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2012 DIGILAW 216 (PNJ)

Jasvir Singh v. Gurpartap Singh

2012-02-06

TEJINDER SINGH DHINDSA

body2012
JUDGMENT Mr. Tejinder Singh Dhindsa, J.: - CM No.4655-C of 2011 This is an application for condonation of 10 days’ delay in refiling the appeal. 2. For the reasons stated in the application, which is duly supported by an affidavit, prayer made in the application is allowed and delay of 10 days in re-filing the appeal is condoned. 3. CM disposed of. RSA No.1680 of 2011 4. The defendant-appellants are in second appeal before this Court. 5. Briefly noticed, that the plaintiff filed a suit for possession by way of specific performance of agreement dated 21.3.2002. It was pleaded that defendant No.1 was the owner of the land in dispute measuring 6 Kanal 1 Marla (hereinafter to be referred as ‘the suit land’) and an agreement had been entered into in respect thereof in favour of the plaintiff for a total sale consideration of Rs.3.50 lacs. A sum of Rs.3.15 lacs had been paid as earnest money by the plaintiff and the last date for execution of the saledeed had been stipulated as 21.6.2002. It was pleaded that the plaintiff was always ready and willing to perform his part of contract but defendant No.1 fraudulently sold the suit land to defendants No.2 to 4 by registered saledeed dated 2.4.2002. Defendant No.1 thereupon had been proclaiming that he would not pay back any amount to the plaintiff nor would he be bound by the agreement dated 21.3.2002 and as such, the suit had been filed. 6. Upon notice, defendant No.1 did not put in appearance and he was, accordingly, proceeded exparte. Defendants No.2 to 4 filed written statement stating that the plaintiff had filed the suit in connivance with defendant No.1. It was stated that defendant No.1 had sold the suit land for a sale-consideration of Rs.2,65,000/- through a registered sale-deed dated 2.4.2002 in favour of defendants No.2 to 4 and thereby they were owners in possession of the suit land. The agreement dated 21.3.2002 between the plaintiff and defendant No.1 was denied and a plea of being bonafide purchasers was set up. 7. Upon the pleadings of the parties, following issues were framed by the trial Court: 1. Whether the plaintiff is entitled to specific performance of the agreement to sell dated 21.3.2002?OPP 2. Whether the sale deed dated 2.4.2002 executed by defendant No.1 in favour of defendants No.2 to 4 is wrong, illegal, null and void and without consideration? 7. Upon the pleadings of the parties, following issues were framed by the trial Court: 1. Whether the plaintiff is entitled to specific performance of the agreement to sell dated 21.3.2002?OPP 2. Whether the sale deed dated 2.4.2002 executed by defendant No.1 in favour of defendants No.2 to 4 is wrong, illegal, null and void and without consideration? OPP 3. Whether plaintiff is entitled for injunction as prayed for?OPP 4. Whether the plaintiff is entitled to recover the amount of Rs.3.50 lacs in alternative?OPP 4-A. Whether the defendants No.2 to 4 are bonafide purchaser for valuable consideration without notice? OPD 5. Whether plaintiff has got no locus standi to file the present suit? OPD 6. Whether plaintiff is barred by his own act and conduct from filing the present suit?OPD 7. Whether the suit is not properly valued for the purpose of court fee and jurisdiction?OPD 8. Relief. 8. The suit of the plaintiff was decreed for specific performance in respect of the suit land on the basis of agreement dated 21.3.2002 on payment of the balance sale-consideration and the sale-deed executed by defendant No.1 in favour of defendants No.2 to 4 on the basis of which, the mutations had been sanctioned, was declared null and void. 9. Aggrieved of the same, the defendant-appellants filed civil appeal and the Additional District Judge, Fast Track Court, Jalandhar vide judgment dated 9.9.2010 has upheld the judgment and decree passed by the trial Court and dismissed the appeal. 10. I have heard Mr. Kanwaljit Singh, Senior Advocate assisted by Mr. Sidharth Gupta, Advocate for the appellant. 11. It was vehemently argued by the learned Senior Counsel that the alleged agreement between Jasbir Singh son of Gurmukh Singh and the plaintiff-respondent is a result of fraud. It was further contended that the defendant-appellants had no knowledge of any such agreement. Learned counsel would contend that the defendant-appellants were bonafide purchasers of the suit property and the suit, in fact, was collusive in nature and had been filed on account of connivance between the plaintiff-respondent and Jasbir Singh son of Gurmukh Singh. It was further contended that the defendant-appellants had no knowledge of any such agreement. Learned counsel would contend that the defendant-appellants were bonafide purchasers of the suit property and the suit, in fact, was collusive in nature and had been filed on account of connivance between the plaintiff-respondent and Jasbir Singh son of Gurmukh Singh. Reliance was placed on a Single Bench judgment rendered by the Allahabad High Court reported as Ram Parkash v. Baddal Husain, AIR 2007 Allahabad 212 to contend that a suit for specific performance in favour of a prior purchaser could not be decreed if the subsequent transferee had no notice of the earlier agreement to sell. 12. I have given my thoughtful consideration to the submissions made by the learned senior counsel but find myself unable to agree with the same. The instant second appeal must fail for the reasons recorded hereinafter. 13. The plaintiff-respondent had instituted the suit for possession by way of specific performance of an agreement to sell dated 21.3.2002 regarding the suit property executed between Jasbir Singh son of Gurmukh Singh and the plaintiff. To prove the agreement, the plaintiff-respondent had himself stepped into the witness box as PW1 and had re-iterated the version set up in the plaint that is the total sale-consideration having been fixed at Rs.3.50 lacs, the suit property being land measuring 6 kanals 1 marla and the last date for execution of the sale-deed being fixed as 21.6.2002. PW2 Gulshan Lal, marginal witness of the agreement to sell was examined and he categorically stated on oath that on 21.3.2002, the plaintiff had entered into an agreement with defendant No.1, Jasbir Singh to sell the property measuring 6 kanals 1 marla situated at village Panjdhera, to Gurpartap Singh son of Bhan Singh i.e. the plaintiff-respondent for a total sale-consideration of Rs.3.50 lacs. He stated that the agreement to sell was executed on 21.3.2002 in the presence of Darshan Singh son of Milkha Singh. He further deposed that an amount of Rs.3.15 lacs had been paid by the plaintiff-respondent to defendant Jasbir Singh towards earnest money and such payment was also made in the presence of Darshan Singh. Even Darshan Singh, PW3, the other marginal witness was examined who deposed clearly and unambiguously on the same lines. Both, PW2 and PW3 i.e. the marginal witness, were subjected to cross-examination by the defendant-appellants but they stood by their testimony. Even Darshan Singh, PW3, the other marginal witness was examined who deposed clearly and unambiguously on the same lines. Both, PW2 and PW3 i.e. the marginal witness, were subjected to cross-examination by the defendant-appellants but they stood by their testimony. As such, both the Courts below had held the agreement to sell dated 21.3.2002 to be duly proved in accordance with law. 14. The submission with regard to such agreement to sell being a forged and fabricated document is without merit. Even though a bald assertion had been made that such agreement dated 21.3.2002 had been made by the plaintiff in connivance with defendant No.1 subsequent to the execution of the sale-deed dated 2.4.2002 in favour of the defendant-appellants, but no evidence was led towards substantiating such assertion. No finger and handwriting expert had been examined by the defendant-appellants to disprove the agreement to sell dated 21.3.2002. 15. Learned counsel has strenuously argued that the defendant-appellants were bonafide purchasers for valuable consideration and had no notice whatsoever regarding any agreement to sell between the plaintiff-respondent and the original owner i.e. Jasbir Singh son of Gurmukh Singh. Even such submission would not hold ground in the light of the testimony of DW2 Satinder Sharma. In his cross-examination, DW2 did not specifically deny the execution of the agreement to sell between the plaintiff-respondent and Jasbir Singh son of Gurmukh Singh, defendant No.1. On the other hand, he clearly stated that he knew Jasbir Singh and continued to enjoy cordial relation with them. DW2 even went to the extent of stating that he would produce Jasbir Singh, defendant No.1 as a witness on his behalf. However, Jasbir Singh son of Gurmukh Singh was not produced as a witness. DW2 clearly deposed that the suit property had been purchased vide sale-deed dated 2.4.2002 from Jasbir Singh son of Gurmukh Singh through his attorney Hira Singh son of Bishan Singh. Even aforementioned Hira Singh son of attorney of defendant No.1 was not produced. On such basis, both the Courts below have drawn an inference that the defendant-appellants were not bonafide purchasers and the Courts have also concluded that it cannot be held that they were not aware as regards the execution of the agreement to sell by defendant No.1 in favour of the plaintiff-respondent. 16. The conclusions drawn by the Courts below are based on due appreciation of evidence. 16. The conclusions drawn by the Courts below are based on due appreciation of evidence. There has been a cogent and valid reasoning for decreeing the suit for specific performance of the agreement dated 21.3.2002 in favour of the plaintiff-respondent with regard to the suit property. Learned counsel for the appellants has not been able to show as to how the findings of the Courts below suffer from any perversity. 17. The present second appeal does not raise any question of law, much less a substantial question of law. 18. The present appeal is wholly devoid of merit and is, accordingly, dismissed. 19. Appeal dismissed. ----------------