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2006 DIGILAW 891 (PNJ)

Rajinder Kumar v. Ram Sarup

2006-03-02

SATISH KUMAR MITTAL

body2006
JUDGMENT Satish Kumar Mittal, J. - Defendant No. 2 Rajinder Kumar, who is the subsequent purchaser of the suit property, has filed this Regular Second Appeal against the judgments and decree, passed by both the Courts below, whereby the suit filed by the plaintiff for specific performance of the agreement dated 12.7.1995 qua the property in question has been decreed. 2. In this case, respondent No. 2 (defendant No. 1) Jagdish was owner in possession of half share of the plot, over which he had raised some construction. He entered into an agreement of sale regarding his share in the suit property with respondent No. 1 (plaintiff) vide agreement dated 12.7.1995 for a consideration of Rs. 1,75,000/-, out of which Rs. 1,50,000/- were paid as earnest money at the time of agreement. The remaining amount was to be paid on 11.6.1996, the date which was agreed for registration of the sale deed. On the date fixed for registration of the sale deed, the plaintiff went to the office of Sub Registrar, Fatehgarh Sahib, but defendant No. 1 did not come for registration of the sale deed. Subsequently, on 15.7.1997, defendant No. 1 executed sale deed regarding the suit property in favour of defendant No. 2 for a sale consideration of Rs. 27,500/- only. Hence, a suit for specific performance was filed by the plaintiff. 3. Defendant No. 1 contested the suit while denying execution of the agreement as well as receipt of the earnest money. He also took the plea that the plaintiff was not ready and willing to perform his part of the contract. Defendant No. 2 contested the suit on the ground that he is a bona fide purchaser of the suit property. 4. The trial court decreed the suit of the plaintiff while holding that the plaintiff has proved the execution of the agreement as well as the payment of earnest money. It was also held that he was ready and willing to perform his part of the contract. It was further held that defendant No. 2 has failed to prove that he is a bona fide purchaser of the suit property without notice of the previous agreement. Against the judgment and decree of the trial court, defendant No. 1 did not file any appeal. It was further held that defendant No. 2 has failed to prove that he is a bona fide purchaser of the suit property without notice of the previous agreement. Against the judgment and decree of the trial court, defendant No. 1 did not file any appeal. However, defendant No. 2 filed appeal raising the argument that he is a bona fide purchaser and the suit has been wrongly decreed by the trial court. His appeal has been dismissed by the first appellate court, against which the instant Regular Second Appeal has been filed by him. 5. Learned counsel for the appellant submits that the appellant is a bona fide purchaser and the courts below have recorded a wrong finding of fact that he has failed to prove the factum of his bona fide purchaser without notice. He further submits that the plaintiff was not ready and willing to perform his part of the agreement and this is clear from the fact that the plaintiff filed the suit at the fag end of the limitation. While relying upon the decision of the Honble Apex Court in K.S. Vidyanadam v. Vairavan, 1997(2) RCR (Civil) 312, he submits that in such a situation, suit for specific performance of the agreement could not have been decreed. 6. After hearing counsel for the appellant and going through the impugned judgments and decree, I do not find any substance in this appeal. Undisputedly, the plaintiff had agreed to purchase the suit property for a consideration of Rs. 1,75,000/-, out of which Rs. 1,50,000/- were paid as earnest money. Only Rs. 25,000/- were to be paid on 11.6.1996, when the sale deed was to be executed and registered. The plaintiff has proved on record that on the said date, he was present in the office of Sub Registrar and also made an application, but defendant No. 1 did not come present for registration of the sale deed. Defendant No. 1 has denied the execution of the agreement as well as receipt of the earnest money, but both the Courts below have found as a fact that the said agreement was executed by defendant No. 1 after receipt of the earnest money. Undisputedly, the appellant-defendant No. 2 has purchased the suit property from defendant No. 1 for a consideration of Rs. 27,500/- only. Undisputedly, the appellant-defendant No. 2 has purchased the suit property from defendant No. 1 for a consideration of Rs. 27,500/- only. No reason has been explained as to why the suit property was sold for this meager amount, when defendant No. 1 had agreed to sell the same for a consideration of Rs. 1,75,000/-. Admittedly, in this case, defendant No. 1 has not appeared in the witness box. The burden to prove that defendant No. 2 is a bona fide purchaser lies on him. The courts below have recorded a finding that defendant No. 2 has failed to prove that the aforesaid sale deed was executed for consideration. It has been found that from the perusal of the sale deed, it is apparent that no amount was paid before the Sub-Registrar. In view of these facts and circumstances, I am of the opinion that the Courts below have rightly decreed the suit of the plaintiff for specific performance. The suit was filed by the plaintiff within limitation. Merely because it was filed at the fag end of the limitation, the relief of specific performance cannot be denied to the plaintiff, particularly when it has been found that he was ready and willing to perform his part of the agreement. In this case, defendant No. 1 has already sold the land, therefore, if the suit has been filed at the fag end of the limitation, it does not make any difference. In the facts and circumstances of the case, the principle laid down by the Honble Apex Court in K.S. Vidyanadams case (supra), relied upon by counsel for the appellant, is not applicable. In that case, it has been held that it will be inequitable to give relief of specific performance in a case where the vendee woke up after 2 years to claim specific performance, as the plaintiff himself performed his part of the contract within a reasonable time and the reasonable time has to be determined keeping in view the facts and circumstances of each case. In the instant case, since defendant No. 1 has already sold the suit property to defendant No. 2, therefore, in my opinion, it cannot be said that the plaintiff has not approached the court within a reasonable time for the relief of specific performance. 7. In view of the above, I do not find any merit in the instant appeal. In the instant case, since defendant No. 1 has already sold the suit property to defendant No. 2, therefore, in my opinion, it cannot be said that the plaintiff has not approached the court within a reasonable time for the relief of specific performance. 7. In view of the above, I do not find any merit in the instant appeal. No substantial question of law is involved in this appeal. 8. Dismissed. Appeal dismissed.