Karamjit Singh vs Joginder Singh And Others on 26 November, 2009

R.S.A.No. 1228 of 2009 (O&M)                                      1



        In the High Court of Punjab and Haryana at Chandigarh


                          R.S.A.No. 1228 of 2009 (O&M)
                          Date of decision: 26.11. 2009



Karamjit Singh
                                                        ......Appellant

                           Versus


Joginder Singh and others

                                                     .......Respondents


CORAM: HON'BLE MRS. JUSTICE SABINA


Present:     Mr.Avnish Mittal, Advocate,
             for the appellant.

                  ****


SABINA, J.

Plaintiff Karamjit Singh filed a suit for possession by way

of specific performance of agreement to sell dated 29.12.1995,

which was partly decreed by the Civil Judge (Jr.Divn.), Jagadhari

vide judgment and decree dated 16.12.2005. In appeal, filed by the

plaintiff, the said judgment and decree were upheld by the

Additional District Judge, Yamuna Nagar at Jagadhari vide judgment

and decree dated 19.1.2009. Hence, the present appeal by the

plaintiff.

R.S.A.No. 1228 of 2009 (O&M) 2

Brief facts of the case, as noticed by the lower appellate

Court in para Nos. 2 to 5 of its judgment, are as under:-

“2. The appellant/plaintiff (hereinafter referred to

as the plaintiff) brought a suit for possession by way of

specific performance with material averments that vide

agreement to sell dated 29.12.95, defendant no.1 owner

of the suit land (as detailed in head note of the plaint)

agreed to sell his 1/3 share i.e. 36K-10M for total sale

consideration of Rs.3,20,000/- and received Rs. One lakh

as earnest money under the agreement to sell vide

receipt of even date. The date fixed for execution and

registration of sale deed was 20.7.1996.

3. The plaintiff further averred that respondent no.1

disclosed to him at the time of execution of the agreement

to sell that the land is under mortgage with defendants

no.2 to 5 and he would get the land redeemed before

execution and registration of sale deed, in case he fails to

redeem the land before stipulated date, he would leave

the mortgage amount with the plaintiff. The plaintiff

averred that the agreement to sell contains usual terms

and conditions as regard to the penal clause of forfeiture

of earnest money and payment of double amount and

enforcement of specific performance of agreement to sell

in case of default of either of the party.
R.S.A.No. 1228 of 2009 (O&M) 3

4. The plaintiff further averred that he

disclosed the agreement to sell to defendants

no.2 to 4 by visiting their village Lalheri Kalan in

the first week of February, 1996 and also showed

them the agreement to sell which was read by

defendants no.2 to 4 and also enquired about if

defendant no.1 had approached them for

redeeming the land and assured them that the

land would be soon redeemed. The plaintiff

further pleaded that defendant no.1 did not fulfill

his obligation under the contract and he did not

appear before the Sub-Registrar Chhachhrauli on

due date as agreed upon between the parties for

execution and registration of the sale deed. He

marked his presence in the office of Sub

Registrar on 19.7.1996 already with the money as

20.7.1996 was Saturday, a holiday. The plaintiff

stated that he has always been willing to perform

his part to contract and also met the defendant

no.1 in first week of February, 1996 and tendered

the entire balance sale consideration and the

amount for purchased of the stamp papers and

other miscellaneous expenses for execution and

registration of the sale deed but defendant no.1
R.S.A.No. 1228 of 2009 (O&M) 4

put off the matter by pleading that the time fixed

for execution and registration of the sale deed is

quite for away and that the land has not been

redeemed by him so far. The plaintiff further

pleaded that on 20.7.96 he approached the

defendant no.1 and asked him to fulfill his part of

contract but he was astonished to know that

defendant no.1 had secretly sold the entire land

alongwith other land to defendants no.2 to 4 by

means of two sale deed dated 15.2.96 and

25.6.96. The plaintiff further pleaded that

defendants no.2 to 4 have sold the land to

defendant no.6 vide sale deed dated 4.9.96 in

order to defeat his right in the suit land. The

plaintiff stated that he was is still ready and willing

to perform his part of contract and pleaded that

defendants be asked to honour the agreement to

sell. He also challenged the sale deeds in

question as illegal, null and void and not binding

upon his rights. He stated that the defendants

have knowledge of the agreement to sell in

question and thus, prayed that he be granted a

decree for possession of the suit land by specific

performance of the agreement to sell dated
R.S.A.No. 1228 of 2009 (O&M) 5

29.12.95, as prayed for by him.

5. The respondents/defendants no.1 & 5

(hereinafter referred to as the defendants no.1 &

5) did not contest the suit and were preceded

against exparte.

6. Respondents/defendants No.2 and 4

(hereinafter referred to as defendants No.2 & 4)

filed their joint written statement and resisted the

suit of the plaintiff by taking preliminary objections

interalia as to the maintainability of the suit being

bad on account of mis-joinder of necessary

parties and that the defendants are bonafide

purchasers of the suit land for valuable

consideration and are being protected by law.

The plaintiff is estopped from filing the present

suit by his own act and conduct.

On merits, the defendants denied the execution of

the agreement to sell dated 29.12.95 between the

plaintiff and defendant no.1 and pleaded that the

agreement in question is forged document, which

has been prepared in collusion with the plaintiffs

and defendant no.1 being close relative and as

such not binding upon their rights. However, they

admitted that the suit land was under mortgage
R.S.A.No. 1228 of 2009 (O&M) 6

for Rs.1,99,000/- with them. They pleaded that

the plaintiff actively participated in the execution

of the sale deed regarding the suit land, which

has been executed by defendant no.1 in their

favour for valuable consideration. They pleaded

that the sale deeds dated 15.2.96 and 25.6.96

executed in their favour by defendant no.1 are

valid and binding upon the plaintiff. They also

admitted that they sold the land to defendant no.6

as they had every right to sell the same being

bonafide purchasers for valuable consideration.

With these broads averments, they pleaded to

dismiss the suit.

7. Respondent/defendant no.6 (hereinafter

referred to as defendant no.6) filed a separate

written statement and pleaded that he purchased

the suit land from defendants no.2 to 4 for

valuable consideration and as such has become

rightful owner of the land in question, being

bonafide purchaser. All the facts mentioned in the

plaint were denied for want of knowledge and

pleaded that the plaintiff has not come in the

court with clean hands and as such has no locus

standi to file the present suit. With the aforesaid
R.S.A.No. 1228 of 2009 (O&M) 7

broad averments, he pleaded to dismiss the suit

of the plaintiff.”

On the pleadings of the parties, following issues

were framed by the trial Court:-

1. Whether the plaintiff is entitled for possession

of the suit land by way of specific performance of

agreement dated 29.12.95 as prayed for ? OPP

2. Whether the suit is not maintainable ? OPD

3. Whether the suit is bad for mis-joinder of

necessary parties?OPD

4. Whether the defendants are bonafide

purchaser of the suit land for valuable consideration,

if so its effect ? OPD

5. Whether the plaintiff is estopped from filing the

present suit by his own act and conduct ? OPD

6. Whether the agreement dated 29.12.95 is

forged document? OPD

7. Relief.

After hearing learned counsel for the appellant, I am of

the opinion that the present appeal deserves to be dismissed.

Plaintiff had filed a suit for specific performance of

agreement to sell dated 29.12.1995. The Courts below have

decreed the suit of the plaintiff-appellant for recovery of double the

earnest money. The relief for specific performance of agreement to
R.S.A.No. 1228 of 2009 (O&M) 8

sell was declined on the ground that defendants No. 2 to 5 were

bona fide purchasers for consideration. The point in issue for

consideration in the present appeal is only to the limited extent as to

whether defendants No.2 to 6 were bona fide purchasers in

consideration. Although DW-1 Vinod Kumar had not appeared for

cross-examination but in a suit filed by defendant No.1 against

defendant Nos. 2 to 4, defendant No.1 had challenged the sale

deeds executed by him in favour of defendants No.2 to 4. The

property in question was already mortgaged with defendants No.2 to

5 for a sum of Rs.1,99,000/- vide mortgage deed dated 18.8.1994.

The possession of the suit property was already with the said

defendants. In these circumstances, the Courts below rightly held

that the defendants, who were already in possession of the suit

property as mortgagees, had no notice of the agreement to sell

executed by defendant No.1 in favour of the plaintiff and

consequently, they were bona fide purchasers for consideration.

No substantial question of law arises in this regular

second appeal. Accordingly, the same is dismissed.

(SABINA)
JUDGE
November 26, 2009
anita