Baj Singh vs Manmohan Singh and Another

G.R. Majithia, J.—This regular first appeal is directed against judgment and decree of the trial Judge whereby he decreed the suit of plaintiff respondent No. 1 for specific performance of the agreement to sell dated August 30, 1973.

The facts : -

Defendant-respondent No. 2 (hereinafter referred to as the Vendor'') entered into agreement to sell dated August 30, 1973 with plaintiff-respondent No. 1 (hereinafter referred to as the ''plaintiff'') agreeing to sell land measuring 56 Kanals fully described in the agreement for Rs. 35,000/-. The vendor did not execute the sale dated as per the terms of the agreement to sell On the contrary, in violation of the terms of the agreement to sell, he sold the property to Baj Singh, appellant vide sale deed dated June 23, 1975 during the pendency of the suit, which was filed on June 11, 1975, thus, giving rise to this appeal. The vendor and the subsequent vendor contested the suit.

The trial Judge, after examining the evidence, found that the execution of the agreement to sell dated August 30, 1973, was duly proved and that the terms of the agreement to sell were specific and not vague and suffered for no ambiguity. He also found that the subsequent vendee (the appellant) was not bona fide purchaser for consideration without prior notice of the agreement to sell in favour of the plaintiff. Resultantly he decreed the suit. The subsequent vendee has come up in first appeal against the judgment and decree of trial Judge.

4 The learned counsel for the appellant has made tie following submissions:-

(i) that the appellant was a bonafide purchaser for consideration without notice of the prior agreement to sell, and

(ii) that the plaintiff was not ready and willing to perform his part of the contract. The plaint does not disclose that he tendered the balance sale price to the vendor and asked him to execute the sale deed in terms of the agreement to sell.

These submissions of the learned counsel are devoid of merits. The sale in favour of the appellant was note during the pendency of the suit and the same is thus hit by the rule of lis pendens as enshrined in Section 52 of the Transfer of Property Act. The suit was filed on June 11,1975 whereas the sale in favour of the appellant was made on June 23, 1975. The rule contained in this section is based not on the doctrine of notice but on expediency and when the jurisdiction of the Court has once been invoked, it should not have been ousted by the transfer of the defendant''s interest. If that were not so, there would be no end to litigation and justice would be defeated. The rule of lis pendens as contained in the section is in accordance with the principles of equity, good conscience or justice, because they rest upon an equitable and just foundation. Therefore, where this section is not applicable as such, the principle contained in it will be applicable. The principle underlying in this section is that neither party to the litigation in which any right to immovable property is in question can alienate or otherwise deal with such property so as to affect his opponent. The effect of the maxim and of section is not to annul the alienation but only to render it subservient to the rights of the parties to the litigation. The right, if any, acquired by the appellant under the sale deed will be subservient to the result of the litigation The sale made in favour of the appellant is bit by the rule of lis pendens and no right flows from it. Apart from this, a subsequent vendee can defeat the claim for specific performance of a contract only by establishing that he was a transferee for value who had paid his money in good faith and without notice of the original contract The trial Judge found that in part performance of the agreement to sell dated August 30, 1973, possession of the suit land was delivered to the plaintiff and if the subsequent vendee who is a resident of the same village had made enquiries, he would have found out how the plaintiff had entered into possession of the disputed land. The trial Judge correctly found that the appellant is not a transferee without notice of the original agreement to sell No fault can be found with the conclusions arrived at by the learned trial Judge. It is not open to the subsequent vendee to urge that the plaintiff was not ready and willing to perform his part of the contract. This objection is not available to him. The only defence available to him is the one contained in Section 19 of the Specific Relief Act.

For the reasons recorded above, the appeal is devoid of any merit and is dismissed but with no order as to costs.