Research › Search › Judgment

Punjab High Court · body

2012 DIGILAW 1439 (PNJ)

Nirmala Devi v. Jeet Singh

2012-10-09

L.N.MITTAL

body2012
JUDGMENT Mr. L.N. Mittal, J.: (Oral) - C.M. No. 11973-C of 2012 : 1. For reasons mentioned in the application, which is accompanied by affidavit, delay of six days in filing the appeal is condoned. The application stands allowed accordingly. C.M. No. 11974-C of 2012 : 2. Allowed as prayed for. C. M. No. 11975-C of 2012 : 3. Allowed as prayed for. Main Appeal : 4. Legal representatives of defendants no.2 and 3, having lost in both the courts below, are in second appeal. 5. Suit was filed by respondent no.1-plaintiff Jeet Singh against proforma respondents no.3 and 4 as defendants no.1 and 4, against predecessors of appellants as defendants no.2 and 3 and against respondent no.2 Darshan Kaur as defendant no.5. Defendants no.1 to 4 (including predecessors of the appellants) were impleaded being legal heirs of Rachna Ram (since deceased). 6. Case of the plaintiff is that Rachna Ram agreed to sell the suit land measuring 08 bighas to the plaintiff for Rs.4 lacs and received Rs.3,75,000/- as earnest money and executed agreement dated 04.05.1999 and also delivered possession of the suit land to the plaintiff. Sale deed was to be executed up to 15.06.2000. Rachna Ram died about 8-9 months prior to the filing of the instant suit, which was filed on 26.07.2000 i.e. died before the date stipulated in the agreement for execution of the sale deed. Defendants no.1 to 4 inherited the suit land as legal heirs of Rachna Ram. They started negotiating for alienating the suit land to strangers. The plaintiff, therefore, filed suit on 07.02.2000 for permanent injunction restraining them from alienating the suit land to anybody else. During pendency of the said suit, defendants no.1 to 4 sold the suit land to defendant no.5 vide sale deed dated 23.05.2000. Consequently, the plaintiff withdrew the injunction suit on 24.07.2000 and filed the instant suit on 26.07.2000 seeking specific performance of the impugned agreement. It was pleaded that defendant no.5 also had knowledge of the impugned agreement and is, therefore, bound by the same. Moreover, sale deed in favour of defendant no.5 is also hit by doctrine of lis pendens having been executed during pendency of the injunction suit. The plaintiff alleged that he was always ready and willing to perform his part of the contract, but the defendants committed breach thereof. 7. Moreover, sale deed in favour of defendant no.5 is also hit by doctrine of lis pendens having been executed during pendency of the injunction suit. The plaintiff alleged that he was always ready and willing to perform his part of the contract, but the defendants committed breach thereof. 7. Defendants no.1 to 4 appeared in the trial court, but did not file any written statement, and therefore, their defence was struck off. 8. Defendant no.5 contested the suit and broadly controverted the plaint averments. It was denied that Rachna Ram agreed to sell the suit land to the plaintiff and executed agreement dated 04.05.1999. It was pleaded that defendant no.5 is bona fide purchaser of the suit land for valuable consideration from defendants no.1 to 4 without knowledge of the alleged agreement as well as of the injunction suit. Sale deed of the suit land in favour of defendant no.5 executed by defendants no.1 to 4 is legal and valid. 9. Both the courts below have decreed the plaintiff’s suit. Feeling aggrieved, legal representatives of defendants no.2 and 3 have filed this second appeal. 10. I have heard counsel for the appellants and perused the case file. 11. As noticed herein before, defence of predecessors of the appellants was struck off, as they did not file written statement. Thus, plaintiff’s version and evidence stands unrebutted qua the appellants. Even otherwise, the plaintiff has led cogent evidence to prove his case. He has examined both the attesting witnesses as well as Scribe of the agreement, besides himself stepping into the witness-box. All of them have stated according to the plaintiff’s version. There is practically no rebuttal of the said cogent evidence led by the plaintiff. Only husband and attorney of defendant no.5 – subsequent vendee appeared in the witness box, but obviously he could have no knowledge of the facts leading to the execution of the impugned agreement. None of defendants no.1 to 4 appeared as witness. Thus, suit of the plaintiff has been rightly decreed. There is nothing on record to disbelieve the cogent evidence led by the plaintiff. 12. Sale in favour of defendant no.5 was made during pendency of the injunction suit and is, therefore, hit by doctrine of lis pendens. None of defendants no.1 to 4 appeared as witness. Thus, suit of the plaintiff has been rightly decreed. There is nothing on record to disbelieve the cogent evidence led by the plaintiff. 12. Sale in favour of defendant no.5 was made during pendency of the injunction suit and is, therefore, hit by doctrine of lis pendens. Even otherwise, defendant no.5 cannot be said to be bona fide purchaser of the suit land because all the parties belong to the same village, which is a small village. Consequently, defendant no.5 could not be unaware of the impugned agreement or the injunction suit, which had already been filed by the plaintiff against defendants no.1 to 4. Defendant no.5 himself has also not stepped into the witness-box to deny the said knowledge. Moreover, possession of the suit land had also been delivered to the plaintiff, and therefore, without inquiring the right, title or interest of the plaintiff, defendant no.5 could not have purchased the suit land and thus, defendant no.5 cannot be said to be bona fide purchaser of the suit land. It may also be added that according to the impugned agreement dated 04.05.1999, the sale consideration was Rs.4 lacs. After one year, when the prices must have escalated further, defendant no.5 purchased the suit land for Rs.3,84,000/- i.e. for lesser amount than the sale consideration mentioned in the impugned agreement. It is thus manifest that defendant no.5 is not bona fide purchaser of the suit land. 13. Counsel for the appellants pointed out that defendants no.2 and 3 – predecessors of the appellants had died during pendency of the suit, but their legal representatives were not impleaded in the trial court, and therefore, the suit could not have been decreed against them. The contention cannot be accepted in view of amendment of Rules 3 and 4 of Order 22 of the Code of Civil Procedure, made by this Court. By aforesaid amendment, it has been provided that even if application for impleading legal representatives of a deceased plaintiff or a deceased defendant is not made, the suit shall not abate and notwithstanding the death, the suit may be decided and the judgment shall have the same effect as if it had been pronounced before the death took place. In view of this legal position, the aforesaid contention advanced by counsel for the appellants cannot be accepted. 14. In view of this legal position, the aforesaid contention advanced by counsel for the appellants cannot be accepted. 14. Counsel for the appellants also contended that their predecessors had no right to alienate the suit land being coparcenary property. The contention is completely beyond pleadings and material on record. Moreover, sale deed executed by defendants no.1 to 4 in favour of defendant no.5 is not under challenge in this suit on this ground, but is under challenge at the hands of the plaintiff on the ground that defendant no.5 – subsequent vendee is also bound by the impugned agreement. 15. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for adjudication in this second appeal. The appeal is accordingly dismissed in limine.