Kuldip Singh vs Parkash Singh and others

L.N. Mittal, J.

C. M. No. 2914-C of 2012 :

Allowed as prayed for.

C. M. No. 2916-C of 2012 :

For reasons mentioned in the application, which is accompanied by affidavit, delay of 32 days in re-filing the appeal is condoned.

Main Appeal :

Defendant No. 2 Kuldip Singh has filed the instant second appeal.

Respondents No. 1 and 2/plaintiffs Parkash Singh and Mangal Singh filed suit against Balwinder Singh - defendant No. 1/respondent No. 3 and appellant Kuldip Singh - defendant No. 2, for possession of 04 kanals suit land being 80/3247th share of 162 kanals 07 marlas land, by specific performance of the agreement to sell dated 10.02.2006, and in the alternative, for recovery of Rs. 2,00,000/- .

The plaintiffs alleged that defendant No. 1, being owner of the suit land, agreed to sell the same to the plaintiffs for Rs. 2,00,000/- and received Rs. 1,36,000/- as earnest money. Sale deed was to be executed on or before 10.02.2007, extended to 10.05.2007, with mutual consent vide endorsement dated 10.02.2007. It was `no working'' day of Sub Registrar on 10.05.2007. Accordingly, plaintiffs went to the office of Sub Registrar on 11.05.2007 with requisite amount to get the sale deed executed in terms of the agreement, but defendant No. 1 did not turn up committing breach of the agreement. Plaintiffs have always been ready and willing to perform their part of the contract. On the other hand, defendant No. 1 executed sale deed dated 25.05.2007 of the suit land in favour of his own nephew - defendant No. 2/appellant. The said sale deed is illegal and null and void and not binding on the plaintiffs. Defendant No. 2 already had knowledge of the impugned agreement.

Defendants did not appear in the trial court in spite of service and were proceeded ex-parte.

Learned Civil Judge (Junior Division), Gurdaspur, vide judgment and decree dated 17.09.2008, instead of decreeing the suit for specific performance of the agreement, decreed the suit for alternative relief of recovery of Rs. 1,36,000/- only with simple interest @ 6% per annum from the date of filing of suit till recovery, holding that the plaintiffs had not proved ownership of defendant No. 1 over the suit land, and therefore, relief of specific performance could not be granted. However, first appeal preferred by the plaintiffs has been allowed by learned Additional District Judge, Gurdaspur, vide judgment and decree dated 22.10.2011 and thereby, suit of the plaintiffs has been decreed for specific performance of the impugned agreement. Feeling aggrieved, defendant No. 2 has filed the instant second appeal.

I have heard learned counsel for the appellant and perused the case file.

Parkash Singh - plaintiff No. 1 himself appeared in the witness-box as PW-1 and stated according to his version. Sewa Ram (PW-2) is attesting witness of the agreement, whereas Narinder Singh (PW-3) is Scribe thereof. Both of them also supported plaintiffs'' version. Plaintiffs'' pleadings and evidence stand unrebutted. There is no reason to discard the aforesaid cogent evidence led by the plaintiffs. The plaintiffs have examined Scribe as well as one attesting witness of the agreement, in addition to testimony of plaintiff No. 1 himself. The said unrebutted evidence is sufficient to prove the version of the plaintiffs.

Counsel for the appellant vehemently contended that defendant No. 2-appellant is bona fide purchaser of the suit land for valuable consideration, without notice of the impugned agreement. The contention is completely unfounded and meritless. There is neither any pleading nor any material on record to substantiate the aforesaid contention. Even otherwise, defendant No. 2, being real nephew of defendant No. 1 vendor, cannot be said to be bona fide purchaser of the suit land for valuable consideration. Sale deed in his favour has been executed to frustrate the impugned agreement in favour of the plaintiffs.

Ownership of defendant No. 1 over the suit land was not in dispute, and therefore, the trial court gravely erred in holding that ownership of defendant No. 1 over the suit land is not proved, and therefore, plaintiffs are not entitled to relief of specific performance of the agreement. The said finding of the trial court has been rightly reversed by the lower appellate court. Even defendant No. 2-appellant does not dispute that defendant No. 1 was owner of the suit land at the time of the impugned agreement. This fact is also proved from copies of jamabandis placed on record by the plaintiffs, although not formally tendered in evidence.

For the reasons aforesaid, I find no merit in this second appeal. Finding of the lower appellate court decreeing the suit of the plaintiffs for specific performance of the impugned agreement is fully justified by the evidence on record. The said finding is not shown to be perverse or illegal nor based on misappreciation or misreading of evidence warranting interference in second appeal. No question of law, much less substantial question of law, arises for adjudication in this second appeal. On the contrary, there is no pleading or evidence on behalf of the defendants to displace the case of the plaintiffs.

The appeal is found to be meritless and is accordingly dismissed in limine.