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2016 DIGILAW 1600 (PNJ)

Sadhu Ram v. Gurnam Singh

2016-06-02

GEORGE MASIH

body2016
JUDGMENT Mr. Augustine George Masih, J.: (Oral) - C.M. No.7470 C of 2016 Present is an application for condonation of delay of 50 days in refiling the appeal. 2. For the reasons mentioned in the application, which are duly supported by an affidavit of the counsel, the application is allowed and delay of 50 days in refiling the appeal stands condoned. C.M. No.7469 C of 2016 & R.S.A. No.2780 of 2016 3. Challenge in this appeal is to the judgement and decree dated 07.02.2014 passed by the Additional Civil Judge (Senior Division), Naraingarh, whereby the suit of the respondent-plaintiffs for possession by way of specific performance of the agreement to sell dated 17.05.2005 of the land measuring 30 kanals 15 marlas, Khasra No.35//7, 8, 13, 14, 18 situated in Village Shahpur, HB No.87, Tehsil Naraingarh, District Ambala, on payment of balance sale consideration by declaring the sale deed dated 14.12.2005 executed by Om Parkash-defendant No.1 (proforma respondent No.5 herein-original land owner) in favour of appellant-defendant No.2 as illegal, null and void, ineffective and not binding on the rights of the respondent-plaintiffs, has been decreed only for an alternative relief of refund of the amount of total earnest money i.e. Rs. 4,60,000/- alongwith interest @ 6% per annum from the date of filing of the suit till actual realization, appeal against which preferred by the respondent-plaintiffs has been allowed by the Additional District Judge, Ambala, on 01.12.2015, by decreeing the suit of the respondent-plaintiffs in toto with costs. 4. It is the contention of learned counsel for the appellant that the Courts below have failed to appreciate the pleadings and the evidence brought on record while returning a finding to the effect that the agreement to sell dated 17.05.2005 has been duly executed and further that the respondent-plaintiffs were ready and willing to perform their part of the contract. He contends that the learned trial Court has rightly held appellantdefendant No.2 to be a bonafide purchaser of the suit land from Om Parkash (proforma respondent No.5-defendant No.1) vide sale deed dated 14.12.2005, which finding has been reversed by the Appellate Court without any basis. He has also placed reliance upon three judgements of Hon’ble Supreme Court reported as Ram Awadh (dead) by Lrs. Vs. Achhaibar Dubey, 2000 AIR (SC) 860, Sahadeva Gramani (Dead) by LRS Vs. Perumal Gramani & Ors., 2005 (11) SCC 454 , Man Kaur (Dead) by Lrs. Vs. He has also placed reliance upon three judgements of Hon’ble Supreme Court reported as Ram Awadh (dead) by Lrs. Vs. Achhaibar Dubey, 2000 AIR (SC) 860, Sahadeva Gramani (Dead) by LRS Vs. Perumal Gramani & Ors., 2005 (11) SCC 454 , Man Kaur (Dead) by Lrs. Vs. Hartar Singh Sangha, [2011(3) Law Herald (SC) 2417 : 2011(3) Law Herald (P&H) (SC) 2108 : 2011(2) Land.L.R. 84 (SC)] : 2010 (10) SCC 512 and Satish Kumar and another Vs. Ram Singh, 2012 AIR (Punjab) 67. Counsel, thus, contends that the judgements and decree passed by the Courts below cannot sustain and deserve to be set-aside. 5. I have considered the submissions made by learned counsel for the appellant and with his assistance have gone through the impugned judgements. 6. Briefly, the facts are that Om Parkash, proforma respondent No.5-defendant No.1, had agreed to sell the suit land in favour of the respondent-plaintiffs at the rate of Rs.2,60,000/- per acre vide agreement to sell dated 17.05.2005, Ex.PA. An amount of Rs.50,000/- was received by him as earnest money. The date for execution and registration of the sale deed was fixed as 30.11.2005. An additional earnest money to the tune of Rs.4,10,000/- was received by Om Parkash, defendant No.1 vide receipt dated 13.07.2005, Ex.PB. The total amount of earnest money, thus, received by Om Parkash comes to Rs.4,60,000/-. Om Parkash, who appeared as DW6, admitted during his cross-examination the agreement to sell, Ex.PA and the fact that he had received the total earnest money amounting to Rs.4,60,000/-, as detailed above. In the light of admission on the part of Om Parkash, it stood proved that the agreement to sell had indeed been entered into between Om Parkash and the respondent-plaintiffs. 7. As per the agreement to sell, the date for execution and registration of the sale deed was fixed as 30.11.2005. To prove the readiness and willingness on the part of the respondent-plaintiffs, it was brought on record that on 30.11.2005, they had been present in the office of Sub Registrar, Naraingarh from 9.00 A.M. To 5.00 P.M. alongwith balance sale consideration and other expenses required to meet the registration charges etc. and, therefore, an application was moved, Ex.PB, dated 30.11.2005. When Om Parkash, respondent-defendant No.1 did not come present, an application was moved before the Sub Registrar to mark presence alongwith an affidavit. and, therefore, an application was moved, Ex.PB, dated 30.11.2005. When Om Parkash, respondent-defendant No.1 did not come present, an application was moved before the Sub Registrar to mark presence alongwith an affidavit. The factum of the respondent-plaintiffs being present in the office of Sub Registrar, Naraingarh, is again admitted by Om Parkash-DW6 in his cross-examination. Gurnam Singh-PW1 has further deposed that he had been meeting proforma-respondent No.1, Om Parkash, many times and requested him to execute and get registered the sale deed but he had been avoiding the same on one pretext or the other, which forced the respondentplaintiffs to serve a legal notice through counsel dated 09.12.2005, Ex.PJ, which stood proved to have been received by Om Parkash on 11.12.2005 vide acknowledgment due Ex.PZ but no reply thereto was given. This clearly indicates that the respondent-plaintiffs were ready and willing to perform their part of the contract. Although proforma respondent, Om Parkash (DW6) has deposed that he had come present and also marked his presence on 30.11.2005 in the office of Sub Registrar, Naraingarh, but nothing has been brought on record, which would prove his presence in the office of Sub Registrar. 8. The plea, as has been taken by appellant-defendant No.2 is that he is a bonafide purchaser, as the suit land was purchased by him from the proforma respondent-defendant No.1, Om Parkash, vide registered sale deed dated 14.12.2005 after making due enquiries and that the respondentplaintiffs were well aware of the fact that appellant-defendant No.2 was in the knowledge of the fact of the sale deed as one of the plaintiffs, namely, Som Nath, plaintiff No.2, who is brother of Gurnam Singh, plaintiff No.1, is an attesting witness to the same. That apart, a sum of Rs.6,04,000/- was paid as price of the land but these pleas cannot be accepted for the simple reason that signatures of plaintiff No.2 on the sale deed dated 14.12.2005 has been denied by the respondent-plaintiffs and no evidence has been brought on record in the form of handwriting and finger print expert to prove that signatures on the sale deed were that of respondent-plaintiff No.2. Further, name of plaintiff No.2 does not find mentioned in the endorsement of the Sub Registrar besides his photograph on the sale deed. Further, name of plaintiff No.2 does not find mentioned in the endorsement of the Sub Registrar besides his photograph on the sale deed. There is no evidence on record that any agreement to sell was entered into between proforma respondent-defendant No.1, Om Parkash and appellant-defendant No.2 prior to 30.11.2005, the date fixed for execution and registration of the sale deed as per the agreement to sell dated 17.05.2005. 9. Another reason, which would go against appellant-defendant No.2 is the legal notice dated 09.12.2005 (Ex.PJ) served by the respondentplaintiffs upon proforma respondent-defendant No.1, Om Parkash, which was received by him on 11.12.2005 (Ex.PZ), which is prior to the sale deed dated 14.12.2005 executed by proforma respondent-defendant No.1 in favour of appellant-defendant No.2. It may be added here that ample evidence has come on record that the sale consideration, which is a sum of Rs.6,04,000/- as per the sale deed dated 14.12.2005, Ex.D7, is much less than what would have been the sale consideration as per the agreement to sell dated 17.05.2005 (Ex.PA) executed between the respondent-plaintiffs and proforma respondent-defendant No.1, Om Parkash. Om Parkash (DW6) has himself admitted that the price of the land was increasing and, therefore, the sale consideration was much less than what would have been paid by the respondent-plaintiffs to defendant No.1. Rather, evidence, which has been adduced by the parties, indicates that no sale consideration had changed hands and it is a sham transaction. Although an endorsement on the back page of the first page of the sale deed dated 14.12.2005 mentions a sum of Rs.6,04,000/- as sale consideration having been produced by appellantdefendant No.2, Sadhu Ram, but the Sub Registrar has not been produced to prove the said fact. This was essential as Amar Singh (DW3), one of the attesting witnesses of the sale deed, admitted in his cross-examination that no sale consideration has passed hands in his presence. Om Parkash (DW6) admitted in his cross-examination that no sale consideration had passed at the time of registration of the sale deed. This lends credence to the fact that no sale consideration was paid by appellant-defendant No.2 to proforma respondent-defendant No.1. The sale deed dated 14.12.2005, thus, cannot be said to be a valid transaction and, therefore, the lower appellate Court has rightly held the same to be null and void and not binding upon the rights of the respondent-plaintiffs. This lends credence to the fact that no sale consideration was paid by appellant-defendant No.2 to proforma respondent-defendant No.1. The sale deed dated 14.12.2005, thus, cannot be said to be a valid transaction and, therefore, the lower appellate Court has rightly held the same to be null and void and not binding upon the rights of the respondent-plaintiffs. Thus, the protection of Section 54 of the Transfer of Property Act, 1882 would not be available to appellant-defendant No.2. 10. There are categoric concurrent findings returned by both the Courts below that the agreement to sell dated 17.05.2005, Ex.PA, stands proved on record as also the readiness and willingness on the part of the respondent-plaintiffs to perform their part of the contract on 30.11.2005, the date fixed for execution and registration of the sale deed but the ground for not granting the relief of specific performance of agreement to sell to the respondent-plaintiffs by the trial Court was that appellant-defendant No.2 was a bonafide purchaser. No appeal has been preferred by appellant- defendant No.2 against the said findings and with the lower Appellate Court, concurring with the findings of the trial Court, both, on due execution of the agreement to sell and readiness and willingness of the respondent-plaintiffs, the said findings have attained finality. As has been held by this Court, the plea of bonafide purchaser of appellant-defendant No.2 has not been found to be acceptable and these findings, as returned by the trial Court, have been rightly reversed by the lower Appellate Court, which cannot be faulted with. 11. The judgements, on which reliance has been placed by counsel for the appellant, would not be applicable to the case in hand. In Ram Awadh’s case (supra), the requirement and obligation cast upon the plaintiff to prove and meet the requirements of Section 16 of the Specific Relief Act were highlighted and it was further held that there can be no bar against the subsequent vendee in raising such a plea and establish the same for the satisfaction of the Court. In the present case, all the requirements of the statute having been fulfilled by the respondent-plaintiffs, the plea, as raised by appellant-defendant No.2 has, thus, been rightly rejected by the Courts below. 12. In the present case, all the requirements of the statute having been fulfilled by the respondent-plaintiffs, the plea, as raised by appellant-defendant No.2 has, thus, been rightly rejected by the Courts below. 12. As regards the judgement passed in Sahadeva Gramani’s case (supra) is concerned, the plea of bonafide purchaser, without notice, stood fully established but in the present case, it has been established that no sale consideration has changed hands and there is no evidence on record to the effect that sale consideration has been paid by appellant-defendant No.2 to proforma respondent-defendant No.1, Om Parkash. 13. Man Kaur’s case (supra) would also not be applicable to the case in hand as there are specific averments and assertions apart from the evidence on record to show that the respondent-plaintiffs were always ready and willing to perform their part of the contract and that money payable by them was available with them when the contract had to be performed. There are concurrent findings by the Courts in this regard. 14. The judgement of this Court in Satish Kumar’s case (supra) again will not be of much help as there is no plea taken by the appellant regarding delay on the part of the respondents and even if said plea would have been taken, the same is not sustainable for the simple reason that the date fixed for execution and registration of the sale deed was 30.11.2005 and the sale deed executed by proforma respondent-defendant No.1 in favour of appellant-defendant No.2 is dated 14.12.2005 and the present suit has been instituted on 13.03.2007, which is well within limitation and in any case the same cannot be said to have been instituted after an inordinate delay. It may be added here that issue No.3 with regard to maintainability of the suit was framed, onus whereof was placed upon appellant-defendant No.2 but the same has not been pressed before any of the Courts below. This judgement also, therefore, would not be of any help to the case of appellant-defendant No.2. 15. No other point has been argued by learned counsel for the appellant-defendant No.2. 16. The lower Appellate Court has returned findings after properly appreciating the pleadings and evidence brought on record by the parties and the same cannot be interfered with as there is no perversity or illegality in the same. 17. No substantial question of law is involved in the present appeal. 16. The lower Appellate Court has returned findings after properly appreciating the pleadings and evidence brought on record by the parties and the same cannot be interfered with as there is no perversity or illegality in the same. 17. No substantial question of law is involved in the present appeal. Therefore, finding no merit in the appeal, the same stands dismissed. 18. Since the main appeal stands dismissed, C.M. No.7469-C of 2016 for staying the operation of the impugned judgement and decree is also dismissed.