Baj Singh and others vs Ravinder Singh and others

Harbans Singh Rai, J.—A suit for specific performance-of the agreement dated June 2, 1975, was filed by Ravinder Singh plaintiff-respondent alleging that Smt. Akko had executed an agreement of sale in favour of Ravinder Singh plaintiff and Surjan Singh defendant No. 6 agreeing to sell 30 Kanals of land for a total consideration of Rs. 45,000/-. It was further alleged that Smt. Akko, instead of selling the land to the plaintiff, had sold the same to defendants appellants Baj Singh, Balbir Singh, Jagtar Singh and Balkar Singh vide registered sale-deed dated December 9, 1975. It was further case of the plaintiff that the sale-deed was to be executed in his favour by December, 11, 1975, and Rs. 7500/- was paid by him and Rs. 1000/- was paid by Surjan Singh to Smt. Akko at the time of the execution of the agreement. Out of 30 Kanals, 22 Kanals of land was to be purchased by the plaintiff and 8 Kanals of land by Surjan Singh defendant and it was provided in the agreement that if Surjan Singh did not want to purchase his share of land, then it would be open to Ravinder Singh to purchase whole of the land on payment of the entire sale price. As Smt. Akko had sold the land to Ban Singh etc., and they had purchased the land with full knowledge of the agreement in favour of the plaintiff-respondent, they being not bona fide purchasers, Smt. Akko and the subsequent vendees are bound to transfer the land in his favour on receipt of the balance sale price.

The suit was contested. Smt. Akko admitted the execution of agreement of sale in favour of the plaintiff and receipt of the earnest money. She further averred that the land along with other land owned by Hazara Singh, her father, was under mortgage, but as Pritam Singh, father of the minor plaintiff-respondent, did not agree to pay the proportionate mortgage amount, the agreement of sale was cancelled and the earnest money was agreed to be returned, and in spite of repeated requests by her, plaintiff''s father did not accept the earnest money and the land was consequently sold by her to the other defendants-appellants. The sale was for consideration. The other defendants-appellants pleaded that they were bona fide purchasers without notice. From the pleadings of the parties, the following issues were framed:-

Whether the parties to the impugned agreement subsequently agreed to cancel the agreement and in fact cancelled the agreement, as alleged in the written statement?

Whether Surjan Singh defendant received back the earnest money paid under the agreement? If so, its effect.

Whether the plaintiff has been ever ready and willing to perform his part of the agreement, if so, its effect?

Whether the plaintiff alone was competent se seek specific; performance of the impugned agreement, as alleged?

Whether defendants Nos. 2 to 5 purchased the disputed land bona fide for consideration without notice of the impugned agreement in favour of the plaintiff and Surjan Singh defendant No. 6?

If the relief of specific performance is not allowed, whether the plaintiff is entitled to the return of earnest money and also damages? If so what amount and its effect?

Relief.

The trial Court decided all the issues in favour of the plaintiff and decreed the suit. Defendants feeling aggrieved have filed this appeal.

I have heard the learned counsel for the parties and gone through the record with their help.

As far as issues Nos. 1 and 2 are concerned; the execution of the agreement and the receipt of earnest money under the agreement of sale dated June 2, 1975, are admitted. According to this agreement Ravinder Singh plaintiff-respondent was to purchase 22 Kanals of land and the remaining 8 Kanals of land was to be purchased by Surjan Singh defendant. The plaintiff-respondent paid a sum of Rs. 7500/-and Surjan Singh paid a sum of Rs. 1000/- as earnest money to Smt. Akko. It was agreed that in case Surjan Singh did not purchase the land, Ravinder Singh would purchase the whole land on payment of the whole consideration mentioned in the agreement of sale.

Surjan Singh has been examined as P.W. 3. He has supported the case of the plaintiff-respondent and has stated that he had received earnest money back from Akko, but his receipt of earnest money does not affect the agreement of sale executed by her.

The agreement was triparties Ravinder Singh and Surjan Singh agreed to purchase the land from Smt. Akko and it was further provided in the agreement that in case Surjan Singh did not purchase his share of the land, then Ravinder Singh would purchase the entire land on payment of whole consideration. There is no clause in the agreement providing that in case Surjan Singh does not purchase his share of land, the agreement will fall or will become ineffective. The terms of the agreement clearly state that the property was either to be purchased by both Ravinder Singh and Surjan Singh and in case Surjan Singh backs out, then Ravinder Singh was given the option to purchase the entire land provided he is willing to pay the full consideration.

No worthwhile evidence has been led by defendants-appellants to prove that the agreement was cancelled. Surjan Singh examined, had stated that Ravinder Singh could get the land on payment of the entire sale price irrespective of the fact whether he is joining or not. The fact that the land was under mortgage is also not of any importance because Smt. Akko had professed to sell unincumbered property and if subsequently some incumberance is found on the land, she was liable for the same. The fact the property was mortgaged will not cancel the agreement to sell. The trial Court has discussed these two issues thoroughly and adopting all the arguments advanced by the learned trial Court, I agree with the findings of the trial Court. These issues have been rightly decided in favour of the plaintiff.

As far as issues No. 3 and 4 are concerned, it is in evidence that the plaintiff-respondent had been willing and ready to perform his part of the agreement and he alone was competent to seek specific performance of the impugned agreement. The trial Court has rightly decided these issues in favour of the plaintiff respondent.

It has been found by the trial Court, while deciding issue No. 5 that the defendants-appellants were not bona fide purchasers. Smt. Akko when examined as D.W. 1 has stated that she had told Baj Singh defendant-appellant that she had entered into an agreement with the plaintiff-respondent previously qua this land she had delivered possession of some of the kind to the plaintiff-respondent at the time of the agreement of sale. This fact of possession is even admitted by Surjan Singh defendant in his statement as he has stated that Ravinder Singh plaintiff respondent was in possession of one Killa of the disputed land. He has further stated that Ravinder Singh came in possession of this land after the execution of the agreement of sale in his favour. The fact is admitted by Balkar Singh defendant-appellant also. When seen in the light of admission made by the defendant showing that Smt. Akko had told the defendants-appellants about the agreement of sale in favour of the plaintiff-respondent and the fact that the plaintiff-respondent was in possession of a part of the property under the agreement of sale, it is obvious that the defendants appellants had the knowledge of the agreement of sale in favour of the plaintiff-respondent and the trial Court has rightly decided these issues in favour of the plaintiff-respondent.

In view of the findings on the relevant issues, the trial Court has rightly decreed the suit. I do not find any justification to interfere with the same. This appeal is dismissed. In the peculiar circumstances of the case, there will be no order as to costs.