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2008 DIGILAW 891 (PNJ)

Dalip Kaur v. Zora Singh

2008-04-21

JASWANT SINGH

body2008
Judgment Jaswant Singh, J. 1. Application allowed. Substantial questions of law are taken on record. 2. The present Regular Second Appeal has been filed by defendant No. 2- appellant-Dalip Kaur (since deceased and represented by the Legal Representatives) against Zora Singh- plaintiff- respondent No. 1 (since deceased and represented by his Legal Representatives) for setting aside the impugned judgments and decrees dated 26.9.1981 and 10.8.1993 passed by the learned Sub-Judge 1st Class, Moga and learned Additional District Judge, Faridkot respectively. 3. Facts giving rise to the matter in controversy are that defendant No. 1 respondent No. 2-Kikar Dass was owner in possession of land comprised in Khasra No. 300/14 (8-0), 17(8-0), 18(8-0), 23(8-0) and 24(8-0) measuring 40 kanals, situated in Village Charik, Tehsil Moga. He executed an agreement to sell dated 20.7.1977 in favour of plaintiff-respondent No. 1 - Zora Singh for a sale consideration of Rs. 45,500/- regarding the above said land and received earnest money of Rs. 7500/- in cash. Sale deed was to be executed on or before 10.6.1978.Sale expenses were to be borne by the plaintiff-Zora Singh. It was agreed between the parties that in case of default on the part of defendant No. 1 -respondent No. 2 Kikar Dass, he would be liable to pay Rs. 15,000/- in addition to the right of the plaintiff respondent No. 1-Zora Singh to get the sale deed executed through court. It is further alleged by the plaintiff-respondent No. 1-Zora Singh that the suit land was earlier mortgaged with him alongwith his brothers for an amount of Rs. 27,000/- and they were in possession of the land in dispute. It is further alleged that the plaintiff- respondent No. 1-Zora Singh has been and is still willing and ready to perform his part of the agreement but defendant No. 1-respondent No. 2-Kikar Dass has refused to admit plaintiffs claim to execute the sale deed despite notice. It is further alleged that sale deed dated 14.6.1979 has-been executed by defendant No. 1 -respondent No. 2-Kikar Dass in favour of defendant No.2- appellant Dalip Kaur for a sale consideration of Rs. 35,000/-. It is further alleged that sale deed dated 14.6.1979 has-been executed by defendant No. 1 -respondent No. 2-Kikar Dass in favour of defendant No.2- appellant Dalip Kaur for a sale consideration of Rs. 35,000/-. It is in these circumstances that plaintiff-respondent No. 1-Zora Singh filed a suit for proprietary possession by way of specific performance of contract dated 20.7.1977 of the land in dispute described in the head note of the plaint, as per jamabandi for the year 1967-68 of Village Charik, Tehsil Moga on payment of Rs. 45,500/- less Rs. 27,000/- mortgage amount already paid and Rs. 7500/- being the earnest money already paid i.e. balance amount of Rs. 11000/- or in the alternative suit for recovery of Rs. 15,000/- as damages or any other relief as the court may deem fit. 4. Defendant No. 1-Kikar Dass filed written statement and denied the factum of execution of agreement and receipt of earnest money. It was further pleaded that in fact the plaintiff had expressed his inability to get the sale deed executed and pay the balance sale consideration and therefore, he was free to sell suit land to anybody else. He also raised the objection that the suit has not been properly valued and the same was liable to be dismissed as the plaintiff-respondent No. 1 has not sued for possession by way of specific performance and further plaintiff-respondent No. 1 backed out from the agreement and was estopped by his act and conduct. 5. Defendant No. 1 - Kikar Dass, however, admitted that suit land is under mortgage for Rs. 27,000/- with the plaintiff and his brothers. 6. Defendant No. 2-Dalip Kaur also filed separate written statement and denied the mortgage and agreement to sell set up by the plaintiff. She further pleaded that she purchased the suit land from defendant No. 1-Kikars Dass for sale consideration of Rs. 35,000/- vide sale deed dated 14.6.1979 and being a bona fide purchaser was protected under the law. Other objection raised by defendant No. 1-Kikar Dass were also raised by her. On the pleadings of the parties the following issues were framed by the learned trial court on 6.12.1979:- "1. Whether defendant No. 1 executed an agreement for sale dated 20.7.1979 in favour of the plaintiff? OPP. 2. Whether defendant No. 2 is a bonafide purchaser without notice and for consideration? OPD. 3. On the pleadings of the parties the following issues were framed by the learned trial court on 6.12.1979:- "1. Whether defendant No. 1 executed an agreement for sale dated 20.7.1979 in favour of the plaintiff? OPP. 2. Whether defendant No. 2 is a bonafide purchaser without notice and for consideration? OPD. 3. Whether plaintiff was ready and willing and is even now ready and willing to perform his part of the contract ? OPP. 4. Whether the plaintiff himself resiled from the contract as alleged in the WS ? OPD. 5. To what amount is the plaintiff entitled to recover in the alternative ? OPP. 6. Relief." 7. Learned trial court decided issue No. 1 in favour of plaintiff respondent No. 1-Zora Singh and issue No. 2 against defendant No. 2 appellant-Dalip Kaur and gave finding that she was not a bona fide Purchaser. Issue Nos. 3 and 4 were decided together. Issue No. 3 was decided in favour of plaintiff- respondent No. 1-Zora Singh and issue No. 4 was decided against defendant No. 1 - respondent No. 2-Kikar Dass. On issue No. 5 findings were recorded that in case the relief for specific performance of agreement to sell is not decreed, plaintiff would be entitled to the stipulated amount of damages and refund of earnest money. Accordingly, under issue No. 6 regarding relief, the suit was decreed with costs in favour of the plaintiff and against defendants for proprietary possession of the suit land by specific performance of the contract on payment of Rs. 11,000/- by the plaintiff-respondent No. 1- Zora Singh to defendantNo. 1-respondent No. 2- Kikar Dass i.e. agreed sale price minus mortgage amount and minus earnest money. Appellant-defendant No. 2-Dalip Kaur was also directed to join in the execution of the sale deed. Plaintiff respondent No. 1 Zora Singh was granted two months time for the payment of the aforesaid balance amount by the learned trial court vide judgment and decree dated 26.9.1981. 8. Aggrieved against the judgment and decree passed by the Sub Judge 1st Class, Moga, defendant No. 2-Dalip Kaur filed an appeal but the same was dismissed vide judgment and decree dated 10.8.1983 and judgment and decree of the trial court was affirmed. It is in these circumstances that present Regular Second Appeal was filed by defendant No. 2-appellant Dalip Kaur. 9. It is in these circumstances that present Regular Second Appeal was filed by defendant No. 2-appellant Dalip Kaur. 9. Record reveals that appeal was admitted on 20.2.1984 and execution of the judgements and decrees was stayed till further orders. 10. I have heard learned counsel for the parties and perused the record. The appellant has framed the following substantial questions of law :- "1. Whether the appellant is a bona fide purchaser for valuable consideration without notice ? 2. Whether in the circumstances of the case plaintiff is entitled for relief of specific performance ? 3. Whether the suit for specific performance can be decreed if the plaintiff is not proved, ready and willing to perform his part of contract ? 4. Whether the suit for specific performance can be decreed if plaintiff himself resiled from the contract ? 5. Whether the provisions under Order 41 Rule 33 CPC can be invoked if the party to the suit has not filed any appeal ?" 11. So far as substantial questions of law at Sr. No. 1 is concerned, specific issue No. 2 was framed by the learned trial court, as reproduced hereinabove and a categoric and definite finding was given by the trial court that defendant No. 2- Dalip Kaur appellant is not a bonafide purchaser without notice. This finding has been affirmed by the learned first appellate court. Perusal of the record reveals that defendant No. 2-appellant- Dalip Kaur has not herself stepped into the witness box rather her husband Angrez Singh appeared as DW4 and he admitted that the suit land is under mortgage with the plaintiff-respondent No. 1-Zora Singh alongwith his brothers for an amount of Rs. 27,000/- and the land in dispute is in possession of Zora Singh. He has further admitted that he is not attorney of his wife Dalip Kaur- defendant No. 2. Further PW5 Sunder Dass and PW6 Sohan Singh both residents of village Charik have deposed that before defendant No. 2-Dalip Kaur purchased the suit land from defendant No. 1-Kikar Dass they had told her and made her aware about the agreement to sell with plaintiff respondent No. 1-Zora Singh by defendant No. 1- respondent No. 2-Kikar Dass. PW5 Sunder Dass is the real brother of defendant No. 1 -respondent No. 2-Kikar Dass. Jamabandi for the year 1972 73 Ex. PW5 Sunder Dass is the real brother of defendant No. 1 -respondent No. 2-Kikar Dass. Jamabandi for the year 1972 73 Ex. P5 contains the entry to the effect that the suit land is under mortgage with Zora Singh, plaintiff, his brothers Sadhu Singh, Nachhatar Singh and Bachittar Singh. Moreover the agreement to sell is dated 20.7.1977 in favour of plaintiff-respondent No. 1-Zora Singh by defendant No. 1- respondent No. 2-Kikar Dass for sale consideration of Rs. 45,000/- whereas the sale deed dated 14.6.1979 executed by defendant No. 1-respondent No. 2- Kikar Dass in favour of defendant No. 2-appellant-Dalip Kaur is for a sale consideration of Rs. 35,000/- only i.e. for a lesser amount and after a period of approximately two years. 12. Therefore, both the courts below have rightly recorded the finding- that despite the entry of mortgage in the jamabandi for the year 1972-73 (Ex.P5) in favour of plaintiff and his brothers, defendant No. 2-appellant- Dalip Kaur purchased the land in dispute without making any enquiry and she has not acted with due care and caution before purchasing the land from defendant No. 1- Kikar Dass. Still further, findings recorded by both the courts below are perfectly legal to the effect that prices of the land are escalating day by day and earlier the defendant No. 1- Kikar Dass had entered into an agreement to sell for Rs. 45,500/- and subsequently entered into a sale deed for an amount of Rs. 35,000/- in favour of defendant No. 2-Dalip Kaur, appellant, which does not seem to be with bona fide intention as the consideration was not adequate, therefore, it shows lack of bona fide. 13. There is another aspect of the case. Defendant No. 2-appellant- Dalip Kaur has not appeared into witness box to depose that she was not aware about the agreement to sell dated 20.7.1977 in favour of plaintiff-respondent No. 1 -Zora Singh and she was a bona fide purchaser. Moreover, her husband Angrez Singh DW4 has admitted that land in dispute was in possession of the plaintiff and mortgaged with the plaintiff and his brothers for a sum of Rs. 27,000/-. It is also not in dispute that Angrez Singh DW-4, her husband is/was not authorised general/special power of attorney of defendant No. 2-Dalip Kaur. Moreover, her husband Angrez Singh DW4 has admitted that land in dispute was in possession of the plaintiff and mortgaged with the plaintiff and his brothers for a sum of Rs. 27,000/-. It is also not in dispute that Angrez Singh DW-4, her husband is/was not authorised general/special power of attorney of defendant No. 2-Dalip Kaur. No evidence has been led by her that any inquiry was made as to whether defendant No. 1- respondent No. 2-Kikar Dass had already agreed to sell the land in dispute to anybody else. It is for the vendee to prove that he/she has no knowledge of the prior agreement to sell by vendor. More over, vendee was bound to make an inquiry that vendor Kikar Dass was not in possession of the immovable property. Defendant No. 2-Dalip Kaur and plaintiff-Zora Singh are residents of same patti in village and therefore, the onus to prove that she had no notice of the prior agreement to sell in favour of the plaintiff Zora Singh, was on vendee defendant No. 2-Dalip Kaur-appellant and not on the plaintiff respondent No. 1- Zora Singh. This onus has not been discharged by defendant No. 2-appellant-Dalip Kaur. Still further from the facts it is clear that there is an unusual haste in executing the sale deed dated 14.6.1979, by defendant No. 1 - respondent No. 2-Kikar Dass in favour of defendant No. 2 - appellant-Dalip Kaur. Initial agreement to sell dated 20.7.1977 was executed by defendant No. 1-respondent No. 2-Kikar Dass in favour of plaintiff- respondent No. 1-Zora Singh and sale deed was to be executed on or before 10.6.1978, but no agreement to sell was executed between defendant No. 1- respondent No. 2-Kikar Dass and defendant No. 2 appellant-Dalip Kaur and straightaway sale deed dated 14.6.1979 was executed. Therefore, the findings recorded by the courts below are perfectly legal and justified to infer that this transaction was brought about in haste by defendant No. 1-respondent No. 2-Kikar Dass in favour of defendant No. 2-appellant- Dalip Kaur and without any bona fide intention. 14. With regard to substantial questions of law at Sr. No. 2 to 4 above, finding was recorded on issue Nos. 14. With regard to substantial questions of law at Sr. No. 2 to 4 above, finding was recorded on issue Nos. 1, 3 and 4 to the effect that defendant No. 1-Kikar Dass had executed an agreement to sell dated 20.7.1977 in favour of plaintiff-respondent No. 1-Zora Singh, who was ready and willing to perform his part of the contract and it is defendant No. 1 -respondent No. 2 - Kikar Dass who has failed to perform his part of the contract to execute the sale deed, therefore, plaintiff respondent No. 1-Zora Singh is entitled for relief of the specific performance. 15. As regards substantial question of law at Sr. No. 5 above, is concerned, the same is not relevant and necessary to be decided that whether the provisions under Order 41 rule CPC can be involved if the party to the suit has not filed any appeal. 16. Keeping in view the facts and circumstances discussed hereinabove, no question of law, much less substantial question of law arises for determination in this Regular Second Appeal. Accordingly, the judgments and decrees passed by the courts below are upheld and the appeal is dismissed with no order as to costs.