JUDGMENT
Khem Chand Sharma, J.
1. This appeal under Section 96 C.P.C. arises out of the judgment and decree dated 31.5.1990 passed by the learned Additional District Judge No. 2, Ajmer whereby the learned Judge has dismissed the plaintiff’s sit.
2. Plaintiff Om Prakash filed a suit against the defendants for specific performance with the averments that late Gopi Chand, husband of defendant No. 1 and father of defendants No. 2 to 7 was the sole owner of the property described in para No. 1 of the plaint. After the death of Gopi Chand, the defendants being legal heirs of late Gopi Chand, became owner of the suit property. The defendant No. 1 at her own and in the capacity as authorised representative of efendants No. 2 to 7 continued to maintain the property and used to receive rent from the tenants including plaintiff residing in the suit premises. Some of the portion of the suit property as described in para 3 of the plaint was on rent with the plaintiff and plaintiff and his mother Smt. Kastoori Devi was residing therein and paying rent of Rs. 28/- per month. In the remaining portion at the upper floor, Sumer Chand Jain, husband of defendant No. 8 was in possession as tenant. The plaintiff further alleged that defendant No. 1 executed an agreement in his favour on 5.12.1982 at Ajmer, thereby agreeing to sell the property mentioned in para No. 1 of the plaint for a consideration of Rs. 18,000/- and received a sum of Rs. 2,000/-as an advance against sale consideration. The defendant assured the plaintiff that she will execute a sale deed within a period of one year and shall also hand over vacant possession of the suit property and that she will receive the remaining amount of sale consideration at the time of registry. In case of failure on her part, the defendant granted liberty to the plaintiff to take legal action.
3. The plaintiff further alleged that before expiry of the period of agreement, the defendants No. 1 to 7 fraudulently and with dishonest intention transferred the disputed property in favour of defendant No. 8 for a consideration of Rs. 22,000/-. Since the agreement dated 5.12.1982 made in favour of the plaintiff was already in existence, therefore, the subsequent agreement made by defendants No. 1 to 7 in favour of defendant No. 8 is illegal and ineffective so far as rights of the plaintiffs are concerned and hence the same is liable to the quashed. Accordingly to the averments of the plaint, the defendant No. 8 was well aware of the execution of agreement in favour of the plaintiff but still she hatched conspiracy with defendants No. 1 to 7 and got the sale deed executed and registered in her favour. Having come to know about the execution of sale deed in favour of defendant No. 8, the plaintiff informed the defendants on 14.9.1983 through registered post and requested to complete their part of the contract and to execute sale deed after receiving the remaining amount, which the plaintiff was always ready to pay. It was in these circumstances, the plaintiff filed a suit for cancellation of sale deed made in favour of defendant No. 8 and for specific performance.
4. The defendants No. 1 and 3 to 7 filed written statement and denied the averments of the plaint. They have stated that number of the property has wrongly been disclosed. It has been denied that the defendants No. 2 to 7 had authorised defendant No. 1 to take care of the property and to receive the rent. The defendants No. 1 to 7 being the legal heirs of Gopi Chand were the owners of the property and all were realising rent from the tenants and the defendant No. 1 had never been the authorised representative. They have admitted that Sumer Chand, husband of defendant No. 8 was tenant. However, Smt. Kastoori has been denied to be the tenant. It has been averred that defendant No. 8 became owner of the property, bearing No. 1011-A/14 by virtue of registered deed dated 8/25.3.1983 and the plaintiff became tenant of defendant No. 8. Neither the defendant No. 1 executed any agreement in favour of plaintiff nor she assured him in any manner. While denying all averments in the plaint, the defendants have stated that the documents filed by the plaintiff are forged. The defendant No. 3 sold half of the portion of property AMC 969/32 for a consideration of Rs. 22,000 to defendant No. 8 and executed an agreement on 25.11.1982. It has been denied that defendant No. 1 sent any letter to the plaintiff on 22.7.1983 and 16.9.1983.. The plaintiff No. 1 alone had no right to execute any agreement in respect of sale of the property. The plaintiff has tried to take undue advantage of defendant No. 1 being an illiterate lady and was not competent either to sale or to execute an agreement to sale.
5. The defendant No. 8 has filed separate written statement and reiterated the facts stated in the written statement filed on behalf of defendants No. 1 and 3 to 7. It has been stated that since the defendant No. 8 being the owner of the property started insisting the plaintiff to vacate the premises and to pay the arrears of rent, therefore, the plaintiff has brought the present suit and has prepared a forged agreement to sell dated 5.11.1982.
6. On the basis of pleadings of the parties, the trial court framed as may as 11 issues and at the conclusion of trial, the learned trial court vide its impugned judgment and decree has dismissed the plaintiff’s suit with costs. Hence the present appeal.
7. I have heard learned Counsel for the parties and gone through the evidence’ and material on record and the impugned judgment.
8. The trial court, on consideration of evidence and material on record, concluded that Mst. Gayatri Devi, defendant No. 1 had executed an agreement Ex.1 on 5.12.1982 in favour of plaintiff. She had executed the agreement on her own behalf and not on behalf of other co-sharers namely defendants No. 2 to 7. The court below found that plaintiff had paid to defendant No. 1 a sum of Rs. 2000/- as an advance amount at the time of execution of agreement Ex.1. However, the trial court concluded that since agreement Ex.1 was executed by defendant No. 1 on her own behalf without the consent of defendants No. 2 to 7, co-sharers in the disputed property, therefore she was not competent to enter into any agreement in respect of joint property and accordingly the plaintiff was not entitled to get the sale deed registered in his favour on the basis of agreement Ex. 1. In this view of the matter, it was held that agreement Ex.1 having been executed by defendant No. 1 without the consent of co-sharers was ineffective against defendants No. 2 to 7. The trial court further came to the conclusion that disputed property was the joint property and the plaintiff has not been able to prove that defendant No. 1 decided to sell the property either for the purposes of welfare of the family or to meet the personal needs. In fact, the plaintiff and husband of defendant No. 8, both were tenants in the disputed property and the defendants were negotiating with them for sale of the property. The plaintiff with his influence succeeded in getting an agreement Ex.1 executed in his favour by defendant No. 1 by paying Rs. 2,000/-. Prior to execution of agreement Ex.1, the defendant No. 3 Mitendra Nath Sharma executed an agreement in favour of defendant No. 8 with the consent of other defendants. All the defendants agreed to sell the disputed property to defendant No. 8 for a consideration of Rs. 22,000/- and having received the entire amount, the defendants executed a registered sale deed Ex.12 in favour of defendant No. 8. In these circumstances, the trial court held that defendant No. 8 was the bona fide purchaser and therefore the sale deed cannot be declared to be void and ineffective.
9. Undisputedly, Smt. Gayatri Devi, defendant No. 1 had executed an agreement to sell (Ex.1) dated 5.12.1982 in favour of plaintiff Om Prakash. However, prior to the execution of above agreement Ex.1, Mitendra Sharma, defendant No. 3 on his behalf and on behalf of all co-sharers had executed an agreement to sell in favour of Smt. Sharda Devi, defendant No. 8, thereby all the co-sharers agreed to sell the disputed property for a sum of Rs. 22,000/-. It may be stated that defendants Manoj Chand, Satish Chandra, Kumari Bharti, Kumar Umesh Nandini and Kumari Chandra Mukhi had executed special power of attorney in favour of their mother Smt. Gayatri Devi, defendant No. 1 thereby authorising her to sign the sale deed, present the sale deed before the Sub-Registrar for registration and to admit the execution of sale deed and to receive the balance of sale consideration etc. on their behalf. Para 1 of the power of attorney specifically mentions about the execution of an agreement dated 25.11.1982 to sell the disputed property in favour of Smt. Sharda Devi, defendant No. 8 for a consideration of Rs. 22,000/-. According to the plaintiff, this agreement dated 25.11.1982 is forged one because the sale deed Ex.12 executed by all the defendants does not contain the fact of any such agreement having been executed. It is true that the sale deed does, not expressly contain the fact of execution of agreement Ex.A/1. In Ex.A/1 it has been mentioned that as against sale consideration of Rs. 22,000/-, Rs. 1,500/- have been received in cash and Rs. 2,500/- have been received through Bank Draft No. 534632 dated 25.11.1982. In the sale deed Ex.12, it has been mentioned specifically that Rs. 4,000/- have been paid in advance. In this way, Rs. 4,000/- have been paid in advance and the balance amount Rs. 18,000/- have been agreed to be paid at the time of registration of sale deed. Defendant No. 8 Sharda Devi has proved this agreement, Ex.A/1. She has stated in her statement that before purchase of house, she had entered into an agreement with Mitendra Sharma defendant No. 3. She has admitted her signature at portion A to B. It is thus established that an agreement to sell Ex.A/1 was executed on 25.11.1982, thereby disputed property was agreed to be sold for a sum of Rs. 22,000/- to defendant No. 8 and Rs. 4,000/- as stated above were paid in advance by defendant No. 8.
10. Mr. R.K. Mathur, appearing for the plaintiff has strenuously contended that plaintiff Om Prakash was a bona fide purchaser under agreement Ex.1 having been executed in his favour by defendant No. 1 on her behalf and on behalf of all the co-sharers, inasmuch as he had no notice of previous transaction and, therefore, the sale deed Ex.A/2 Ex.12 is ineffective and is liable to be declared void. Learned Counsel argued that the plaintiff was in possession of the suit property occupying it as a tenant, yet the defendant No. 8 did not make any inquiry whether the plaintiff had any further or other interest in the suit property, at the time of execution of sale deed in her favour. In support of his contention, Mr. Mathur has relied upon R.K. Mohammed Ubaidullah and Ors. v. Hajee C. Abdul Wahab (D) by Lrs. and Ors. and Ram Niwas (dead) through Lrs. v. Smt. Bano and Ors. . The ratio of these judgments is that for subsequent purchaser it is essential to make an inquiry as to the title or interest of the person in actual possession. In the absence of such an inquiry, subsequent purchaser cannot be treated to be a bona fide purchaser for value.
11. I have considered the above argument and gone through the case laws cited at the bar. Plaintiff Om Prakash was examined as PW1. He has stated in his statement that he came to know about the agreement Ex.A/1, sale deed Ex.A/2 and power of attorney Ex.A3 after about 5-6 months of the execution of agreement Ex. 1 in his favour. It is thus evident from the plaintiff’s own statement that execution of agreement Ex.A/1 in favour of defendant No. 8 had also come to his knowledge, may be after 5-6 months of the execution of agreement Ex.1 by defendant No. 1. It has thus been proved that there existed an agreement in favour of Smt. Sharda, defendant No. 8 which was executed by defendant No. 3 Mitendra Sharma and after the execution of this agreement Ex.A/1, another agreement Ex.1 came to be executed by defendant No. 1 in favour of plaintiff. In this view of the matter the case laws cited at the bar are also of no help to the plaintiff for the simple reason that plaintiff himself was a subsequent purchaser and he had, as stated above, knowledge of the previous agreement in favour of defendant No. 8. Thus the agreement in favour of defendant No. 8 Smt. Sharda Devi being of a prior date i.e. 25.11.1982 the plaintiff cannot claim equities against the defendants and cannot enforce his agreement dated 5.12.1982 which is undoubtedly subsequent to the agreement dated 25.11.1982. lam fortified in my view by a decision of Division Bench of Allahabad High Court in Sampat Ram and Ors. v. Babu Lal wherein the Division Bench held as under:
Where there is an agreement to sell immovable property executed in favour of the defendant prior to the agreement to sell in favour of the plaintiff in respect of the same property, the plaintiff can claim no equities against the defendant and cannot enforce his agreement and the fact that the plaintiff had no knowledge of the prior agreement would hardly make any difference. (Head Note – ‘b’)
12. It is true that Gayatri Devi, defendant No. 1 had executed an agreement in favour of plaintiff and she has made an admission to this effect in her letter Ex.5, but that does not create any right or title in favour of the plaintiff because earlier to execution of agreement by Smt. Gayatri Devi, Mitendra Sharma, defendant No. 3 had already executed an agreement to sell in favour of defendant No. 8 on behalf of all the co-sharers.
13. It is also true that Mitendra Sharma, defendant No. 3 was not authorised by other co-sharers as was in the case of defendant Gayatri Devi, but later-on, defendant No. 3 Mitendra Sharma and defendant No. 1 Gayatri Devi on her behalf and on behalf of all other co-sharers got the sale deed registered in favour of defendant No. 8 Smt. Sharda and thus by executing sale deed, the defendants have rectified the agreement Ex.A/I.
14. Lastly, Mr. Mathur has contended that the defendants have withheld examination of Mitendra Sharma defendant No. 3 in evidence who could have thrown light on the issue in controversy and therefore an adverse inference should be drawn against the defendants. In support of his contention, Mr. Mathur has relied upon Smt.Niranjan Kaur v. New Delhi Hotels Ltd. and Ors. and Gopal Krishnai Ketkar v. Mohamed Haji Latif and Ors. AIR 1968 SC 1418. The ratio of these judgments is that if a party in possession of best evidence which would throw light on the issue in controversy withholds such evidence, the court shall draw an adverse inference against it notwithstanding.that onus of proof does lie on him.
15. I have given my anxious consideration to the above argument and I am not convinced with it. It must be observed that it is not the number of witnesses, but it is the quality of evidence which is required to be taken note of by the court for ascertaining the truth of the allegation made against a party. Section 134 of the Evidence Act clearly provides that no particular number of witnesses is required for proof of any fact. In the case at hand, as stated above, defendant No. 3 had executed an agreement Ex.A/1 which culminated into registration of sale deed of the property in dispute by all the co-sharers in the property. The sale deed made in favour of defendant No. 8 bears the signatures of defendant No. 3 and defendant No. 1 on her behalf and on behalf of other co-sharers. Therefore, I see hardly any reason to draw any adverse inference against the defendants not examining defendant No. 3 as a witness.
16. For the reasons aforesaid, this appeal has no merit and is dismissed accordingly, with no order as to costs.