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2015 DIGILAW 231 (HP)

Bhagwant Rai v. Pankaj Spinners Pvt. Ltd.

2015-03-24

RAJIV SHARMA

body2015
JUDGMENT : Rajiv Sharma, J. This regular second appeal is directed against the judgment and decree dated 30.3.2013 of the learned Addl. District Judge, Fast Track Court, Solan, H.P., rendered in Civil Appeal No. 29 FTC/13 of 2011. 2. Key facts, necessary for the adjudication of this second appeal are that the respondent-plaintiff (hereinafter referred to as the plaintiff, for the convenience sake) has filed a suit for specific performance of Agreement against the appellants-defendants (hereinafter referred to as the defendants) and proforma respondents, alleging therein that the plaintiff was Private Ltd. Company registered under the Companies Act. Sh. Joginder Khanna was the Director of the Company. He was authorized by the Board of Directors to file the suit against the defendants. The predecessor-in-interest of the defendants i.e. proforma defendants entered into agreement with the plaintiff on 13.10.1993 in respect of their share in the land comprised in khata/khatauni No. 192/201 kh. No. 1287 (0-14), 1288 (0-11), 1290(1-19), plots-3, measuring 3 bighas 4 biswas, situated in village Madhala, Pargana Doon, Tehsil Kasauli, Distt. Solan, H.P.. Out of this land, the subject matter of the dispute is land measuring 1-19 biswas (hereinafter referred to as the suit land). The plaintiff had paid full and final payment of the suit land as per the agreement and has been in possession of the suit land. The plaintiff has sought permission from the Government on 23.2.2005 to purchase the suit land and thereafter requested the defendants to execute the sale deed in his favour and to perform their part of the agreement as the plaintiff was ready and willing to perform its part of the agreement. The defendants were not coming forward to perform their part of the agreement for the purpose of registration of the sale deed of the suit land. 3. The suit was contested by the defendants by filing written statement. According to the defendants, their predecessor-in-interest has not executed any agreement in favour of the plaintiff. The agreement was false, frivolous and result of outcome of fraud. It was denied that as per the agreement, plaintiff has paid full and final payment of the suit land. It was denied that plaintiff was in the possession of the suit land. It was alleged that plaintiff could not take the possession of the suit land in view of the restrictions under Section 118 of the H.P. Tenancy and Land Reforms Act, 1972. It was denied that plaintiff was in the possession of the suit land. It was alleged that plaintiff could not take the possession of the suit land in view of the restrictions under Section 118 of the H.P. Tenancy and Land Reforms Act, 1972. It was alleged that plaintiff was not ready and willing to act upon the alleged agreement and did not apply for permission after the agreement. The suit was also barred by limitation. 4. No replication was filed. The issues were framed by the learned trial Court on 7.3.2008. The learned Civil Judge (Sr. Divn.), Kasauli, decreed the suit on 24.5.2011. Defendants No. 12 & 13, namely, Jaswant Singh and Bhagwant Rai, preferred an appeal against the judgment and decree dated 24.5.2011 before the learned Addl. District Judge, (FTC), Solan, H.P. The learned Addl. District Judge, (FTC), Solan, dismissed the same on 30.3.2013, hence this regular second appeal. 5. Mr. P.S.Goverdhan, Advocate, on the basis of the substantial questions of law framed, has vehemently argued that his clients were bona fide purchasers and they had no notice of agreement to sell Ext. P-1 and P-2. He then argued that both the courts below have not correctly appreciated the oral as well as documentary evidence on record. On the other hand, Mr. Ramakant Sharma, Advocate for respondent No. 1 has supported the judgments and decrees passed by both the Courts below. 6. I have heard the learned Advocates for both the sides and gone through the records of the case carefully. 7. Sh. Joginder Khanna, PW-1 has led his evidence by filing affidavit Ext. PW-1/A. He has produced the original agreements Ext. P-1 & P-2, copy of resolution Ext. P-3, jamabandi Ext. P-4 and permission of government of Himachal Pradesh Ext. P-5. In his cross-examination, he testified that pursuant to the agreement Ext. P-1, entire payment was made by cheque of PNB, Madhala Branch amounting to Rs. 23000/- per bigha to the defendants. The date of agreement Ext. P-1, entered into between the predecessor-in-interest of the defendants, was 13.10.1993. The agreement was entered into with Nathu Ram, Jainti Dass, Janki Ram, Sant Ram and Sharda Ram, which was scribed by PW-2 Raj Kumar. The agreement was signed by the predecessor-in-interest of the defendants. It was attested by Salig Ram PW-3. The contents of the agreement were read over and explained to Sh. The agreement was entered into with Nathu Ram, Jainti Dass, Janki Ram, Sant Ram and Sharda Ram, which was scribed by PW-2 Raj Kumar. The agreement was signed by the predecessor-in-interest of the defendants. It was attested by Salig Ram PW-3. The contents of the agreement were read over and explained to Sh. Nathu Ram, Jainti Dass, Janki Ram, Sant Ram and Sharda Ram. They after understanding the agreement had affixed their signatures and thumb impressions in the presence of PW-3 Salig Ram. 8. PW-2 Raj Kumar deposed that he scribed agreement Ext. P-1 dated 13.10.1993. It was entered at Sr. No. 646 of the register maintained by him. He has prepared agreements Ext. P-1 and P-2. Ext. P-2 was made on 12.10.1994. The payment was made by cheque to predecessorin- interest of the defendants and entry was incorporated at Sr. No. 749 dated 12.10.1994. 9. PW-3 Salig Ram, is the marginal witness. He was ‘Lambardar’ of the Village. He was witness to agreements Ext. P-1 and P-2. According to him, agreement Ext. P-1 was written in his presence and he had read over and explained the contents of the agreement to predecessor-in-interest of the defendants. They had affixed their thumb mark and signatures, respectively. 10. Sh. Narinder Kumar, an official of D.C.Office, Solan has appeared as DW-1 and proved letter dated 1.11.2004 Ext. DW-1/A. 11. DW-2 Narinder Singh has proved permission of the State Government Ext. P-5, dated 23.2.2005. 12. Defendant No. 2, namely, Shiv Charan, has led his evidence by affidavit Ext. DW-3/A. He denied that the appellants-defendants No. 12 & 13 have purchased the share of defendant No. 1 despite knowledge that her predecessor-in-interest have already executed the agreement of her share. 13. Defendants No. 12 & 13, namely, Jaswant Singh and Bhagwant Rai, have stepped into the witness box as PW-4 and PW-5 and tendered their affidavits Ext. DW-4/A and Ext. DW-5/A, respectively. According to them, they have purchased the land from defendant No. 1 in the year 2005 and claimed that they are the bona fide purchasers. They denied that despite knowledge of agreement, they purchased the share of defendant No. 1. 14. DW-6 Sher Mohd. and DW-7 Kanshi Ram, also tendered their evidence by way of affidavits Ext. DW-6/A and Ext. DW-7/A, respectively. They have shown ignorance about the execution of agreement by the predecessor-in-interest of the defendants in favour of the plaintiff. 15. They denied that despite knowledge of agreement, they purchased the share of defendant No. 1. 14. DW-6 Sher Mohd. and DW-7 Kanshi Ram, also tendered their evidence by way of affidavits Ext. DW-6/A and Ext. DW-7/A, respectively. They have shown ignorance about the execution of agreement by the predecessor-in-interest of the defendants in favour of the plaintiff. 15. The plaintiff has duly proved the execution of the agreement Ext. P-1 dated 13.10.1993 and another agreement Ext. P-2. These agreements were scribed by PW-2 Sh. Raj Kumar. It was witnessed by PW- 3 Salig Ram as marginal witness. The plaintiff, being non-agriculturist had to obtain prior permission from the State Government before the execution of the sale deed. The permission was received only on 25.2.2005 vide Ext. P-5. The defendants, namely, Jaswant Singh and Bhagwant Rai have purchased the suit land on 16.10.2005 vide Mark “Y”. The land has been purchased by them at a very lower price. It has come in the evidence that the value of the land had gone up to 40-50 lac per bigha. Thus, the land could not be sold for a meager amount, as per sale dated 16.10.2005. Defendants Jaswant Singh and Bhagwant Rai belong to the same village where the suit land is situated i.e Village Madhala. Thus, they were aware of the earlier agreements Ext. P-1 and P-2. They have purchased the land despite having knowledge of the earlier agreements Ext. P-1 and P-2. In the instant case, time was not the essence of the agreement but sale deed could be registered after the permission was to be accorded by the State Government under Section 118 of the H.P. Tenancy and Land Reforms Act, 1972. The permission was accorded as per Ext. P-5 dated 25.2.2005 and the aforesaid suit was filed on 17.10.2007, thus it was filed within the limitation. 16. It has come on record that the predecessor-in-interest of the defendants have received the payment and the plaintiff was put in possession. The amount has been paid by cheques drawn at PNB, Madhala Branch. Mr. P.S.Goverdhan, Advocate, has also argued that the issue was not framed whether the defendants Jaswant Singh and Bhagwant Rai were bonafide purchasers or not. However, the fact of the matter is that the parties knew the case fully and have adduced their evidence. Thus, the objection of non-framing of issue, at this stage, cannot be raised. Mr. P.S.Goverdhan, Advocate, has also argued that the issue was not framed whether the defendants Jaswant Singh and Bhagwant Rai were bonafide purchasers or not. However, the fact of the matter is that the parties knew the case fully and have adduced their evidence. Thus, the objection of non-framing of issue, at this stage, cannot be raised. Moreover, in case they were aggrieved of non-framing of issue, the application under Order 14 Rule 5 CPC could be moved for framing of additional issue. 17. In the case of Baldev Singh and others vrs. Chhota Singh and another, reported in AIR 2002 Punjab and Haryana 47, the learned Single Judge has held that since the suit land was situated in small village and all parties also belong to that village, subsequent purchaser must be knowing earlier transaction of sale of land and cannot be held to be bonafide purchaser. The learned Single Judge has held as under: “23. For the reasons given above, the conclusion reached is that Nachhatar Singh had entered into an agreement to sell land with Chhota Singh vide agreement dated 23.6.1990 and had received Rs. 30,000/- as earnest money, Chhota Singh was always ready and willing to perform his part of the contract and the breach was committed by Nachhatar Singh. Agreement dated 23.5.1990 set up by Baldev Singh etc. was false, forged and ante-dated, Baldev Singh etc. are not bona fide purchasers of the land, as when they purchased the land, they were aware of agreement in favour of Chhota Singh dated 23.6.1990, as it is a small village and all of them belong to this village. In small villages if any transaction takes place, it spreads like wild fire.” 18. In the instant case, the plaintiff was always ready and willing to perform his part of the contract after the permission was granted by the State Government vide Ext. P-5. The contention of the plaintiff is also supported by the entries made in Jamabandi Ext. P-4. The agreement was entered into between the predecessor-in-interest of the defendants and the plaintiff on 13.10.1993 and the subsequent sale deed is dated 16.10.2005, Mark “Y”. The defendants through Jaswant Singh and Bhagwant Rai cannot be held to be bona fide purchasers of the suit land. 19. Mr. P.S.Goverdhan, Advocate, has faintly argued towards the end of his submission that the agreement dated 13.10.1993 was the outcome of fraud. The defendants through Jaswant Singh and Bhagwant Rai cannot be held to be bona fide purchasers of the suit land. 19. Mr. P.S.Goverdhan, Advocate, has faintly argued towards the end of his submission that the agreement dated 13.10.1993 was the outcome of fraud. However, there is no pleading to this effect. The Courts below have correctly appreciated the oral as well as the documentary evidence placed on record. 20. Consequently, there is no merit in this regular second appeal, the same is dismissed. No costs.