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2013 DIGILAW 550 (RAJ)

Lakhan Singh v. Ram Kumar

2013-03-07

BELA M.TRIVEDI

body2013
JUDGMENT BELA M TRIVEDI, J. 1. The present appeal arises out of the judgment and decree dated 15-1-03 passed by the Addl. District Judge No. 1, Bharatpur (hereinafter referred to as the trial Court) in Civil Suit No. 35/2000, whereby the trial Court has decreed the suit of the respondent No.1 plaintiff seeking specific performance of the agreement dated 21-11-97 against the respondent No. 2 and the appellants-defendants in respect of the suit property. 2. The case of the respondent No. 1 plaintiff before the Trial Court in nutshell was that the respondent No. 2 defendant No. 1 was the owner of the suit shop situated at the Circular Road, Bharatpur and that he had agreed to sell the said shop to the plaintiff by executing an agreement dated 21-11-97. According to the plaintiff, on the said date of execution of agreement, he had already paid Rs. 50,000/- out of Rs. 55,000/- towards sale consideration to the defendant No. 1 and the defendant No. 1 had agreed to execute the sale deed in respect of the said shop in favour of the plaintiff. Thereafter though the plaintiff had repeatedly requested to execute the sale-deed, the defendant No. 1 kept on avoiding to execute the same. The defendant No. 1 thereafter on 21-9-99 executed the sale-deed in respect of the said shop in favour of the respondent Nos. 2 and 3 i.e. the present appellants. The respondent No. 1-plaintiff, therefore, had filed the suit against the respondent No. 2 and the present appellants seeking specific performance of the said agreement dated 21-11-97 allegedly executed by the respondent No. 2. 3. The respondent No. 2 and the appellants-defendants had resisted the suit by filing the joint written statement denying the allegations made in the plaint and further contending inter alia that no such agreement was ever executed by the defendant No. 1 in favour of the plaintiff on 21-11-97 and that the suit shop was already sold out by the defendant No. 1 to the defendant Nos. 2 and 3. It was further contended that the plaintiff had misused the blank stamp paper, which was lost by the defendant No. 1 when he was going on scooter on 6-8-99, for which he had also lodged a complaint. In short the defendants had prayed to dismiss the suit of the plaintiff. 4. 2 and 3. It was further contended that the plaintiff had misused the blank stamp paper, which was lost by the defendant No. 1 when he was going on scooter on 6-8-99, for which he had also lodged a complaint. In short the defendants had prayed to dismiss the suit of the plaintiff. 4. The respondent No. 1 plaintiff examined three witnesses and produced documentary evidence in support of his case. The defendants examined two witnesses and also produced the documentary evidence in support of their defence. The trial Court after appreciating the evidence on record decreed the suit of the respondent-plaintiff vide the impugned judgment and decree dated 15-1-03, against which the present appeal has been filed. 5. The learned counsel Mr. G.P. Sharma for the appellants-defendant Nos. 2 and 3 submitted that though the defendant No. 1 Mukesh had sold out the suit shop to the present appellants on 21-9-99 i.e. prior to filing of the suit, the respondent-plaintiff had not prayed any relief for setting aside the sale-deed dated 21-9-99 executed in favour of the appellants. According to Mr. Shrama the appellants being the bona fide purchasers for value without notice, the specific performance of the agreement allegedly executed by the respondent No. 2, Mukesh could not have been enforced against the appellants in view of Section 19(b) of the Specific Relief Act, 1963 (hereinafter referred to as the said Act). He further submitted that the respondent No. 2 had specifically raised the contention in the written statement and also examined himself to prove that the blank stamp paper purchased by him was lost when he was going on his scooter and that the said stamp paper was misused by the respondent-plaintiff. Placing reliance on the decision of the Apex Court in case of Dattatraya v. Rangnath Gopalrao Kawathekar & Ors., AIR 1971 SC 2548 , Mr. Sharma submitted that when the alleged executant of the document pleads ignorance about the contents of the document, it is necessary for the party seeking to prove the document to satisfy the Court that the executant had the knowledge of its contents. According to him in the instant case the respondent-plaintiff having failed to prove the execution of the agreement in question, the trial Court had committed a serious error in decreeing the suit. 6. The learned senior counsel Mr. According to him in the instant case the respondent-plaintiff having failed to prove the execution of the agreement in question, the trial Court had committed a serious error in decreeing the suit. 6. The learned senior counsel Mr. Suresh Pareek, however vehemently submitted that the appellants who were the subsequent purchasers had not examined themselves before the trial Court to show that they were the bona fide purchasers for value without notice and, therefore, they could not claim the benefit of Section 19(b) of the said Act. Placing reliance on the decision of the Apex Court in the case of Surjit Kaur v. Naurata Singh & Anr. (2000) 7 SCC 379 : ( AIR 2000 SC 2927 ), he submitted that the burden of proof to prove that the purchasers had purchased the property in good faith was on the purchasers, which in the instant case the appellants had failed to discharge. He further submitted that the story of the respondent No. 2 defendant No. 1 that the blank stamp paper was misused by the plaintiff has rightly not been believed by the trial Court in view of the evidence led by the plaintiff. He further submitted that the executing Court had already executed the decree in question by getting the sale-deed registered in favour of the respondent-plaintiff on 15-9-05, as the order dated 4-1-05 passed by this Court directing the parties to maintain status-quo with regard to the property in dispute, was placed before the executing Court after the sale-deed was executed in favour of the plaintiff through the Court. However, since the possession of the suit premises was still with the appellants, the appellants, in defiance of the said order dated 4-1-05 passed by this Court, had executed one registered sale-deed in favour of one Ramesh Singh on 16-11-09 and, therefore, the appellants had rendered themselves liable for the contempt of Court. 7. At this juncture, it is required to be noted that during the course of arguments, it had transpired to the Court that the appellants, despite the order dated 4-1-05 passed by this Court directing the parties to maintain status-quo as regard the disputed property during the pendency of appeal, had sold out the suit shop by executing the registered sale-deed in favour of one Ramesh Singh on 16-11-05. The Court therefore vide order dated 30-1-13 had directed the appellants to remain present before the Court and to show cause as to why they should not be held guilty and be punished for committing the contempt of Court under the Contempt of Courts Act. In response to the said order, both the appellants had remained present before the Court on 18-2-13 and tendered an unconditional apology in writing through the learned senior counsel Mr. R.K. Agrawal. Since the said developments had taken place during the course of arguments of first appeal, the Court while recording the presence of the appellants and taking on record the unconditional apology had directed that the necessary orders with regard to the alleged contempt shall be passed alongwith the first appeal. 8. In the present appeal, the point that falls for consideration before this Court would be whether the trial Court had committed any error in decreeing the suit of the respondent No. 1 - plaintiff seeking specific performance of the agreement allegedly executed by the respondent No. 2 - defendant No. 1. In this regard, it is required to be noted that the appellants-the defendant Nos. 2 and 3 in the suit, were the subsequent purchasers who had purchased the suit property from the respondent No. 2-defendant No. 1 on 21-9-99, whereas the alleged agreement to sell the said suit property was executed by the respondent No. 2 in favour of the respondent No. 1 on 21-11-97. The respondent-plaintiff had filed the suit on 11-12-99 seeking specific performance of the said agreement against the respondent No. 2 as well as against the appellants. Though a contention was raised by the appellants in the suit that they were the subsequent purchasers for value without notice and, therefore, the agreement in question could not be specifically enforced against them in view of Section 19(b) of the said Act, the appellants had chosen not to examine themselves in the suit to prove the said contention. 9. At this juncture it is pertinent to reproduce the observations made by the Apex Court in case of R.K. Mohammed Ubaidullah v. Hajee C. Abdul Wahab & Ors., (2000) 6 SCC 402 : ( AIR 2001 SC 1658 ) relied upon by the learned counsel for the respondent with regard to the protection given to the purchaser in good faith for value without notice of the original contract. It has been observed in para 14 as under:- 14. Section 19 of the Specific Relief Act, 1963, to the extent it is relevant, reads:- 19. Relief against parties and persons claiming under them by subsequent title. Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against; (a) either party thereto; (b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract; (c) to (e) ................. As can be seen from Section 19(a) and (b) extracted above specific performance of a contract can be enforced against (a) either party thereto and (b) any person claiming under him by a title arising subsequent to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract. Section 19 (b) protects the bona fide purchaser in good faith for value without notice of the original contract. This protection is in the nature of exception to the general rule. Hence the onus of proof of good faith is on the purchaser who takes the plea that he is an innocent purchaser. Good faith is a question of fact to be considered and decided on the facts of each case. Section 52 of the Penal Code emphasizes due care and attention in relation to the good faith. In the General Clauses Act emphasis is laid on honesty. 10. Thus, in view of the above-stated legal position, it is for the purchaser to prove that he had purchased the property in good faith, for value and without the notice of the earlier contract. In the instant case, the appellants having failed to step into the witness box, had also failed to discharge their burden to prove that they had purchased the suit property from the respondent No. 2 in good faith and without notice of the agreement dated 21-11-97 executed by the respondent No. 2 in favour of the respondent No. 1. Under the circumstances, as rightly submitted by the learned senior counsel Mr. Pareek, the appellants could not claim the protection available under Section 19 (b) of the said Act. Under the circumstances, as rightly submitted by the learned senior counsel Mr. Pareek, the appellants could not claim the protection available under Section 19 (b) of the said Act. Further, as per Section 19 of the said Act, the agreement could be specifically enforced against either party thereto or against any other person claiming under them by title arising subsequently to the contract, and hence the suit was maintainable against the respondent No. 2 as well as against the appellants at the instance of the respondent No. 1-plaintiff seeking specific performance of the agreement in question, without seeking the relief for cancellation of the sale-deed executed by the respondent No. 2 in favour of the appellants subsequent to the said agreement. 11. So far as the execution of the agreement in question is concerned, though it was sought to be submitted by the learned counsel Mr. G.P. Sharma for the appellant that the respondent-plaintiff had misused the blank stamp paper lost by the respondent No. 2, the Court does not find any substance in the said submission. Apart from the fact that the respondent No. 2 has not chosen to file the appeal against the impugned decree, nor challenged the finding recorded by the trial Court disbelieving the said contention of the respondent No. 2, the respondent No. 1-plaintiff had duly proved the execution of the agreement in question by examining himself and other witnesses. The respondent-plaintiff stated about the execution and signature of the respondent No. 2 on the agreement in question. The respondent-plaintiff had also examined PW.2 Ramesh Chandra who had put his signature as the witness on the said agreement. He had also stated that the respondent No. 2 Mukesh had put his signature on the agreement in his presence after the writing thereon was completed. PW. 3 Mahipal had also stated inter alia that he had identified the respondent No. 2 after the execution of the said document and that he had not put his signature in that regard on the blank paper. Though the respondent No. 2 Defendant No.1 had stated in his evidence that he had lost the blank stamp paper on 6-8-99, he had admitted his signature on the said agreement Ex.1. Though the respondent No. 2 Defendant No.1 had stated in his evidence that he had lost the blank stamp paper on 6-8-99, he had admitted his signature on the said agreement Ex.1. The respondent No. 2 had failed to explain as to why a blank stamp paper purchased in 1997, with his signature thereon was not used till it was allegedly lost in August, 1999. The DW.2 examined by the respondent No. 2, though had tried to support the version of the respondent No. 2-defendant No. 1 that his blank stamp paper was lost when they were going on scooter, he had admitted in the cross-examination that he did not remember as to on which date the said stamp paper was purchased. He also admitted that it did not bear his signature or writing. Under the circumstances, the Court is of the opinion that there is no error committed by the trial Court in holding that the respondent No. 2-defendant No. 1 had executed the agreement in question in favour of the respondent No. 1-plaintiff and that the contention raised by the respondent No. 2 that the blank stamp paper was misused by the respondent No. 1 was not believable. 12. Apart from the fact that he had paid Rs. 50,000/- out of 55,000/- towards the sale consideration to the respondent No. 2, and that he was ready and willing to pay the balance amount of Rs. 5,000/-, as per the ratio of the decision laid down by the Apex Court in case of M.M.S. Investments, Madurai & Ors. v. V. Veerappan & Ors., AIR 2007 SC 2663 , when the defendant owner had subsequently sold out the suit property to the subsequent purchasers, the only issue which could be adjudicated in the suit would be whether the subsequent purchasers were the bona fide purchasers for value without notice or not, and that after the conveyance, the question of readiness and willingness of the plaintiff would not be relevant. As discussed hereinabove, the appellants had failed to prove that they had purchased the suit property in good faith and for value without notice of the earlier contract, as against that the respondent No. 1-plaintiff had duly proved the execution of the agreement in question. 13. As discussed hereinabove, the appellants had failed to prove that they had purchased the suit property in good faith and for value without notice of the earlier contract, as against that the respondent No. 1-plaintiff had duly proved the execution of the agreement in question. 13. In view of the above, the Court has no hesitation in holding that the trial Court had duly considered the evidence on record and rightly decreed the suit in favour of the respondent No. 1 plaintiff. The impugned decree therefore deserves to be confirmed. 14. In view of the above, the judgment and decree dated 15-1-03 passed by the trial Court is confirmed and the appeal is dismissed. FURTHER ORDER 15. In the instant appeal during the course of the final arguments, it had transpired to the Court that the appellants despite the order dated 4-1-05 passed by this Court directing the parties to maintain status quo as regards the disputed property during the pendency of appeal, had sold out the suit shop to one Shri Ramesh Singh by executing the registered sale-deed on 16-11-05. The copy of the said sale-deed has been produced on record by the respondent No. 1. The Court, therefore, had directed the appellants to remain present before the Court and to show- cause as to why they should not be held guilty and be punished for committing the contempt of Court under the contempt of Courts Act, as per the order dated 30-1-13. Accordingly, both the appellants had remained present before the Court on 18-2-13 and tendered as unconditional apology in writing. Since the said developments had taken place during the course of final arguments of the first appeal, the Court while recording the presence of the appellants and taking on record the unconditional apology had directed that necessary orders with regard to the alleged contempt shall be passed along with the first appeal. Today, the first appeal has already been dismissed by passing the separate order. 16. So far as the alleged contempt committed by the appellants is concerned, it transpires that by executing the sale-deed dated 16-11-2009 in favour of the third party Ramesh Singh, the appellants have willfully disobeyed the order dated 4-1-05 passed by this Court, tentamounting to the civil contempt under Section 2(6) of the Contempt of Courts Act. 16. So far as the alleged contempt committed by the appellants is concerned, it transpires that by executing the sale-deed dated 16-11-2009 in favour of the third party Ramesh Singh, the appellants have willfully disobeyed the order dated 4-1-05 passed by this Court, tentamounting to the civil contempt under Section 2(6) of the Contempt of Courts Act. The appellants, though have tendered an unconditional apology for committing such contempt, they have not purged the contempt by canceling the said sale-deed dated 16-11-09 executed by them in defiance of the order dated 4-1-05. Hence, before passing any final order on the acceptance or otherwise of the unconditional apology tendered by them, they are directed to purge the contempt by canceling the said sale-deed and handover the possession of the suit shop to the respondent No.1 before the next date. 17. It has further transpired from the record of the case that though the first appeal was preferred in March, 2003 challenging the impugned decree dated 15-1-03 passed by the trial Court, the appeal was not persuaded by the learned counsel appearing at that time for the appellants for almost two years, and that it was only on 4-1-05, the Court had passed the order admitting the appeal, issuing the notices to the respondents and called for the record of the case. By the said order the Court had also directed both the parties to maintain status quo in respect of the disputed property. However, despite the said order, neither the appellants nor their learned counsels bothered to serve the said order on the respondent No. 1 judgment creditor, who had already filed the Execution Petition being No. 4/03 before the Executing Court, nor did they bother to place the said order dated 4-1-05 on record before the Executing Court. The said order was placed before the Executing Court only on 26-11-05, as transpiring from the copies of the order-sheets produced by the respondent No. 1 along with the application being No. 1049/07 filed in the first appeal. In the meantime, the respondent No. 1 judgment creditor had already got the decree in question executed and also got the sale-deed executed on 15-9-05. The copy of the said sale-deed has also been filed by the respondent No. 1 along with the said application. 18. In the meantime, the respondent No. 1 judgment creditor had already got the decree in question executed and also got the sale-deed executed on 15-9-05. The copy of the said sale-deed has also been filed by the respondent No. 1 along with the said application. 18. Under the circumstances, the Court fails to understand as to how the sale-deed executed by the appellants in favour of one Shri Ramesh Singh could have been registered by the Sub-Registrar, Bharatpur on 16-11-09, when the sale-deed in respect of the disputed property was already executed in favour of the respondent No. 1 through the executing Court on 15-9-05, and registered before the same office of Sub-Registrar, Bharatpur. 19. Hence, let the notices be issued to the Registrar and Sub-Registrar, Bharatpur to remain personally present before this Court on 15-3-13 to explain the position. The office is directed to issue notices forthwith along with the copy of this order. The appellants shall also remain present on that date as directed above. Put up on 15-3-13. Order accordingly.