Regular Second Appeal No. 1329 of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Regular Second Appeal No. 1329 of 2009. (O&M)
Date of Decision: 25.3.2009
***
Jagir Singh & Ors.
.. Appellants
VS.
Kuldeep Chand & Ors.
.. Respondents.
CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR,
Present:- Mr. S.K. Sandhir, Advocate
for the appellants.
***
ARVIND KUMAR, J.
The instant regular second appeal has been preferred by the
defendants-subsequent purchasers against the judgments and decrees passed
by the Courts below holding that the sale-deed dated 15.6.1987 executed by
respondent Shamsher Singh in their favour, being the attorney of his grand-
father Bakhtawar Singh, not binding upon the rights of the plaintiffs-
respondents No.1 and 2 and their plea of being bonafide purchaser has been
disbelieved by both the Courts below and they have been directed to join
hands with Bakhtawar Singh to get the sale-deed executed in favour of the
plaintiffs, the right which accrued in their favour by dint of agreement to
sell dated 14.7.1984.
Having heard learned counsel for the appellants, this Court is of
the considered view that there is no merit in the instant appeal. It emerges
out that the plaintiffs by producing over-whleming evidence on record,
proved the due execution of agreement to sell dated 14.7.1984 executed by
Amrik Singh, father of respondent Shamsher Singh, in their favour being
attorney of his father Bakhtawar Singh and also that they remained ready
and will to perform their part of the contract. The plea of the appellants that
they are bonafide purchasers for valuable consideration and without notice
Regular Second Appeal No. 1329 of 2009 2
of the agreement dated 14.7.1984 in favour of the plaintiffs and thus, their
rights are protected by Section 41 of the Transfer of Property Act, has been
disbelieved by the Courts below. Admittedly, prior to the said sale-deed, no
agreement to sell was entered into between the parties and straightway sale-
deed was executed in favour of the appellants; admittedly the appellants and
the sellers hail from the same village, leading to the inference by the Courts
below that it is not possible for them to have no knowledge of the
agreement to sell dated 14.7.1984 in favour of the plaintiffs and some
admissions made by respondent Shamsher Singh and the appellant Rajender
Singh, led the Courts below to conclude that the conduct of the appellants is
not bonafide and the agreement dated 14.7.1984 in favour of the plaintiffs
was well within their knowledge. The above-said findings are discernible
from paras No.21, 22 and 23 of the judgment passed by the learned
Appellate Court, which are reproduced below:-
“21. The learned counsel for the respondents
have alleged that the unusal haste have been shown by
the defendants for getting the sale deed in their favour.
They have relied upon 1997 (supplementary) CCC 111
Punjab and Haryana in case titled as Nirmal Singh and
others Vs. Gejo in which it has been held by the Hon’ble
High Court that, “subsequent purchaser vendees did not
entered into the agreement. Unusual haste with which
the sale deed was executed and registered and other
circumstances point out towards only one conclusion
that the vendees had the notice of the previous
agreement to sell”. The law laid down in this citation is
fully applicable to the facts of the case in hand.
Defendant/ appellants have failed to rebut the law laid
down in this citation, as in the instant case also there is
no prior agreement between the subsequent vendees and
the vendor regarding the sale of the property in dispute.
Although in their written arguments the appellants have
alleged that there was oral agreement and subsequently
sale deed was executed. Even this contention is devoid of
Regular Second Appeal No. 1329 of 2009 3any merits. There is not an iota of evidence on the file to
prove this fact. Rather acts of the appellant clearly
shows that they have shown undue haste in getting
executed the sale deed in their favour which clearly
shows that they were fully aware about the prior
agreement to sell in favour of the plaintiff/ respondent.
22. Defendant Shamsher Singh has admitted in
his cross examination that when he came to know about
the agreement executed of Bakhtawar Singh, he assumed
same to be forged document, so he entered into sale deed
dated 15.6.1987 with defendant No.4 to 7. He further
admitted that sale deed was execute to frustrate the
agreement in question in favour of the plaintiffs. He
further admitted at that time Amrik Singh and Bakhtawar
Singh used to reside together and after the death of
Bakhtawar Singh he and Amrik Singh are residing
together. Meaning thereby from whom the subsequent
purchasers have purchased the property was fully
knowing about the previous agreement to sell in favour
of the plaintiffs and he intentionally executed sale deed
to frustrate the prior agreement to sell executed by
Amrik Singh in favour of the plaintiffs. The learned
counsel for the respondents/ plaintiffs has relied upon
2008(1) RCR 649 in case titled as Moti Ram Vs.
Mohinder Singh in which it has been held by the Hon’ble
High Court in para no.14 “In order to succeed under
section 19(b) of the Act two conditions were required to
be fulfilled i.e. the payment was made in good faith and
the alienation was made without notice of the original
contract. In this regard it is relevant to notice that in the
plaint a specific plea was taken that the agreement to
sell dated 3.6.1998 was well within the knowledge of
defendant No.2. It was further pleaded that the sale deed
was executed in favour of defendant No.2 in order to
create or cause wrongful loss to the plaintiff. This
Regular Second Appeal No. 1329 of 2009 4specific plea was supported by the evidence led by the
plaintiff whereas defendants after denying the same
chose not to appear in the witness box. In view of what
has been stated above, the appellant cannot drive any
benefit from the provisions of Section 19(b) of the
Specific Relief Act as he has failed to prove on record
that the sale consideration was made without notice of
agreement. Rather the evidence led by the plaintiff
respondent that the sale deed was executed to defeat his
right went unrebutted as the appellant chose not to
appear in support of the case set up by him. The
authorities relied upon by the appellant, therefore, does
not in any way advance the case sought to be pleaded by
the learned counsel for the appellant. The plaintiff
respondent had taken a specific plea that the sale deed
was not bonafie”. Although in the written arguments the
appellants have alleged that they are not bound by the
statement made by DW-4 Shamsher Singh but this
contention is devoid of any merits. It clearly shows that
appellants are trying to wriggle out of the statement
made by Shamsher singh. Rather evidence of Shamsher
Singh makes it clear that he was fully aware about the
prior agrerement to sell and he intentionally executed
the sale deed in connivance with defendant no.4 to 7 just
to frustrate the prior agreement to sell. As such
defendant no.4 to 7 cannot be termed as bonafide
purchasers and their rights are not protected under
Section 41 of Transfer of Property Act.
23.Defendants/ appellants have not made proper inquiry
before getting the sale deed executed in their favour
and thus their rights are not protected under Section
41 of the Transfer of Property Act. Consequently I do
not find any illegality or irregularity in the findings
recorded by learned trial Court……. ”
Regular Second Appeal No. 1329 of 2009 5
The aforesaid findings returned by the learned appellate Court while
affirming that of learned trial Court, lead to irresistible conclusion that there
is no room for interference in the concurrent findings returned by the Courts
below.
In view of the above, the instant appeal being devoid of any
merit is dismissed in limine.
(ARVIND KUMAR)
JUDGE
March 25,2009
Jiten