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2003 DIGILAW 645 (PNJ)

Balwan Singh v. Mange Ram

2003-05-06

VINEY MITTAL

body2003
Judgment Viney Mittal, J. 1. The defendants are in second appeal. They claimed that they are subsequent vendees without notice and for consideration and as such being bona fide purchasers are protected under law. They have claimed for setting aside the judgments and decrees of the learned Courts below whereby the suit filed by the plaintiffs for specific performance was decreed. 2. The plaintiffs had filed a suit for possession by way of specific performance of an agreement dated May 10, 1994. Consequentially, the relief of permanent injunction was also claimed. The plaintiffs filed the aforesaid suit on the averments that defendant No. 1 Suresh Kumar had agreed to sell the land in dispute to the plaintiffs through an agreement dated May 10, 1994. At the time of the aforesaid agreement, an earnest amount of Rs. 25,000/- was paid by the plaintiffs to defendant No. 1. The rest of the amount was agreed to be paid at the time of the execution and registration of the sale deed on or before June 15, 1995. Subsequently, through another agreement dated November 28, 1994 another amount of Rs. 15,000/- was paid as earnest money by the plaintiffs to the aforesaid defendant No. 1. The plaintiffs claimed that they were always ready and willing to perform their part of contract and to get the sale deed executed on payment of balance sale consideration but defendant No. 1 did not execute the sale deed. It was further maintained by the plaintiffs that instead of honouring the aforesaid agreement, the said defendant No. 1 had sold the land in dispute to the defendants Balwan Singh and others (the present appellants) vide sale deed dated May 8, 1995. The plaintiffs claimed that the sale deed was not binding upon their rights and prayed for a decree for specific performance of their agreement. 3. The learned trial Court decreed the suit filed by the plaintiffs. It was held that defendant No. 1 had duly executed the agreement dated May 10, 1994 and had received the earnest money as claimed by the plaintiffs. It was further held by the learned trial Court that the aforesaid subsequent vendees Balwan Singh and others could not be treated to be bonafide purchasers for consideration and without notice of the prior agreement inasmuch as they were first cousins of the plaintiffs and had the knowledge of the original agreement. 4. It was further held by the learned trial Court that the aforesaid subsequent vendees Balwan Singh and others could not be treated to be bonafide purchasers for consideration and without notice of the prior agreement inasmuch as they were first cousins of the plaintiffs and had the knowledge of the original agreement. 4. The subsequent vendees i.e. defendants No. 2 to 5, felt aggrieved and filed an appeal. The learned first appellate Court after re-appraising the entire evidence on record affirmed all the findings recorded by the learned trial Court. It was held by the learned first appellate Court also that defendant No. 1 had entered into the agreement dated May 10, 1994 with the plaintiffs and that the plaintiffs were always ready and willing to perform their part of contract. A plea raised by defendants No. 2 to 5 i.e. subsequent vendees that they are bonafide purchasers for consideration and without notice was also negativated by the learned first appellate Court. On the basis of the aforesaid findings, the learned first appellate Court also dismissed the appeal filed by the said defendants. 5. Now, defendants No. 2 to 5 (subsequent vendees) have approached this Court through the Regular Second Appeal. 6. I have heard Shri R.S. Mamli, the learned counsel for the appellants, Shri Anil Jain, the learned counsel for respondents No. 2 to 6 and Shri R.S. Longia, the learned counsel for respondent No. 7 and with their assistance have also gone through the record. 7. Shri Mamli has basically made submissions with regard to the findings recorded by the learned Courts below negtivating the plea of the appellants that they are bonafide purchasers for consideration and without notice. It has been submitted by Shri Mamli that in fact there is nothing on record to show that the defendants had any notice of the prior agreement. On the other hand, it is clearly proved that the defendant-appellants are bonafide purchasers for consideration and without notice and, therefore, according to the learned counsel, they were protected under Section 41 of the Transfer of Property Act. 8. On the other hand, it is clearly proved that the defendant-appellants are bonafide purchasers for consideration and without notice and, therefore, according to the learned counsel, they were protected under Section 41 of the Transfer of Property Act. 8. On the other hand, Shri Anil Jain, the learned counsel for the respondents has argued that both the two Courts below have concurrently found it is a fact that the defendant-appellants had the notice of the agreement in favour of the plaintiffs and, therefore, it could not be taken that they were protected under Section 41 of the Transfer of Property Act. 9. I have given my thoughtful consideration to the rival contentions raised on behalf of the respective parties. In my considered opinion, the present appeal has no merit and deserves to be dismissed. 10. It is not in dispute, and in fact clearly emerges out of the evidence, that the present appellants are first cousins of the plaintiffs. In fact Balwan Singh, appellant No. 1 while appearing as DW3 has candidly admitted during his cross-examination that his father and father of the plaintiffs are real brothers and their houses are adjoining the houses of the plaintiffs. There was only one wall between their respective houses. On the basis of the aforesaid fact, it is clear and apparent that the plea raised by defendants No. 2 to 5 that they are bonafide purchasers without notice of the prior agreement was liable to be rejected. 11. In fact, the onus of proof that the said defendants were bonafide purchasers for consideration and without notice was upon them. It was for them to show that the protection of Section 41 of the Transfer of Property Act was available to them. Nothing has been shown on the record. On the other hand, the facts on record clearly show that the plaintiffs were near relations of defendants No. 2 to 5. The agreement in question was entered between defendant No. 1 and plaintiffs on May 10, 1994, the sale deed was to be executed on or before June 15, 1995, subsequent vendees have purchased that land in dispute from defendant No. 1 vide sale deed dated May 8, 1995 i.e. almost a month prior to the date fixed for execution of the sale deed in the agreement between the plaintiffs and defendant No. 1. 12. 12. It has been held by a Division Bench of this Court in Gurmukh Singh Vir Singh and Ors. v. Sohan Singh Beta Singh and Anr., A.I.R. 1963 Punjab 470 as follows: "Where, on the land in respect of which an agreement to sell had been entered into, being sold by the vendor to other persons in breach of the contract of sale, the vendee brings a suit for specific performance of the contract against the vendor and the transferees from him, the onus is on the transferees to prove that they had no notice of the prior agreement to sell in favour of the plaintiff. This onus can only be discharged by evidence led in the case. Mere denial by the transferees to the effect that they had no notice of the previous contract for sale will not discharge the onus that rests on them, Each case will have to be examined on its own facts to find out whether the onus which rests on the transferees in view of Section 27 is discharged or not." 13. The Honble Supreme Court of India in the case of Dr. Govinddas and Anr. v. Shrimati Shantibai and Ors., (1972)74 P.L.R. 227 while examining the question of bonafides of the subsequent transferees had observed as follows: "That under Section 19(b) of the Specific Relief Act a contract cannot be specifically performed against a transferee for value who paid his money in good faith and without notice of the original contract. Where all the parties are residents or have shops in the same vicinity, in a small locality, it is not probable that the Transferee could not have come to know of the execution of the original agreement of the sale of the property. The unusual haste with which the contract was executed and got registered also shows that the parties had notice of the previous agreement." 14. In view of the authoritative pronouncements, I have no hesitation in holding that the defendant-appellants have miserably failed to show that they are bonafide purchasers of the suit land without any notice of the prior agreement dated May 10, 1994 executed by defendant No. 1 in favour of the plaintiffs. In this view of the matter, they cannot claim any protection under Section 41 of the Transfer of Property Act. 15. In this view of the matter, they cannot claim any protection under Section 41 of the Transfer of Property Act. 15. In view of the aforesaid discussion, the present appeal had no merit and the same is dismissed. No costs.