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2014 DIGILAW 592 (PNJ)

Mulakh Raj v. Kishan Kaur

2014-03-21

RAKESH KUMAR JAIN

body2014
JUDGMENT Mr. Rakesh Kumar Jain, J.:- This order shall dispose of two appeals bearing RSA No.3069 of 2010 titled as “Mulakh Raj Vs. Kishan Kaur and others” and RSA No.4673 of 2009 titled as “Kishan Kaur Vs. Mulakh Raj and others” . 2. Brief facts of the case are that defendant No.1 entered into an agreement to sell shop situated in abadi of Mohalla Miskaran, Rahon with the plaintiff on 12.4.1996 for a consideration of Rs. 1,05,000/- and received Rs.40,000/- as advance on the same day and an another sum of Rs.5,000/- on 13.4.1996, further agreeing to execute the sale deed on 30.8.1996. 3. On 9.7.1996, plaintiffs filed suit for permanent injunction when they came to know that defendant No.1 is in process to sell the shop in question to defendants No.2 and 3. The sale deed was executed by defendant No.1 in favour of defendants No.2 & 3 on 10.7.1996 thereafter, the plaintiff amended his suit from injunction to possession by way of specific performance of the agreement to sell. The plaintiffs alleged that they were always ready and willing to perform their part of contract. Defendant No.1 denied the execution of the agreement as well as receipts alleging it to be a result of fraud, misrepresentation and concealment of real facts. It was alleged that the plaintiffs had called her to attest certain documents in the capacity as a witness and her thumb impressions and signatures were obtained at 3-4 places on the blank papers. Defendants No.2 & 3 had filed their separate written statements but their common stand is that they are bona fide purchasers for a valuable consideration as they had purchased the property in dispute for a sum of Rs.30,000/-. Plaintiffs filed their separate replications, denying averments made by the defendants in their written statements and reiterated the stand taken by them in the plaint. 4. On the pleadings of the parties, following issues were framed on 26.3.2001: - “1. Whether the defendant No.1 executed the agreement to sell dated 12.4.1996 and received Rs.40,000/- as earnest money? OPP 2. Whether the plaintiff has been ready and willing to perform his part of the contract? OPP 3. Whether the plaintiff is entitled to the specific performance of the agreement abovesaid? OPP 4. Whether the plaintiff is entitled to recovery of Rs.90,000/- by way of alternative relief alongwith costs and interest? OPP 5. OPP 2. Whether the plaintiff has been ready and willing to perform his part of the contract? OPP 3. Whether the plaintiff is entitled to the specific performance of the agreement abovesaid? OPP 4. Whether the plaintiff is entitled to recovery of Rs.90,000/- by way of alternative relief alongwith costs and interest? OPP 5. Whether the plaintiffs are estopped by their act and conduct to file the present suit? OPD 6. Whether the suit is barred u/o 2 Rule 2 CPC? OPD 7. Whether the suit is liable to be stayed? OPD 8. Whether the plaintiff has no locus standi to file the suit? OPD 9. Whether the suit is collusive between the plaintiff and defendant No.1? OPD 10. Whether the defendants No.2 and 3 are bona fide purchasers for consideration? OPD 11. Relief.” 5. Both the parties led their oral as well as documentary evidence. The trial Court dismissed the suit. The Appellate Court, though held that the agreement (Ex.P2), receipt of Rs.1,05,000/-, receipt of Rs.40,000/- (Ex.P3) and receipt of Rs.5000/- (Ex.P4) are signed by defendant No.1, have been duly proved and also the plaintiffs were found ready and willing to perform their part of contract but instead of granting the decree for possession of the property in dispute by way of execution of the sale deed, alternative prayer of refund of the earnest money along with 6% interest per annum from the date of filing of the suit till its realization has been granted on the ground that plaintiffs have failed to identify the property in dispute and defendants No.2 & 3 are the bona fide purchasers. As a result of which, two appeals have been filed in this Court, one by the plaintiff (i.e RSA No.3069 of 2010) and other by defendant No.1 (i.e. RSA No.4673 of 2009), which has been ordered to be heard along with RSA No.3069 of 2010 vide order dated 3.10.2012 passed in the said appeal. 6. Learned counsel for the appellant has raised two questions of law for the consideration of this Court namely, (i) whether the judgment and decree of the Appellate Court deserves to be modified for grant of decree for specific performance because of misreading of pleadings and the evidence? and (ii) whether defendants No.2 & 3 are the bona fide purchasers, who also own shops in the vicinity of the shop in dispute? 7. and (ii) whether defendants No.2 & 3 are the bona fide purchasers, who also own shops in the vicinity of the shop in dispute? 7. Learned counsel for the plaintiffs has argued that the Appellate Court, while declining the decree for execution of sale deed has observed that the suit property is situated within the Abadi area but the site plan of the shop, agreed to be purchased, is not filed in the Court along with agreement to sell. It is further observed that it is not clear as to whether the agreement pertains to one shop or two shops because in the head-note of the plaint there is a reference of one shop whereas in some portion of the pleadings and statement of the plaintiffs there is a reference of two shops which causes vagueness in the agreement and causes difficulty in its enforcement. It is also observed that the sale deed in favour of defendants No.2 & 3 has been duly executed, who had no notice about the agreement between the plaintiffs and defendant No.1 because defendants No.2 & 3 are not related to the plaintiff in any manner and belongs to a different village rather defendant No.2 belongs to Ludhiana and nothing has been brought on record to show that defendants No.2 and 3 ever had notice of agreement dated 12.4.1996. Thus, it has been held that they are the bona fide purchaser for consideration without notice. 8. It is submitted by learned counsel for the appellant that the Courts below have committed an error even in reading the pleadings of the parties. The identification of the property in dispute has been duly described in the plaint itself and explained with the help of the site plan, which is placed on record Ex.P1. Their dispute is with regard to shop shown in Red colour in the site plan bounded towards East by the remaining property of the vendor Kishan Kaur, West by the Rimpal Medical Store, North by the Gali and South by remaining property of vendor. It is also submitted that in para 2 of the plaint, it has been mentioned that defendant No.1 had agreed to sell the shop shown in Red colour in the site plan which was converted into one shop, so the dispute is only with regard to one shop and not two shops. It is also submitted that in para 2 of the plaint, it has been mentioned that defendant No.1 had agreed to sell the shop shown in Red colour in the site plan which was converted into one shop, so the dispute is only with regard to one shop and not two shops. He has referred to para 7 of the plaint in which it was pleaded that defendants No.2 and 3 are fully aware of the agreement dated 12.4.1996 in favour of the plaintiffs by defendant No.1. The shops of plaintiffs and defendant No.3 in which he is working are near to each other and the shops in question also falls in that very bazaar near the shops aforesaid. Defendants No.2 and 3 are inter-related. Both defendants No.2 and 3 also persuaded defendant No.1 to perform her part of agreement but later on they connived with each other in order to defeat the claim of plaintiffs. Hence, they are bound by the agreement dated 12.4.1996. 9. In the written statement filed by defendant No.1, it is not denied that defendant No.1 is the owner of the suit property and as far as defendants No.2 is concerned in her written statement, in reply to para No.7, she has averred “that para No.7 of plaint is wrong and denied. The replying defendant is a bona fide purchaser with consideration.” Defendant No.3 in his written statement, in reply to para No.7, also averred “that the contents of this para of the plaint are wrong and denied. The alleged agreement in favour of the plaintiff by defendant No.1 was never in the knowledge of the replying defendant”. 10. Learned counsel for the appellant has submitted that there is only one shop in dispute which was agreed to be sold by defendant No.1 to the plaintiffs which has been duly identified by way of site plan and the boundaries have been clearly mentioned in the plaint. Defendant No.1 did not produce any other site plan or gave any other boundaries of the property in dispute. Insofar as the question of defendants No.2 & 3 being bona fide purchasers is concerned, they have not denied in their pleadings the averments made by the plaintiffs that both of them are inter-related and shop of defendant No.3 is situated in the same Bazar in which the shop in dispute is situated. 11. Insofar as the question of defendants No.2 & 3 being bona fide purchasers is concerned, they have not denied in their pleadings the averments made by the plaintiffs that both of them are inter-related and shop of defendant No.3 is situated in the same Bazar in which the shop in dispute is situated. 11. In this regard, he has relied upon a judgment of this Court in the case of “Amrik Singh Vs. Smt. Surjit Kaur and others” 2008 (2) RCR (Civil) 465 and of the Appex Court in the case of “Dr. Govinddas and another Vs. Shrimati Shantibai and others” 1972 (LXXIV) PLR 227, to contend that if the shop of defendant No.3, who is related to defendant No.2, is situated in the same Bazar, the presumption is that they had the knowledge of the agreement between defendant No.1 and the plaintiffs. It is also submitted that once defendant No.1 had agreed to sell the shop in dispute to the plaintiffs for a sum of Rs.1,05,000/- and received advance of Rs.45,000/-, which is proved on record as per the finding recorded by the Appellate Court then why defendant No.1 would sell the suit property to defendants No.2 and 3 for a meager sum of Rs.30,000/- just before the date of execution of sale by the plaintiffs. It is submitted that the sale deed by defendant No.1 in favour of defendants No.2 and 3 in haste also shows that defendants No.2 & 3 had the knowledge of the agreement between the plaintiffs and defendant No.1 because the sale deed has been directly executed without any agreement to sell between defendant No.1 and defendants No.2 & 3. 12. On the other hand learned counsel for defendant No.1 has submitted that the Appellate Court has erred in deciding that the agreement to sell and the receipts have been proved and the plaintiffs were ready and willing to perform their part of contract. In this regard, he has submitted that the signatures of Biru Ram as attesting witness on the agreement (Ex.P2) were affixed later on which is evident from the fact that the signatures have been affixed with a different pen having broader nib. It is also submitted that one of the purchasers namely, Kishore Kumar did not sign the agreement, therefore, it has become invalid and cannot be relied upon. 13. It is also submitted that one of the purchasers namely, Kishore Kumar did not sign the agreement, therefore, it has become invalid and cannot be relied upon. 13. In reply to this argument, learned counsel for the appellant has submitted that it is not necessary that the agreement should have been signed by the purchaser as well and has relied upon a judgment by the Supreme Court in the case of “Alka Bose Vs. Parmatma Devi and others” 2009(1) Apex Court Judgments 354 and has also relied upon a judgment of Supreme Court in the case of “Ram Khilona Vs. Sardar and others” 2002 (2) Apex Court Judgments 122, to contend that there is no mandate of law regarding requirement of a marginal witness in the agreement to sell. 14. Learned counsel for respondents No.2 & 3 has submitted that they had no notice of the agreement between the plaintiffs and defendant No.1, therefore, sale deed in their favour by defendant No.1 executed on 10.7.1996 is protected being a bona fide purchaser. 15. I have heard learned counsel for the parties and after perusal of record, am of the considered opinion that appeal (i.e. RSA No.3069 of 2010) filed by the plaintiff deserves to be allowed and by defendant No.1 (i.e. RSA No.4673 of 2009) deserves dismissal. Insofar as due execution of agreement to sell is concerned, I do not find any error in the reasoning adopted by the Appellate Court because defendant No.1 herself has admitted her signatures on the agreement (Ex.P2) and receipts (Ex.P3 & P4). It has been held by the Supreme Court in the case of Alka Bose (Supra) that if the agreement to sell is signed by the vendor alone, it would be a valid agreement and thus, if the agreement is not signed by one of the purchasers, it would not render the document surrounded by suspicion. As far as, attesting witness Biru Ram (PW2) is concerned, he along with Mulakh Raj has consistently stated that agreement and receipts were duly executed by defendant No.1 but even otherwise in view of the judgment of the Supreme Court in the case of Ram Khilona (Supra), there is no mandate of law regarding requirement of a marginal witness in an agreement to sell. Defendant No.1 has though pleaded fraud but has failed to give manner and particulars of fraud, therefore, the agreement (Ex.P2) and receipts (Ex.P3 & P4) are duly proved. 16. Now, the question arises “as to whether the agreement could be executed for the purpose of sale deed because the Appellate Court has held that property in dispute is not identified?” 17. I am of the considered opinion that the plaintiffs have filed site plan (Ex.P1) according to which the property in dispute has been duly described in the plaint with its boundaries and has not been rebutted by defendant No.1 by producing any evidence to the contrary. It has been mentioned in the plaint that there were two shops which has been converted into one shop, which has been agreed to be sold by defendant No.1 to the plaintiffs. Insofar as, the question of defendants No.2 & 3 being bona fide purchases is concerned, it has been categorically averred in the plaint that defendants No.2 & 3 are related to each other and defendant No.3 has a shop in the same Bazar in which the shop in dispute is situated, therefore, it cannot be pleaded that the agreement between the plaintiffs and defendant No.1 dated 12.4.1996 was not in the notice/knowledge of defendants No.2 and 3, who have purchased the shop in dispute on 10.7.1996 i.e. after three months. It has been held by the Supreme Court in the case of Dr. Govinddas and another (Supra) that where all the parties are residents or have shops in the same vicinity in a small locality, it is not probable that the transferee could not have come to know of the execution of the original agreement of the sale of the property. It is also held that the unusual haste in which the contract was executed and got registered also shows that the parties had notice of the previous agreement. In the case of Amrik Singh (Supra), this Court has gone to the extent that even if parties are residing at different places but having agricultural land adjoining to each other where they visit frequently, they cannot plead ignorance about the agreement and presumption has to be drawn against the subsequent purchaser. In the case of Amrik Singh (Supra), this Court has gone to the extent that even if parties are residing at different places but having agricultural land adjoining to each other where they visit frequently, they cannot plead ignorance about the agreement and presumption has to be drawn against the subsequent purchaser. Moreover, defendants No.2 & 3 did not enter the witness box and have rather examined Madan Lal as attorney of defendant No.2, who cannot depose about the ignorance of the agreement to sell between the plaintiffs and defendant No.1 because it relates to the personal knowledge of the defendant and purchaser, who is taking the plea of bona fide purchaser. 18. In view of the aforesaid reasons, the question of law raised by the plaintiffs is hereby answered in their favour. The appeal filed by the plaintiff (i.e. RSA No.3069 of 2010) is thus allowed and the suit filed by him for execution of the sale deed of the agreement to sell (Ex.P2) is hereby decreed and sale deed in favour of defendants No.2 and 3 is set aside. The appeal filed by defendant No.1 (i.e. RSA No.4673 of 2009) is found to be without any merit and is thus, hereby dismissed. 19. The decree sheet is ordered to be drawn accordingly. ---------0.B.S.0------------