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2016 DIGILAW 123 (UTT)

Bhupendra Singh v. Shushila Sharma

2016-03-10

SERVESH KUMAR GUPTA

body2016
JUDGMENT : 1. Mr. Bhupendra Singh, who was the defendant no.3 in Original Suit No.196 of 1991, has come up in the Second Appeal against the judgment and order dated 24.02.2016, passed by First Additional District Judge, dismissing his First Appeal No.8 of 2016 as well as Civil Revision No.5 of 2016. 2. Having heard, it transpires that Smt. Vimla entered into an agreement to sale dated 28.11.1980/29.06.1981 in favour of Mr. Tribhuwan Kishor Sharma but she could not carry out such agreement. 3. It appears that Smt. Vimla changed her mind and executed a Sale Deed in favour of Mr. Bhupendra Singh on 19.04.1991, who was tenant of the same property since 1952. 4. Somehow, Mr. Sharma knew about the change of her mind and mischief, played beyond the terms of contract, so a notice was issued on 23.04.1991 asking Smt. Vimla to perform her part of contract. 5. Obviously, Smt. Vimla was unable to execute another Sale Deed, so Mr. Sharma instituted an Original Suit for specific performance of contract impleading Smt. Vimla and Sri Bhupendra Singh as the defendants. 6. In such Suit, defendants filed their written statements. During pendency of the Suit, Smt. Vimla passed away and somehow, her legal heirs could be substituted through publication but the facts remain that the written statement of Mr. Bhupendra Singh had already been filed. After filing the same, he disappeared and permitted the Civil Judge (Jr. Div.) to pass the ex-parte judgment on 20.10.1999. 7. It has been argued by learned counsel of the appellant that the pleadings of Mr. Bhupendra Singh were not considered by any of the two Courts below. Such argument does not hold any water for the reason that it is settled proposition of law that mere filing of the pleadings is not enough, unless and until, proved by the party concerned. 8. That apart, perusing the impugned judgment of First Additional District Judge (refer to para no.31), it transpires that Mr. Bhupendra Singh did not make any averment regarding the fact that he was bona fide purchaser and got executed a Sale Deed on 19.04.1991 in his favour without having least knowledge of what had happened between Smt. Vimla and Mr. Tribhuwan Sharma. 9. Bhupendra Singh did not make any averment regarding the fact that he was bona fide purchaser and got executed a Sale Deed on 19.04.1991 in his favour without having least knowledge of what had happened between Smt. Vimla and Mr. Tribhuwan Sharma. 9. In such eventuality, Section 19(kha) of Specific Relief Act, 1963 comes into play, which contemplates that even the subsequent purchaser can be forced to execute the Sale Deed in favour of person, in whose favour the agreement to sale was executed by the original owner of the property, except when he proves before the Trial Judge that he was a bona fide purchaser without having any knowledge of prior contract between the owner of such property and plaintiff-decree holder. 10. In the instant controversy, proving such premise is the far cry because this averment was absent from the pleadings of Mr. Bhupendra Singh. 11. Fortiori, the same controversy, depicting in WPMS No.519 of 2016 filed by Mr. Bhupendra Singh, has already been dealt with by this very Court just two days before and after hearing learned counsel for both the parties, it was dismissed in limine because the Court found that the writ petition was wholly untenable and unsubstantial. 12. Now, changing the heading, Mr. Bhupendra Singh has come up before this Court in Second Appeal but the Court feels that he cannot be permitted to raise same controversy again because it is sheer wastage of precious time of the Court. I think he should be imposed heavy cost for this act but this Court restrains itself to do so. 13. In my opinion, there is no new substantial question of law in the Second Appeal and it is hereby dismissed at the admission stage itself.