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2014 DIGILAW 1401 (PNJ)

Himanshu Jain v. Lalit Kumar

2014-10-09

REKHA MITTAL

body2014
JUDGMENT REKHA MITTAL, J. 1. The present regular second appeal has been directed against the judgment and decree dated 10.03.2014 passed by the District Judge, Sangrur, accepting the appeal of the respondent/plaintiff and modifying the judgment and decree dated 09.09.2010 passed by the trial Court thereby allowing specific performance of agreement to sell dated 18.06.2004. 2. The facts relevant for disposal of the present appeal are that Lalit Kumar Goyal, respondent/plaintiff filed the suit for specific performance of agreement to sell dated 18.06.2004 in respect of shop in dispute on the premise that its erstwhile owner Dalip Jain (respondent No. 2) agreed to sell the property for a sum of Rs. 8,80,000.00, received Rs. 50,000.00 as earnest money and agreed to execute the sale-deed on 31.08.2004. The plaintiff always remained ready and willing to perform his part of the agreement but defendant No. 1 Dalip Jain colluded with defendant Nos. 2 and 3 and transferred the suit property in their favour vide sale-deed No. 1689 dated 11.08.2004. Defendant Nos. 2 and 3 had knowledge of agreement to sell dated 18.06.2013 when sale-deed in their favour was executed by defendant No. 1. 3. Defendant No. 1 appeared in the proceedings, later absented and again joined but did not file any written statement. Defendant Nos. 2 and 3 filed their joint written statement setting up plea that they are bona fide purchasers for consideration without any notice of agreement dated 18.06.2004. It is averred that the agreement to sell is a fake document, created by the plaintiff in collusion with defendant No. 1 to defeat their rights created vide sale-deed dated 11.08.2004 on payment of sale consideration of Rs. 4,50,000.00. Defendant No. 1 was in possession of the suit property and possession was delivered in favour of the answering defendants at the time of execution of sale-deed. 4. Learned trial Court accepted plea of the plaintiff that defendant No. 1 entered into agreement to sell dated 18.06.2004 but allowed the alternative relief of recovery of Rs. 50,000.00 paid as earnest money along with interest in view of its findings that defendant Nos. 2 and 3 did not have knowledge of said agreement to sell at the time of purchase of the suit shop vide registered sale- deed dated 11.08.2004 and, therefore, defendant Nos. 50,000.00 paid as earnest money along with interest in view of its findings that defendant Nos. 2 and 3 did not have knowledge of said agreement to sell at the time of purchase of the suit shop vide registered sale- deed dated 11.08.2004 and, therefore, defendant Nos. 2 and 3 are the bona fide purchasers for consideration without knowledge or notice of the agreement to sell in dispute. 5. The plaintiff preferred an appeal to express his grievance against non-suiting his claim for principal relief of specific performance of the agreement to sell. 6. The first appellate Court reversed the findings of the trial Court in regard to defendant Nos. 2 and 3 being bona fide purchasers without notice of the agreement and as a result accepted claim of the plaintiff for specific performance of the agreement. The judgment and decree passed by the trial Court is modified in the following terms:- "To the extent that suit of the plaintiff-appellant for possession by specific performance of agreement of sale dated 18.06.2004, Ex.P1 is decreed and the appeal is accepted. Sale-deed dated 11.08.2004 (copy Ex. P6) executed by the defendant No. 1 in favour of the defendant Nos. 2 and 3 is set aside being null and void. The defendant-respondent No. 1 is directed to execute sale-deed and the defendant Nos. 2 and 3 shall also join him, in pursuance of agreement to sale dated 18.06.2004, Ex. P1, in favour of the plaintiff-appellant within a period of two months after the plaintiff shall deposit the amount of balance sale consideration failing which the plaintiff-appellant shall be entitled to get the sale-deed executed in his favour through the Court by filing execution. The plaintiff-appellant is directed to deposit the amount of balance sale consideration with the learned trial Court within 15 days from this date. Appellant shall be entitled to the costs throughout. Decree be accordingly drawn." 7. Feeling aggrieved against the verdict of the first appellate Court, the present regular second appeal has been filed by the purchasers under sale deed dated 11.08.2004 namely Himanshu Jain and Asif Ali Khan. 8. Counsel for the appellants contends that the first appellate Court has erroneously reversed the findings of the trial Court with regard to the appellants being bona fide purchasers for consideration without notice of the agreement to sell and wrongly allowed claim of the plaintiff/respondent for specific performance of the agreement. 8. Counsel for the appellants contends that the first appellate Court has erroneously reversed the findings of the trial Court with regard to the appellants being bona fide purchasers for consideration without notice of the agreement to sell and wrongly allowed claim of the plaintiff/respondent for specific performance of the agreement. To substantiate his contention, it is submitted that in the plaint and so also the telegraphic notice sent on 30.08.2004, the bare plea is that defendant Nos. 2 and 3 (appellants) had knowledge of the agreement to sell in his favour but in the replication, he has concocted a story with regard to distribution of sweets, giving of sweets to Himanshu Jain and informing him about the agreement of sale and knowledge of said agreement being there to the father of Himanshu Jain namely Sohan Lal and appellant Asif Ali Khan who allegedly came to the shop of the plaintiff on 19.06.2004 for congratulating him in connection with agreement to purchase the shop in dispute. 9. Another submission made by counsel is that Himanshu Jain is a medical graduate and was doing internship with Christian Medical College, Ludhiana for the period from 16.03.2004 to 15.03.2004, therefore, there was no occasion for Himanshu Jain attending to the business at the shop of his father Sohan Lal Jain or being available there on 18.06.2004 as from 14.06.2004 to 08.08.2004, he was assigned duty in the department of surgery of the aforesaid college for a period of eight weeks. It is further argued that as Himanshu Jain in his testimony on oath has categorically deposed that he had no knowledge of the agreement to sell at the time of purchase of the suit property through registered sale-deed, his right of ownership is protected and, therefore, the judgment passed by the appellate Court allowing specific performance of the agreement to sell is liable to be set aside and judgment and decree passed by the trial Court may be restored. For this purpose, he has referred to judgment of this Court in Nand Kishore vs. Rameshwar Dayal, 1990 (2) R.R.R. 125. 10. I have heard counsel for the appellants and perused the case file. 11. The controversy in the present appeal revolves around the issue if the appellate Court has committed any error or illegality in reversing the findings of the trial Court that defendant Nos. 10. I have heard counsel for the appellants and perused the case file. 11. The controversy in the present appeal revolves around the issue if the appellate Court has committed any error or illegality in reversing the findings of the trial Court that defendant Nos. 2 and 3 (appellants) are the bona fide purchasers for consideration without knowledge of the agreement to sell in question. 12. There is no denial to the fact that the plaintiff/respondent and Sohan Lal, father of Himanshu Jain-appellant are doing the jewellery business in the same commercial centre of the town of Malerkotla which is a small town. Himanshu Jain though initially was reluctant to express his knowledge about the respondent/plaintiff but in the later part of his cross-examination has confessed that he is well acquainted with the plaintiff. A relevant extract from his testimony reads as follows: "The plaintiff is elder to me and as such he is my brother. It is also correct that we have social dealings with the plaintiff and his family. We used to invite each other at social functions." 13. The learned trial Court proceeded on a wrong assumption that it is for the plaintiff to prove that subsequent vendee had the knowledge of the agreement to sell propounded by him in order to be successful in his claim for specific performance of the agreement. As per the settled position of law, it is for the subsequent vendee to prove that his purchase is fair, transparent and free from blemish in order to prove his bona fide. For that purpose, he is required to prove that he had no knowledge of the agreement set up by the plaintiff and the sale-deed in his favour was executed for consideration to rule out possibility of collusion between the original owner and subsequent vendee to defeat the rights of the proposed vendee under the agreement. 14. In the case at hand, the respondent/plaintiff since inception raised the plea that defendant Nos. 2 and 3 (appellants) had knowledge of the agreement of sale executed by Dalip Jain in his favour. The plea of the appellants that in the plaint the plaintiff has not detailed the facts attributing that knowledge is misconceived and untenable. As per the settled principles of pleadings, only the facts are to be pleaded and not the evidence by which those facts are to be proved. The plea of the appellants that in the plaint the plaintiff has not detailed the facts attributing that knowledge is misconceived and untenable. As per the settled principles of pleadings, only the facts are to be pleaded and not the evidence by which those facts are to be proved. However, as an abundant caution, after the written statement was filed by the appellants raising plea of bona fide purchasers for consideration without knowledge of the agreement, the respondent/plaintiff, in the replication gave detailed facts on the basis of which he had attributed that defendants No. 2 and 3 had the necessary knowledge of agreement to sell before sale-deed dated 11.08.2004 was executed in their favour. Not only this, testimony of the plaintiff in this regard finds due corroboration from the statements of Surinder Kumar son of Parkash Chand (PW4) and Bindu Ram Singla (PW6). 15. The plea of the plaintiff is that on 18.06.2004, the date on which agreement to sell was executed in his favour by Dalip Jain, he distributed sweets amongst his acquaintances and went to the shop of Sohan Lal (father of Himanshu Jain) to give sweets and at that time Sohan Lal was not present at the shop but defendant No. 3, their servant Jai Parkash and one Bindu Ram Singla son of Hans Raj were present in the shop. He gave the sweets box to defendant No. 3 who in turn gave congratulation to the plaintiff. On the next day, Sohan Lal along with defendant No. 2 came to his shop to give congratulation and at that time, Surinder Kumar son of Parkash Chand was also present. The respondent/plaintiff has led voluminous evidence to substantiate his plea that defendant Nos. 2 and 3 as well as Sohan Lal (father of defendant No. 3) had knowledge of the agreement to sell in his favour. On the other hand, Himanshu Jain is the only witness examined by the defendants to rebut evidence of the plaintiff. The testimony of Himanshu Jain is not worthy of credence and reliance who initially denied his knowledge about the plaintiff as has been mentioned hereinbefore. Himanshu Jain has not specifically denied that if on the next day (the day after 18.06.2004) his father along with Asif Ali Khan defendant had gone to the shop of the plaintiff to congratulate him. The testimony of Himanshu Jain is not worthy of credence and reliance who initially denied his knowledge about the plaintiff as has been mentioned hereinbefore. Himanshu Jain has not specifically denied that if on the next day (the day after 18.06.2004) his father along with Asif Ali Khan defendant had gone to the shop of the plaintiff to congratulate him. He further did not deny specifically whether his father knew about the agreement of sale, though stated that the agreement to sell was not to his knowledge prior to the sale-deed. Sohan Lal and Asif Ali Khan did not appear in the witness box to deny their knowledge of the agreement or going to the shop of the plaintiff to congratulate him for purchasing the shop in question. Keeping in view the positive evidence led by the plaintiff coupled with the factum that statement of Himanshu Jain does not inspire confidence, no fault can be found in the findings of the appellate Court holding that defendant Nos. 2 and 3 have failed to prove their plea of bona fide purchasers of the shop in dispute. 16. Counsel for the appellants has tried to press into service document Ex.D1 certificate of compulsory rotatory internship of Dr. Himanshu Jain in Christian Medical College, Ludhiana. No witness from said college appeared in the Court along with the relevant record in order to describe in detail the dates on which Dr. Himanshu Jain was actually on duty during the period from 16.03.2004 to 15.03.2005. There is no evidence on record that on 18.06.2004, Dr. Himanshu Jain was on duty in said college and that too in the evening hours. Ex. D1 only says that Dr. Himanshu Jain had done 12 months compulsory Rotatory Internship in Christian Medical College, Ludhiana, by serving in different departments detailed therein. This document by no stretch of imagination can substantiate plea of appellant No. 1 that he could not be available in Malerkotla on 18.06.2004 in the evening hours. It rather appears that as Dr. Himanshu Jain knew it fully well that he was not on duty on 18.06.2004, for that reason, he did not get produce the relevant records from the Christian Medical College, Ludhiana. 17. It rather appears that as Dr. Himanshu Jain knew it fully well that he was not on duty on 18.06.2004, for that reason, he did not get produce the relevant records from the Christian Medical College, Ludhiana. 17. Taken from any angle, the appellants have miserably failed to lead any cogent and convincing evidence to prove their plea that they are the bona fide purchasers without knowledge of the agreement to sell. In this view of the matter, the appellants cannot derive any strength to their contentions from the judgment in Nand Kishore s case (supra). 18. For the reasons aforesaid, neither there is any error in the impugned judgment and decree nor any substantial question of law arises for consideration. Appeal dismissed.