Inder Singh vs Sucha Singh

Harphul Singh Brar, J.

Sucha Singh plaintiff has filed a suit for specific performance of contract requiring defendants No. 1. and 2, Mohan Singh and Bhagat Singh to execute and get registered sale deed in his favour in accordance with the agreement made by them with the plaintiff on 1.1.1975, and with a consequential relief of injunction restraining defendants No. 1 and 2 not to sell, mortgage or alienate in any manner or form 761/2434 share of 121 kanals 14 marlas of land bearing Khasra Nos. 82/7/2, 8/2,12,13,14, 19, 21, 22,23, 17, 24, 82/18, 84/3,4,13,9,17,24 situated in village Mandiala Tehsil and District Amritsar as entered in the Jamabandi for the year 196970 to defendant No. 3 or any other person other than the plaintiff and restraining defendant No. 3 to purchase the aforesaid land from defendants No.1 and 2.

It has been averred in the plaint that defendants No. 1 and 2, Mohan Singh and Bhagat Singh, agreed to sell 761/2434 share of land described above belonging to them to the plaintiff vide agreement dated 1.1.1975 for a consideration of Rs. 27,348/ . The defendants also received Rs. 6000/ as earnest money at the time of execution of the agreement to sell dated 1.1.1975. The satedeed was agreed to be executed and registered up to 27.1.1975 on payment of balance of sale price. The plaintiff on 27.1.75 reached the office of the Sub Registrar but defendants No. 1 and 2 failed to reach there to execute the sale deed. The plaintiff then served a notice on the defendants calling upon them to execute the sale deed within a week of the receipt of the notice. Time was made the essence of the contract. Defendants No. 1 and 2 did not come forward to execute the sale deed. Defendant No. 3 Indar Singh along with defendants No. 1 and 2 were not ready to execute the sale deed in favour of the plaintiff. Defendant No. 3 Indar Singh took advantage of the situation and wanted to purchase the suit land himself. Defendant No. 3 took away defendants No. 1 and 2 in order to prevent them from executing the sale deed in favour of the plaintiff with an ulterior motive so that he may get the sale deed executed in his own name. Defendant No. 3 had no right to get the sale deed executed from defendants No. 1 and 2 as the agreement to sell in favour of the plaintiff still sustained. It is then pleaded that the plaintiff has always been ready and willing and was still ready and willing to purchase the land in dispute. As the defendants No. 1 and 2 committed the breach of contract of sale the plaintiff was obliged to file the suit.

The suit was resisted by defendant No. 3 Indar Singh alone. Defendant No. 1 was represented by his counsel Shri S.C. Sareen Advocate. Later on he stopped to appear in the proceedings and was proceeded ex parte. Defendant No. 2 Bhagat Singh died during the pendency of the suit. Notice were given to his legal representatives, Smt. Bawi and Smt. Viro (both daughters). They did not appear to contest the suit and were also proceeded ex parte.

Defendant No. 3 Indar Singh had raised few preliminary objections in his written statement. Firstly, that the plaintiff has no locus stand to file the suit. Secondly, that the suit is not properly valued for the purpose of court fee and jurisdiction. Thirdly, that the suit is collusive. Fourthly, that the suit is barred under Order 2 and Rule 2 CPC and Section 11 CPC.

It was pleaded on merits that prior to the alleged agreement to sell in favour of the plaintiff, defendants No.1 and 2 had agreed to sell the suit land to defendant No. 3. They had executed an agreement deed and had received Rs. 3,000/ and then in pursuance of that agreement deed they had executed a sale deed in favour of defendant No. 3. It was then averred in the reply the defendant No.3 had paid the entire sale price and thus, he was owner of the suit land. It was further pleaded that defendant No. 3 was never served with any notice by the plaintiff and he never knew of the alleged agreement in favour of the plaintiff. Defendant No. 3 took up the plea that he was a bona fide purchaser for value of the suit land and he had no notice of any title or interest of the plaintiff in the suit. The sale in his favour was, thus, protected and suit was liable to be dismissed.

Following issues were framed on the pleadings of the parties :

Whether the plaintiff has locus standi to file the present suit? OPP

Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPP

Whether the suit is bad for misjoinder and nonjoinder of parties ? OPD

Whether the suit is a collusive one ? OPD

Whether the suit is barred under order 2 Rule 2 and Section 11 CPC? OPD

Whether defendant No. 3 is a bona fide purchaser for valuable consideration without notice of the agreement in dispute? OPD

Whether defendants No. 1 and 2 agreed to sell the property to the plaintiff on 1.1.75 as alleged in para No. 1 of the plaint ? If so, to what effect ? OPP

Whether the plaintiff has been ready and willing to perform his part of the contract ? OPP

Whether defendants No. 1 and 2 committed breach of contract ? OPP

Whether the plaintiff is entitled to specific performance of the contract ? OPP

Whether the agreement in favour of defendant No. 3 for sale of the disputed property was earlier in time to the agreement in dispute ? If so, its effect ? OPD

If issue No. 11 proved, what is the effect of the agreement in dispute ? OPD

Relief.

The learned Sub Judge First Class decided issues No. 1, 2 and 7 in favour of the plaintiff. Issues No. 3,4 and 5 were decided against the defendants. Issues No. 6,11 and 12 were decided against defendant No. 3. Issues No. 8 and 9 were also decided in favour of the plaintiff and against the defendants. In view of the finding on the above said issues, the trial court decreed the suit with costs in favour of the plaintiff for specific performance of the agreement of sale Ex. P.1, dated 1.1.1975. Defendants No. 1 and 2 were ordered to execute the sale deed in favour of the plaintiff regarding the suit land, in terms of agreement deed Ex. P. 1, on payment to them or in depositing in court the sale price, less Rs. 6,000/ which they had already received.

Regular First Appeal filed by Indar Singh, defendant No. 3 in the suit, was admitted and the operation of the decree was stayed. This Regular first Appeal has come up for final hearing before me.

I have heard the learned counsel for the parties and my findings on all the issues is hereunder :

Issues No. 1 & 7 :

Mohan Singh and Bhagat Singh who were defendants No. 1 and 2 in the suit and are respondents No. 2 & 3 in this appeal (hereinafter called ''defendants No. 1 & 2'') agreed to sell 761/2434 share of the land described in the heading of the plain belonging to them to the plaintiffrespondent No. 1 in this appeal (hereinafter called ''the plaintiff'') vide agreement dated 1.1.1975 for a consideration of Rs. 27,348/. They received a sum of Rs. 6,000/ as earnest money at the time of execution of the said agreement. The sale deed was agreed to be executed and registered upto 27.1.1975 on payment of balance of sale price. This agreement of sale Ex P.1 has been proved by Naranjan Singh, PW.1, scribe of the document, Swaran Singh, PW 2, one of the attesting witnesses of the agreement deed and by the plaintiff Sucha Singh himself on his sworn testimony at the trial as PW. 3. It is proved from the evidence of these witnesses that Mohan Singh and Bhagat Singh defendants received Rs. 6,000/ as earnest money and they executed agreement deed Ex . P.1 promising to alienate the suit land in favour of the plaintiff for a total sale price of Rs. 27,348/. The evidence of these witnesses stands unrebutted by defendants No. 1 & 2 who have executed the agreement Ex . P.1. defendants No. 1 & 2 have not even chosen to come in the witness box. It is, thus, proved that defendants No. 1 & 2 executed agreement of sale Ex. P.1 in favour of the plaintiff on 1.1.1975, undertaking to sell the land in dispute to him for Rs. 23,348/, less Rs. 6,000/ which they took as earnest money at the time of executing the agreement of sale Ex. P.1. These issues, thus, have been rightly decided by the trial court in favour of the plaintiff. I, thus affirm the finding of the trial court on these issues.

Issue No. 2

This issue has also been rightly decided by the trial court in favour of the plaintiff as the suit was properly valued for the purposes of court fee and jurisdiction. It is valued for Rs. 27,348/ for jurisdiction. This was the total sale price for which the agreement deed was executed and a court fee of Rs. 2247/ is affixed on this amount.

Issue No. 3 :

This issue has also been rightly decided by the trial court against the defendants. All the defendants are the necessary parties. As has been discussed by the learned trial court under this issue I do not find any in firmity in its finding.

Finding on issue No. 3 is, thus, confirmed.

Issue No. 4 :

This issue was decided against defendant No. 3 as there was no evidence on this issue. The finding of the trial court is, thus confirmed.

Issue No. 5 :

This issue was again decided against the defendants as no evidence was produced by the defendants to prove this issue. I, thus, confirm the finding of the trial court and decide issue No. 5 against the defendants.

Issues No. 6, 11 and 12

The learned counsel for the appellant has contended that the trial court has decided issues No. 6, 11 and 12 against the defendants illegally and its finding is liable to be set aside. The learned counsel has further contended that the alleged agreement to sell dated 1.1.1975, Ex, P.1 in favour of the plaintiff is subsequent to the agreement to sell Ex. DW,.3/1, dated 1.11.1974 executed by defendants No. 1 and 2 in favour of defendant No. 3 and, therefore, agreement Ex.DW.3/1 dated 1.11.1974 would have precedence and the plaintiff has got no right to get the sale executed in his favour on the basis of agreement Ex. P.1. According to the learned counsel, defendants No. 1 and 2 executed agreement Ex. DW3/1 on 1.11.1974 and received Rs. 3000/ as part payment towards the sale price. Remaining sale price was also paid to defendants No. 1 & 2 when they executed sale deed dated 30.1.1975 Ex. DW. 2/1 and defendant No. 3 had no notice of the agreement dated 1.1.1975. He was bona fide purchaser for consideration without notice of any title or interest of the plaintiff in the suit land.

It has now to be determined as to whether agreement to sell dated 1.1.1975 Ex. P.1 was executed prior or later to the agreement to sell dated 1.11.1974 Ex. DW.3/1. Defendant No. 3 produced agreement DW.3/1 only on 4.7.76. Written statement was filed by him on 8.6.1975. He did not file this agreement DW.3/1 alongwith the written statement. If this agreement were in the possession of defendant No. 3 or was in existence on 1.11.1974 it should have been presented alongwith the written statement. No reasons have been given for its late production. This agreement Ex. DW.3/1 was admitted in evidence, subject to the objection of the plaintiff to be discussed at the time of final arguments. Another point which needs consideration in this regard is that the agreement Ex.DW. 3/1 bears the signatures of Mohan Singh and Bhagat Singh vendor/defendants in Hindi. It has come in the evidence of Desa Singh, DW.3, that Mohan Singh defendant himself scribed this agreement in Hindi and it has been admitted by DW.3 in his crossexamination that Mohan Singh does not know English and Hindi. Mohan Singh has not been examined to prove this agreement. Bhagat Singh, defendant, has also not been examined at all. Both these alleged executants have not, thus, come forward to depose that they executed this document in favour of defendant No. 3. Agreement Ex. P.1 and sale deed Ex. DW. 2/1 produced by defendant No. 3 is also in Punjabi. Agreement Ex.P.1 and sale deed Ex.DW.2/1 also bear the signatures of Mohan Singh and Bhagat Singh vendor/defendants in Punjabi. It is, thus, difficult to understand as to how Mohan Singh and Bhagat Singh switched off their signatures from Punjabi to Hindi when admittedly it has come in the evidence that they did not know Hindi or English at all. It may again be noted that agreement to sell Ex. DW. 3/1 is alleged to have been attested by Malagar Singh and Desa Singh. Malagar Singh is the maternal uncle of Indar Singh. He has not been examined. DW.3 Desa Singh no where deposed that Rs. 3000/ were received by Mohan Singh and Bhagat Singh, defendants, as advance money, as is the contention of Indar Singh, defendant. From the statement of DW. 3, Desa Singh, the execution of agreement to sell Ex. DW. 3/1 is not proved and it may further be mentioned in support of the fact that this agreement to sell never came into existence at the alleged date. In the sale deed Ex. DW. 2/1, there is no mention of this agreement dated 1.11.1974. It is simply recited in the sale deed that defendants Mohan Singh and Bhagat Singh had already received Rs. 3,000/ as earnest money. If this agreement to sell Ex. DW. 3/1 was already in existence, there must have been a specific mention of it in the sale deed Ex. DW. 2/1. Agreement to sell Ex. P.1 is prior to the sale deed dated 30.1.1975. From the evidence discussed above, it is clear that agreement to sell Ex. DW.3/1 was neither in existence nor on possession of defendant No. 3 at the time of filing of written statement by defendant No. 3 and it was prepared later on. So far as the sale deed Ex. DW.2/1 alleged to have been executed by defendants No. 1 and 2 in favour of defendant No. 3 is concerned, it was not registered. Thus, by virtue of this alleged sale deed no right, title or interest in the suit land could be transferred to defendant No. 3.

Ravel Singh, Registration Clerk, Sub Registrar Office, Tehsil Amritsar who was produced as DW.1 has proved that on 28.5.75 the sale deed dated 30.1.1975 was presented before the Sub Registrar but the same was not registered and is still unregistered. He further stated that on 11.7.1975 the case was consigned in the absence of both the parties and the same was not revived by either of the parties. In these circumstances, when no title or interest passed to defendant No. 3 with regard to the suit land he could not be considered as a bona fide purchaser of the disputed land for consideration. The agreement to sell Ex. P.1 is prior to the sale deed dated 30.1.1975. The evidence discussed above speaks volumes against the genuineness of agreement to sell Ex. DW3/1.

It is proved from the evidence on the file that the agreement Ex. DW. 3/1 was not a genuine document and it was prepared later on only to defeat the legal right of the plaintiff by defendant No. 3 though he was not successful as has been discussed above. Again it is proved on the file from the evidence produced above, that defendant No. 3 was not a bona fide purchaser for valuable consideration without notice of the agreement in dispute.

In view of my discussion above, I confirm the finding of the trial Court when deciding issues No. 6, 11 and 12 against the defendants and in favour of the plaintiff, and hold that defendant No. 3 is not a bona fide purchaser for consideration without notice and agreement to sell Ex. DW.3/1 dated 1.11.1974 is made up one and not as an earlier date than of the agreement to sell dated 1.1.1975 Ex. P.1.

Issues No. 8 and 9 :

The plaintiff has stated at the trial that he has always been ready and willing and is still ready and willing to perform his part of the contract and the breach has been committed by defendants No. 1 and 2. Defendants No. 1 & 2 have not appeared in the witness box to contradict it. It is obvious that defendant No.3 tried to take an advantage of the situation where defendants No. 1 & 2 were not ready to fulfil their promise of executing the sale deed in pursuance of their agreement to sell Ex. P.1 in favour of the plaintiff. Defendant No. 3 got a sale deed executed from defendants No. 1 & 2 but the same could not be got registered. Defendants No. 1 & 2 have also not come forward to support the sale deed in favour of defendant No. 3. They have obviously duped defendant No. 3. In these circumstances defendant No. 3 has no right to get the suit land. He may at the most file a claim against defendants No. 1 & 2, if any, but he cannot deprive the plaintiff of his right to get the fruits of agreement to sell Ex. P.1 dated 1.1.1975 executed by defendants No. 1 & 2 in his favour.

It is, thus, proved on the file that the plaintiff was always willing and ready and is willing and ready to perform his part of the contract even now; but defendants No. 1 & 2 have committed the breach of contract. I, confirm the findings of the trial court on these two issues also in favour of the plaintiff.

In view of my discussion made above on the above said issues, this appeal fails and is dismissed with costs.

Resultantly, the suit of the plaintiff is decreed with costs for specific performance of the agreement of sale Ex. P1 dated 1.1.1975 and defendants No. 1 and 2 would execute the sale deed, if not already executed, in favour of the plaintiff regarding the suit land in terms of agreement deed Ex. P.1 within a