JUDGMENT
R.D. Shukla, J.
1. This appeal is directed against the judgment and decree dated 9-12-1983 of Additional District Judge, Khurai, passed in Civil Appeal No. 12-A of 1982 (arising out of the judgment and decree dated 1-9-1982 of Civil Judge, Class I, Khurai), whereby, while reversing the decree of Trial Court, plaintiff’s suit for specific performance of contract with respect to transfer of suit land, has been decreed.
2. The brief history’ of the case is that the plaintiff-respondent No. 1 filed a suit before the Trial Court on 30-10-1979, with the assertion that, defendant No. 1 Chatarsingh entered into an agreement of sale on 3-3-1979, regarding the land bearing Khasra No. 202/5, area 6 acres, situated in village Semraghat, for a consideration of Rs. 13,000/-. Rs. 3,000/- were paid by the plaintiff to defendant No. 1 Chatarsingh and rest of the amount i.e. Rs. 10,000/- was to be paid at the time of registration of the document. It was also agreed that the execution of the sale-deed would be effected on 12-5-1979, i.e. on the full moon day of Baisakh Sudi 15 of Hindu calendar month. The possession over 4 acres of land was with Hanumantsingh brother of the plaintiff, and possession of 2 acres of land was to be delivered to the plaintiff on execution of the sale-deed. The agreement was entered by Raghuvirsingh son of defendant No. 1, on behalf of his father, defendant No. 1. It was further asserted that the defendants 2 and 3 (appellants here) had notice of this agreement, but, despite notice, defendants 2 and 3, i.e. Harikishan and Bhagwansingh, got the sale-deed executed in their favour in July, 1979. It was further alleged that the plaintiff is ready to perform his part of the contract and, therefore, he sought a relief of specific performance of contract of sale by the defendants. The defendant No. 1 Chatarsingh died during pendency of the appeal in this Court and his legal representatives, i.e. respondents 2(a) and 2(e) have been substituted thereafter.
3. The defendant No. 1 denied the execution of agreement and pleaded that the agreement of sale is a forged document. Defendants Nos. 2 and 3 pleaded ignorance regarding the previous agreement of sale between the plaintiff and defendant No. 1. They have further denied possession of plaintiff over any part of the suit land. They claimed themselves to be bona fide purchasers on payment of sale-consideration.
4. Learned Trial Judge has accepted the fact of execution of document by Chatarsingh and receipt of Rs. 3,000/- from the plaintiff and further found that the defendants Nos. 2 and 3 (appellants here) had no notice of prior contract, and they are bona fide purchasers without notice. As such decree for return of Rs. 3,000/- was granted against the defendant No. 1 Chatarsingh [ the predecessor of respondents Nos. 2(a) to 2(e)].
5. On appeal, the learned first appellate Court held that defendants Nos. 2 and 3, subsequent purchasers, had notice of prior agreement and, therefore, the decree for specific performance of contract of sale of suit land, was granted. Hence this second appeal.
6. The appeal had been admitted for hearing parties on following substantial questions of law : –
(i) Whether on correct interpretation of agreement Ex.P-1, time was an essence of the Contract?
(ii) Whether on evidence on record and with the finding of the trial Court, the finding of lower appellate Court that the appellants are not bona fide purchasers, without notice, is legal and sustainable?
(iii) Whether the decree passed by the lower appellate Court is vague and incomplete on o the question of balance of consideration?
The following additional questions of law were framed at the instance of counsel for the appellants on 28-8-1991 –
(i) Whether the agreement Ex.P-1 which does not seem to bear the signature of the purchaser Jaswant Singh, is an agreement at all binding on the parties?
(ii) Whether the agreement Ex.P-1 is void for vagueness under Section 29 of the Contract Act?
7. In this case, Chatarsingh or his legal representatives have not filed any appeal. Despite money decree against Chatarsingh, no appeal was filed by him in the First Appellate Court also and, therefore, that fact cannot be taken into consideration; and, as such main point of consideration in this case is as to whether the appellants are bona fide purchasers without notice. The fact of validity of contract, binding nature of it and payment of consideration, have been discussed by the two Courts below, those findings can be disturbed only if they are perverse, based on no evidence or on inadmissible evidence, as that may itself raise a substantial question of law.
8. Learned counsel for the appellant submitted that the document Ex.P-1 does not purport to bear the signature of vendor Chatarsingh and, therefore, the agreement cannot be accepted to be complete. In this case Chatarsingh has not appeared in the witness box. He has not denied the fact of execution and payment of consideration, on oath.
9. As against it plaintiffs witness Durga Prasad (PW-4) stated that there was talk of sale of land between Jwala Prasad (PW-1) for and on behalf of Jaswant Singh and Raghuvirsingh for and on behalf of Chatarsingh and thereafter Ex.P.-l was executed. In document Ex.P-1 there is a recital DASTKHAT CHATARSINGH KE KHUD, and Raghuvir Singh son of Chatarsingh has been shown to be as witness. Though it is true that Raghuvirsingh and Jwala Prasad Singh signed the document, but there is evidence that Rs. 3,000/- was paid to Chatarsingh by and on behalf of plaintiff (through father Jwala Prasad). Since this fact of payment of money by Jwala Prasad on behalf of his minor son Jaswant Singh plaintiff and the acceptance of the same by Chatarsingh had been proved and the said fact having been taken to be proved by the two Courts below it cannot be said that there is no binding contract or the agreement was incomplete. If one of the parties to the agreement performs his part of agreement by making payment of money it would be deemed that he binds himself with the agreement even though he has not signed it.
10. Learned counsel for the appellant then submitted that the agreement Ex.P-1 is void because of uncertainty. Section 29 of the Contract Act provides that the agreement meaning of which is not certain or capable of being made certain or void. In this case, there is a recitation that land agreed to be sold is adjacent to the land earlier sold to Hanumant Singh and, therefore, it was capable of being made certain and as such it cannot be said to be void for uncertainty.
11. It was thereafter submitted that the plaintiff purchaser was required to get the document executed by Baisakh Sudi 2036 i.e by full moon day of Hindu calendar month Baisakh. Subsequent sale in favour of the defendant/appellant has been made thereafter and, therefore, it should be taken that time was the essence of the Contract. Though there is a recital that vendor would be entitled to appropriate the payment of Rs. 3,000/- if the proposed vendee did not pay the rest of the money by the time stipulated therein. But in such a case of agreement of sale of immovable property time cannot be taken to be the essence of contract. The fixation of period during which the contract has to be performed does not make the stipulation as to time the essence of the contract. When a contract relates to sale of immovable property it will normally be presumed that the time is not the essence of the contract. The intention to treat time as the essence of the contract may be evidenced by circumstances which should be sufficiently strong to displace the normal presumption that in a contract of sale of land stipulation as to time is not the essence of the contract. See Govind Prasad Chaturvedi v. Hari Dutta Shastri and Anr., AIR 1977 SC 1005.
12. In the opinion of this Court, therefore, the time was not the essence of the contract. Now therefore it has to be seen as to whether the defendants-appellants are bona fide purchasers without notice.
13. In this case the learned Trial Court found that the defendants/purchasers had no notice of earlier contract. The possession recorded in the khasra record was also not accepted. The entry in the annual village paper was made after purchase by the defendant and the defendants took possession immediately after execution of the document. The agreement of sale Ex.P-1 was executed on 3-3-1979, and Ex. D-l sale in favour of Harikishan Defendant No. 2 and Ex.D-2 sale in favour of Bhagwan Singh defendant No. 3 was executed on 5-7-1979. The document Ex.P-11 copy of khasra record contains an entry in column No. 14 – HANUMANT SINGH VA JASWANT SINGH SAO PYASI NE FASAL BOII The agricultural year 1978-79 would mean the period from 1st July 78 to 30th June 79. The agreement was executed on 3rd day of March, that is not the period of sowing. The earlier crop wheat and gram must have been sown somewhere in October/November, 1978 and that must have been sown by Chatarsingh as there was no agreement till that date; therefore, the alleged purchaser by agreement Ex.P-1 Jaswant Singh must not have cultivated the land and Ex.P-11 cannot be taken to be proof of possession of Jaswant Singh, and it was rightly held so by the Trial Court.
13-A. The Trial Court has also not accepted the version of notice to subsequent purchasers by alleged talk of agreement in the temple. While learned first appellate Court has given much importance to it. There is no averment in the plaint that the plaintiff or any of the witnesses of the document has personally informed about the agreement to defendants Nos. 2 and 3, or declared about the agreement before and in the presence of defendant and in front of the temple. Though this may be deemed to be evidence; but this is an important fact alleging notice to the subsequent purchasers and therefore, it ought to have been pleaded. In the absence of any such pleading to that effect, the random evidence of that fact cannot be accepted and it was rightly not relied upon by the Trial Court. If the Trial Court records a finding as to unreliability of oral evidence and the appellate Court disturbes that finding of Trial Court without disturbing the finding of unreliability of witness, the finding would be deemed to be perverse and based on no evidence and as such is not maintainable. The onus of proving that the subsequent purchaser had no notice of prior cliam lies on such purchaser and the onus of such negative issue is ordinarilv discharged by a denial and by a negative evidence. See Lekh Singh v. Dwarka Nath and Ors., AIR 1929 Lah. 249. In this case the defendants/purchasers have discharged that onus. They have denied on oath the fact about the notice. The entry in Khasra record Ex.P-11 is incorrect without any basis and without the direction of the authorities, as any acquisition of rights over the land has to be reported under Section 119 of the Madhya Pradesh Land Revenue Code, 1959. There is no evidence that Jaswant Singh or his father produced the document before the Patwari or any revenue authority. There is no endorsement by the Patwari and, therefore, the entry in Ex.P-11 with respect to possession could not be made, and that has rightly hot been accepted by the Trial Court. The finding of the first appellate Court with respect to reliability of that entry is perverse and based on no” evidence. The fact of notice by talk or a gossip in the temple alleged by the plaintiff cannot be accepted as there is no pleading to that effect and that oral evidence was not accepted by the Trial Court who had the better chance of looking to the demeanour of the witnesses.
13-B. In the opinion of this Court, therefore, the subsequent purchaser had no notice of prior agreement and as such they are bona fide purchasers, on consideration and without notice. Under these circumstances the decree of transfer and execution of document against the defendant appellant cannot be sustained.
14. Consequently, the appeal is allowed with costs and decree of the first, appellate Court is reversed and that of the Trial Court is restored. Counsel’s fee as per schedule, if certified.