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2023 DIGILAW 1215 (RAJ)

Umar Khan (Deceased) v. Sumer Khan (Now deceased)

2023-05-31

SUDESH BANSAL

body2023
JUDGMENT : 1. By way of instant first appeal filed under Section 96 of the Code of Civil Procedure, a challenge has been made to judgment and decree dated 25.03.1983 passed in Civil Suit No.9/1982 titled Sumer Khan Vs Hakim Singh by the Court of Additional District Judge, Deeg, Bharatpur, whereby and whereunder a civil suit for specific performance filed by plaintiffs/respondents No.1 to 3 on the basis of an agreement to sale dated 20.08.1981 has been decreed in their favour and against defendant No.1/respondent No.4-Hakim Singh and simultaneously, by the same judgment, two registered sale deeds dated 29.04.1982, executed by defendant No.1-Hakim Singh in favour of appellants/defendants No.2 & 3 namely Umar khan and Amar Singh, have been declared as null and void qua plaintiffs. 2.1 The first appeal has been preferred by defendants No.2 & 3, original purchasers of agricultural lands in question bearing Khasra No.771 (3 bigha 7 biswa) and Khasra No.773 (1 bigha 3 biswa) total measuring 4 bigha 10 biswa, situated at Village Pathroli, Tehsil Kama, District Bharatpur from recorded Khatedar of land in question namely Hakim Singh, who was defendant No.1 before the trial Court and respondent No.4 here in the present appeal. Both defendants No.2 & 3 were real brothers and land of Khasra No.771 (3 bigha 7 biswa) was purchased in the name of defendant No.2-Umar Khan against sale consideration of Rs.15,000/- through registered sale deed dated 29.04.1982 and land of Khasra No.773 (1 bigha 3 biswa) was purchased in the name of defendant No.3-Amar Singh against sale consideration of Rs.5,000/- through registered sale deed dated 29.04.1982. As per sale deeds, Khatedari rights and possession of agricultural lands in question were transferred by defendant No.1 to defendants No.2 & 3 and execution of both registered sale deeds in favour of defendants No. 2 & 3, is not in dispute. 2.2 As per admission of plaintiffs and their witnesses as also according to the evidence of defendants, it was undisputed position before the trial Court that lands in question were in cultivation and in actual possession of defendants No. 2 & 3. 2.2 As per admission of plaintiffs and their witnesses as also according to the evidence of defendants, it was undisputed position before the trial Court that lands in question were in cultivation and in actual possession of defendants No. 2 & 3. Therefore, in absence of possession of plaintiffs over the agricultural lands in question, prayer for issuance of decree for permanent injunction was declined by the trial Court, however, execution of agreement to sale dated 20.08.1981 by defendant No.1 in favour of plaintiffs in respect of lands in question was held proved and it was observed by the trial Court that the civil suit for specific performance without asking for prayer of possession is maintainable, therefore, learned trial Court decreed the suit for specific performance of agreement to sale in favour of plaintiffs and declared two sale deeds of defendants No.2 & 3 as null and void treating both sale deeds as subsequent to the agreement to sale and observing that defendants No.2 & 3 are not bona fide purchasers for value without notice of the agreement to sale, accordingly passed the judgment and decree dated 25.03.1983 in following terms: ^^vr% oknhx.k dk izfroknhx.k ds f[kykQ fofufnZ"V ikyuk dk okn fMØh fd;k tkrk gS vkSj ;g vkns'k fn;k tkrk gS fd izfroknh u-1 gkfde flag [kljk ua-771@1-3] 773@1-3 dqy jdck 4 ch?kk 10 fcLok fLFkr xzke iRFkjkyh ds [kkrsnkjh ds vf/kdkj dk cspkuukek oknhx.k ds gd esa 11 gtkj :i;s izkIr dj 3 ekg esa iathd`r djok, vU;Fkk oknhx.k U;k;ky; ds tfj;s cspkuukek djokus ds vf/kdkjh gksxsA oknhx.k blo;ukes dk [kpkZ vnk djsaxsA ;g Hkh ?kksf"kr fd;k tkrk gS fd izfroknhx.k u 2 o 3 ds gd es bl Hkwfe ds ckjs es fnukad 29-04-1982 dk iathd`r o;ukek oknhx.k ds eqdkcys 'kwU; o izHkkoghu gSA oknhx.k bl okn dk [kpkZ izfroknhx.k ls ikus ds vf/kdkjh gksaxsA^^ 3. Since indisputably, the cultivation and actual possession of agricultural lands in question was found with defendants No.2 & 3, who are purchasers of lands in question through registered sale deeds, but because their sale deeds dated 29.04.1982 were declared as null and void by the trial Court vide impugned judgment, hence on filing of the present first appeal thereagainst, this Court admitted the first appeal for hearing and protected the physical possession of appellants/defendants No.2 & 3 by passing an interim stay order dated 25.10.1983 in their favour. The interim stay order dated 25.10.1983 was passed after hearing counsel for both parties and whereby it was held that appellants should pay/deposit a sum of Rs.900/- in every 6 months in the month of November and April of every year during pendency of the appeal; this amount is payable to respondents No.1 to 3 on furnishing a security that this amount would be refunded to appellants, in case this appeal is accepted and on the above condition, the operation of judgment and decree dated 25.03.1983 would remain stayed; in case of three defaults, the interim stay order dated 25.10.1983 would be vacated automatically without reference to the Court. 4. From record, it transpires that thereafter, the interim stay order dated 25.10.1983 came to be vacated vide order dated 20.01.1987 in absence of appellants, therefore, appellants moved another application for revival of stay, then after hearing counsel for both parties and having considered the fact that the cultivation and actual possession of lands in question is lying with appellants, this Court, vide order dated 14.09.1987, stayed the execution of the decree, subject to condition of deposition a sum of Rs.1200/- within every 6 months in the month of November and April of every year and appellants shall submit deposition receipts of Challan before this Court and thereafter, respondents No.1 to 3 shall be allowed to withdraw the deposited amount on furnishing a security before the trial Court; It was observed that if any installment is not deposited, then the stay order shall stand vacated. The order dated 14.09.1987 remained operative during course of first appeal, however, it appears that though for some time installment of Rs.1200/- were deposited by appellants in terms of order dated 14.09.1987, but later on, the present first appeal came to be dismissed for non prosecution on 30.04.1992, however, the same was allowed to be restored vide order dated 07.09.2001 and in between since the stay order dated 14.09.1987 did not remain in operation, therefore, respondents No.1 to 3 got executed a registered sale deed in their favour through the executing Court on 20.07.2001; got entered their name in revenue record and also claim to acquire the possession of lands in question as well. 5. 5. It also transpires from the record that in the meanwhile, appellant No.1 Umar Khan (defendant No.2 before the trial Court) had passed away on 30th December 1996, and after restoration of the appeal on 07.09.2001, application dated 18.03.2003 came to be filed by appellant No.2 Amar Singh along with application for condonation of delay stating therein that deceased appellant No.1 Umar Khan was survived by his wife, five daughters and one son; out of his surviving successors, his wife and five daughters have executed a relinquishment deed dated 07.11.1997 in favour of appellant No.2, therefore, to the extent of these successors of deceased appellant No.1, property rights have been devolved upon appellant No.2, but since surviving son of deceased appellant No.1 namely Ibrahim who has not executed the relinquishment deed in favour of appellant No.2, is required to be substituted in place of deceased appellant No.1. Such applications remained pending for years together, however, have been allowed by this Court vide order dated 13.04.2023. Thus, it appears that in such eventualities, the condition imposed upon appellants vide order dated 14.09.1987 to pay/deposit Rs.1200/- in every 6 months has not been complied with during course of appeal. 6. Be that as it may, in view of aforesaid circumstances, even if plaintiffs-decree holders/respondents No.1 to 3 have succeeded in getting execution of impugned decree by way of procuring execution of sale deed by and on behalf of legal representatives of deceased defendant No.1 through executing Court on 20.07.2001, still this Court is required to adjudicate the appeal on merits in order to assess legality and validity of the impugned judgment and decree. The effect of execution of the impugned judgment and decree for specific performance in favour of plaintiffs-decree holders during course of appeal due to lapses and negligence on the part of appellants, shall be considered while deciding the appeal on merits. 7. Learned counsels, appearing for appellants as also for respondents/plaintiffs have made their respective submissions on merits, however, no one has represented legal representatives of the respondent No.4-Hakim Singh. This Court has heard arguments of learned counsels for both parties and scanned the record as made available by counsel for both parties before this Court in compliance of the order dated 13.04.2023. 8. This Court has heard arguments of learned counsels for both parties and scanned the record as made available by counsel for both parties before this Court in compliance of the order dated 13.04.2023. 8. From perusal of the record, relevant facts of the present case in brief are recapitulated as under:- 8.1 Respondents No.1 to 3-plaintiffs jointly filed civil suit for specific performance on 27.05.1982 against respondent No.4- Hakim Singh impleading him as defendant No.1 and against both appellants No.1 and 2, namely Umar Khan and Amar Singh, impleading them as defendants No.2 & 3, stating inter alia that Hakim Singh executed an agreement to sale dated 20.08.1981 in favour of plaintiffs in respect of lands in question of Khasra No.771 and Khasra No.773 measuring 4 bigha 10 biswa, situated at Village Pathori, Tehsil Kama, District Bharatpur. 8.2 It was pleaded by plaintiffs that defendant No.1-Hakim Singh agreed to sale lands in question @ Rs. 5111/- per bigha and in pursuance thereof, Rs.12,000/- was paid and rest amount was agreed to be paid at the time of execution of sale deed. 8.3 It was pleaded by plaintiffs that at the time of agreement, the defendant No.1 was gair khatedar, therefore, to obtain khatedari rights and to get record his name in revenue record, by deposition of due Government revenue, he would execute the sale deed in favour of plaintiffs. The possession of lands in question was alleged to be delivered to plaintiffs. 8.4 It was pleaded by plaintiffs that plaintiffs were ready and willing to perform their part of agreement to sale, but defendant No.1, without knowledge of plaintiffs, sold lands in question to defendants No.2 & 3 through two registered sale deeds dated 29.04.1982. 8.5 It was pleaded that since defendant No.1 had agreed to sell lands in question to plaintiffs through agreement dated 20.08.1981, which was in operation and same was in knowledge of defendants No.2 & 3, however, they purchased the lands in question from defendant No.1, therefore, the sale of lands in question by way of two sale deeds in favour of defendants No.2 & 3 is null and void and accordingly both sale deeds dated 29.04.1982 of defendants No.2 & 3 are liable to be declared as null and void qua rights of plaintiffs and plaintiffs are entitled for execution of sale deed from defendant No.1 in their favour. 8.6 It was pleaded by the plaintiffs that since they have obtained the possession of agricultural lands in question and are in possession thereof, accordingly plaintiffs prayed for a decree for specific performance and to declare the registered sale deeds of defendants No.2 & 3 dated 29.04.1982 as null and void as also prayed a decree for permanent injunction against defendants No.2 & 3 not to interfere in their cultivation and possession of lands in question. 8.7 Defendant No.1, original Khatedar Hakim Singh, submitted his separate written statement on 07.08.1982 and categorically denied the execution of agreement to sale dated 20.08.1981 of lands in question in favour of plaintiffs as also denied to receive any advance sale amount of Rs.12,000/- from plaintiffs. 8.8 Defendant No.1 contended that he was not Khatedar of lands in question on 20.08.1981 and the agreement to sale dated 20.08.1981 is a fake agreement and plaintiffs are not in possession of lands in question. Defendant No.1 further contended that he sold and transferred his khatedari rights and possession of lands in question to defendants No.2 & 3. 8.9 Defendants No. 2 & 3 submitted their separate and joint written statement on 07.08.1982 and contended that lands in question was in the Khatedari and possession of defendant No.1, who has sold and transferred the possession of lands in question to defendants No.2 & 3. It was contended that plaintiffs have no possession over lands in question and have no rights qua defendants. 8.10 Learned trial Court, on the basis of rival pleadings of both parties, settled five issues including the issue of relief. Issues are incorporated in the impugned judgment hence need not to be reiterated herein. 8.11 Both parties adduced their evidence in respect of issues. Plaintiffs produced PW1-Angrez Singh, Deed writer of the agreement dated 20.08.1981, PW2-Kishan Lal, Stamp Vendor of the stamp of agreement, PW3-Himmat Singh witness of agreement, PW4-Sumer Khan, plaintiff No.1 himself, PW5-Sohan Singh, another witness of agreement. Copies of agreement to sale dated 20.08.1981 and two registered sale deeds dated 29.04.1982, executed by defendant No.1 in favour of defendants No.2 and 3, are available on record. 8.12 From the side of defendants, defendant No.1, Hakim Singh as DW1, defendant No.2, Umar Khan as DW2 and one witness Inayat Khan appeared as DW3, to prove possession of defendants No.2 & 3 over lands in question. 8.12 From the side of defendants, defendant No.1, Hakim Singh as DW1, defendant No.2, Umar Khan as DW2 and one witness Inayat Khan appeared as DW3, to prove possession of defendants No.2 & 3 over lands in question. Documents-Exhibit A1 to A8, alleged to be produced by defendants which are payment receipts, mutation in favour of defendant No.1, Jamabandi in favour of defendant No.1 Hakim Singh and Jamabandi in favour of defendant No.2 Umar Khan, are available on record. 8.13 Learned trial Court, vide judgment and decree dated 25.03.1983, has decreed plaintiffs’ suit in the manner as stated hereinabove and thereagainst, defendants No.2 & 3/appellants have preferred the present first appeal. 9.1 In the present first appeal, interim stay order dated 25.10.1983 was passed after hearing both parties, in favour of appellants and thereby, it was held that appellants should pay/deposit a sum of Rs.900/- in every six months in the month of November and April of every year during pendency of appeal and on continuous payment of such amount, the operation of judgment and decree dated 25.03.1983 was stayed. However, in case of committing three defaults, the interim stay order dated 25.10.1983 was said to be vacated automatically without reference to the Court. 9.2 From record, it transpires that thereafter, the interim stay order dated 25.10.1983 came to be vacated vide order dated 20.01.1987 in absence of appellants, therefore, appellants moved another application for revival of stay, then after hearing counsel for both parties and having considered the fact that the actual possession and cultivation of lands in question is lying with appellants, this Court, vide order dated 14.09.1987, stayed the execution of the decree, subject to condition of deposition a sum of Rs.1200/- within every 6 months in the month of November and April of every year and appellants shall submit deposition receipts of Challan before this Court and thereafter, respondents No.1 to 3 shall be allowed to withdraw the deposited amount on furnishing a security before the trial Court; It was observed that if any installment is not deposited, then the stay order shall stand vacated. The order dated 14.09.1987 remained operative during course of first appeal, however, it appears that though for some time installment of Rs.1200/- were deposited by appellants in terms of order dated 14.09.1987, but later on, the present first appeal came to be dismissed for non prosecution on 30.04.1992, however, the same was allowed to be restored vide order dated 07.09.2001 and in between since the stay order dated 14.09.1987 did not remain in operation, therefore, respondents No.1 to 3 got executed a registered sale deed in their favour through the executing Court on 20.07.2001; got entered their name in revenue record and also claim to acquire the possession of lands in question as well. 9.3 It may be noted that learned counsel for appellants is not in a position to tell the exact date, up to which appellants deposited the amount pursuant to the order dated 14.09.1987 nor any challan receipts are available on record, regarding compliance of the order dated 14.09.1987, even before the present first appeal was dismissed in default and for non prosecution on 30.04.1992. Thus, it may be presumed by this Court that appellants committed deliberate default in complying with the order dated 14.09.1987 and due to defaults on the part of appellants, the stay order dated 14.09.1987 seized to operate even prior to date 30.04.1992, when the present appeal came to be dismissed for non prosecution. In addition, it has been noticed that this first appeal was allowed to be restored vide order dated 07.09.2001 and in between, respondents/plaintiffs have succeeded in getting execution of the registered sale deed dated 20.07.2001 in their favour from the executing Court and have also got entered their names in the revenue record as well as obtained possession over lands in question; appellants have not taken any steps either to restore their possession or to revive the earlier stay order dated 14.09.1987. Thus, it stands clear that at least from the date of getting execution of registered sale deed by plaintiffs in their favour i.e. 20.07.2001, lands in question have been in cultivation and possession of respondents/plaintiffs that too as recorded khatedar. A copy of registered sale deed dated 20.07.2001 and mutation in the revenue record in the name of plaintiffs in furtherance thereof, are available on record. A copy of registered sale deed dated 20.07.2001 and mutation in the revenue record in the name of plaintiffs in furtherance thereof, are available on record. Hence this Court put a specific query from learned counsel for both parties in respect of physical possession over lands in question. According to response given by learned counsel for both parties, this Court has recorded their respective contentions in the order dated 24.05.2023, which is being reproduced hereunder:- “1. Final arguments in this appeal were closed on 19.5.2023 and first appeal was reserved for judgment. 2. During course of decision, it transpired that during pendency of first appeal, registered sale deed dated 30.07.2001 has been executed in favour of respondents-plaintiffs in execution of the impugned judgment and decree. Hence, to put a query about the change of status of parties and current status of possession of lands in question, the matter has been ordered to be listed today. 3. On making query about the fact that which party is in possession of lands in question, counsel appearing for respondents-plaintiffs states at bar that pursuant to sale deed dated 30.07.2001, lands in question have already been recorded in the name of successor of plaintiffs and since then successors of plaintiffs have been in actual cultivation and possession over lands in question. 4. Learned counsel for appellants though does not dispute the execution of sale deed and entry in revenue record, in favour of plaintiffs during course of first appeal, however, express that he is not in a position to controvert the contention of counsel for respondents-plaintiffs in respect of their possession over lands in question. 5. Arguments heard and concluded. 6. Judgment is reserved.” 9.4 Thus, from the aforesaid subsequent facts, occurred during course of first appeal, it stands clear that appellants have lost their possession from lands in question and there are serious lapses, negligence per se on the part of appellants, in not prosecuting the present first appeal diligently. Appellants by their own defaults, miserably failed to protect subsistence of their sale deeds dated 29.04.1982 as well as allowed plaintiffs/respondents decree holders to acquire the khatedari rights and possession of lands in question, by way of execution of impugned judgment and decree. Appellants by their own defaults, miserably failed to protect subsistence of their sale deeds dated 29.04.1982 as well as allowed plaintiffs/respondents decree holders to acquire the khatedari rights and possession of lands in question, by way of execution of impugned judgment and decree. Even, after restoration of first appeal vide order dated 07.09.2001, appellants never chose to restore their possession and willfully allowed respondents/plaintiffs to enjoy the peaceful and valid possession over lands in question, on the strength of registered sale deed dated 20.07.2001, executed by the executing Court in their favour. Thus, it can safely be observed that at least since 20.07.2001 onwards, lands in question have in recorded khatedari of respondents/plaintiffs as also in cultivation and possession of respondents/plaintiffs and of their successors. Such change of status of parties during course of present first appeal, in respect of transfer of khatedari rights as well as actual possession of lands in question, obviously may not be left unattended, therefore, how such subsequent changes of the status of parties would affect the adjudication of present first appeal, shall be considered while appreciating the impugned judgment and decree on merits. 10. At the outset, it may be observed that the first appeal is always treated as continuation of civil suit and virtually first appeal is a re-hearing of the civil suit and the whole case is open for reconsideration. In case of Santosh Hazari Vs. Purushotam Tiwari [ (2001) 3 SCC 179 ] in Para 15, Hon’ble the Supreme Court expounded the scope of first appeal and jurisdiction of first appellate court in following words: "15….The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law. the whole case is therein open for rehearing both on questions of fact and law. The judgment of the Appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court.….........while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate court had discharged the duty expected of it. In another case of H.K.N. Swami Vs. Irshad Basith [ (2005) 10 SCC 243 ], Hon’ble the Supreme Court again reiterated principles in respect of jurisdiction of the first appellate court in Para 3 as under: "3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title." Hon’ble the Supreme Court, in case of B.V. Nagesh Vs. H. V. Sreenivasa Murthy [ (2010)13 SCC 530 ] and further in case of A.M. Sangappa Vs. Sangondeppa [ (2013) 14 SCALE 384 ], has reiterated the aforesaid principles. 11. With the clarity of legal proposition, this Court, being first appellate Court, is required to determine following three points:- (i) Whether the decree for specific performance passed by the trial Court in favour of plaintiffs, requires any interference or may be affirmed by this Court? (ii) Whether the declaration of the registered sale deeds dated 29.04.1982 of appellants as null and void qua rights of plaintiffs in lands in question, is sustainable or not? (iii) What is the effect of execution of registered sale deed dated 20.07.2001 by the executing Court in favour of plaintiffs decree holders and acquiring possession of lands in question by plaintiffs, to facts of the present case? Point No.11(i):- 12. In order to proceed for determination of Point No.11(i), it may be noticed that the trial Court framed issue No.1, which virtually included three points:- (A) Whether defendant No.1 Hakim Singh executed agreement to sale dated 20.08.1981 (date of agreement wrongly mentioned as 20.11.1982) in respect of agricultural lands, bearing Khasra Nos. 771 & 773 measuring 4 bigha 10 biswa in favour of plaintiffs against total sale consideration of Rs.23,000/-? (B) Whether defendant No.1 Hakim Singh received Rs. 771 & 773 measuring 4 bigha 10 biswa in favour of plaintiffs against total sale consideration of Rs.23,000/-? (B) Whether defendant No.1 Hakim Singh received Rs. 12,000/- as an advance out of total sale consideration of Rs.23,000/- against execution of agreement to sale dated 20.08.1981? (C) Whether plaintiffs are entitled for specific performance of agreement to sale dated 20.08.1981? Learned trial Court has decided issue No.1 in favour of plaintiffs. Point No.12(A): 12.1 Learned counsel for appellants has argued that by the evidence adduced by plaintiffs, the execution of agreement dated 20.08.1981 by Hakim Singh is not proved and in addition, bare perusal of signature of Hakim Singh on the alleged agreement and comparing such signature with his admitted signature available on the registered sale deeds dated 29.04.1982, it would reveal that signature of Hakim Singh on the agreement in question is fake and does not match with his admitted signature. 12.2 In order to prove the execution of agreement dated 20.08.1981, plaintiffs have got examined the scriber of agreement, Mr. Angrej Singh as PW1, who is deed writer and deposed in his court’s statement that on the instruction of Hakim Singh, he wrote the agreement dated 20.08.1981 in favour of Sumer Khan, Kamal Khan and Pratap, thereafter, he read over the agreement before Sumer Khan and Hakim Singh. He also proved his signatures on the agreement in cross examination. He stated that he is a registered deed writer and he is not sure that the entry of written agreement was made in his register or not. The agreement (Exh.1) is written on stamp paper of Rs.10/- and the stamp vendor namely Sh. Kishan Lal, has appeared in witness box as PW2, who deposed that the stamp paper of this agreement was purchased from him and on the flip side of the stamp paper, the entry at mark C to D was made by him and his signatures is available at mark E to F. Two witnesses, who made their signatures on the agreement in question have appeared in witness box from the side of plaintiffs namely Himmat Singh as PW3 and Sohan Singh as PW5 and have deposed their respective statements as also fortified their signatures as witnesses on the agreement in question. PW5 category deposed that Hakim Singh made his signature at place A to B in his presence and his signature is at C to D, on the agreement in question (Exh.1). 12.3 After going through cross examinations of such witnesses, this Court does not find any major discrepancy to infer any adverse inference about trustworthiness of these witnesses. Himmat Singh (PW3) admits that plaintiff No.1-Sumer Khan is his nephew and admits in cross examination that deal between Sumer Khan and Hakim Singh in respect of lands in question was held in his presence and with his indulgence. He admits in cross examination that after registry in favour of purchaser Umar Khan, the possession of lands in question is with Umar Khan. Sohan Singh (PW5) stated that at the time of execution of agreement, plaintiffs were in possession, but he expressed his ignorance about actual possession over lands in question at the time of his statements on 19.02.1983. 12.4 Out of 3 plaintiffs, plaintiff No.1 Sumer Khan deposed his evidence as PW4 and stated that Kamal Khan and Pratap Singh are his brothers and we all three purchased agricultural lands measuring 4 bigha 10 biswa from Hakim Singh against total sale consideration of Rs.23,000/-; Rs.12000/- were paid to Hakim Singh against the execution of agreement; He stated that Hakim Singh assured that after getting Khatedari of lands in question, he will execute registry, but after acquiring Khatedari rights, Hakim Singh executed the registry of lands in question in favour of Umar khan and Amar Singh. In cross examination, PW4 admits that Umar Khan often ploughs lands in question and he has sown wheat crop therein. He admits that the agreement is unregistered because the same was not executed in Tehsildar office, therefore, the same was not attested from Tehsildar. 12.5 In counter to the evidence of plaintiffs, defendant No.1 Hakim Singh appeared as DW1, but in his examination-in-chief, he has not denied the execution of agreement in question, however, in cross examination, on asking a leading question about his signature, he category denied his signature at place A to B on the agreement. It is worthy to note that defendant No.1 (DW1) also denied his signatures on Vakalatnama (Exh.2) and on written statement as well. It is worthy to note that defendant No.1 (DW1) also denied his signatures on Vakalatnama (Exh.2) and on written statement as well. Other two witnesses of defendants, DW2-Umar Khan and DW3-Inayat Khan, are witnesses of possession of defendants on the lands in question and they do not utter a word about the agreement in question. In respect of possession, DW1 deposed that in Village Pathroli, he got 30 bigha land from the State Government and out of which 4 bigha 10 biswa was sold to Umar Khan and Amar Singh against sale consideration of Rs.20,000/-. Umar khan (DW2) stated that he and his brother Amar Singh purchased 4 bigha and 10 biswa land at Village Pathroli from Hakim Singh and they are in possession of lands in question. DW2 stated that he does farming on the purchased land and his tube-well is installed thereupon. DW2 category denied the possession of plaintiffs even at the time of purchasing lands in question. Inayat Khan (DW3) is an independent witness who stated that on lands in question, Umar Khan and Amar Singh are in possession and tube-well thereupon was installed by Umar khan. DW3 denied the possession of plaintiffs over lands in question. 12.6 On appreciation of the respective evidence of both the parties, as analyzed hereinabove, this Court finds that execution of agreement dated 20.08.1981 by Hakim Singh in favour of plaintiffs is proved. Although Hakim Singh, in his cross examination denied his signatures on this agreement, but he denies his signature on the Vakalatnama and written statement as well, therefore, in respect of denial of his signature on the agreement in question, his statements may not be relied upon. On the contrary, the witness of agreement, Sohan Singh (PW5) has categorically proved the signatures of Hakim Sing at A to B on this agreement. Deed writer, Angrez Singh (PW1) has proved that agreement was written by him. 12.7 Learned counsel for appellants has invoked the jurisdiction of this Court to compare the signatures of Hakim Singh as available on the disputed agreement dated 20.08.1981 at Place A to B with the admitted signature of Hakim Singh as available on the registered sale deeds dated 29.04.1982 of which the execution is admitted. 12.7 Learned counsel for appellants has invoked the jurisdiction of this Court to compare the signatures of Hakim Singh as available on the disputed agreement dated 20.08.1981 at Place A to B with the admitted signature of Hakim Singh as available on the registered sale deeds dated 29.04.1982 of which the execution is admitted. This Court is of opinion that when direct evidence of parties, witnesses of the agreement in question and the deed writer as also the evidence of executor of agreement himself, are available on record, in such circumstances, it is not required for this Court to exercise its powers under Section 73 of the Indian Evidence Act, 1972, to compare the disputed signature of Hakim Singh with his admitted signatures by naked eye, nor this Court deems it just necessary to seek assistance of any expert opinion in facts of the present case. However, since counsel for appellants has insisted and relied upon in case of Bisseswar Poddar Vs. Nabadwip Chandra Poddar [AIR (1961) Cal. 300] that there is no legal bar to the judge using his own eyes to compare disputed signature with admitted signature even without the aid of any expert, in addition to the available evidence on record, this Court has compared the signatures of Hakim Singh as available at place A to B on agreement dated 20.08.1981 with the signature of Hakim Singh available on the flip side of stamp paper of both registered sale deeds dated 29.04.1982, which were made by Hakim Singh in front of the Sub Registrar, Pahari. This Court finds that both signatures prima facie and from the naked eyes of Court do not differ or mismatch. Though on the front pages of registered sale deeds, defendant No.1 Hakim Singh has made his signatures under the name “Gyani Hakim Singh Azad” but on the flip side of stamp paper of sale deeds, Hakim Singh put his thumb impression and made signature only as “Hakim Singh” in front of Sub Registrar, therefore, such signatures are prima facie similar to signature of defendant No.1 Hakim Singh as available on the agreement at place A to B. 12.8 This Court comes to a conclusion that there is no force in the argument of counsel for appellants to state that the signature of Hakim Singh on the disputed agreement does not match with his admitted signature on bare comparison by naked eyes. Besides above, from the comparative analyses of evidence of both parties, this Court finds that the signatures of Hakim Singh on the agreement in question and execution of agreement in question stands proved. Learned trial Court, while deciding issue No.1, has held proved the execution of agreement. It may be noted that in framing the issue No.1, date of agreement has wrongly been indicated as “20.11.1982” whereas the correct date of agreement is “20.08.1981”, thus the date be read as 20.08.1981. Thus, this Court affirms findings of the trial Court in respect of the execution of agreement dated 20.08.1981 by defendant No.1 Hakim Singh in favour of plaintiffs is held proved. Point No.12(B): 12.9 Learned counsel for appellants made a persuasive attempt that there is contradiction and variance in statements of PW3, PW4 & PW5, in respect of making payment of Rs.12,000/- by plaintiffs to Hakim Singh at the time of execution of agreement dated 20.08.1981. He pointed out certain discrepancies in the amount alleged to be paid in installments and denomination of notes as also presence of each other, but after perusal of statements made by PW3, PW4 & PW5 as a whole, this Court does not find any major discrepancy in respect of making payment of Rs.12,000/-. Plaintiff No.1 (PW4) has clearly deposed that payment was made in 2-3 installments and he make the payment in presence of Himmat Singh. PW3-Himmat Singh deposed that the total deal was agreed against Rs.23000/- and Rs.12000/- was paid in installments and initially Rs.2000/- was paid at the same time and rest was to be paid later on. He states that the amount was paid in his presence. PW5-Sohan Singh also stated that Rs.2000/- was paid in his presence and rest amount of Rs.10000/- was paid later on. Learned trial Court after assessment of statements of witnesses has found in issue No.1 that plaintiffs made payment of Rs.12000/- by defendant No.1 Hakim Singh against sale consideration of Rs.23000/-. This Court has observed that findings of the trial Court in respect of making payment of Rs.12000/- are in consonance with the evidence on record. There is no evidence in rebuttal from the side of defendants to statements of PW3, PW4 and PW5, except denial by the defendant No.1 Hakim Singh that too in his cross examination only. This Court has observed that findings of the trial Court in respect of making payment of Rs.12000/- are in consonance with the evidence on record. There is no evidence in rebuttal from the side of defendants to statements of PW3, PW4 and PW5, except denial by the defendant No.1 Hakim Singh that too in his cross examination only. Discrepancies as pointed out by the learned counsel for appellants in statements of PW3, PW4 & PW5 deserves to be ignored. Such discrepancies may be taken as natural and usual, when statements of witnesses are recorded after a long gap of time. On overall analyses of the evidence on record of both the parties, this Court finds that there is no infirmity in the fact findings of the trial Court and it is held proved that plaintiffs made payment of Rs.12000/- against sale agreement dated 20.08.1981 to defendant No.1 Hakim Singh. 12.10 As far as entitlement and claim for specific performance of agreement to sale dated 20.08.1981 by plaintiffs is concerned, it is well established that there are several other factors which are required to be taken into consideration, apart from execution of agreement and making payment of part of sale consideration in pursuance of the agreement. In other factors, the readiness and willingness of plaintiffs, conduct of parties, comparative hardships, equity and factum of possession are required to be considered. Points No.11(iii) & 12(C):- 13. From perusal of judgment of trial Court, it appears that though the trial Court, has discussed the factum of possession, but has not discussed the point of readiness and willingness, conduct of parties, comparative hardships and equity between parties. However, this Court finds that as per pleadings of evidence adduced by parties, such factors may be dealt with at the stage of first appeal, which is a Court of fact and law, therefore, it is not required to remand the suit to trial Court, for consideration of these factors. Advocates for parties have also not prayed for remand. Otherwise also, taking into consideration the fact that the present lis came to be initiated way back on 27.05.1982 and pending since then, it would be unjust and improper to remand the suit, more particularly when relevant material is available on record, on the basis of which this Court has jurisdiction to decide these factors. Otherwise also, taking into consideration the fact that the present lis came to be initiated way back on 27.05.1982 and pending since then, it would be unjust and improper to remand the suit, more particularly when relevant material is available on record, on the basis of which this Court has jurisdiction to decide these factors. 13.1 Although, in the civil suit for specific performance, an independent and separate issue of readiness and willingness ought to be framed, but in the present case, the trial Court has not framed such specific issue, but this issue may be treated as intrinsic part of issue No.1 itself. That apart, from the perusal of record of the trial court, it appears in pleadings of plaint more particularly in Para No.4, plaintiffs have pleaded that they have been ready and willing to perform their part pursuant to the agreement in question and in support of such pleadings, plaintiff No.1 (PW4-Sumer Khan) has deposed evidence about his readiness and willingness to get the sale deed executed, therefore, point of readiness and willingness can be considered as per material available on record, even though no specific issue in this regard has been framed. 13.2 In the present case, defendants have contested present suit for specific performance, fundamentally denying execution of the agreement to sale dated 20.08.1981 itself. In the written statements of defendants, there is no plea in respect of pleadings of plaintiffs about their readiness and willingness, except denial. From the side of defendants, in their evidence, there is no whisper about denying or disputing the evidence of plaintiffs on the issue of readiness and willingness. Learned counsel for appellants, in his arguments has not emphasized this issue and the thrust of arguments remained to submit that agreement in question is fake. Nevertheless, as per the requirement of Section 16(c) of Specific Relief Act, 1963, it is mandatory for plaintiffs to plead and prove their readiness and willingness to perform their part under the agreement in question sought to be specifically enforced, therefore, in order to determine this factor, the part of plaintiffs has to be seen. Nevertheless, as per the requirement of Section 16(c) of Specific Relief Act, 1963, it is mandatory for plaintiffs to plead and prove their readiness and willingness to perform their part under the agreement in question sought to be specifically enforced, therefore, in order to determine this factor, the part of plaintiffs has to be seen. 13.3 As has already been observed that plaintiffs have pleaded and proved to be ready and willing for execution of the registry in their favour pursuant to agreement in question, in addition, it has transpired that out of total sale consideration of Rs.23000/-, plaintiffs have paid Rs.12000/- in installments against agreement in question before filing of the suit on 27.05.1982 and soon after passing the decree for specific performance in their favour vide impugned judgment dated 25.03.1983, plaintiffs deposited rest sale consideration of Rs.11000/-on 06.07.1983 in the bank. The factum of payment of Rs.12000/- by plaintiffs has already been found proved in the foregoing paragraphs and the factum of deposition of Rs.11000/- in bank on 06.07.1983 is incorporated in the sale deed dated 20.07.2001, executed by the executing Court in favour of plaintiffs for and on behalf of defendant No.1 Hakim Singh and his successors. It may also be observed that under the agreement to sale dated 20.08.1981, defendant No.1 assured to execute registered sale deed in favour of plaintiffs after obtaining khatedari rights in lands in question; even as per the recital incorporated in the agreement, defendant No.1 does not dispute that after execution of agreement dated 20.08.1981, defendant No.1 deposited required amount in the government account, of which receipts of challan are available on record as Exhibits A1, A2 & A3 dated 21.04.1982 and thereafter, vide Exhibit A4, khatdari of lands in question along with other revenue lands measuring 30 bigha 5 biswa was sanctioned in favour of defendant No.1 Hakim Singh. Lands of 30 bigha and 5 biswa came to be recorded in the khatedari of defendant No.1 Hakim Singh as appears from Exhibits A5 to A8, by or before 25.04.1982. Thereafter, defendant No.1 immediately sold lands in question to defendants No.2 & 3 by executing two registered sale deeds dated 29.04.1982. Plaintiffs soon after having knowledge about execution of two sale deeds by defendant No.1 in favour of defendants No.2 & 3 instituted present civil suit on 27.05.1982, for seeking specific performance of their agreement dated 20.08.1981. Thereafter, defendant No.1 immediately sold lands in question to defendants No.2 & 3 by executing two registered sale deeds dated 29.04.1982. Plaintiffs soon after having knowledge about execution of two sale deeds by defendant No.1 in favour of defendants No.2 & 3 instituted present civil suit on 27.05.1982, for seeking specific performance of their agreement dated 20.08.1981. 13.4 In the light of such factual matrix, the factor of readiness and willingness deserves to be decided in favour of plaintiffs. 13.5 As far as conduct of parties is concerned, in the present case, there is no allegation against plaintiffs about their conduct in order to hold plaintiffs dis-entitle from obtaining decree for specific performance of their agreement dated 20.08.1981. On the contrary, it appears that defendant No.1 soon after acquiring khatedari rights over lands in question on 25.04.1982, instead of honoring his agreement to sale dated 20.08.1981 in favour of plaintiffs and offering plaintiffs to get sale deed registered, executed two sale deeds dated 29.04.1982 in favour of defendants No.2 & 3. Thus the conduct of plaintiffs in the present case, is free from any blame. 13.6 The factor of comparative hardships and equity, which are required to be considered within scope of Section 20 of the Specific Relief Act, 1963, shall be considered, while dealing with issue of possession. 13.7 While dealing with issue of possession, this Court is aware that it is settled that possession is nine points in law and law respects peaceful and settled possession, simultaneously, in respect of possession over an open peace of land, the ordinary presumption under law is that possession follows title. The presumption of possession over an open peace of land always is deemed to be that of the owner, unless not otherwise proved by any cogent or convincing evidence to prove the physical possession over the open land. The presumption of possession over an open peace of land always is deemed to be that of the owner, unless not otherwise proved by any cogent or convincing evidence to prove the physical possession over the open land. 13.8 Keeping in mind the aforesaid principles of law and applying the same to facts of the present case, it transpires that although plaintiffs claimed that they were in possession of lands in question at the time of execution of agreement to sale dated 20.08.1981 in their favour by Hakim Singh (defendant No.1), but since thereafter, Hakim Singh executed two registered sale deeds dated 29.04.1982 in favour of defendants No.2 & 3 and thereby transferred his khatedari rights, as such the presumption of possession over lands in question went in favour of defendants No.2 & 3 and the trial Court held in the impugned judgment and decree that possession of lands in question lying with defendants No.2 & 3. Simultaneously, the decree for permanent injunction claimed by plaintiffs was declined by the trial Court, due to absence of possession of plaintiffs over lands in question. As per the evidence of parties also, the position of possession became undisputed that defendants No.2 & 3 got the possession of lands in question from the date of execution of sale deeds dated 29.04.1982 in their favour and Umar Khan installed tube-well thereupon and plough the land. The possession of defendants No.2 & 3, sought to be protected by them, while filing of the present first appeal, challenging the decree for specific performance as also declaration of their sale deeds as null and void. 13.9 Thus, at the time of filing of present first appeal, it was an admitted fact that possession of lands in question was lying with defendants No.2 and 3/appellants. As has already been noted hereinabove, in Para Nos.3 & 4, that this Court while admitting the present first appeal for hearing, stayed the execution of impugned judgment and decree initially vide order dated 25.10.1983 with condition to deposit amount of Rs.900/- by appellants and later on this amount was increased to Rs.1200/- vide order dated 14.09.1987. It was directed that appellants shall deposit this amount in every six months in month of April and November of every year and the challan receipts of deposition would be produced on record, failing which, the stay order shall come to an end automatically. It was directed that appellants shall deposit this amount in every six months in month of April and November of every year and the challan receipts of deposition would be produced on record, failing which, the stay order shall come to an end automatically. Thus, it was for appellants to comply with the condition of stay order, if they were serious to protect their possession and not allowing execution of the impugned judgment and decree, so that the equity and hardships may be considered in their favour at the time of deciding the first appeal. Here it may be noticed that since this Court has affirmed findings of the trial Court in respect of issue No.1 and has already held that the agreement in question was executed in favour of plaintiffs, therefore, as a corollary, sale deeds of defendants become subsequent transfer. In such eventualities, defendants No.2 & 3/appellants, being subsequent transferee, still can protest the decree for specific performance and can protect their registered sale deeds, within scope of Section 19(b) of the Specific Relief Act, 1963, subject to proof that they are transferee for value, but paid their money in good faith and without notice of the original agreement. Hence, in the present case, when defendants miserably failed to protect their possession as also execution of the impugned judgment and decree, during course of first appeal and on account of lapses and negligence on the part of appellants, registered sale deed of lands in question has been executed in favour of plaintiffs way back on 20.07.2001, as much as in pursuance thereof, khatedari rights have also been transferred in favour of plaintiffs and their successors as also they have been in continuous cultivation and possession over lands in question, therefore, while dealing with factors of equity and comparative hardships between parties, the subsequent events occurred during course of first appeal that too because of deliberate negligence on the part of appellants, play an important role and affect rights of parties, particularly in the nature of lis for specific performance, where the readiness and willingness, conduct of parties and equity are the relevant factors to be considered not only before institution of the suit, even during course of proceedings of the suit. At the stage of first appeal, being in continuation of suit, the subsequent events occurred during course of first appeal may also be not left out of consideration. 13.10 It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the Court, which discretion requires to be exercised according to settle principles of law and not arbitrary, as adumbrated under Section 20 of the Specific Relief Act, 1963. As per Section 20, the Court is not bound to grant relief just because there was a valid agreement to sale. Apart from requirements for plaintiffs to plead and prove their readiness and willingness under Section 16(c) of the Specific Relief Act, 1963, the equity between parties is also required to be considered. Learned trial Court has exercised its discretionary power and jurisdiction in favour of plaintiffs and has issued decree for specific performance in their favour. It is also settled law that the appellate Court ordinarily is not supposed to interfere in the discretion and equitable remedy where the power exercised by the trial Court are just and appropriate as also in accordance with law. In the present case, this Court has already observed that the discretion of trial Court for issuance of decree for specific performance in favour of plaintiffs, could have been reconsidered with context to possession of lands in question, which was with appellants at the time of filing of the appeal. But since indisputably, appellants have lost possession and in addition, possession of lands in question have come with plaintiffs coupled with the execution of registered sale deed in their favour, in furtherance of execution of impugned decree, therefore, when plaintiffs are in settled and peaceful possession over lands in question since 20.07.2001 onwards, in the opinion of this Court, it is not just and proper to interfere with the decree for specific performance passed by the trial Court. 13.11 It is a case where registered sale deeds of defendants No.2 & 3/appellants have already been declared null and void while passing decree for specific performance in favour respondents/plaintiffs by the trial Court vide impugned judgment and decree dated 25.03.1983. 13.11 It is a case where registered sale deeds of defendants No.2 & 3/appellants have already been declared null and void while passing decree for specific performance in favour respondents/plaintiffs by the trial Court vide impugned judgment and decree dated 25.03.1983. The stay of execution of decree has already come to end due to fault, lapses and negligence of appellants, firstly, due to non compliance of the condition of stay order dated 14.09.1987 and secondly, due to dismissal of the first appeal in default on 30.04.1992. Thereafter, the impugned judgment and decree has been executed through executing Court for and on behalf of judgment debtor/defendant No.1 Hakim Singh and his successors, registered sale deed dated 20.07.2001 has been executed in favour of plaintiffs. As per recital of sale deed, plaintiffs have paid entire sale consideration of Rs.23000/- as agreed under the agreement to sale dated 20.08.1981 (Rs.12000/- before filing of the suit on 27.05.1982 and Rs.11,000/- after issuance of the decree for specific performance on 06.07.1983). In furtherance to the registered sale deed dated 20.07.2001, khatedari rights in the revenue record have also been transferred in favour of plaintiffs and cultivation and possession of lands in question have also been with plaintiffs and their successors since then continuously. This factual aspect has not been disputed by learned counsel for appellants as has been noted by this Court in the order dated 24.05.2023. Thus, appellants deliberately lost their rights to sustain possession and their sale deeds. 13.12 Thereafter, the present appeal was allowed to be restored vide order dated 07.09.2001, but after restoration of first appeal, from the side of appellants, they neither challenged the sale deed dated 20.07.2001 executed in favour of plaintiffs nor disputed their possession as also nor took any steps to revive the stay order dated 14.09.1987 and knowingly allowed plaintiffs to enjoy peaceful & lawful possession of lands in question since 20.07.2001. 13.13 In such peculiar facts and circumstances as referred hereinabove and coupled with lapses and negligence on the part of appellants, this Court is of considered opinion that now at the time of deciding the first appeal, the equity tilts in favour of plaintiffs, who have succeeded in proving the execution of agreement to sale dated 20.08.1981 and have also proved to pay Rs.12,000/- in pursuance thereof, in addition, after passing the decree for specific performance in their favour vide judgment and decree impugned dated 25.03.1983, have paid balance sale consideration of Rs.11,000/- on 06.07.1983 and thereafter, have succeeded in getting the sale deed registered in their favour through executing Court on 20.07.2001 and since then, have been in cultivation and possession of lands in question as Khatedar. The issue of readiness and willingness has already been decided in favour of plaintiffs. The conduct of plaintiffs has been found free from any blame. Thus, it would be inequitable and unjust to disturb the possession of plaintiffs, who have not committed any default nor have any undue advantage on their part. In such circumstances, the balance of interest of appellants may be maintained by making observation that they are free to recover the amount of Rs.20,000/- paid by them to defendant No.1 Hakim Singh, at the time of getting registered sale deeds dated 29.04.1982 in their favour. 13.14 In view of discussions and reasons made hereinabove, this Court finds that the trial Court has not committed any illegality in passing the decree for specific performance in favour of plaintiffs and the same does not warrant any interference, more particularly in the light of subsequent events occurred during the present first appeal as discussed hereinabove and due to negligence per se on the part of appellants, they remained failed to save the subsistence of their sale deeds dated 29.04.1982 as also their possession and have not objected the transfer of khatedari rights as well as possession of lands in question in favour of respondents/plaintiffs, pursuant to registered sale deed dated 20.07.2001, executed by the executing Court in favour of plaintiffs and since then, appellants have allowed respondents/plaintiffs to enjoy the lawful and peaceful possession of lands in question as Khatedar. This Court is not inclined to upset findings of Issue No.1 of the trial Court and it is not just and proper to overturn the decree for specific performance, passed by the trial Court in favour of plaintiffs. Accordingly, Point Nos.11(i) & 11(iii) are hereby decided against appellants. Point No.11(ii):- 14. As far as Point No.11(ii) is concerned, the trial Court framed issue No.4 in respect of, “As to whether sale deeds of defendants No.2 & 3 are liable to be declared as null and void because sale deeds dated 29.04.1982 are subsequent to execution of the agreement to sale of lands in question in favour of plaintiffs?” This issue has been decided by the trial Court against defendants No.2 & 3, for the reason that they remained failed to prove that they are bona fide purchasers of lands in question for value paid in good faith and without having knowledge of agreement to sale in respect of lands in question in favour of plaintiffs. 14.1 In the present case, it is not the case of defendants No.2 & 3 in the written statements itself that they are bona fide purchasers of lands in question. Defendants No.2 & 3, who are appellants have assailed findings of issue No.4, fundamentally on the ground that the agreement to sale dated 20.08.1981 alleged to be executed by defendants No.1 Hakim Singh in favour of plaintiffs, is a fake agreement and therefore, two sale deeds dated 29.04.1982 executed by defendant No.1 Hakim Singh in favour of defendants No.2 & 3, are obviously lawful and valid documents, which have wrongly been declared as null and void by the trial Court. 14.2 But in the opinion of this Court, when the issue of execution of agreement has already been decided against appellants and on affirming findings of the issue No.1 by the trial Court, defendants No.2 and 3, being subsequent purchaser of lands in question, through registered sale deeds dated 29.04.1982, can at the most take resort to Section 19(b) of the Specific Relief Act. In the present case, defendants No.2 & 3 in their written statements, nowhere have pleaded that they are bona fide purchasers of lands in question for value without notice of the agreement to sale about lands in question in favour of plaintiffs. In the present case, defendants No.2 & 3 in their written statements, nowhere have pleaded that they are bona fide purchasers of lands in question for value without notice of the agreement to sale about lands in question in favour of plaintiffs. It is more important to notice that in the plaint, plaintiffs have specifically pleaded in Para No.4 that defendants No.2 & 3 were in knowledge of agreement to sale of lands in question by defendant No.1 in favour of plaintiffs, yet defendants No.2 & 3 purchased lands in question by way of sale deeds dated 29.04.1982. Defendants No.2 & 3, in their written statements have only denied from execution of agreement dated 20.08.1981, but have not taken even an alternative plea of being bona fide purchaser for value without notice. In the evidence of parties, plaintiffs No.1 (PW4) has deposed his evidence in support of pleadings of plaint and in examination in chief, PW4 stated that Umar Khan and Amar Singh had knowledge of the deal of lands in question by defendant No.1 with plaintiffs, however, they got executed registry in their favour. There is no cross examination of evidence of PW4 on this point from the side of defendants. There is no evidence of defendants in rebuttal on this point. 14.3 Learned counsel for appellants referred a judgment of the Hon’ble Supreme Court in case of Hansa V. Gandhi Vs. Deep Shankar Roy [ (2013) 12 SCC 776 ] and argued that the agreement in question in favour of plaintiffs is an unregistered agreement, therefore, there cannot be a presumption of notice against defendants No.2 & 3, by virtue of Section 3 of the Transfer of Property Act. 14.4 This Court finds that it is true that there cannot be a presumption of notice against dependents No.2 & 3 in the present case, but it is a case where plaintiffs have specifically pleaded and have also adduced evidence that defendants No.2 & 3 were in knowledge of the agreement in respect of lands in question before getting sale deeds registered and defendant No.2 miserably failed to controvert pleadings of plaint as also could not rebut the evidence of plaintiffs. In view of evidence of plaintiffs, the onus to prove bona fide purchaser for value without notice, shifts upon defendants No.2 & 3 and in absence of any pleadings or evidence on the part of defendants No.2 and 3, they cannot be assumed to be bona fide purchaser for value without notice of lands in question. Therefore, in the opinion of this Court, defendants No.2 & 3 are not entitled to take resort of Section 19(b) of the Specific Relief Act, to escape from the rigour of the decree for specific performance and to save their subsequent sale deeds in respect of lands in question. However, it is observed that since defendants No.2 & 3 paid Rs.20,000/- against execution of two sale deeds dated 29.04.1982 to defendant No.1 Hakim Singh and defendant No.1 Hakim Singh admits to receive Rs.20,000/- against execution of both sale deeds, therefore, defendants No.2 & 3 are entitled to recover their amount with interest from Hakim Singh or his successors, by resorting due course of law. 14.5 For discussions and reasons made hereinabove, this Court does not find any infirmity in findings of the trial Court while deciding issue No.4 and the same are hereby affirmed. Accordingly, Point No.11(ii) is hereby decided against appellants. 15. The Point No.11(iii) has already been discussed, while dealing with the issue of possession in Point No.12(C) and the same has already been decided against appellants. 16. As a result, the impugned judgment and decree dated 25.03.1983 passed by the trial Court, warrants no interference and therefore, the same is hereby affirmed. However, it is hereby observed that defendants No.2 & 3 are entitled to recover the amount of Rs.20,000/- with interest from defendant No.1 Hakim Singh or his successors, which was paid by defendants No.2 & 3 to Hakim Singh against execution of two sale deeds dated 29.04.1982, obviously by taking resort to the procedure of law. 17. With aforesaid observations, the instant first appeal is hereby disposed of. Decree be framed accordingly. No Costs. 18. All pending application(s), if any, also stand disposed of.