Punjab-Haryana High Court
Harinderpal Singh vs Rani (Deceased By Lrs) And Ors. on 30 April, 2004
Equivalent citations: AIR2005P&H151, AIR 2005 PUNJAB AND HARYANA 151, (2005) 2 LANDLR 248 (2004) 4 RECCIVR 142, (2004) 4 RECCIVR 142
Author: Ajay Kumar Mittal
Bench: Ajay Kumar Mittal
JUDGMENT Ajay Kumar Mittal, J.
1. This second appeal has been filed by the plaintiff against the judgment and decree dated 20-4-1987 passed by the Additional District Judge, Patiala whereby his appeal against the judgment and decree dated 29-4-1986 passed by the trial Court, was dismissed.
2. The facts necessary to resolve the controversy between the parties as set out in the plaint are that Rani widow of Mal Singh defendant No. 1 entered into agreement to sell 1/5th share of her land to the plaintiff for a consideration of Rs. 20,000/-. In this regard, she executed agreement to sell dated 18-3-1975 in favour of the plaintiff. Defendant No. 1 received a sum of Rs. 10,000/-as earnest money and the balance was agreed to be paid at the time of execution of the sale deed. On 18-12-1983, the plaintiff tendered the balance consideration of Rs. 10,000/- to Rani, defendant No. 1, but the later refused to perform her part of the contract. On 24-12-1983 the plaintiff came to know that defendant No. 1 had already sold her entire share in the land to defendants Nos. 2 and 3 vide two separate sale deeds dated 19-12-1983 and 20-12-1983, including the share of the land which she, by virtue of the aforesaid agreement, had agreed to sell to the plaintiff. Being faced with this situation, the plaintiff filed a suit for joint possession by way of specific performance of agreement to sell dated 18-3-1975 and in the alternative also prayed for a decree for the recovery of Rs. 20,000/- against the defendants i.e. Rs. 10,000/- which had been paid as earnest money and Rs. 10,000/- by way of damages. It was also alleged by the plaintiff that he was always willing to perform his part of the agreement. The sale made in favour of defendants 2 and 3 was null and void as they had full knowledge of the agreement executed between plaintiff and defendant No. 1, The sale deeds are actuated with mala fide and are ineffective against the rights of the plaintiff.
3. In the written statement filed by defendant No. 1, execution of the agreement to sell in favour of the plaintiff was denied. Defendants 2 and 3 in their separate written statements pleaded that they had no knowledge or notice of the agreement dated 18-3-1975 executed by defendant No. 1 in favour of the plaintiff. They took a specific stand that they purchased the land mentioned in the sale deeds dated 19-12-1983 and 20-12-1983 for consideration and they were bona fide purchasers for consideration and without notice. It was further pleaded that agreement executed by defendant No. 1 in favour of the plaintiff could not be specifically enforced.
4. The rival pleadings between the parties gave rise to the following issues :--
1. Whether defendant No. 1 executed an agreement dated 18-3-1975 and received Rs. 10,000/- as earnest money from the plaintiff ?
2. Whether the plaintiff is and has been ready and willing to perform his part of the contract ?
3. Whether the plaintiff is entitled to specific performance of agreement or in the alternative for the recovery of Rs. 20,000/- as alleged?
4. Whether defendant Nos. 2 and 3 are bona fide purchasers for consideration and without notice of the agreement ?
5. Relief.
5. Both the parties led their respective evidence. The trial Court on a consideration of the evidence produced and hearing the counsel for the parties came to the conclusion that defendant No. 1 had executed agreement dated 18-3-1975 to sell the land in favour of the plaintiff and had also received a sum of Rs. 10,000/- as earnest money from the plaintiff. The trial Court further found that the plaintiff was and had always been ready and willing to perform his part of the contract. The trial Court under issue No. 4, returned a finding that defendants 2 and 3 were the bona fide purchasers for consideration and without notice of agreement to sell dated 18-3-1975. In view of the findings returned under issue No. 4, the trial Court held that agreement dated 18-3-1975 could not be specifically enforced against defendants 2 and 3 and thus the plaintiff was not entitled for specific performance of the said agreement. Consequently, the suit of the plaintiff was decreed for recovery of Rs. 20,000/- in favour of the plaintiff and against defendant No. 1 whereas the suit against defendants 2 and 3 was dismissed.
6. It deserves to be noticed at this stage that on 17-7-1985, counsel for Rant -- defendant No. 1 brought to the notice of the trial Court that defendant No. 1 had died, but no steps were taken to bring her legal representatives on record during the pendency of the suit which had been instituted in January 1984 and decided in April 1986.
7. Aggrieved against the judgment and decree of the trial Court, the plaintiff preferred appeal. In the appeal before the first appellate Court, the plaintiff impleaded Jawala Singh son of Chetu, Ram Singh, Surjit Singh, Hakam Singh and Jarnail Singh sons of Gursharan Singh as legal representatives of Rani-defendant No. 1. The appellate Court endorsed the findings of the trial Court under issue No. 4, whereby it was held that defendants Nos. 2 and 3 were bona fide purchasers without notice of the agreement to sell in favour of the plaintiff, and consequently dismissed the appeal. This is how the plaintiff has filed the present second appeal challenging the findings recorded by both the Courts below.
8. During the course of hearing of the appeal. Mr. R. K. Battas, learned counsel appearing for the plaintiff-appellant submitted that two substantial questions of law arises in this appeal for adjudication by this Court. The substantial questions of law formulated by the counsel read as under :--
1. Whether concurrent findings of fact are not liable to be interfered with when a vital document is ignored by the Courts below ?
2. Whether, where the reasons given by the Courts below were flimsy and not substantiated by the evidence on record, would not raise a substantial question of law ?
9. I have heard learned counsel for the parties and have gone through the findings returned by the Courts below. Learned counsel appearing for the appellant submitted that both the Courts below have committed a grave error in not reading and appreciating the following evidence and, therefore, the findings recorded by the Courts below are vitiated :--
(a) that Harinder Pal Singh -- plaintiff has stated that he is in possession of the suit land;
(b) that one of the attesting witnesses of the agreement to sell, i.e. Harchand Singh was the witness to the sale deed;
(c) that the vendee had not alleged that he had made enquiries;
(d) that through an application for additional evidence, the appellant has sought to place copies of jamabandi for the year 1984-85 and Khasra girdwari, for the same year continued upto the year 1986 on record to show that he was in possession of the suit land at the time when the sale deeds were executed on 19-12-1983 and 20-12-1983;
10. The submissions of the learned counsel for the appellant have been refuted by the counsel for the respondents, on the ground that both the Courts below after appreciation of entire oral and documentary evidence have returned a finding of fact that defendants 2 and 3 were vendees and were bona fide purchasers for consideration and, therefore, by virtue of Section 19(b) of the Specific Relief Act, 1963, (for short "the Act"), onus placed on them stood discharged and thus the decree for specific performance had been rightly declined to the plaintiff. Learned counsel further submitted that there is no error or perversity in the concurrent findings recorded by both the Courts below and, in second appeal, this Court under Section 100 of the Code of Civil Procedure, should only interfere where a substantial question of law arises and should not interfere when only findings of fact are sought to be challenged on the possibility of appellate Court subscribing to another view on the appreciation of the same evidence on which the Court below had decided the matter and recorded a particular finding in favour of a particular party.
11. After giving my thoughtful consideration to the entire matter, I am inclined to agree to the submissions made by the counsel for the respondents. It would be appropriate to refer to the judgments cited by the learned counsel for the appellant. The first submission of the counsel for the appellant is that the person in possession of the land must be consulted. He submitted that the finding of fact recorded by the Courts below that the plaintiff was not in possession, is not correct and the application, whereby revenue record i.e. the jamabandi for the year 1984-85 and Khasra girdwari for the same year continued upto the year 1986 were sought to be produced by way of additional evidence, deserves to be accepted and on the strength of these documents, the plaintiff be taken to be in possession of the suit land. The counsel in support of his submission placed reliance on the decision of this Court in Krishna Devi v. Shiv Dev Singh, (1984) 86 Pun LR 301; Veeramalai Vanniar (died) v. Thadikara Vanniar, AIR 1968 Madras 383 and Ram Bilas Ojha v. Bishwa Muni, AIR 1978 SC 1094.
12. I have gone through the judgments cited by the counsel for the appellant and considered the submission made by him. There is no quarrel with the proposition of law as enunciated in the aforesaid judgments. The Courts below have concurrently held that the plaintiff was not in possession of the suit land. As far as the question of allowing additional evidence to be brought on record, I find no justifiable cause to accept this prayer at this belated stage. It is not the case of the appellant that the documents which are now sought to be produced by way of additional evidence were either not in existence at the time when the plaintiff was leading his evidence or that the same could not be produced despite due diligence. Even otherwise, under the Punjab Land Revenue Act, only presumption of truth can be attached to the entries contained in these revenue documents and they are not the conclusive proof of a fact. In these circumstances, in my view, the finding recorded by the Courts below that the plaintiff was not in possession of the suit land, cannot be disturbed in this second appeal.
13. The next contention of learned counsel for the appellant is that one of the attesting witnesses to the agreement to sell (Exhibit P-1) is Harchand Singh and the same very person is also the attesting witness to the sale deeds (Exhibits D-1 and D-2) and by virtue of decision in Jugraj Singh v. Labh Singh (1994) 3 Pun LR 349, it cannot be held that defendants 2 and 3 were bona fide purchasers for consideration. This fact has been thoroughly considered by both the Courts below while returning a finding that defendants 2 and 3 were bona fide purchasers, The Courts below have found as a fact that the aforesaid Harchand Singh had been described as Mukhtiar-a-Aam of Rani defendant No. 1 under his signatures on the sale deed. The defendants have also stated that it was Harchand Singh who started negotiations for the sale of the land and who had in fact got the sale deed executed from Rani -- defendant No. 1. If Harchand Singh, an attesting witness of the sale deed and of course, a man of Rani defendant No. 1, had the knowledge of the agreement to sell (Exhibit P-1), if cannot be said that defendants 2 and 3 also had the knowledge of the said agreement. The contention of the learned counsel, therefore, cannot be accepted, the same being devoid of any force.
14. It was next contended by the learned counsel for the appellant that the person purchasing the property should have enquired deeply about the title etc. of the vendor. Both the Courts below have returned a finding after appraising the entire evidence that defendants 2 and 3 were bona fide purchasers. This finding of fact cannot be reversed by reappraising the evidence as has been suggested by the learned counsel for the appellant. This contention is also equally devoid of any force.
15. Learned counsel for the appellant with a view to strengthen his submissions further placed reliance on the judgments dealing in general propositions of law as to what constitutes "material enquiry" i.e. R.K. Mohammad Ubaidullah v. Hajee C. Abdul Wahab (D) by L.Rs., (2000) 126 Pun LR 502 : (MR 2001 SC 1658). Learned counsel also placed reliance on Ram Chander v. Sher Singh, (1997) 116 Pun LR 232 (Punj & Har) and decision of the Apex Court in Dr. Govind Dass v. Shanti Bai, (1972) 74 Pun LR 227 : (AIR 1972 SC 1520) to contend that mere denial of knowledge is not enough and in a small village Kumbh in District Patiala to which the plaintiff and Rani defendant No. 1 belong, enquiries could be made conveniently and the same ought to have been made. Learned counsel made another attempt by contending that this Court, in view of the judgments of the Apex Court in Major Singh v. Rattan Singh (dead) by L.Rs., (1997) 2 Rec Civ R 89 : (AIR 1997 SC 1906) and Rajappa Hanumantha Ranoji v. Mahadev Channabassappa, (2000) 6 SCC 120 : (AIR 2000 SC 2108) must take a different view than the one taken by the Courts below. The counsel urged that under Section 100 of the Code of Civil Procedure, this Court is competent to adjudicate the substantial questions of law as have been formulated by him, which have been reproduced in the earlier part of the judgment.
16. Learned counsel for the respondents submitted that the submissions of counsel for the appellant are on general propositions with which he is not at variance and the same are applicable to the facts of each case. He then submitted that both the Courts have recorded a finding of fact in favour of defendant-respondents 2 and 3 that they were bona fide purchasers for consideration and this Court in second appeal should be loath in interfering with these findings in exercise of its jurisdiction under Section 100 of the Code of Civil Procedure. The counsel further contended that in the present case, the appellant has only sought to re-appraise the evidence without pin-pointing any perversity or misreading or ignoring any evidence from consideration. Lastly the counsel submitted that no substantial question of law arises in the present case.
Section 19(b) of the Act reads as under :
19. Relief against parties and persons claiming under them by subsequent title.--
Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against --
(a) xx xx xx xx
(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract;
17. The Courts below have appreciated the entire evidence and thereafter have come to the conclusion that defendants 2 and 3 were bona fide purchasers for consideration. D.W. 3 Jaswant Singh and DW-4 Ishar Singh have clearly stated in their statements that they made enquiries before purchasing the suit land. The crucial factor is that the agreement to sell is dated 18-3-1975 and the sale deeds were executed on 19-12-1983 and 20-12-1983 and there is no mention of the agreement to sell in the revenue record. The agreement of sale saw the light of the day after more than eight and a half years. No one is expected to scan the revenue record of such a long period when normally in a maximum number of cases, the limitation as prescribed in the Limitation Act, 1963 is three years. It has also been recorded as a fact that defendants 2 and 3 reside in Tehsil Samana which is, admittedly, a different Tehsil from the one where the land in suit is situated. It has come in the statements of witnesses i.e. Sohan lal DW-1 and Som Nath DW-2 that sale considerations of sale deeds Exhibits D-1 and D-2 were paid before the Sub Registrar and there is an endorsement to the effect that Rs. 49,000/- each were paid to Smt. Rani at the time of execution of the sale deeds.
18. A reading of the above shows that the onus on defendants 2 and 3 under the provisions of Section 19(b) of the Act stood discharged. The decree for payment of Rs. 20,000/- instead of specific performance has rightly been granted by the Courts below. Thus, no substantial question of law arises in the present appeal.
19. No other point has been urged.
20. For the foregoing reasons, the appeal fails and is hereby dismissed, but with no orders as to costs.