JUDGMENT
Virender Singh, J.
1. The appellant herein was defendant No. 1 before the trial Court. Besides him, Smt. Gopal Kaur widow of Sher Singh and Balkar Singh son of Sher Singh, were also the defendants. They are arrayed as respondents No. 2 and 3 in the present appeal. Service on them was dispensed with by the order dated 23.3.1981 of this Court as they were not the contesting respondents.
2. This second appeal is against the Judgment and decree dated 4.1.1980 passed by the 2nd Additional District Judge, Gurdaspur in the matter of suit for specific performance on an agreement dated 5.2.1976 of sale of land measuring 5 Kanals 2/2(1-16) and Rect. No. 25 Killa No. 3 (4 Kanals out of 8 Kanals) and comprised in Khewat No. 13 Khatauni No. 15, i.e. 5 Kanals 16 Marias out of 9 Kanals 16 Marias situated in the area of village Chhina Retwala, Tehsil and District Gurdaspur. b) Land measuring 5 Kanals 18 Marias comprised in Khewat No. 14 Khatauni 16 and 17 Rect. No. 20 Killa 23/1/1 min (3-5) Killa 23/1/1. min(2-13) situate in the area of village Chhina Retwala, Tehsil and District Gurdaspur.
3. The origin lies in an agreement dated 5.2.1976 of sale and purchase Ex.P.l. At the very out-set it may be stated that the appellant Bakhshish Singh is not a privy to this agreement. The parties to the agreement have no contest inter se in regard to the execution of the said agreement and the respective rights or obligations accruing therefrom. Defendants No. 2 and 3 in the original suit (respondents No. 2 and 3 herein) in their written statement had admitted the claim of the plaintiff and had stated that the appellant was not a bona fide purchaser without notice and he had the knowledge of the prior agreement of respondent No. 1. In their written statement, it was further stated that the suit of respondent No. 1 (plaintiff) may be decreed against the appellant.
4. The appellant contested the suit on the ground that he is a transferee for value who has paid his money in good faith without the notice of the prior transaction. He thus sought protection by virtue of the provisions of Section 19(b) of the Specific Relief Act, 1963.
5. The trial Court dismissed the suit of respondent No. 1 (plaintiff) so far as prayer for possession of the land by specific performance was concerned. However the suit was decreed against defendant Nos. 2 and 3 (respondents herein) only for the recovery of Rs. 12,000/- with costs. The learned Additional District Judge vide his impugned judgment reversed the order of the trial Court. The appellant Bakshish Singh thus felt aggrieved. Hence, this regular second appeal.
6. I have heard Shri M.L. Puri, learned counsel for the appellant and Shri Sanjay Majithia, learned counsel for respondent No. 1, who in fact is the contesting party. With their assistance, I have gone through the entire record as well.
7. The whole of the controversy in this appeal revolved round issue No. 2, which is as under:-
“Whether defendant No. 1 is a bona fide purchaser for value without notice of the agreement in question?
8. During the course of arguments, learned counsel for the appellant has submitted that the observation of the lower appellant Court in para 5 of its judgment is absolutely against the evidence on the file. He has taken me through the statement of Bakhshish Singh/appellant (as DW-1). Mr Puri, thus contends that the admission by the appellant-is non-existent and the first appellate Court has misread the evidence of the appellant and as such, the judgment of the lower appellate Court is vitiated on this score.
9. On the other hand, Mr. Sanjay Majithia, learned counsel for respondent No. 1 has not seriously refuted this aspect. All the same he emphasised on the prior knowledge of the appellant/Bakhshish Singh relying on the statements of Puran Singh PW1 and Ajit Singh PW3, to the effect that they had personally cautioned he appellant about the prior agreement Exhibit P1. Mr. Majithia has taken me through the statements of these witnesses also.
10. The observations of the first appellate Court in para 5 of its impugned judgment reads as under:-
“It has been admitted by respondent No. 1 that he had enquired from the father of the appellant and his other relatives before purchasing the suit land from this it is apparent that the applicant and his father would have certainly apprised respondent No. 1 regarding the agreement to sell in their favour. It is unimaginable that Puran Singh father of the applicant would not have apprised respondent No. 1 regarding the prior agreement to sell in his favour. Simply because the father of the appellant did not serve a written notice to respondent No. 1 regarding the existence of the above stated agreement in favour of his son it cannot be presumed that respondent No. 1 had no knowledge about the existence of the prior agreement in favour of the appellant. The very fact that respondent No. 1 enquired from the father of the appellant and his other relatives goes to prove that he had come to know about the existence of agreement to sell in favour of the appellant. Otherwise, there was no occasion for him to enquire from them. Respondent No. 1, while appearing as his own witness had admitted that he had approached the father of the appellant and his other relatives and in such circumstances it is quite clear that respondent No. 1 came to know abut the existence of the prior agreement to sell in favour of the appellant and he had purchased the suit land knowing fully well that a prior agreement to sell exists in favour of the appellant.”
11. On scrutiny of the record, 1 find that no clear admission to his own interest has been made by Bakshish Singh appellant. It is also pertinent to mention here that the aforesaid plea regrading the statements of PW1 and PW3 was never urged in the fist appeal and as such the lower appellate Court has grossly erred in arriving at a conclusion that the purchaser would have apprised the appellant/Bakhshish Singh about the factum of the agreement Exhibit P1 in his own favour. This is like stretching the view beyond the breaking point. The function of the Court is not to enter the mind of a person. The purchaser might have treated the appellant as a casual person. He may have understood the quarry by the appellant. He alone can explain or clarify as to why he held back in not telling that he was a perspective purchaser. This is no ground to rush to the conclusion that Bakshish Singh appellant was certainly informed of his deal in the matter. The learned lower appellate Court has, in my view, indulged in conjectures and surmises. The statement of Bakhshish Singh appellant cannot be discarded or misread in this manner.
12. In view of the aforesaid discussion, I am of the view that the finding of the lower appellate Court on issue No. 2 is erroneous, whereas the trial Court has rightly decided this issue in favour of the appellant/defendant No. 1 for the reasons, firstly that there is no clear admission by Bahhshish Singh appellant that he had the knowledge of prior agreement; secondly that the statement of the appellant (as DW1) has been misread and thirdly that the interest of the appellant has been seriously injured, resulting in a grave injustice.
13. Consequently, the appeal is allowed, the impugned judgment of the lower appellate Court is set-aside and that of the trial Court is affirmed. However, there will be no order as to costs.