Raj Kumar Singh vs Sardari Lal and Another

Vijender Singh Malik, J.—This is a regular second appeal brought by defendant No. 2 against the judgment and decree dated 12.1.2008

passed by learned Civil Judge [Junior Division] Yamuna Nagar vide which the suit of Sardari Lal for symbolical possession by way of specific

performance of agreement of sale dated 13.12.1999 in respect of house bearing plot No. 129, khasra No. 447 situated in Mauza Gobindpuri,

Professor Colony, Yamuna Nagar, properly detailed in the headnote of the plaint, has been decreed and the judgment and decree dated

18.4.2012 passed by learned Additional District Judge, Yamuna Nagar at Jagadhri vide which the appeal preferred by the appellant-defendant

No. 2 has been dismissed. Shakuntla Rani, defendant No. 1, was the owner in possession of the suit property, the construction of which was

incomplete. She entered into an agreement of sale of the said plot in favour of the plaintiff on 13.12.1999 against a total sale consideration of Rs.

3,35,000/-. Agreement of sale was reduced to writing and was executed between the parties in the presence of the witnesses. Total sale

consideration was paid to defendant No. 1 vide receipt of the same date. Possession of the plot was also delivered to the plaintiff by defendant

No. 1 on the same date. It was agreed that the sale deed in respect of the suit property shall be executed and got registered in favour of the

plaintiff as and when desired by him. After obtaining possession of the plot of the incomplete house, the plaintiff got the construction completed at

his own expenses. He also obtained an electric connection in his name from the electricity department and has also obtained a telephone

connection for that property. Defendant No. 1 was requested several times to get the sale deed executed and registered in his favour. However,

she kept putting off the matter on one pretext or the other. The plaintiff has always been ready and willing and is still ready and willing to perform

his part of the contract. Defendant No. 2, who is a stranger, has started claiming to have purchased the suit property from defendant No. 1 by way

of registered sale deed and has started threatening the plaintiff of forcible dispossession and, hence, the suit.

Defendant No. 1 has denied having executed any agreement of sale in favour of the plaintiff. She has, however, claimed that on 9.12.1999, she

executed a power of attorney in favour of the plaintiff because he has been very close to defendant No. 1. The said power of attorney was

cancelled on 20.12.1999. Defendant No. 1 has claimed herself to be an old lady of the age of 70 years and has claimed that the plaintiff might

have obtained her signatures on some paper fraudulently. She has denied any amount to have ever been paid to her by the plaintiff. She has

claimed that the plaintiff prayed for allowing him to use the house for one month and he was allowed to do so on account of which, he came in

possession over the suit property. She has denied him to have completed the construction. She has, however, admitted that the electric connection

for the house has been obtained by the plaintiff, but she has claimed that it was done by him fraudulently.

Defendant No. 2 has claimed, on the other hand, that he has become owner of the suit property by way of sale deed executed in his favour by

defendant No. 1 against sale consideration of Rs. 3,50,000/-. He has claimed that the agreement of sale does not confer any title in favour of the

plaintiff.

On the pleadings of the parties, the following issues were settled by learned trial court.

Whether the defendant No. 1 had executed agreement to sell regarding suit land on 13.12.1999? OPP

Whether the plaintiff is entitled for possession as alleged? OPP

Whether the plaintiff is entitled for the relief of permanent injunction as prayed for? OPP

Whether the suit of the plaintiff is not maintainable? OPD2

Relief.

Taking evidence of the parties, learned trial court took up issues No. 1 and 2 together and concluded under them that defendant No. 1 had

entered into agreement dated 13.12.1999 to sell the property to the plaintiff. She was also found to have received the entire sale consideration of

Rs. 3,35,000/- from the plaintiff and to have delivered the possession of the suit property to the plaintiff. The plaintiff was also found to have

completed the construction thereof and to have obtained electricity and telephone connections for the said house. Learned trial court has also

concluded that defendant No. 1 executed a power of attorney in favour of the plaintiff so as to enable him to get the sale deed executed and

registered. In view of these findings, learned trial Court found the suit to have succeeded and decreed the same leaving the parties to bear their

own costs.

The appeal preferred by defendant No. 1, as already said, met with dismissal vide judgment and decree dated 18.4.2012 before learned

Additional District Judge, Yamuna Nagar at Jagadhri.

Learned counsel for the appellant has submitted that the appellant is a bona fide purchaser. According to him, the possession of the plot over the

suit property is by way of fraud. According to him, the power of attorney was executed in Saharanpur and this shows the influence of the plaintiff

over defendant No. 1. According to him, 1-1/2 years after the cancellation of the power of attorney, the suit has been filed. He has further

submitted that sale deed in favour of defendant No. 2 has been of 23.5.2001.

Learned counsel for the appellant has further submitted that house was taken by the plaintiff for one month and it was given to him in good faith.

According to him, the case of the plaintiff appears to be doubtful for the reason that the agreement shows the entire sale consideration to have been

paid, but no date for execution of the sale deed was fixed. According to him, there are discrepancies in the evidence as is witnessed by the fact

that only one marginal witness of the agreement has been examined.

There is no proper plea of bona fide purchaser raised by defendant No. 2 in his written statement. Even if it is taken that the proper plea has

been made out by defendant No. 2 in his written statement, the said plea would fail on the very first sight because the plaintiff is in possession of the

suit property. Had the appellant-defendant No. 2 made any enquiries, as are required of a bona fide purchaser, he would have come to know

about the rights of the plaintiff in the said property and also about the agreement of sale and the power of attorney. Either he did not make any

enquiry from the plaintiff who was admittedly in possession of the house or if he made those enquiries, he ignored the facts that came to his notice

and went through the transaction of sale. For this reason alone, he cannot be believed to be a bona fide purchaser.

There is no requirement of law that to prove an agreement of sale, more than one marginal witness is required to be examined. Testimony of

one marginal witness, if found reliable, can be acted upon. If the house was taken for one month and was given in good faith, defendant No. 1

should have immediately taken recourse to legal proceedings when she would have seen that plaintiff was obtaining electricity connection and

telephone connection in that house. Learned trial court has rightly found that the plaintiff had completed the construction of the disputed house and

all these things cannot be done by a person to whom permission was given to keep the house for one month. No proceedings to prevent from

taking electric/telephone connections or raising construction were brought by defendant No. 1 against the plaintiff. In these circumstances, I find no

ground to interfere with the findings of learned trial court on the issues framed in the case. I find no questions of law much less substantial questions

of law to be arising in this appeal. Consequently, the appeal has no merit and is dismissed in limine.