Jati Ram Saini and Another vs Prithi alias Sansi

N.K. Sodhi, J.—This regular second appeal is directed against the judgment and decree passed by the Additional District Judge, Jind on 15.11.1994 modifying that of the trial Court whereby the relief for specific performance was denied to the plaintiff-appellant and his suit was decreed for refund of earnest money only along with interest from the date of the execution of the agreement till realisation.

Facts giving rise to this appeal which lie in a narrow compass may first be noticed.

Prithi defendant-respondent entered into an agreement dated 6.5.1988 to sell 16 Kanals 16 Marias of agricultural land situated within the revenue estate of Jind to Jati Ram plaintiff-appellant at the rate of Rs. 50,000/- per killa. A sum of Rs. 24,000/- is said to have been received by Prithi as earnest money at the time of the execution of the agreement and the balance amount was to be received at the time of the registration of the sale deed before the Sub Registrar. It is alleged that the plaintiff was always ready and willing to perform his part of the contract but Prithi defendant refused to execute the sale deed. On the refusal of Prithi to execute the sale deed, the plaintiff-appellant filed a suit for specific performance of the aforesaid agreement. The alternative prayer was that the suit be decreed for recovery of the earnest money along with interest and damages as referred to in the agreement. The suit was contested by the defendant. It was pleaded that he was not in possession of the suit land and that the same was in the possession of one Bansi Lal son of Bakhtawar Lal as a tenant for the last more than 30 years. The execution of the agreement to sell and the receipt of earnest money was, however, admitted by the defendant. It was further pleaded that the plaintiff was not ready and willing to perform his part of the contract and did not pay the balance amount of Rs. 81,000/- before the Sub Registrar. Pleadings of the parties gave rise to the following issues;-

"1. Whether the plaintiff is entitled to specific performance of contract dated 6.5.1988? OPP

Relief."

Prior to the execution of the agreement to sell, Prithi who was the owner in possession 6f the suit land had mortgaged the same with possession in favour of Bansi Lal and Exhibit PW5/A is the mortgage deed dated 6.6.1985 on the record. This mortgage was redeemed by Prithi on 6.5.1988 i.e. on the same day on which he executed the agreement to sell in favour of the plaintiff-appellant. Redemption of the mortgage is clear from the endorsement Exhibit PW4/a on the back of the mortgage deed. On a consideration of the entire oral and documentary evidence led by the parties, the trial Court came to the conclusion that the plaintiff was always ready and willing to perform his part of the contract and that he was present in the office of the Sub Registrar on the appointed day to pay the balance amount to the defendant who did not turn up to receive the same. It was also found that Prithi was not in possession of the suit land and that it was Bansi Lal who was in possession of the same but not as a tenant. Consequently, the suit of the plaintiff was decreed and he was held entitled to a decree for specific performance of the agreement dated 6.5.1988 with a right to recover possession from Bansi Lal in accordance with law.

Being dissatisfied with the decree of the trial Court, Prithi went up in appeal before the learned Additional District Judge who upheld the findings recorded by the trial Court, Since the defendant was not found in actual physical possession of the suit land, the appellate Court took the view that the plaintiff would not be in a position to obtain its possession from Prithi and, therefore, modified the decree of the trial Court holding that the plaintiff is entitled to recover the earnest money paid by him along with interest at the rate of 18% per annum from the date of the agreement till its realisation. It is against this decree of the lower appellate Court that the plaintiff has filed the present second appeal.

Mr. Hemant Kumar, Advocate appearing for the plaintiff-appellant strenuously urged before me that the finding of the Courts below to the effect that Prithi was not in actual physical possession on the date of the execution of the agreement to sell and that it was Bansi Lal who was in its possession is contrary to the documentary evidence on the record and deserves to be set aside. He referred to the endorsement Exhibit PW4/A dated 6.5.1989 on the back of the mortgage deed. On the other hand, it was submitted by the learned counsel for the respondents that the endorsement only shows that the mortgaged land had been redeemed and not that the possession of the same which was with Bansi Lal had been surrendered in favour of Prithi. I have given my thoughtful consideration to the rival contentions of the parties and am of the view that the finding of the Courts below cannot be sustained. A perusal of the endorsement makes it clear the Bansi Lal the mortgagee had on receipt of the mortgage amount of Rs. 15,000/- in cash from Prithi the mortgagor had released the land which was in possession of the former. Obviously when the land which was mortgaged with possession was being released the possession was also given to the mortgagor and that is why in the endorsement Bansi Lal the mortgagee says that the land in his possession was being released. The land was redeemed on 6.5.1988 and on the same day Prithi entered into an agreement to sell the same in favour of the plaintiff-appellant after receiving the earnest money of Rs. 24,000/-. It is obvious that Prithi received the earnest money from the plaintiff and paid Rs. 15,000/- to Bansi Lal and got the land redeemed and then on the same day executed the agreement to sell in favour of the plaintiff. The aforesaid documentary evidence is in my opinion enough to hold that Prithi was in actual physical possession on the date of the agreement to sell. It is true that khasra girdawri upto the year 1990 shows that Bansi remained in possession of the suit land. This khasra girdawari is Exhibit P-2 and a perusal of the same shows that Bansi was in possession during the years 1985-86, 1986-87, 1987-88, 1988-89 and 1989-90. Presumption of truth does not attach to the khasra girdawris and it appears that since Bansi was in possession of the suit land prior to 6.3.1988 the same entry continued to be repeated in the khasra girdawris during the year 1988-89 and 1989-90. It is matter of common knowledge that very often the entries made in the girdawris are not immediately changed with the change of possession and this cannot be relied upon as against the statement of Bansi made in the endorsement which he thumb marked on 6.5.1988. I have, therefore, no hesitation in reversing the findings of the Courts below to the effect that Prithi was not in actual physical possession of the suit land on the date of the agreement to sell. If Prithi was in possession of the suit land which I have held that he was, there is no reason why the suit of the plaintiff-appellant should not be decreed and he be given a decree for specific performance as prayed for. The Courts below have recorded, a concurrent finding of fact that the plaintiff was ready and willing to perform his part of the contract and the execution of the agreement to sell not having been disputed, the plaintiff must succeed.

It was then urged by Mr. S.C. Kapoor, Senior Advocate that Prithi had sold the land in dispute to Ramesh and Shashi Kapoor both sons of Bansi Lal vide sale deed dated 5.12.1994 for a consideration of Rs. 1,78,509/- and that a mutation to this effect had also been entered in the revenue record. It is claimed that they are bonafide purchasers of the suit land for consideration and without notice of the proceedings and, therefore, their rights in the suit land should be protected and that no decree could be passed against them. It is argued that the lower appellate Court passed the decree under appeal on 15.11.1994 and the land was transferred in favour of the subsequent transferees on 5.12.1994 whereas the present second appeal was filed in this Court on 14.12.1994. The contention is that since no appeal was pending in this Court on the date of transfer in favour of the subsequent transferees, the provisions of Section 52 of the Transfer of Property Act would not be attracted. I have no hesitation in rejecting this contention. In the application moved in this Court by the subsequent vendees, there is no averment that they are bonafide purchasers of the suit land or that they had no notice of the proceedings pending between the parties. In the absence of such averments it must be held that the subsequent vendees are not bonafide purchasers. Even otherwise, the lower appellate Court had passed the decree under appeal on 15.11.1994 and the period of limitation for filing a second appeal in this Court had not yet expired when the suit land is said to have been transferred in favour of the subsequent transferees. In view of the explanation to Section 52 of the Transfer of Property Act, the proceedings will be deemed to be pending between the parties because they cannot be said to have been disposed of by a final decree or order nor can it be said that there was complete satisfaction or discharge of any decree or order that was obtained or the same had become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law. The decree of the lower appellate Court could be said to have become final only after the period prescribed for filing a regular second appeal in this Court had expired. There is no dispute that in the instant case the period of limitation for filing a second appeal in this Court had not expired when the sale in favour of Ramesh and Shashi Rapoor was allegedly made. The transfer made by Prithi in favour of the subsequent vendees is, therefore, hit by the doctrine of lis pendens. It is well settled that an appeal or execution proceedings is a continuation of the suit and Us pendens continues during the appeal or execution. The subsequent transfer made in the present case is to none other than the sons of Bansi Lal and in the facts and circumstances of the present case, I am also satisfied that Prithi transferred the land only with a view to defeat the rights of the plaintiff-appellant. Thus, the doctrine of lis pendens would apply to the transfer and will not affect the rights of the plaintiff-appellant.

Mr. S.K. Jain, Advocate appearing for the defendant made an attempt to challenge the correctness of the finding recorded by the Courts below to the effect that the plaintiff was always ready and willing to perform his part of the contract. No meaningful argument was advanced in this regard and the finding recorded by the Courts below is one of fact and based as it is on a correct appreciation of the evidence of the parties, the same cannot be interfered with in second appeal.

In the result, the appeal is allowed and the suit of the plaintiff-appellant decreed. The plaintiff-appellant is entitled to a decree for specific performance of the agreement to sell dated 6.5.1988 entered into between the parties and the defendant is directed to execute the sale deed in favour of the plaintiff and have the same registered on payment of the balance consideration of Rs. 81,000/- in terms of the agreement. The sale deed be executed within two months from today failing which the same shall be executed through the Court. The plaintiff-appellant will have his costs which are assessed at Rs. 1,000/-.