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2008 DIGILAW 709 (PNJ)

Bhuru alias Bhura Ram v. Sube Singh

2008-03-17

RAKESH KUMAR JAIN

body2008
JUDGMENT Rakesh Kumar Jain, J.:-The plaintiff is in Second Appeal. Plaintiff and Defendant no.1 are real brothers entered into an Agreement to Sell dated 19-08-1982, in respect of 31 kanal 10 marlas of land, for a consideration of Rs.22,000/- per acre and received Rs.17,500/- towards earnest money. The sale deed was proposed to be executed by 10-01-1983. Just after about a month of the aforesaid Agreement, defendant No.1 clandestinely sold 13 kanals of land out of 31 kanals 10 marlas abovestated to defendants No.2 and 3, vide Sale Deed dated 14-09-1982, for a consideration of Rs.47,750/- and kept on postponing the execution of the Sale Deed in favour of plaintiff which led to the filing of the present suit for specific performance of agreement to sell dated 19-08-1982. The suit was contested by defendants No.1, 2 and 3 by filing separate written statements. Defendant no.1 denied the agreement, whereas, defendants No.2 and 3 claimed a protection of bonafide purchasers of the suit land, without notice of the agreement to sell. The plaintiff filed replication, controverting the pleas taken by the defendants and reiterated the contentions of the plaint. 2. On the respective pleading of the parties, following issues were framed on 04-10-1985 :- 1. Whether the plaintiff and defendant No.1 had entered into an agreement to sell as alleged? OPP 2. Whether the plaintiff has been always ready and willing to perform his part of obligation as alleged ? OPP 3. If issue No.1 is proved in affirmative, whether the agreement is not enforceable? OPD. 4. Whether the suit is not maintainable in the present form ? OPD. 5. Whether the suit is time barred? OPD. 6. Whether the plaintiff is estopped from filing the present suit by his own act and conduct ? OPD. 7. Whether the suit is not properly valued for purposes of court fee & jurisdiction ? If so what is the correct valuation ? OPD. 8. Whether the sale dated 14.09.1982 in favour of the defendants No.2 and 3 is valid? OPD-1. 9. Whether the suit is collusive, fraudulent and malicious and filed at the instance of defendant No.1? OPD 2-3. 10. Whether defendants No.2 and 3 are bonafide purchasers of the suit land, as alleged?OPD 2-3. 11. Whether the defendants are entitled to special costs u/s 35-A CPC? OPD. 12. Relief. 3. Both, plaintiff and defendants, led oral as well as documentary evidence. OPD 2-3. 10. Whether defendants No.2 and 3 are bonafide purchasers of the suit land, as alleged?OPD 2-3. 11. Whether the defendants are entitled to special costs u/s 35-A CPC? OPD. 12. Relief. 3. Both, plaintiff and defendants, led oral as well as documentary evidence. The trial Court decreed the suit of the plaintiff, holding that Agreement (exhibit P-1) has been validly executed. The plaintiff was and is still ready and willing to perform his part of contract and the agreement is enforceable in accordance with law. It was further held that defendants No.2 and 3 have not been able to prove that they are bonafide purchasers of the suit land, failed to bring on the record that they had no information or notice of the execution of the Agreement (exhibit P1). The trial Court, thus decreed the suit for specific performance in favour of the plaintiff. 4. Both, vendor Babu Ram and the subsequent vendees from him, came up in the first Appeal. The First Appellate Court found that both, plaintiff and defendant No.1, are the real brothers and co-owners in joint holding and the agreement (exhibit P-1) was found to have been executed by defendant No.1. However, on the issue of bonafide purchaser pertaining to defendants No.2 and 3, the First Appellate Court has found that once Sube Singh, transferee (DW3) has stated that he had no notice of any such agreement to Sell between Babu Ram and the plaintiff, it was for the plaintiff to prove by producing evidence that he had the knowledge. It was also observed that the time gap between the two transactions was too short that there was no chance for the vendees for gaining knowledge of the earlier agreement. On the basis of these findings, defendants No.2 and 3 were held to be bonafide purchasers. However, the First Appellate Court had found that both the plaintiff and defendant No.1 were co-owners to the extent of land measuring 186 kanals 13 marlas as per jamabandi for the year 1984-85 (exhibit PX) therefore even after the sale of an area measuring 13 kanals in favour of defendants No.2 and 3, the defendant No.1 was still joint owner of area measuring 33 kanals 13 marlas, out of which, he could have easily transferred 31 kanals 10 marls to the plaintiff on the basis of agreement to Sell dated 19-08-1982. 5. 5. On the basis of this finding, the first appellate Court partly allowed the appeal by up-holding the sale in favour of defendants No.2 and 3 and directing the defendant No.1 to execute the sale deed transferring his proprietary and possessory rights in an area measuring 31 kanals 10 marlas, out of his share in the joint holding, recorded in the Jamabandi for the year 1984-85 (exhibit PX) within a period of two months in favour of the plaintiff or else the plaintiff would be able to seek specific performance thereof through the agency of the Court. 6. Shri Aman Jain, Advocate for the appellant, has argued that the finding recorded by the First Appellate Court are conjectural and not based on appreciation of evidence on record. He has referred to the following question of law, which has been framed by him on 22-02-2008 : 1. Whether the plaintiff was entitled to grant of specific performance of the contract, once findings regarding execution of agreement and readiness and willing was recorded in his favour? 2. Whether findings recorded by First Appellate Court regarding bonafide of subsequent transferee are vitiated on account of misreading of oral and documentary evidence on record? 3. Whether the First Appellate Court was justified in reversing the finding regarding bonafide transfer without meeting with the reasonings given by Trial Court?” 7. The counsel for the appellant has referred to the statement of DW3 Sube Singh, subsequent purchaser, who had categorically stated in cross examination that he had not enquired from defendant No.1 as to whether he had en tered into any Agreement to Sell in respect of the land in question. It has been further argued by counsel for the appellant that all the parties are from the same village Baras. The time gap between the two dates of Agreement to Sell in favour of the plaintiff and Sale in favour of Defendants no.2 and 3 by defendant No.1 is very short, as the sale deed has been executed just 25 days after the Agreement to Sell dated 19-08-1982 and because of this haste and other circumstances, it can be safely concluded that the vendees had notice of the previous agreement to sell. Counsel for the appellant has relied upon the decision of this Court in the case of Nirmal Singh (died) and others v. Smt. Gejo and another (1997) Vol.1 P.L.R. 301. Counsel for the appellant has relied upon the decision of this Court in the case of Nirmal Singh (died) and others v. Smt. Gejo and another (1997) Vol.1 P.L.R. 301. Counsel for the appellant has further argued that the findings recorded by the First Appellate Court to the effect that once the defendant has denied having notice of the Agreement by the vendor with the prospective vendee, it was for the plaintiff to have led evidence to prove the knowledge of the subsequent transferee about the agreement, is incorrect and has relied upon the decision rendered by the Division Bench of this Court in the case of Gurmukh Singh, Vir Singh and others v. Sohan Singh, Bela Singh and another, AIR 1963, Punjab 470. He has further attacked the finding of the First Appellate Court on the ground that since all the parties to the dispute are residents of the same village, it was not probable that the subsequent transferees could not have come to know about the execution of the Agreement to Sell between plaintiff and defendant No.1. In this regard, he has relied upon theand judgment of this Court in decision of the Apex Court in the case of Dr. Govinddas and another vs. Shrimati Shantibai and others (1972) 74 PLR, 227 Balwan Singh and others v. Mange Ram and others (2003-2) Vol. CXXXIV PLR 762. 8. No one has put in appearance on behalf of the respondents. 9. I have heard learned counsel for the appellant and perused the record. The only issue that has been raised by learned counsel for the appellant, is against the findings of the First Appellate Court, whereby, defendants No.2 and 3 have been held to be bonafide purchasers reversing the findings recorded by the trial Court . No doubt that both the Courts have held that the Agreement (exhibit P1) has been duly proved and the plaintiff is ready and willing to perform his part of the contract and the fact that defendant No.1 has clandestinely sold the property measuring 13 kanals out of the land which was agreed to be sold to the plaintiff measuring 31 kanals 10 marlas. 10. 10. The findings recorded by the First Appellate Court that once the subsequent purchaser asserts that they had no notice of such agreement then it was for the plaintiff to produce evidence is erroneous and unsustainable because mere denial by the tranferee that he had no notice of the previous contract for sale will not discharge the onus that is casted on them. The onus is always on the transferee to prove that they had no notice of prior agreement and that can only be discharged by leading cogent evidence. In this regard, the law laid down by the Division Bench in the case of Gurmukh Singh’s case (supra) is fully applicable to the facts of the case because when appearing as DW3, Sube Singh himself has admitted that before the sale, he had not enquired from defendant No.1 in respect of any previous agreement with anybody by him. Therefore, he has not discharged the burden which was rested upon him in respect of the notice. The other finding of the First Appellate Court that the time gap between the two transactions was too short that there was no chance to vendees for gaining knowledge of the earlier agreement is concerned, that too is erroneous, in view of the decision of the Apex Court in Dr. Gobind Dass case (supra). In that case, it was held that the unusual haste in which the contract was executed and got registered also shows that the parties had notice of the previous agreement. Moreover, it is an admitted fact that all the parties are from the same village. Therefore, in view of the law laid down by this court in Balwan Singh’s case (supra) and Nirmal Singh’s case (supra), where the parties belong to the small place then it is probable that they must have come to know about the prior agreement to sell of the disputed land. Thus, the finding recorded by the First Appellate Court in respect of Defendants no.2 and 3, being bonafide purchaser is ill founded, unsustainable and is thus reversed. Once, it is held that defendants No.2 and 3 are not bonafide purchaser, the judgment decree of the lower appellate court is set aside and that of the trial court is restored. The suit of the plaintiff is, thus, decreed as prayed for, with costs through out. ----------------