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2014 DIGILAW 389 (PNJ)

Devinder Singh v. Gurdeep Singh

2014-02-18

RAKESH KUMAR JAIN

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JUDGMENT Mr. Rakesh Kumar Jain, J.: - The plaintiff filed suit for possession in respect of 3 kanal 3 marla of land i.e. 2/9 share of the land measuring 14 kanal 3 marla situated in village Ballo Majra, Tehsil Mohali, District Ropar by enforcing the agreement to sell dated 15.7.2003 executed by defendants No.1 & 2 in his favour @ Rs.4,05,000/- per acre after receiving Rs.40,000/- as earnest money. The sale deed was to be executed upto 30.12.2003. It is alleged in the plaint that the plaintiff was always ready and willing to perform his part of the agreement and though the last date for execution of the sale deed was 30.12.2003 but the defendants No.1 & 2, keeping the plaintiff into dark, executed the sale deed of the suit property in favour of defendant Nos.3 & 4 on 15.7.2003. Thus, it is alleged that the cause of action has arisen to the plaintiff to file the suit when he came to know about the sale deed executed by defendants No.1 & 2 in favour of defendants No.3 & 4. He also prayed that the sale deed bearing vasika number 2149 dated 31.10.2003 executed by defendants No.1 & 2 in favour of defendants No.3 & 4 be also declared illegal, null and void. Thus suit was filed on 15.11.2003. 2. The defendants No.1 & 2 did not appear despite service and were ultimately proceeded against ex parte on 8.12.2004. However, defendants No.3 & 4 appeared and filed written statement alleging that they have purchased the property in dispute from defendants No.1 & 2 and the suit is not maintainable. 3. On the pleadings of the parties, following issues were framed on 25.4.2005: - “1. Whether the plaintiff is entitled to possession by way of specific performance of agreement dated 15.7.2003? OPP 2. Whether the plaintiff is entitled to permanent injunction as prayed for? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the plaintiff has not come to the Court with clean hands? OPD 5. Relief.” 4. The trial Court dismissed the suit of the plaintiff but the appellate Court decreed it directing that the sale deed of the suit land be executed in favour of the plaintiff and the sale deed in favour of defendants No.3 & 4 dated 31.10.2003 was held to be illegal. OPD 5. Relief.” 4. The trial Court dismissed the suit of the plaintiff but the appellate Court decreed it directing that the sale deed of the suit land be executed in favour of the plaintiff and the sale deed in favour of defendants No.3 & 4 dated 31.10.2003 was held to be illegal. The present appeal has thus been filed by defendants No.3 & 4. 5. Learned counsel for the appellants has argued that as per Section 16(c) of the Specific Relief Act, 1963 (for short ‘the Act’), it was incumbent upon the plaintiff to have served a notice upon the defendants for the purpose of execution of the sale deed in order to prove his readiness and willingness to execute the sale deed. It is further submitted that though the target date in the agreement was 30.12.2003 but the suit has been filed on 15.11.2003/18.11.2003. In support of his contention, he has relied upon a judgment of the Supreme Court in the case of “Ram Awadh (dead) by LRs Vs. Achhaibar Dubey” 2000 (2) RCR (Civil) 2. 6. I have heard learned counsel for the appellants and perused the record. I do not find any merit in his submissions because in the given facts and circumstances, there was no occasion for the plaintiff to serve notice for execution of the sale deed because his vendors/defendants No.1 & 2, before the target date, sold the land in dispute to defendants No.3 & 4/appellants without his knowledge. The plaintiff has thus rightly filed suit before the target date challenging the sale deed in favour of defendants No.3 & 4 because until and unless the said sale deed in their favour is not set aside the agreement with him by defendants No.1 & 2 could not have been performed. Moreover, insofar as the notice is concerned, once the date for execution of the sale deed is mentioned in the agreement itself by both the parties, it is a notice to the vendor to be present on that day before the Sub-Registrar for the purpose of execution of sale deed, until and unless any other intention is expressed by the plaintiff or defendants in writing in that regard because the date of execution can be postponed by the parties to the contract by their mutual consent. 7. 7. The judgment in the case of Ram Awadh (dead) by LRs (Supra) relied upon by the counsel for the appellants is also not applicable in the given facts and circumstances because in that case the issue was as to whether the plea of readiness and willingness can be taken only by the vendor or subsequent purchasers as well. There was a conflict in judgment of the Supreme Court in the case of “Jugraj Singh Vs. Labh Singh” 1995(2) SCC 31 , in which the question was as to whether the plaintiff was ready and willing to perform his part of the contract is available to the vendor or subsequent vendees and it was held “that plea is specifically available to the vendor/defendant. It is personal to him. The subsequent purchasers have got only the right to defend their purchase on the premise that they have no prior knowledge of the agreement of sale with the plaintiff. They are bona fide purchasers for valuable consideration. Though they are necessary parties to the suit, since any decree obtained by the plaintiff would be binding on the subsequent purchasers, the plea that the plaintiff must always be ready and - willing to perform his part of the contract must be available only to the vendor or his legal representatives, but not to the subsequent purchasers.” This view expressed in the case of Jugraj Singh (Supra) is held to be erroneous in the case of Ram Awadh (dead) by LRs (Supra) by a Bench of the strength of three Judges observing thus: - “There is, therefore, no question of the plea being available to one defendant and not to another. It is open to any defendant to contend and establish that the mandatory requirement of Section 16(c) has not been complied with and it is for the court to determine whether it has or has not been complied with and, depending upon its conclusion, decree or decline to decree the suit. We are of the view that the decision in Jugraj Singh’s case is erroneous.” 8. We are of the view that the decision in Jugraj Singh’s case is erroneous.” 8. Hence, the argument raised by learned counsel for the appellants that the plaintiff was supposed to have served a notice as envisaged under Section 16(c) of the Act for the purpose of execution of sale deed is inconsequential because the suit property was sold by the vendors much before the target date to the subsequent vendees/appellants otherwise, it is very much averred in the plaint that the plaintiff was ready and willing to perform his part of the contract after payment of the balance sale consideration. 9. In view of the aforesaid discussion, I do not find any merit in the present appeal as no question of law is found to have been involved and the present appeal being devoid of any merit is hereby dismissed. ---------0.B.S.0------------ —————————