Punjab-Haryana High Court
Amrik Singh vs Smt. Surjit Kaur And Ors. on 31 October, 2007
Equivalent citations: (2008)3PLR5
Author: T.P.S. Mann
Bench: T.P.S. Mann
JUDGMENT T.P.S. Mann, J.
1. This appeal has been filed against the judgment and decree, whereby the suit filed by Smt. Surjit Kaur-plaintiff for possession of land by way of specific performance of agreement dated 26.6.1978, was decreed and the appeal of Amrik Singh and Smt. Gian Kaur-defendants was dismissed.
2. While filing the suit, Smt. Surjit Kaur-plaintiff averred that on 26.6.1978, Sardool Singh-defendant agreed to sell his land measuring 48 kanals 19 marlas situated in village Pindi Khair to her for a sum of Rs. 24,000/- and received an earnest money of Rs. 11,400/-. The sale-deed was to be executed on or before 10.6.1989. However, she learnt that on 16.4.1979, aforementioned Sardool Singh sold the land in question to Amrik Singh and Smt. Gian Kaur by way of a sale-deed for a sum of Rs. 35,000/-. It was alleged that Sardool Singh-defendant, by transferring the suit land to Amrik Singh and Smt. Gian Kaur-defendant Nos. 2 and 3, respectively, committed breach of express terms of the agreement dated 26.6.1978 and therefore, he was liable to perform his part of the agreement under law and equity. Further that defendant Nos. 2 and 3, being transferees of the land, but with notice of the agreement dated 26.6.1978, were also bound by the same.
3. Sardool Singh-defendant No. 1 did not appear despite service. He was, accordingly, proceeded against ex parte. Amrik Singh and Smt. Gian Kaur-defendants filed their written statement claiming therein that no such agreement dated 26.6.1978 to sell was executed. Even otherwise, they had no knowledge about the same. They had purchased the suit land from Sardool Singh-defendant. They were bona fide purchasers for consideration and without notice. After the land was sold to them, they were in possession of the same.
4. By filing a replication, the plaintiff denied the assertion of defendant Nos. 2 and 3 and stated that the land was not in possession of the said defendants but in possession of Bhagat Singh, who is elder brother of her husband Bhagwan Singh.
The learned, trial Court framed the following issues:
1. Whether defendant No. 1 agreed to sell land in suit to the plaintiff vide agreement dated 26.6.1978? If so on what terms and conditions? OPP
2. Whether the plaintiff had been ready and willing and is still willing to perform her part of contract? OPP
3. Whether the plaintiff is entitled to the specific performance of the contract dated 26.6.1978? OPP
4. If issue No. 3 is not proved to what amount of damages the plaintiff is entitled in the alternative? OPP
5.Whether defendants 2 and 3 are bona fide purchasers without notice or consideration? OPD 2 and 3
6. Relief.
After perusing the evidence led by the parties, learned Sub Judge, 1st Class, Dasuya decreed the suit with costs for possession of the suit land by way of specific performance of agreement to sell dated 26.6.1978 on payment of balance sale consideration of Rs. 12,600/-.
5. Defendants Amrik Singh and Smt. Gian Kaur challenge the aforementioned judgment and decree by filing an appeal. During the hearing of the same, learned Counsel for the aforementioned defendants did not dispute the execution of agreement to sell Ex.P-1 by defendant No. 1 in favour of the plaintiff. It was also not disputed that at the time when the agreement to sell was executed, Bhagat Singh was a tenant on the land in dispute. Only argument raised was that defendant Nos. 2 and 3 were the bona fide purchasers for consideration and without notice of agreement Ex.P-1 and thus, their appeal be accepted by setting aside the impugned judgment and decree. However, learned Additional District Judge, Hoshiarpur vide judgment dated 25.1.1984 held that though defendant Nos. 2 and 3 were transferees for consideration, but they had notice of the agreement to sell in favour of the plaintiff and thus bound by the same. Their appeal was, accordingly, dismissed. Aggrieved of the same, Amrik Singh-defendant No. 2 has filed the present appeal.
6. I have heard learned Counsel for the parties and gone through the records of the case.
Learned Counsel for the appellant has submitted that the substantial question of law involved in the second appeal is as to whether the appellant was bona fide purchaser for consideration and without notice of agreement to sell dated 26.6.1978.
7. Sardool Singh, the owner of the land in question had never appeared during the trial of the case. He was served and therefore, proceeded against ex parte. Only Amrik Singh and Smt. Gian Kaur-defendants contested the claim of the plaintiff.
8. Amrik Singh-defendant appeared as DW-1 and stated in his examination-in-chief that he was never told by anybody regarding any sort of agreement in respect of the suit land. However, in his cross-examination he stated, "before I purchased the suit land it was cultivated by Bhagat Singh, who is Jeth of the plaintiff. He was cultivating even prior to my purchase." In that situation, Amrit Singh-defendant was required to make enquiries as to under what right Bhagat Singh was cultivating the land. As is clear from his testimony, he never made any enquiry in that regard. He just insisted upon the fact that he was never told by anybody regarding any sort of agreement in respect of the suit land. So much so that he did not even bother to look into the copy of the jamabandi in which Bhagat Singh was recorded to be in possession of land in question and his name mentioned in the column of cultivation. According to Amrik Singh, he did not take copy of the jamabandi pertaining to the land in dispute at the time of purchase, but it was brought by Sardool Singh-defendant at the time of sale. His explanation about non-conducting of any enquiry that he did not know whether the same was needed or not, cannot be believed so as to show that he was a bona fide purchaser and that too without notice.
9. The plea of Amrik Singh-defendant that he was a resident of village Jalalpur, whereas the land in question was situated in village Pindi Khair, both places being situated at a distance of two kilometres and therefore, he could not come to know about the execution of any agreement to sell by Sardool Singh in favour of Smt. Surjit Kaur, falls to the ground when we go through the admission of Amrik Singh himself in his cross-examination that his "own land adjoined the land in suit on three sides again said on two sides." He also stated that he had been visiting his own land in question for the purposes of taking rent from his tenants. It is apparent that the two villages were adjoining, and the land in suit was contiguous to that of Amrik Singh defendant.
10. Under these circumstances, the knowledge of Amrik Singh and Smt. Gian Kaur can be safely imputed to the existence of earlier agreement to sell Ex.P-1. Mere denial by them of the earlier agreement would not discharge the onus cast upon them so as to avoid the effect of the same.
In view of the above, there is no merit in the plea raised by the appellant that he and his wife Smt. Gian Kaur were bona fide purchasers for consideration and that too without notice of the agreement to sell Ex.P-1.
The substantial question of law formulated by the learned Counsel for the appellant does not arise in the present appeal.
Resultantly, the appeal being devoid of any merit, is hereby dismissed with costs throughout.