JUDGMENT
Adarsh Kumar Goel, J.
1. The respondent filed a suit for specific performance of agreement to sell dated 11.2.1973, Ex.P.1, whereby sale deed was to be executed when the defendant will get possession of the suit property from her tenants. Case of the plaintiff was that Shakuntla Devi got possession of the suit property and the agreement to sell was duly extended on 21.11.1975 (Ex.P.4) under which sale deed was so be registered by 15.6.1976 on payment of balance sale consideration of Rs. 2,000/-.
2. The appellant dented the execution of the agreement on the ground that the agreement was vitiated by fraud as the defendant was under the influence of the plaintiff who had advanced some money to her father against pronote dated 1.7.1962 and he had also got an oral mortgage from her on 1.6.1965 vide mutation No. 2641 which was set aside in Suit No. 55 of 1969 decided on 7.6.1969 on the ground that the plaintiff was minor on that day.
3. Both the courts below decreed the suit rejecting the plea that the argument to sell was vitiated by fraud.
Hence this appeal.
4. Learned counsel for the appellant submitted that the findings of the courts below were perverse and the decree was, thus, liable to be set aside. Reliance is placed on a judgment of the Apex Court in R. Rangaraju Naidu v. Thiruvarakkarasu, 1995(2) C.C.C. 1 to submit that where dominant object is to recover the dues, the court should decline to grant decree for specific performance. Referring to the factual background, learned counsel for the appellant pointed out that the land belonged to the defendant’s father and was in possession of tenants. The defendant’s father sold the same to the tenants which was pre-empted vide decree dated 6.11.1960 by defendant Shakuntla Devi and pre-emption money was financed by the plaintiff. The plaintiff took a pronote from the defendants’s father on 1.7.1962 who then took oral mortgage dated 1.6.1995, which was set aside on 5.11.1970, Ex.D7. He then got agreement to sell Ex.P.1 executed and had also filed proceedings for evicting the tenants, wherein order of eviction was passed on 28.10.1974. The plaintiff also got land leased out in favour of his brother-in-law Dharam Pal on 30.12.1974. He submitted that possession of the land, thus, was with the plaintiff who was a clever person.
5. Learned counsel for the respondent-plaintiff supported the findings of the courts below. She submitted that the whole background has been duly appreciated by the courts below in the light of evidence led by the parties. She particularly referred to discussion in paras 13 to 19 of the judgment of the lower appellate court. Reliance is placed on a judgment of the Apex Court in Union of India v. Chaturbhai M. Patel & Co., 1976 C.L.J. (Civil) 166 to submit that fraud must be established beyond reasonable doubt. Reliance is also placed on a judgment of the Apex Court in Thiagarajan and Ors. v. Sri Venugopalaswamy B. Koil and Ors., to submit that in absence of substantial question of law, second appeal could not be entertained.
6. An application has also been filed by subsequent purchaser, who claims to have purchased the suit property on 27.6.1995 from the appellant-defendant, to be added as a party, which has been duly opposed by the counsel for the plaintiff on the ground that sale during pendency of this appeal cannot be held to be bonafide and will be hit by the principle of lis pendens and violative of order of this court dated 17.6.1996.
7. I have heard learned counsel for the parties and perused the record.
8. Agreement to sell has been held to have been proved by both the courts below, after considering the evidence of scribe Mohan Lal, PW-1, plaintiff Inder Singh, PW-10 and witness Kesho Dev. PW-3, Receipt Ex.P5 and agreement Ex.P4 were also held to be proved by the evidence of Charanjit Singh. PW-4, attesting witness, which was corroborated by entries in the register Ex.P4/A and Ex.P5/A. Plea of fraud has been held not to be substantiated. In para 13 of its judgment, the lower appellate court, after referring to the judgment in Chaturbhai (supra) held that plea of fraud was not established. In paras 15 to 19 of the said judgment, evidence regarding due execution of the agreement to sell has been duly discussed. It has been held by both the courts below that adjustment of mortgage money was not permissible and, therefore, decree has been granted on payment of balance amount which was Rs. 17,000/-. Thus, the evidence of the parties has been duly appreciated by the courts below.
9. In view of the above, the findings recorded by the courts below are based on evidence and no substantial question of law arises.
10. There is another feature which cannot be ignored. Vide order dated 17.6.1986, the appellant was restrained from alienating the suit property, The respondent-plaintiff filed a suit alleging that the suit property was being sold by the appellant to Ram Pyare Gupta. The suit was dismissed on the ground that the matter could be raised in the pending appeal. After filing of the suit, vide different sale deeds dated 28.6.1995, suit property was sold to Ram Pyare Gupta, who has filed C.M. No. 5147-C of 1999 for being impleaded as a party. C.M. No. 4630-C of 1995 was filed alleging in para 4 that the appellant suffered a collusive decree in favour of her brothers on 23.2.1994 and thereafter, sold the suit property on 27.6.1995. Application was ordered to be heard with the main case. Conduct of the appellant in violating the order of this court also dis-entitles her for any relief from this court. It is well settled that doctrine of Mis pendens’ under Section 52 of the Transfer of Property Act, 1882 (for short, the Act) excludes the doctrine of ‘Ostensible ownership’ under Section 41 of the Act (see Kanshi Ram and Ors. v. Kesho Ram Bahna and Ors., ). It is, thus, clear that the said transaction will not affect the rights of the appellant.
11. The application for impleading the subsequent purchaser is liable to be dismissed. The appellant has clearly violated order of this court but no order of punishment is being passed as appeal of the appellant itself is being dismissed. However, a finding is recorded that the appellant has violated the order of this court for which no valid justification has been shown.
12. Vide order dated 6.5.1981, the appellant was allowed to withdraw the sale consideration subject to further orders. The suit property is 102 kanals 10 marlas of land Having regard to the fact that the respondent has already been in possession and had also withdrawn sale consideration, the appellant is entitled to the said amount with appropriate interest so as to restore her rights to the price of land which she was entitled to at the time of the decree of the lower appellate court.
13. Accordingly, while dismissing the appeal, it is made clear that the respondent-plaintiff will be liable to pay the sale consideration withdrawn by him with compound interest at the rate of 12% p.a., to be calculated at yearly rests, from the elate the amount was withdrawn till the date the amount is re-deposited. The amount will be re-deposited within three months from today on which the appellant will be liable to execute the sale deed as per the decree granted by the courts below. No costs.