of the execution of the sale deeds in favour of respondent Nos. 4 to 10. Even if it is presumed that after the parties had led evidence, the question of initial onus pales into insignificance, then also from the preponderance of the evidence it is to be held that respondent Nos. 4 to 10 had prior notice of the agreement to sell Ex.P1 in favour of appellants. If they had made due enquiries about the nature of the possession and had consulted the revenue record properly and had made enquiries from the Patwari they would have come to know that the appellants are in possession of the suit land not as mortgagees but also as prospective vendees. The vendees have not examined the Patwari of that time to show that they had made such enquiries from him. 28. Counsel for the respondents further contended that respondent Nos. The vendees have not examined the Patwari of that time to show that they had made such enquiries from him. 28. Counsel for the respondents further contended that respondent Nos. 1 to 3 were the owners of the suit land and Shisha Singh, respondent No. 1 alone was not competent to sell the suit land in favour of the appellants and, therefore, the suit for specific performance could at best be decreed with regard to one-third of the suit land. In my opinion, this contention of the learned counsel is not tenable. It was specifically got stated by Shisha Singh that he was in possession of the suit land as a co-sharer of a portion of the land which did not exceed his share and he had agreed to sell the same with possession. It is mentioned in para 2 of the plaint that respondent Nos. 1 to 3 were owners in equal shares of land measuring 88 kanals 9 marlas situated in village Rogla. Thus the share of Shisha Singh comes to more than 29 kanals. Therefore, he was competent to transfer 16 kanals of land in favour of the appellants. Moreover, he had already mortgaged the suit land with possession vide agreement Ex.PW 9/A dated 18.6.1968 to Ram Kalan father of the appellants. Respondent Nos. 2 and 3 did not raise a little finger at that time or subsequently. Thus they had consented that Shisha Singh was competent to mortgage the suit and which was in his possession being co-sharer to the extent of his share. Lateron, this part of land which was under mortgage was agreed to be sold by Shisha Singh being owner as a co-sharer. Thus respondent Nos. 2 and 3 are also bound by the said agreement and they cannot say that Shisha Singh was owner of one-third share of the suit land. The authorities reported as Kartar Singh v. Harjinder Singh, AIR 1990 SC 854 and Kapoor Singh and others v. Surinder Singh and others, 1993 PLJ 170 are not applicable to the facts of the present case because in Kartar Singhs case (supra) the vendor had entered into an agreement for himself and on behalf his sister but the sister refused to sell her share in the property and in such circumstances it was held that the specific performance can be granted in respect of vendors share only. Similarly in Kapoor Singhs case (supra) brother entered into agreement not only for sale of his share in property but also that of his sister. It was proved on record that the sister had never authorised her brother to enter into an agreement to sell the land of her share. The property was jointly owned by brother and sister in equal shares. Share of the brother was clearly identifiable. Under these circumstances, it was held that the agreement could be enforced qua the brother who has signed the agreement. Therefore, the appellants are entitled to specific performance of the agreement of sale of the suit land in toto. Vendees, respondent Nos. 4 to 10, are not bona fide purchasers as they had prior notice of the agreement Ex.P1. Accordingly, the findings of the trial Court on this issue are affirmed. 29. No other point has been argued before me. 30. The upshot of the above discussion is that the appeal succeeds and the judgement and decree of the appellate Court dated 13.11.1980 is set aside and that of the trial Court dated 15.6.1978 is restored. The suit of the appellants for specific performances of contract of sale Ex-P1. is decreed with costs against respondents and the respondents are directed to execute and get the sale deed registered in respect of the suit land in favour of the appellants after receiving the balance amount of Rs. 3,000/- which would be paid to respondent Nos. 4 and 5 and 6 to 10 at the time of registration of the sale deed in equal shares. The costs of stamps, registration as well as scribing charges shall be borne by the appellants. The respondents are directed to get the sale deed executed and registered in favour of the appellants within one month failing which the appellants shall be at liberty to get the same executed and registered through Court. Appeal allowed.